There was understandably little fanfare when, just before Christmas, President George W. Bush signed into law the Postal Accountability and Enhancement Act. But attached to this mundane postal legislation was a little-noticed presidential signing statement asserting the government's power to open first-class mail without a warrant -- technically, "an item of a class of mail otherwise sealed against inspection."
The belated unearthing of this Dec. 20 signing statement was enough to prompt the New York Daily News Wednesday to trumpet on its tabloid front page, "PREZ GOES POSTAL -- Outrage as Bush Claims New Powers to Open YOUR Mail."
Not exactly. Interviews with law professors, postal officials, congressional aides and civil liberties advocates produced the consensus viewpoint that the government already possessed this limited letter-opening power under the 1978 Foreign Intelligence Surveillance Act (FISA). Asked about the signing statement, Rich Shaheen, national public information officer for the U.S. Postal Inspection Service, said, "Nothing has changed for us."
Rather than a whitewash, Shaheen's statement underscores a potentially more serious problem --- how little is known about the current administration's use of these long-established powers to monitor personal mail.
The Bush administration has already signaled its keen interest in expanding one type of mail monitoring -- the "mail cover" program, which was flagrantly abused during the Cold War. A mail cover is when the government records without a warrant or notification all information on the outside of an envelope or package, including the name of the sender and the recipient. During the debate over the renewal of the Patriot Act in 2005, the administration tried unsuccessfully to increase the FBI's authority over mail covers and eliminate any oversight by the Postal Service.
An internal postal document -- the Administrative Support Manual, which was revised in 2006 and released to Salon under a Freedom of Information Act request -- goes into further detail about current mail covers. The document describes them as "the process by which a nonconsensual record is made of any data appearing on the outside cover of any sealed or unsealed class of mail matter, or by which a record is made of the contents of unsealed class of mail matter as allowed by law." These federal regulations say that such records may include a photograph or photocopy of the outside of the mail.
But the long history of mail covers is linked with something far more sinister -- an extensive and illegal mail-opening program run by the CIA and the FBI for more than two decades beginning in the mid-1950s. An infamous CIA program in New York City, dubbed HT Lingual, was ultimately responsible for intercepting, opening and photographing more than 215,000 communications by the time it shut down in 1973. All this was under the guise of mail covers. (These operations were chronicled in vivid detail in the 1976 report of the Church Committee, the Senate panel that delved into illegal intelligence gathering in the wake of the Watergate scandal.)
According to the Church report, the CIA was zealous about keeping the Postal Service from learning that mail was being opened by government agents. CIA agents moved mail to a private room to do the dirty work or in some cases opened envelopes at night after stuffing them in briefcases or even coat pockets to deceive postal officials.
These days, the Postal Service purportedly attempts to be more vigilant about abuse by national-security agencies. "All mail covers are conducted through postal employees," emphasized Zoe Strickland, who was a Postal Service privacy officer until last year. "It is a postal employee who makes a record of the outside of the envelope."
"My understanding," Strickland said, "is that this is an effective law enforcement tool being managed in an appropriate fashion."
But secrecy makes it difficult to evaluate such assertions. In September 2006, Salon scheduled an interview to discuss mail-cover trends and statistics with a top Postal Service official. The Postal Service abruptly canceled the interview and said that it would not willingly release any statistical information about mail covers. Salon then requested the information under the Freedom of Information Act. In October, the Postal Service rejected this FOIA request, citing "the interest of national defense or foreign policy." Appeals by Salon are pending with the Postal Service and Justice Department.
This refusal to release basic statistical information -- coupled with the recent presidential signing statement -- raises suspicions that the mail-cover programs and, possibly, other more aggressive postal-monitoring techniques have been dramatically expanded since Sept. 11. Jim Dempsey, policy director at the Center on Democracy & Technology, said it was reasonable to presume that the mail-cover program has been used more aggressively during the war on terror. "My instincts would be that the mail-cover program has expanded," he said, "just like these other forms of surveillance have expanded."
Civil liberties groups are also pressing for more public scrutiny of these programs. "Congress should demand that the government report in a public way at least the raw numbers of mail openings and mail covers that are being conducted for intelligence purposes," said Gregory Nojeim, chief legal counsel at the ACLU Washington office. "Without this information the public can't make an assessment about the extent to which the privacy of their personal letters has been sacrificed to the fight against terrorism."
The recent Bush signing statement only raises further questions. It discussed opening first-class mail in limited contingencies such as letters containing hazardous substances, an authority that the government had before the 2001 anthrax scares. But the Bush statement also cited "physical searches specifically authorized by law for foreign intelligence collection." Such searches are already legal under the 1978 FISA law.
It is all a reminder that when it comes to mail snooping, the problem is not new assertions of government power, but the ones that have been there all along.