Statement Of Sen. Patrick Leahy
On Sunshine Week 2006
And The Assault On The Public's Right To Know
March 15, 2006

As we take stock during the second annual “Sunshine Week,” we confront the disturbing reality that the foundations of our open government are under direct assault from the first White House in modern times that is openly hostile to the public’s right to know. 

The right to know is a cornerstone of our democracy.  Without it, citizens are kept in the dark about key policy decisions that directly affect their lives.  Without open government, citizens cannot make informed choices at the ballot box.  Without access to public documents and a vibrant free press, officials can make decisions in the shadows, often in collusion with special interests, escaping accountability for their actions.  And once eroded, these rights are hard to win back.

The right to know is nourished by openness and vigorous congressional oversight of federal agencies, but both are sorely lacking, and government effectiveness and accountability have been among the casualties.  The disastrous failure to prepare for and respond to Hurricane Katrina is only the most recent example, but a glaring one.  Despite misleading assertions in the storm’s horrific aftermath, we now know that the White House was warned in advance that the levees could fail in a hurricane.  We have belatedly seen videotapes in which President Bush was cautioned by FEMA officials of this great danger. 

The Freedom of Information Act (FOIA) empowers the American people to pry information from their government that agencies would prefer to keep locked away.  Americans learned more about Abu Ghraib and conditions at Guantanamo from FOIA requests than from oversight by Congress. 

As we celebrate FOIA’s fourth decade as law, we also watch its erosion as a target of attacks such as when the Administration pushed an overly broad FOIA waiver for the Department of Homeland Security’s charter – the single biggest rollback of FOIA in its 40-year history. 

It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act.  Last year during Sunshine Week, Senator Cornyn and I introduced bipartisan legislation (S.394) to curtail the assault on FOIA.  The Open Government Act contains more than a dozen substantive provisions, designed to strengthen FOIA and close loopholes, to help FOIA requestors obtain timely responses to their requests, to ensure that agencies have strong incentives to act on FOIA requests, and to provide FOIA officials with all of the tools they need to make sure that our government remains open and accessible.

A second bill that I introduced with Senator Cornyn last year, the Faster FOIA Act (S.589) would specifically address the issue of agency delay in processing FOIA requests.  We propose to establish a commission to review the persistent issue of delay and to make recommendations for reducing impediments to the efficient processing of requests.  This bill was reported by the Judiciary Committee and awaits floor action.

Our free press and the consciences of whistleblowers also serve the public’s right to know.  We would not know of the domestic spying program conducted in secret by the National Security Agency, with the full approval of the White House, unless the press had revealed it last December.  The Department of Justice is stonewalling Congress’s efforts to obtain facts on this program while threatening to prosecute reporters who disclosed the illegal program to the public. 

The Bush Administration has kept vital facts secret by silencing scientists and experts.  We saw it with the gagging of NASA scientist James Hansen, whose conclusions about the dangers of greenhouse gas emissions and global warming differed with Administration policy.  This Administration also secretly let lobbyists from polluting industries write rules on mercury emissions, overriding the advice of the EPA’s scientists and even drawing a harsh rebuke from EPA’s inspector general.  This tacit war on science – trumping scientific evidence with ideology – has also victimized women’s access to the Plan B pill and cut international family planning funds which help the poorest of the poor, even though the evidence is clear that these funds reduce the numbers of abortions.

This kind of secrecy produces bad policies, as we saw when the Bush Administration tried to hide the true cost of its Medicare prescription drug plan from Congress and the American people.  While they were twisting congressional arms for votes on the program, political leaders at Medicare told Congress the price tag was $400 billion.  Medicare’s own accountants projected the cost to be $500 billion to $600 billion, but one of those career staff, Richard Foster, was threatened with being fired if he told Congress the truth.

We saw it again when the political leadership of the Justice Department overruled career lawyers who found that Congressman Tom DeLay’s Texas redistricting plan illegally diluted black and Hispanic voting power.  Career attorneys also found that a Georgia voter-identification law would discriminate against black voters.  The Department’s political leaders dismissed these findings and quietly approved both plans.  We only learned of these politically-motivated decisions later when the press obtained documents and made them public.

In a situation that borders on the absurd, the intelligence agencies have been quietly reclassifying documents that were open for years.  This program began in 1999 but has exploded under this Administration, which has reclassified more than 55,000 pages.  Even the Archivist of the United States said he knew “precious little” of the program until it was revealed by the press. 

The examples go on and on. The Bush Administration has displayed a near-total disdain for the free press and the public’s right to know.

Sunshine Week invites an inventory check on tools like the Freedom of Information Act that make real the public’s right to know.  Attacks on these tools only erode that right.  A free, open and accountable democracy is what our forefathers fought and died for, and it is the duty of each new generation to protect this vital heritage and inheritance.

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