postalnews blog

From last week’s hearing before the Senate Judiciary Committee:

SEN. SPECTER: As you know, this committee was hard at work with legislation which I had proposed and others had co-sponsored and four hearings. And I think we could have been of assistance to you if we had been consulted.

The issue of the signing statements, Mr. Attorney General, continues to be a matter of major concern. They came up in the Patriot Act very carefully negotiated with the Judiciary Committee and the Department of Justice, and then the president issues a signing statement saying that he is at liberty to disregard provisions on oversight. Came up with the McCain legislation on torture and it has come up with the legislation on the postal authority, where the president signed legislation which prohibited opening mail and then issues a signing statement that he retains the authority to do that.

If the president is asserting that the act of Congress is unconstitutional, then he ought to say so and not sign the act. But if he signs the act, as provided in the Constitution that the Congress presents him an act, he has the choice of either approving the act or vetoing it.

And matters of that sort put a very, very considerable strain on the relations between the legislative and executive branches.

………………………….

CHAIRMAN LEAHY: Thank you, Attorney General.

You know, there’s been discussion of signing statements here. And I’d like to go into that area first.

I was deeply disturbed by the president’s recent signing statement for the Postal Accountability Enhancement Act. It suggests that the Bush administration is opening Americans’ mail without first obtaining a warrant.

When you appeared before this committee in February 2006, I asked you whether the president believed he had the legal authority to open mail under the authorization for the use of military force, AUMF, the authorization we gave to go into Afghanistan and get Osama bin Laden; something I wish had happened. And you went to great lengths to avoid directly answering my question.

Last week our exchange appeared in a Washington Post editorial critical of the president’s signing statement. And I put a copy of editorial up there. And I will, at this point, place in the record and just read from that.

LEAHY: I’d asked you whether AUMF permitted the warrantless opening of mail.

You answered: “There’s all kinds of wild speculation out there about what the president has authorized and what we’re actually doing. I’m not going to get into a discussion, Senator, about hypotheticals.”

I responded: “Mr. Attorney General, you’re not answering my question. Does this law — you’re the chief law enforcement officer in the country. Does this law authorize the opening of first-class mail of U.S. citizens, yes or no, under your interpretation?”

You responded: “Senator, I think — I think that, again, that is not what is going on here. We’re only focused on communications — international communications, where one part of the communication is Al Qaida. That’s what this program is all about.”

I said: “You haven’t answered my question.”

Now, my concerns about this issue are not, as suggested in our exchange, hypothetical.

Thirty years ago, Congress placed limits on the government’s authority to open private mail after the Church Committee found that the CIA and the FBI had been illegally opening citizens’ mails for years.

It turned out they were doing that because they found some of these citizens were protesting the war in Vietnam, as many did, or that some opposed discrimination against blacks in America. And the FBI and CIA were going to investigate why they would take such terrible positions.

Now, surely, there are circumstances when the government should not have to wait for court approval to open mail so they can save lives or protect public safety, but we have a provision in the law that allows you to do that.

But given the willingness of this president to ignore the law, to claim extraordinary information-gathering powers in the name of the war on terror, I think we deserve a straight answer on this question.

You’re the chief law enforcement officer of this country, so I ask you: Is the Bush administration opening Americans’ private mail without a warrant, yes or no?

GONZALES: Senator, the answer is no. But let me flesh out the answer.

I mean, obviously, there may be instances where either the sender or the recipient may consent to a physical search, so that possibility may exist.

But to my knowledge, there is no physical search of mail ongoing under either the authority to use military force or the president’s inherent authority under the Constitution, except as otherwise authorized by statute passed by the Congress.

For example, there are provisions in FISA which would allow physical searches under certain circumstances, so…

LEAHY: I understand.

You understand some of our concern because of the willingness and the — we may disagree on this, but the willingness of the administration to ignore FISA and wiretaps.

GONZALES: I’ve answered that…

LEAHY: Are you saying that they are following FISA in mail openings?

GONZALES: What I’m saying, Senator, is that, to my knowledge, there is no ongoing physical searches of mail under the authority we’ve claimed under the authorization to use military force or under the president’s inherent authority under the Constitution. As far as I — no; that’s not going.

LEAHY: None ongoing. Has there been some?

GONZALES: Not that I’m aware of, no, sir.

LEAHY: Does the president believe he has the inherent constitutional authority to open Americans’ mail without a warrant?

GONZALES: Sir, now you’re asking me to get into an analysis, quite frankly, the department has not done.

And what I would point you to is the Justice Jackson analysis under Youngstown, in terms of looking at the inherent authority of the president, looking at the inherent authority of the Congress and weighing those.

LEAHY: But if you take Youngstown, we’ve laid out pretty clearly what the authority is, following the Church Committee with FISA and everything else.

Do you think the president has authority under AUMF notwithstanding the requirements of the FISA statute?

GONZALES: Senator, I’m not prepared to answer that question.

I think for purposes of today’s hearing, I think it’s important for everyone to know that, as far as I know, there is no ongoing physical searches of mail under the authorization to use military force.

LEAHY: And there hasn’t been?

GONZALES: To my knowledge, there hasn’t been any kind of authorization.

LEAHY: Would you know if there was?

GONZALES: I suspect that I would know, sir. Yes, sir.

LEAHY: Well, then why in heaven’s name did the president feel he needed to issue a signing statement?

GONZALES: Sir, he issued that signing statement to preserve the authority we believe exists under FISA, under other statues. And so, when you’ve got the president signing a statute saying, “This is the only way that you can engage in physical searches,” the president wanted to preserve the authority you gave to him under the other statutes. So, that’s the purpose of the (inaudible) signing statement.

LEAHY: Mr. Attorney General, can you understand there’s certain skepticism up here? It was done late in the week on something that (inaudible) it’s a postal reorganization. Has nothing to do with FISA.

LEAHY: It in no way — it in no way goes into FISA. In no way adds to or undercuts FISA.

And then we see one of these signing statements that, late in the day, kind of, slipped out — in fact, most people didn’t find out about it until about a week later — saying, “Oh, and by the way, I have the authority to just open your mail.”

Do you understand why we might be just a tad concerned?

GONZALES: Senator, from our perspective, there was a possibility of me misconstruing the statute in a way that would take way from the president existing authorities that the Congress had given under other statues. And the president simply want to preserve the authorities that the Congress had already granted to him.