- The Washington Times - Wednesday, October 29, 2003

The State Department yesterday ruled it is a violation of international law for customs authorities, now a part of the Department of Homeland Security, to conduct warrantless searches of foreign mail passing through the United States.

The ruling was a surprise to Homeland Security officials, who said they believed discussions were still under way about whether such searches would be allowed by a trade law passed by Congress last year.

“We thought the discussions were continuing and we believe that they need to continue,” a source in the department said. “We took a strong position that this was an important tool in our efforts to ensure security in our homeland.”

The State Department ruling applies to searches of mail that stops in the United States in transit between two other countries. It enforces a clause in the U.S. Trade Act of 2002, which authorizes such searches only if the secretary of state certifies to Congress they are consistent with international law and U.S. international obligations.

The decision that the searches are not consistent with international law was “purely a legal one,” according to State Department spokesman Richard Boucher, who said it was made by Deputy Secretary of State Richard L. Armitage on the recommendation of a department legal adviser.

The legal adviser, Mr. Boucher said, “had considered the views of the U.S. Customs Service and the U.S. Postal Service.”

At a State Department news briefing, Mr. Boucher said the ruling had been “fully discussed within the administration by all the appropriate lawyers” and that State Department officials “were required” to make it.

Not immediately clear was the degree to which the State Department’s ruling will affect Homeland Security operations.

Homeland Security spokesman Dennis Murphy would not comment on the matter, saying that yesterday was the first he had heard of the ruling. He did not want to describe it as having caused a rift between the State Department and Homeland Security.

Mr. Boucher and Mr. Murphy said they did not know whether customs officials previously had been conducting warrantless searches of foreign mail passing through the United States.

An official with the U.S. Postal Service, meanwhile, said “the Postal Service is certainly in support of [the State Departments] action because it protects in-transit mail not only in this country but also in accordance with the treaties for our in-transit mail in other countries.”

The treaties, upheld by the Universal Postal Union, headquartered in Bern, Switzerland, maintain that customs officials have authority to search mail coming to and going from the United States, said Daniel L. Mihalko, the inspector in charge of congressional and public affairs for the U.S. Postal Inspection Service.

But, Mr. Mihalko said, universal postal guidelines protect “in-transit” mail from being searched.

For example, he said, if a letter were sent from a European country to an address in the United States, the guidelines allow U.S. officials to search it, but mail merely stopping here in transit from a European country to a South American country is not to be searched.

“You can’t do something in this country that violates any treaties and expect other countries to hold up their end of the bargain,” Mr. Mihalko said.

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