Remarks Of Senator Patrick
Leahy,
Ranking Member, Senate Judiciary Committee
American Society Of Newspaper Editors / Newspaper Association Of
America Conference Panel On
“Freedom of Information
Under Siege”
Washington, D.C.
Thursday, April 22,
2004
It is good to be with you this
morning, and it is an honor to be included in this historic joint
meeting of the American Society of Newspaper Editors and the
Newspaper Association of America.
As the son of a struggling
Vermont printer from Montpelier, I come by my interest in
press freedom honestly. And as a Vermonter, I was lucky enough to
grow up in a place where our culture nourishes the love of liberty
and press freedom, which is why we held out in joining the Union
until the Bill of Rights was ratified.
These have been tough times for the
public’s right to know and for the Congress’s duty to know what our
government is up to. I am sorry to have to report that there has
been erosion on both of those fronts.
Freedom and security are always in
tension in our society, and especially so after the attacks of
September 11. The checks and balances of our system help us find
the right balance, and that is why Congress’s oversight role is
essential, and so is the Freedom of Information Act.
We all saw the value of oversight last
week as the September 11 Commission investigated the actions of the
Department of Justice, the FBI, and the intelligence communities.
After months of fighting with the Administration over access to
documents and testimony, the Commission has recently achieved
greater cooperation, and that is crucial to their ability to sort
out the facts and to chart their recommendations.
But when it comes to congressional
oversight, cooperation from this Administration has been sparse and
grudging. Oversight letters to the Justice Department have gone
unanswered for months or even years. The Attorney General has been
reluctant to appear before the authorizing committees to answer
questions, testifying less frequently than any of his predecessors
of modern times, and this, during a period when there is much to be
accountable for. When some officials have testified before us, you
can close your eyes and imagine the line attributed to Al Capone:
“If I want your opinion, I’ll give it to you.”
And some have gone so far as to equate
oversight questions to giving aid and comfort to our enemies.
Government secrecy is being ratcheted
up -- sometimes conspicuously, sometimes imperceptibly. Even before
the war on terrorism began, we saw an Executive Order limiting the
release of presidential records that sharply curtailed the ability
of journalists and researchers to obtain historical documents. The
President has also granted authority to the Departments of
Agriculture and Health and Human Services, and the EPA, to classify
documents as secret. These are all agencies that control health and
safety information of the utmost importance to citizens and their
communities, and they are closing the door on public access. A
third curtailment of access — and its corollary, accountability — is
the new and ill-defined category of “sensitive but unclassified”
information.
One of the bulwarks of open
government, the Freedom of Information Act, is also under assault.
I was glad to see the ad your organizations placed in Capitol Hill’s
Roll Call newspaper this week. You called FOIA a “watershed moment
for democracy” and reminded us that “government information
ultimately belongs to the people.” You called for Congress to
preserve the public’s right to know.
Unfortunately, we have been moving in
a far different and unsettling direction. After September 11th
we saw the single greatest rollback of FOIA in history tucked into
the charter for the new Department of Homeland Security. This
provision creates an opportunity for big polluters or other
offenders to hide mistakes from public view just by stamping
‘critical infrastructure information’ at the top of the page when
they submit information to the Department of Homeland Security. We
all want to encourage industry to share information with the
government about potential threats, but the Administration=s
approach threatens to actually limit the ability of other federal
agencies to learn about and respond to threats. It also limits the
ability of the American people to hold irresponsible actors
accountable.
Several of us reached bipartisan
agreement on a workable but less dangerous way to do this, when the
Senate wrote and passed its version of the Homeland Security
Department charter. The White House signed off on our compromise
before Election Day in November 2002. After the election, the White
House walked away from the bipartisan compromise and insisted on a
harsh rollback of FOIA.
Despite the efforts of several of us,
and despite a handful of timely news reports and a few editorials
blowing the whistle on this rollback, these assaults on open
government until now have garnered virtually no public attention. I
have introduced our compromise again as a separate bill, the Restore
FOIA Act, S.609, and Congress owes it to the American people to
debate this issue in the light of day.
Right now, there’s no indication that
the congressional leadership or the White House will allow that
debate to happen. When the public’s right to know is eroded, it is
difficult to reclaim the lost ground.
Freedom of speech and of the press is one of the magnificent
bequests of earlier Americans to all the generations that follow.
These rights are a fragile gift, needing nurturing and protection by
each new generation. The erosion of freedom can easily come when
lawmakers succumb to the temptation to pander to shifting public
passions, at the expense of the public’s everlasting interest in
preserving freedom.
Maybe you have heard what the
President is saying about the sunset provisions of the USA PATRIOT
Act, in his Saturday radio address, and again this week in
Pennsylvania and New York. He implies that Congress made the
most sensitive parts of the PATRIOT Act subject to review and
renewal because of a belief in Congress that the threat of terrorism
itself would soon pass. That is simply wrong, and it is
irresponsible to mislead the public with assertions like that.
Dick Armey and I — a political
odd-couple, to say the least — insisted on the sunset clauses to
force effective and thorough oversight of the Act. Dick Armey and I
know full well that the war on terrorism will take
years, and maybe even decades, and so do most if not all members of
the House and Senate. The straightforward purpose of our sunset
provisions is to ensure that these powerful new tools given to
government are properly used. In a word, our goal was
accountability. Perhaps these new powers have been used responsibly
and effectively and should be renewed. Perhaps they should be
modified, or even strengthened. Oversight is the way to answer
those questions.
The sunsetted sections do not expire
until next year, 20 months from now. Not only is it entirely
appropriate, but it is also necessary that Congress have the ability
to review the record before renewing extensions of government power
such as these, which, if abused, can needlessly compromise the
freedoms of the American people.
I also want to briefly call your
attention to a First Amendment issue that is quickly rising on the
congressional horizon, the constitutional amendment on flag
desecration. It seems to come around every few years, in election
years, around Flag Day, just like clockwork. It has already passed
the House, and the vote in the Senate will be close.
It certainly is not popular to oppose
an amendment like this, but this would be the first time we would
have weakened the First Amendment in its entire history, and we
should resist the political temptations in an election year to
weaken it now.
The Constitution reflects the
Founders' confidence in a government by and of the people, a
government that welcomes rather than fears dissenting or offensive
views.
And the First Amendment — in many
ways, the cornerstone of our democracy — guarantees the free flow of
information that makes government by and of the people possible.
And may it always be so. Thank you for all you do to help make
government accountable and to help keep the flame of press freedom
burning brightly.
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