May 30, 1974
Page 17022
Mr. MUSKIE. Mr. President, I call up my amendment No. 1356.
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered, and, without objection, the amendment will be printed in the RECORD.
The amendment, ordered to be printed in the RECORD, is as follows:
On page 10, line 11, strike out "(i)", and on page 10, beginning with line 24, strike out all through page 11, line 15.
Mr. MUSKIE. Mr. President, I call up this amendment in behalf of 27 of my colleagues. I ask unanimous consent that their names be included as cosponsors. I will not undertake to read them all.
The PRESIDING OFFICER. Without objection, it is so ordered.
The names of the cosponsors, ordered to be printed in the RECORD, as follows:
Mr. Ervin, Mr. Davits, Mr. Symington, Mr. Hart, Mr. Chiles, Mr. Humphrey, Mr. McGovern, Mr. Gravel, Mr. Clark, Mr. Tunney, Mr. Metcalf, Mr. Mondale, Mr. Mathias, Mr. Hathaway, Mr. Burdick, Mr. Percy, Mr. Ribicoff, Mr. Montoya, Mr. Weicker, Mr. Cranston, Mr. Nelson, Mr. Baker, Mr. Stevenson, Mr. Hatfield, Mr. Abourezk, Mr. Inouye, and Mr. Biden.
Mr. MUSKIE. Mr. President, I rise with some reluctance today to offer an amendment to the generally excellent Freedom of Information Act amendments offered by my friend and able colleague, the Senator from Massachusetts, No one should underestimate the diligence and concern with which he and other members of the Committee on the Judiciary have worked to insure that the changes made in the 1967 act will, in fact, further the vital work of making Government records readily available for public scrutiny and making the conduct of the public business a subject for informed public comment.
It is because the bill before us is so very rare and important an opportunity to correct the defects we discovered in the administration of the act during joint hearings I conducted with Senator KENNEDY and Senator ERVIN last year that I wish to insure that we fully meet our responsibility to make the law a clear expression of congressional intent. In many important procedural areas, S. 2543, as the Judiciary Committee has reported it, will close loopholes through which agencies were evading their duties to the public right to know.
For example, this legislation will enable courts to award costs and attorneys' fees to plaintiffs who successfully contest agency withholding of information. The price of a court suit has too long been a deterrent to legitimate citizen contests of Government secrecy claims. Additionally, the bill will require agencies to be prompt in responding to requests for access to information. It will bar the stalling tactics which too many agencies have used to frustrate requests for material until the material loses its timeliness to an issue under public debate. And the bill provides long-overdue assurance that agencies will give full report to the Congress of their policies and actions in handling Freedom of Information Act cases.
With all these significant advances in its favor, there should be little reason to argue with the wisdom of the bill's authors. But in one vital respect, S. 2543 runs counter to the purpose I and 21 cosponsors had in introducing its predecessor, S. 1142, and endangers the momentum this Congress is developing toward bringing the problem of Government secrecy under review and control.
Responding to the Supreme Court ruling of January 22, 1973, in the case of Environmental Protection Agency et al. v. Patsy T. Mink et al., I had proposed in S. 1142 that we require Federal judges to review in camera the contents of records the Government wished to withhold on grounds of security classification. I agree that such a requirement would have been an excessive response to the Court's holding that the original act prohibited in camera inspection of classified records, and I am completely at ease with the language in S. 2543 that makes in camera inspection possible at the discretion of the judges whenever any of the nine permissive exemptions are asserted. What I cannot accept and what I move today to strike in the subsequent language which would force judges to conduct the proceedings in their chambers in such a way that the presumption of validity for a classification marking would be overwhelming.
Under the present terms of S. 2543, the Court is permitted to make a determination in camera to resolve the question of whether or not the information was properly classified under the criteria established by the appropriate Executive order or statute. However, if an affadavit is on record filed by the head of the agency controlling the information certifying that the head of the agency in fact examined the information and determined that it was properly classified, the judge must sustain the withholding unless he "finds the withholding is without a reasonable basis under such criteria."
If this provision is allowed to stand, it will make the independent judicial evaluation meaningless. This provision would, in fact, shift the burden of proof away from the Government and go against the express language in section (a) of the Freedom of Information act, which states that in court review "the burden of proof shall be on the Government to sustain its action." Under the amendment I propose, the court could still, if it wishes, make note of an affidavit submitted by the head of an agency, just as the court could request or accept any data, explanatory information or assistance it deems relevant when making its determination. However, to give express statutory authority to such an affidavit goes far to reduce the judicial role to that of a mere concurrence in Executive decision making.
The express reason for amending the section of the act dealing with review of classified information grows, as I indicated, from concern with the Supreme Court ruling in the Mink case last year. In that case 32 Members of Congress, bringing suit as private citizens, sought access to information dealing with the atomic test on Amchitka Island in Alaska. The U.S. Court of Appeals directed the Federal district judge to review the documents in camera to determine which, if any, should be released. This seemed an appropriate step since the act does provide for court determination on a de novo basis of the validity of any executive branch withholdings.
Unfortunately, the Supreme Court reached a decision in that case which I regard as somewhat tortuous. The Court held that in camera review of material classified for national defense or foreign policy reasons is not permitted by the act. The basis of this decision was exemption No.1, which permits withholding of matters authorized by Executive order to be kept secret in the interests of national defense or foreign policy.
The Supreme Court decided that once the Executive had shown that documents were so classified, the judiciary could not intrude. Thus, the mere rubber-stamping of a document as "secret" could forever immunize it from disclosure. All the Court could determine was whether it was so stamped.
The abuses inherent in such a system of unrestrained secrecy are obvious. As the system has operated, there is no specific Executive order for each classified document. Instead, the President issued one single Executive order establishing the entire classification system, and all of the millions of documents stamped "secret" under this authorization over succeeding years are now forbidden to even the most superficial judicial scrutiny. One of the 17,364 authorized classifiers in the Government could stamp the Manhattan telephone directory "top secret" and no court could order the marking changed. Under the Supreme Court edict, the Executive need only dispatch an affidavit certifying that the directory was classified pursuant to the Executive order, and no action could be taken.
Obviously, something must be done to correct this strained court interpretation. It need not be a drastic step. Actually, it was the original intention of Congress in adopting the Freedom of Information Act to increase the disclosure of information. Congress authorized de novo probes by the judiciary as a check an arbitrary withholding actions by the Executive. Typically, the de novo process involves in camera inspections. These have regularly been carried out by lower courts in the case of materials withheld under other exemptions in the act. They can be barred under exemption No. 1 only through a misguided reading of the act and by ignoring the wrongful consequences.
But in correcting this fault, to permit in camera review of documents withheld under any of the exemptions, S. 2543 would simultaneously erect such restrictions around the conduct of the review when classified material was at issue that the permission could probably never be fully utilized.
By telling judges so specifically how to manage their inquiry into the propriety of a classification marking, we show a strange contempt for their ability to devise procedures on their own to help them reach a just decision. Moreover, by giving classified material a status unlike that of any other claimed Government secret, we foster the outworn myth that only those in possession of military and diplomatic confidences can have the expertise to decide with whom and when to share their knowledge.
It should not have required the deceptions practiced on the American public under the banner of national secrecy in the course of the Vietnam war or since to prove to us that Government classifiers must be subject to some impartial review. If courts cannot have full latitude to conduct that review, no one can. And if we constrict the manner in which courts may perform this vital review function, we make the classifiers privileged officials, almost immune from the accountability we insist on from their colleagues.
I object to the idea that anything but full de novo review will give us the assurance that classification – like other aspects of claimed secrecy – has been brought under check. I cannot accept an undefined reasonableness standard as the only basis on which courts may overrule an agency head's certification of the propriety of classification. And I cannot understand why we should trust a Federal judge to be able to sort out valid from invalid claims of Executive privilege in the Watergate affair but not trust him or his colleagues to make the same unfettered judgments in matters allegedly connected to the conduct of defense or foreign policy.
Therefore, while I am anxious to compliment the chief sponsor of S. 2543 on the fine work that has been done and to praise the Judiciary Committee for its sincere commitment in improving the working of the Freedom of Information Act, I must respectfully move to strike these 17 offensive and unnecessary lines and to make the bill what we all want it to be – a restatement of congressional commitment to an open, democratic society.
I withhold the remainder of my time.
Mr. KENNEDY. Mr. President, at the outset I want to say how much I have enjoyed joining with the distinguished Senator from Maine, as well as the distinguished Senator from North Carolina, during the course of our joint hearings on the Freedom of Information Act and Government secrecy last year. The kind of joint hearings we had provided an additional dimension and insight into our better understanding the opportunities as well as the problems of the Freedom of Information Act.
Many of the amendments that are included in the legislation today were developed out of and during the course of those hearings, and I want to commend the distinguished Senator from Maine for focusing attention on the particular provision of the legislation that we are considering here this afternoon. I know of his special interest and expertise in this area.
This area was a matter of considerable interest to the members of the committee. As a matter of fact, when I initially introduced the bill last year, it did not include the language which the distinguished Senator from Maine desires to strike. But during the course of the subcommittee and full committee process of markup, this language in issue was added.
I want to state at the outset that I think the amendment of the Senator from Maine is responsible and reasonable and I intend to support it.
I would like to ask the Senator from Maine just a few questions. The clause which will be excluded by the Senator from Maine's amendment deals with the procedures of how classified documents will be considered in camera.
I ask unanimous consent that the whole section to be struck be included at this point in the RECORD.
There being no objection, the extract was ordered to be printed in the RECORD,
as follows:
"(ii) In determining whether a document is in fact specifically required by an Executive order or statute to be kept secret in the interest of national defense or foreign policy, a court may review the contested document in camera if it is unable to resolve the matter on the basis of affidavits and other information submitted by the parties. In conjunction with its in camera examination,
the court may consider further argument, or an ex parte showing by the Government, in explanation of the withholding. If there has been filed in the record an affidavit by the head of the agency certifying that he has personally examined the documents withheld and has determined after such examination that they should be withheld under the criteria established by a statute or Executive order referred to in subsection (b) (1) of this section, the court shall sustain such withholding unless, following its in camera examination, it finds the withholding is without a reasonable basis under such criteria.
Mr. KENNEDY. I will highlight these particular lines: "a court may review a contested document in camera if it is unable to resolve the matter on the basis of affidavits:" It continues as follows:
"In conjunction with its in camera examination, the court may consider further argument."
There was some suggestion that we require courts to entertain ex parte argument from the Government in every case, but we did succeed in making it permissive.
Our language would add a presumption to the agency head's declaration that if such a matter falls within the statute or an Executive order referred to in subsection (b) (1) of this section, the court shall sustain that provision unless, following its in camera examination, it finds the withholding is without a reasonable basis under such criteria.
I want to indicate to the Senator from Maine that although others may read it differently, I do not interpret that language as indicating a very strong presumption. I cannot understand why it concerns the Senator from Maine, although, as I said before, I intend to support the amendment. I do want the legislative history to be clear that I, at least, do not think it presents a very strong presumption in favor of an administrative agency.
But I understand what the Senator is attempting to do. I think it would strengthen the legislation.
I should like to ask the Senator from Maine some specific questions. His amendment in no way attempts to require an in camera inspection, but I understand it still leaves that as discretionary in each of these cases. Is this right?
Mr. MUSKIE. The Senator is correct.
Mr. KENNEDY. Furthermore, the Senator's amendment allows the court to question the propriety of classification only under the standards set up in a statute or by Executive order. Is that correct?
Mr. MUSKIE. The Senator is correct.
Mr. KENNEDY. I think that is important.
This is an important, useful amendment, but it does not seek to alter the classification standards or procedures presently applicable.
We do add a slight presumption, which the Senator recognizes from reading the language. It concerns him because it is a presumption. As the author of the bill, I do not want to acknowledge a very strong presumption. A t least, that is my interpretation.
Does the Senator believe there ought to be any special exemption for the National Security Administration, NSA, or the Department of Defense in this part of the bill itself?
Mr. MUSKIE. As the Senator probably knows, we are holding hearings at this time on proposals to establish classification control systems and new criteria for classifications. Out of those hearings may come something; but the amendment I have offered does not touch that.
Mr. President, will the Senator from Massachusetts yield further to me?
Mr. KENNEDY. I yield.
Mr. MUSKIE. The Senator, I think, has described the sense of my amendment very accurately and precisely. I have no real quarrel with the procedures which my amendment would remove from the statute. The principal quarrel is with the last 3 lines, as the Senator from Massachusetts has correctly pointed out.
The weight of that presumption has to be analyzed in the light of the classification system. As the Senator knows, fully as well as I do, my amendment relates to the reluctance to declassify. All the momentum in the existing classification system is on the side of secrecy and all the incentives are in favor of classification.
All of that experience with the classification system goes back a quarter of a century or more. It seems to me the language in the bill, read in that context, would reinforce the same presumptive effect. The effect would be different with different judges.
I must say that different members of the committee and of the Senate, I think, would give it a different effect if we started from scratch, with a new law that would define the presumptions dealing with classification.
If we were to start from scratch and have a new law with the presumption of law in that way, I think the presumption would be different from that operating with the existing classification system.
So the inevitable momentum that the bill's language gives supports the classifier and the classification in these words:
The court shall sustain such withholding unless it finds such withholding is without a reasonable basis.
I should think that a judge might feel that anyone who has the responsibility at high levels to classify would not classify without a basis that was reasonable to him.
If he is a responsible man, we have to accept his basis, whether or not someone else would agree. He would make an independent judgment. That basis is reasonable.
That does not say that his basis is the same basis as my reason or the basis of someone else's, presumably that of the classifier.
That language must have a purpose, and putting that language into the bill has a purpose. The purpose clearly is to give greater weight to the testimony which the judge receives from the head of the agency than the evidence received from any other source and greater than the weight of his own judgment.
That is how I read that language. I think that in the context of the momentum of the experience which has been generated under the classification system, we ought to be very reluctant and careful in adopting this kind of language.
Mr. BAYH. Mr. President, I ask unanimous consent that Howard Paster of my staff be granted the privilege of the floor during the debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BAYH. Will the Senator permit me 1 minute under the bill?
Mr. KENNEDY. Mr. President, I yield to the Senator from Indiana.
Mr. BAYH. Mr. President, I will yield to the Senator from Mississippi shortly, I simply want to say that I find great comfort in the position of the Senator from Maine.
It seems to me that in a free society, certainly in the light of everything that we have seen occur over the past few months and years, we ought to revise the present position which seems to be that there is a right to mark something classified until it is proved not to be in the public interest.
In a free society information ought to be regarded as a matter of public interest and public knowledge unless it can be proven that it should be secret.
Mr. MUSKIE. Mr. President, I thank the Senator from Indiana. In proposing this amendment, I am not asking the courts to disregard the expertise of the Pentagon, the CIA, or the State Department.
Rather, I am saying that I would assume and wish that the judges give such expert testimony considerable weight. However, in addition, I would also want the judges to be free to consult such experts in military affairs as the Senator from Mississippi (Mr. STENNIS), or experts on international relations, such as the Senator from Arkansas (Mr. FULBRIGHT), or other experts, and give their testimony equal weight. Their expertise should also be given considerable weight.
I do not see why the head of a department should be able to walk into a judge's chamber, knowing that his testimony is against that of any other expert and weighs more than any other on a one-for-one basis. He has the additional weight that the exclusive judgment is given to him. He has all of that behind him.
Why should he be given a statutory presumption in addition if he cannot make his case on its merits. He is in a better position to do that than anyone else.
Then, if he cannot make a case on its merits, I say he is not entitled to a presumption.
We ought not to classify information by presumptions, but only on the basis of merit. And only the head of an agency involved can make that case. And if he cannot make it, then he ought to lose it and not find it possible to get sustained only through the support of a statutory presumption.
Mr. HRUSKA. Mr. President, I yield 5 minutes in opposition to the amendment to the Senator from Mississippi.
Mr. STENNIS. Mr. President, I certainly thank the Senator from Nebraska.
I have just gone into this matter within the last hour, Mr. President, but I am greatly concerned with the Senator's amendment, the amendment of the Senator from Maine, and that is not discounting his very fine work on the subject.
I think the bill itself, as worked out by the committee, has struck a fair balance that meets the requirements of law and, at the same time, gives a reasonable amount of protection.
The Senator from Maine raised a point of why give a little more weight here to the head of an agency with reference to these matters. It is for the very reason that we have placed that person in
charge of that agency and given him all responsibility that goes with that entire office. He is the only one who is permitted to file such an affidavit here, as I understand.
I want to focus now primarily on the CIA. I start with the proposition that we have to have a CIA in world affairs; We just must have one, and time has proven its value.
So in the matter of certain information being classified, the average judge – and with all due deference to them personally – and I had the honor at one time of being a judge of a trial court myself – is just short of knowledge and information on a lot of different subject matters, just as a Senator is on a great deal of subject matters that come before him.
So I imagine that the average judge would want to hear and would want to give consideration to the head of this agency and, in matters of great concern, would really have no objection to this amendment. It is a kind of warning to the judge. The head of the agency is the only person who can file an affidavit with a court within a vast worldwide operation such as the CIA. It has to be the head of the agency: If he files an affidavit, if he takes a position on the classification of a document, that is certainly not just another piece of paper.
That is something with the man's honor and official responsibility tied with it. This provision here is one where the judge is still the master of the situation; he is still running his own court, as we use that term. He is still free to reach a conclusion of his own. But this is a mild guideline, as the Senator from Massachusetts suggests. It is not a violent presumption. It is not a wall built
around this head of agency and his testimony. It is a mild presumption in favor of his testimony.
The judge can still weigh it all, and unless there is found a reason that satisfies the judge – and you have got to satisfy this judge – he is not going to stop and back off because it might have satisfied the head of the agency. The judge has all of this other testimony before him, and he is going to have to be convinced himself in view of all other testimony or he is going to rule in favor of reviewing the classified documents now.
I tell you this is a serious matter, Members of the Senate. I do not lean toward trying to protect everything. I want matters to be classified the same as the rest of you do. But I have been at this thing long enough and on enough subject matters to know that we are flirting here with things that can be deadly and dangerous to our welfare, our national welfare, and we ought not to just throw the gates wide open and say, "All this is to be testimony along with all the other testimony," some of which is usually from biased sources, sources of interest, and not give any consideration here any more than just ordinary consideration to the official certification under oath of the head of the agency.
So I have to rest this thing with the Senate. The committee has worked on it and has come up with something that, I take it, is practical to live with and, at the same time largely gives to the complainants what they might wish in this case.
So until we just strike down this matter that the committee has worked so hard on and has balanced off, let us take a second thought, and I believe we will–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. STENNIS. I thought he had yielded to me and I will then finish. I thank the Senator. I have not made any remarks here yet about the Department of Defense.
There are matters, and there are many of them, that are of equal importance as those of the CIA.
When I leave this floor I am going down here now for a hearing with respect to a gentleman who is nominated to be the Chief of Naval Operations, the highest ranking officer in the Navy. Next week we are going to have a hearing for the Chairman of the Joint Chiefs, the highest ranking officer, military officer, in the whole Government. In addition to that we have the civilian officers over there, men of great esteem, of great competence.
These caliber men do not carelessly file affidavits, that is my point, and committee proposal would put their honor and their official conduct at stake and at issue. Those things are not carelessly done.
So instead of just brushing them aside here in a moment, let us stay or remain with the law of reason as this committee has worked it out.
I thank the Senator again for yielding to me.
Mr. MUSKIE. Mr. President, just a minute or two of response.
May I say to the distinguished Senator from Mississippi that I hardly regard my amendment as throwing the doors wide open to irresponsible disclosure of Government secrets. But on the question as to whether or not the weight of the bureaucracy of Government is on the side of secrecy or openness, let me give you a few statistics. At the CIA there are only five full-time secrecy reviewers for 1,878 authorized classifiers.
In the third quarter of 1973 in the CIA, 1,350 documents were classified top secret, and that has climbed until, during the first quarter of this year, the number has risen to 3,115. So the enormous weight of the bureaucracy is on the side of secrecy. We have all that here, and now we want to add to that weight, a presumption. Arrayed on the other side is a district court judge who treats this issue as a part-time responsibility, who does not have this background, and he is asked to give that weight, that bureaucratic weight, a presumption over anything else he hears, over any other testimony he hears. That is what we are trying to overcome. I do not regard that as throwing the door wide open.
I am happy to yield to the Senator from New York.
Mr. JAVITS. Mr. President, I have joined Senator MUSKIE and his other colleagues in his amendment for the following basic reasons:
I believe that, one, there is no question about the fact that the whole movement of Government, especially in view of Government's experience in Vietnam, Watergate, and many other directions, is toward more openness, so that the bias, in my judgment, in the Senate, should be toward more openness rather than being toward more closed.
Second, we have finally come abreast of the fact of life that it is not providence on Mount Sinai that stamps a document secret or top secret, but a lot of boys and girls just like us who have all their own hangups and who decide in individual cases what the document should be classified as, and very serious consequences flow to individuals as a result of that classification, very serious consequences in the denial of the basic information upon which the judge releases it to the public. So the bias ought to be for openness not for closeness.
Now, one would say this is a close question normally because of this tension as between the right of the public to know and the necessity of Government in given cases to have secrecy. But the basic question has been decided by the committee, as by us, who are the movers of the amendment, that is, that a judge in camera should have the right to inspect this material. Having done that, and that is the basic question, why put a ball and chain on the ankle of the deciding authority? I cannot see that the balance of wisdom in government should move in that direction, having decided that the judge may see it. We should give him the freedom to determine whether, under all the circumstances, as the umpire between the right of the public to know and the necessity for secrecy – claimed necessity for secrecy – the umpire should not be restricted by ground rules, except ground rules dealing with basic justice and the balance of responsibility and the balance of the national interest as it relates to a given item of information.
It is for those reasons, Mr. President, because I think, having made that basic decision which now has been made by the sponsors of the bill by the sponsors of the amendment, and by the sponsors of the House bill, I see no case for further restricting that authority and hamstringing it, once it has been given.
I find special support for that proposition in the fact that the committee itself – incidentally, I personally think they are promising a lot more than they can deliver in terms of decisions of the courts, but the committee itself says that this standard of review does not allow the court to substitute its judgment for that of the agency as under a de novo review, and neither to require the court to refer discretion of the agency even if it finds the determination thereof arbitrary or capricious. I respectfully submit it is promising a lot more than it will deliver, because I doubt that judges will do any differently – except judges who want to do differently – they are human like the classifiers in reading the information in camera – than they would without the provision.
In those circumstances, why put it in? Why not put responsibility on the shoulders of the judges, whom we trust enough to allow to see the material anyhow?
For all these reasons, Mr. President, the motion to strike is eminently warranted, and I hope that the Senate will support it.
Mr. HRUSKA. Mr. President, I yield myself 5 minutes.
The PRESIDING OFFICER (Mr. HELMS). The Senator from Nebraska is recognized for 5 minutes.
Mr. HRUSKA. I rise in opposition to the amendment proposed by the senior Senator from Maine (Mr. MUSKIE). The Freedom of Information Act was enacted at the expense of a lot of time and effort. It took several years to process to the point of balancing the several interests contained in it and a sincere balanced result has been attained.
There is the right to know on the part of the public, but there is also the right and duty on the part of the Government to survive and to take such steps as may be necessary to preserve the national integrity and security.
This amendment would substantially alter that balance which is presently contained in the Freedom of Information Act. It would endanger the passage and approval of the instant bill into law, in my considered judgment. It should be acted on, if we act on it at all, not in connection with a bill where virtual unanimity was reached in the Judiciary Committee and reported unanimously without any objection to the Senate.
Mr. President, I oppose the amendment offered by the Senator from Maine. I believe that the amendment is unworkable and certainly is unwise.
At the outset, it is imperative to realize what is and what is not at issue here. Is the crux of the issue whether the courts should be able to review classified documents in camera? No. Under both the bill and the amendment, the judge can review the documents in camera. Thus, S. 2543, as unanimously recommended by the Judiciary Committee, establishes a means to question an executive decision to stamp a classification on the document.
What is at stake, Mr. President, is the sole question of whether there should be a special standard to guide the judge's decision in this matter pertaining to the first exemption. S. 2543 provides such a standard.
Under the bill, a judge shall sustain the agency's decision to keep the document in confidence unless he finds the withholding is "without a reasonable basis." We could turn that around, Mr. President, and we could ask whether it would be proper for a judge to go ahead and disclose a document even if he finds that a reasonable basis for declassification exists. That is the other end of the dilemma.
In other words, if the court finds a reasonable basis for the classification, it shall not disclose the document.
The amendment of the senior Senator from Maine would eliminate this "reasonable basis" standard and put nothing in its place. It does not substitute any standard in its place. How is
the judge to be guided in his decision whether a document is properly classified? In the absence of a specified standard, I must assume that the standard that obtains is the one that applies to all the other exemptions.
Let me take the sixth exemption as an example. That exemption allows an agency to withhold records if it determines that disclosure would constitute an unwarranted invasion of privacy. In determining whether the invasion is unwarranted, the court attempts to ascertain the extent of the invasion and then balances that against the requester's and the public's need for that information.
The burden of proving that the extent of the invasion outweighs the countervailing interests is on the Government.
How would this standard then apply with respect to exemption 1 – the exemption that allows the Government to maintain classified documents in confidence. It would allow the judge to balance what he perceives to be the public interest in disclosing the information against Government's, which is to say the people's, judgment that disclosure will jeopardize our foreign relations and national defense. Stated quite simply, the amendment before us purports to allow a judge to release a classified document if he believes that the document should be in the public domain even if there exists a reasonable basis for the classification.
I realize that standards of proof are difficult concepts to understand and apply even for the lawyer. So, let me pose an example. Suppose that the Freedom of Information Act, together with this amendment, was on the books in the 1940's. And further suppose that someone wrote the Government requesting information about the Manhattan project. Now, under this amendment, a judge would be able to examine the project's documents in camera and decide for himself whether the classification was proper. He would realize that the disclosure of documents could jeopardize national defense but, on the other hand, he could also reason that the public should have some information so that it would know how much all this research was costing and what its objectives were. The judge could go on to reason that the public should be informed of the cataclysmic damage that could be done by an atomic weapon upon delivery so that the public could make a moral judgment as to whether such a weapon should ever be used. Balancing these concerns, as the Muskie amendment would call for, the judge could find the public interest in disclosure to outweigh the national defense implications.
Mr. President, such a standard of proof is workable for the other exemptions. If a judge is wrong in a case involving exemption 6 – the privacy exemption – the harm is confined. Only one person is injured. But if a judge is wrong in a case involving the first exemption, the damage is not confined. Aspects of our national defense or foreign relations could be compromised. Put in jeopardy is not just one person but a nation and perhaps its allies.
Mr. President, what then is the crux of the issue? Is it a question whether the judge can review the classified documents in camera? No. Under both the bill and the amendment the judge can review the document in camera. Instead, the sole question is whether there should be a standard to guide the judge's decision in this matter.
By eliminating any standard to guide the judge's decision in this area, the proposed amendment would put the courts in the position of making political judgments in the field of foreign affairs and national defense. Yet the courts have little, if any, experience in these fields. Indeed the courts themselves have declared that they do not have the capacity or expertise to make these kinds of judgments.
In Epstein v. Resor, 421 F. 2d 930 (9th Cir. 1970), cert, denied, 398 U.S. 965 (1970), the Court of Appeals for the Ninth Circuit stated that the judiciary has neither the – and I quote – "aptitude, facilities, nor responsibility" to make political judgments as to what is desirable in the interest of national defense and foreign policy. The Supreme Court took the same view in C. & S. Air Lines v. Waterman Corp., 333 U.S. 103.111 (1948).
A "Developments in the Law Note, on National Security" by the Harvard Law Review reaches the same conclusion. In discussing the role of the courts in reviewing classification decisions, it states that–
There are limits to the scope of review that the courts are competent to exercise.
And concludes that–
A court would have difficulty determining when the public interest in disclosure was sufficient to require the Government to divulge information notwithstanding a substantial national security interest in secrecy. 85 Harvard Law Review 1130, 1225-26 (1972).
There is also another reason why the judges should not be making political judgments on foreign policy and national defense. In order to convince a court that national defense interests outweigh any interests in public disclosure, the Government agencies may have to disclose more sensitive information to show how sensitive the documents requested really are. For example, the fact that information is sensitive may not appear from the face of the document. The agency may then be required to divulge more information to show that the document is relevant to secret ongoing negotiations with a foreign nation. Thus, the agency may be put in the curious dilemma that it must divulge more sensitive information to protect the information requested.
Mr. President, I believe we all recognize that there have been some abuses in the classification system. But we should also recognize that new classification procedures have recently been promulgated in Executive Order 11652 to correct these abuses. In a progress report just issued by the Interagency Classification Review Committee, the body created to monitor the classification system, the following progress was documented:
First. The total number of authorized classifiers within all departments has been reduced by 73 percent since the order took effect;
Second. The National Archives and Records Service has declassified over 50 million pages of records since 1972;
Third. The Department of Defense alone achieved a 25-percent reduction in its "Top Secret" Inventory during 1973;
Fourth. The majority of requests, 63 percent, for the declassification of documents has been granted either in full or in part.
This last point deserves some elaboration. Under the Executive order, a person may request review of classified documents in order to obtain access to the records. If the documents are over a certain age, the agency must review the documents. This is usually a two-step process: the operating division first reviews the document to see if it is properly classified. If it determines the classification is appropriate, the requester may then appeal to the review board in the agency. If he is not successful there, he may appeal outside the agency to the Interagency Classification Review Committee. He thus has three opportunities to obtain the documents declassified before he files suit under the Freedom of Information Act.
Mr. President, in my own view, a decision by all three of these bodies that the classification is proper should put the matter to rest. Nevertheless, under S. 2543 we will also permit the courts to review the documents in camera to judge whether the classification is proper. Is it too much to ask that a standard be imposed to guide the court's decision so that a document will not be divulged to all the world if there is a reasonable basis for the classification? I think not.
Mr. President, the question whether a document is properly classified is a political judgment. This judgment must take cognizance of a number of factors, such as negotiations with other countries, the timeliness of the moment, the disclosure of other information. Who is in a better position to make this judgment – the Secretary of State or a district judge? Should we permit a judge to balance what he perceives to be the interests of the public in disclosure against the interests of the public in maintaining the document in confidence? I say, most emphatically, no.
I believe the point must be stressed that this standard does not equip the courts with a mere rubber stamp. The courts are granted the authority to review the documents in camera. And the courts can overturn a classification decision in a case involving a request for the classified documents upon finding that there is no reasonable basis upon which the classification decision can be predicated.
But if there is a reasonable basis for the classification, a judge would not and should not be able to divulge the document. It is as simple as that.
Mr. President, Senator KENNEDY, the author of this bill, has worked with me and other members of the Senate Judiciary Committee in developing a bill that recognizes and balances all of the interests. The bill was reported by the committee without a dissent. I fear that this amendment will thwart the bipartisan and cooperative efforts of the committee. But more than that, it is unworkable and extremely unwise.
If my colleagues believe that a judge should not be granted the power to disclose a classified document upon finding a reasonable basis for the classification, they should vote against the proposed amendment. I intend to.
Under the amendment offered by the Senator from Maine and under the way the bill as now drafted the judge can review documents in camera. The sole question is whether there should be a standard to guide the judge's decision on this matter.
It is not a ball and chain, Mr. President, because he can decide for himself whether there is a reasonable basis for the classification. Under the bill as presently drafted the judge is governed by the existence of a reasonable basis for the classification and on appeal it would be for the circuit court to decide whether there is a reasonable basis for that classification. I do not know – perhaps I can pose that question to the distinguished Senator from Maine, whether there is an intent to foreclose an appeal under his amendment.
Mr. MUSKIE. There is not, of course, any intention to foreclose. In addition, there is no presumption on the part of the Senator from Maine that, absent the language my amendment would strike judges would always be unreasonable. What the Senator seeks to tell us is that his language, the language I have described, was inserted in the bill because otherwise judges would be unreasonable in evaluating the basis for the classification of documents; and that the only way to avoid that unreasonable tendency on the part of district court judges is to create a presumption on the part of the classifier. I listened to the Senator's argument closely, and that seems to be the thrust of the argument.
Mr. HRUSKA. Mr. President, the Attorney General has written a letter, the text of which is on the desk of each Senator, and I ask unanimous consent that it be printed in the RECORD.
There being no objection, the letter was ordered to be printed ill the RECORD, as follows:
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C.,
May 29, 1974.
Hon. ROMAN L. HRUSKA
U.S. Senate,
Washington, D.C.
DEAR SENATOR HRUSKA: The Department of Justice appreciates your interest in S. 2543, a bill to amend the Freedom of Information Act.
You have inquired about a proposed amendment to the bill's provision on judicial review of documents withheld in the interest of national defense or foreign policy. This suggested amendment would alter the provisions on page 10, line 24 through page 11, line 15 of S. 2543. It would subject these documents to standards of judicial review that are the same or similar to standards applicable to ordinary government records.
As the courts themselves have recognized, the conduct of defense and foreign policy is specially entrusted to the Executive by the Constitution, and this responsibility includes the protection of information necessary to the successful conduct of these activities. For this reason the constitutionality of the proposed amendment is in serious question.
In addition, the suggested change would call for a de novo review by the court, and shift the burden of proof to the government. Such a change would place a heavy burden on the executive branch to reveal classified material which the judicial branch is unprepared to properly evaluate.
For these reasons the Department of Justice is opposed to an amendment of this nature.
Sincerely,
WILLIAM B. SAXBE,
Attorney General.
Mr. HRUSKA. The letter says, among other things the following:
As the courts themselves have recognized, the conduct of defense and foreign policy is specially entrusted to the Executive by the Constitution, and this responsibility includes the protection of information necessary to the successful conduct of these activities. For this reason the constitutionality of the proposed amendment is in serious question.
In addition, the suggested change would call for a de novo review by the court, and shift the burden of proof to the government. Such a change would place a heavy burden on the executive branch to reveal classified material which the judicial branch is unprepared to properly evaluate.
Mr. MUSKIE. I gather that in offering that letter from Mr. Saxbe, the Senator is suggesting another point: If, for example, the bill is amended by my amendment and is passed and enacted into law and its constitutionality is challenged, would it be the Senator's view that Mr. Saxbe's view on the subject of constitutionality ought to be given a presumption over that of any other opinion that the court would consider?
Mr. HRUSKA. The language in the bill is not intended to serve as the basis for the creation of a presumption. That is not its intent at all, and I do not think that is its meaning.
Mr. MUSKIE. What is its intent, if it is not a presumption? If it is not intended to give the classifier's judgment a weight exceeding that of any other witness, what is it intended to do?
Mr. HRUSKA. Let me suggest this. The question of whether a document is properly classified is a political judgment. There is no question about it. It has to be that, when it comes to national security and foreign policy.
This judgment must take cognizance of a number of factors, such as negotiations with other countries, the timeliness of the moment, the disclosure of other information, and so forth. Who is in a better position to make this judgment – the Secretary of State or a district judge? That is what it comes down to.
Should we permit a judge to balance what he perceives, with his relatively parochial interests, to be the interests of the public in disclosure against the interests of the public in maintaining the document in confidence? I say, most emphatically, no.
It is a problem of such scope and with so many ramifications that it belongs, as the Senator from Mississippi has said, in the hands and in the minds and in the decisions of those who are versed in that field and who have the expertise for it.
That is the reason for the language in the bill as it exists – to furnish the judge, when he is called upon to pronounce judgment, with the standard and the requirement that if he finds there is a reasonable basis for the classification, he must sustain that classification.
The point should be stressed that this standard does not equip the courts with a mere rubberstamp. They are granted the right and the authority to review the documents in camera. They can overturn a classification decision in a case involving a request for the classified documents upon finding that there is no reasonable basis upon which the classification be predicated.
It seems to me that we are tampering here with a highly important subject. The decision was deliberately made some years ago, when the parent act was passed, and we will be interfering with that political balance and a matter of vital importance if this amendment is adopted.
I hope the Senate will reject the amendment.
Mr. HART. Mr. President, will the Senator yield me a couple of minutes?
Mr. MUSKIE. I yield.
Mr. HART. I should like to ask a question of the Senator from Maine. I have listened to the exchange he has had with the Senator from Nebraska; and, as I understand, the bill, as reported by the committee, says that in the matter of a security document or file, if the head of the agency – let us say the Secretary of Defense – certifies to the court that he has examined the document and has determined that it should be withheld, the court must sustain that finding and certification, unless the court finds the withholding is without a reasonable basis.
Mr. MUSKIE. In other words, he has to find that the Secretary of Defense was unreasonable.
Mr. HART. I have never been confronted with the problem of resolving a national security file, but some of us, at least years ago, were confronted with the homely experience of trying an accident case. Is there not a parallel here?
A plaintiff puts on one eminent physician who describes why the blinking eye is the result of the accident, and the defendant puts on 10 very eminent physicians who say that is nonsense, that the blinking eye is congenital. That court can make a decision, choosing which among the 11 opinions seems most persuasive. But if accident cases were tried under a statute such as this committee bill provides, would not the court be compelled to agree with the plaintiff because there is a reasonable presumption supporting the blinking eye?
If the Secretary of Defense files a certificate, that certificate is a reasonable basis; but five prior Secretaries of Defense and the CIA Director – and name your favorite expert – all say that is nonsense. The court may agree with them; but under this language, unless it is stricken, he is handcuffed, is he not?
Mr. MUSKIE. I think the Senator has described the effect of the amendment as I understand it.
Mr. HART. I would not be comfortable with that kind of restriction.
Mr. HRUSKA. Certainly, the judge has the right to say that the blinking of an eye is, as a defense, unreasonable. Then that case will go to the circuit court of appeals, and I see no harm in that. I trust that the Senator from Michigan does not, either. But it seems to me that the door is open by this amendment and the language is plain and simple: If the basis is considered unreasonable and the judge so finds, then the information must be disclosed.
Mr. MUSKIE. I yield myself 1 minute, and then I will yield to the distinguished Senator from Florida.
The difficulty with the Senator's response is simply this. The Senator minimizes the implication that the Senator from Michigan and the Senator from Maine draw from his language, but then, in the Senator's prepared remarks, in which he justifies his language, he justifies it on the ground that the Director of the CIA is the only man who knows. The Senator clearly wants to give his knowledge, his position, and his judgment a weight far out of proportion to the Senator's response to the question raised by the distinguished Senator from Michigan.
I say to the Senator that he cannot have it both ways. Either this amendment has the effect of giving a weight to the classifier's judgment and certificate that inhibits the disclosure of information that ought to be disclosed or it does not. It cannot do both. I think I read it correctly when I read it as the Senator from Michigan has read it.
How much time would the distinguished Senator from Florida like?
Mr. CHILES. Four minutes.
Mr. MUSKIE. I yield 4 minutes to the distinguished Senator from Florida.
The PRESIDING OFFICER. The Senator from Florida is recognized.
Mr. CHILES. Mr. President, I support the amendment offered by the Senator from Maine (Mr. MUSKIE). When the Freedom of Information Act was enacted over 7 years ago, it was the congressional intent that from that time forward the general rule to be observed by all bureaucrats was that disclosure of information was the norm and withholding the exception. Recognizing that the ideal is not often observed, the Federal district court was given jurisdiction to litigate differences originating from requests.
The past 7 years' experience with the act has indicated that the fears of bureaucratic obstruction were in large part well founded and that but for firm guidance by the courts in the more than 200 cases litigated under the act, the public's right to know would still be little more than a wish.
The bill before us today is the result of extensive hearings which pointed out a number of procedural shortcomings in administration of the Freedom of Information Act. I am satisfied that many of the problems will be resolved by this bill. However, I am concerned by the language presently found in a section of the bill which, in my estimation, would reverse the central thrust of the Freedom of Information Act.
As the result of a Supreme Court decision which adopted an interpretation of the language in section (b) (1) of the original act, information claimed to be classified for security purposes could not be examined by the Federal courts to determine if in fact the classification was proper and valid. Rather, the Supreme Court held that the trial judge must be satisfied with an affidavit from the head of the department originally classifying the information which affidavit would attest to the propriety of the classification. Thus, the classifier would, in fact, be the judge of the classification. This result was patently absurd. Yet, the corrective language in the bill before us does little to remedy the situation. Rather than allow true judicial review of this material, the present language once again attempts to hold the view of the department head by stating that the court must accept his affidavit unless it is found to be unreasonable. While seemingly, a step forward, this language actually reverses the general rule of the Freedom of Information Act which puts the burden of proof upon the Government to establish the basis for withholding.
If the present language in (b) (4) (B) (ii) is allowed to stand, the burden of proof will in effect be shifted away from the Government and placed with the courts.
This is a situation which must not be allowed to stand. I do not argue that an affidavit or other submission from the head of an agency should be disregarded. On the contrary, I would hope that the Court, in its camera examination of contested documents, would call upon whatever expertise it found necessary.
However, to raise the opinion of one person, especially an interested party, to that of a rebuttable presumption is to destroy the possibility of adequate judicial oversight which is so necessary for the Freedom of Information Act to function.
I think it really goes against the thrust of what we are trying to do in amending the bill, to again say that the norm is to be to open things up unless a reason can be shown to have them closed.
If, as the Senator from Mississippi said, there is a reason, why are judges going to be so unreasonable? We say that four-star generals or admirals will be reasonable but a Federal district judge is going to be unreasonable. I cannot buy that argument, especially when I see that general or that admiral has participated in covering up a mistake, and the Federal judge sits there without a bias one way or another. I want him to be able to decide without blinders or having to go in one direction.
I think we would be much better off with this amendment. I urge the adoption of the amendment.
Mr. KENNEDY. Mr. President, I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNNEDY. Mr. President, in my opening remarks I mentioned some words of the President of the United States when he issued his new Executive order on classification. This concern which has been expressed by the Senator from Florida, the Senator from Maine, and the Senator from Michigan is very real. This is what the President of the United States said in talking about classification, and it supports the basis for the amendment of the Senator from Maine:
Unfortunately, the system of classification which has evolved in the United States has failed to meet the standards of an open and democratic society, allowing too many papers to be classified for too long a time. The controls which have been imposed on classification authority have proved unworkable, and classification has frequently served to conceal bureaucratic mistakes or to prevent embarrassment to officials and administrations.
I think precisely this kind of sentiment has triggered the amendment of the Senator from Maine.
In reviewing hearings before the Committee on Armed Services, dealing with the transmittal of documents from the National Security Council to the Chairman of the Joint Chiefs of Staff, I find the following on page 4 of those hearings, part 2.
The CHAIRMAN. I do not know of anything now that really is national security. We have not been able to find out anything. But when we get into it it will be a matter of judgment and so forth.
Senator HUGHES. Who is to make that judgment?
The CHAIRMAN. The committee. I am not trying to overrule anyone as a member of this committee, you know that, but it is all right for you to raise the point.
Gentlemen, anyone else want to say anything?
Senator SYMINGTON. Last summer when the special prosecutor sent us some papers taken out of the Dean file, in Alexandria, and which had a lot to do with CIA and military matters, they were sent here and also sent to the Ervin committee. Hastily everyone wanted to see us at once, the State Department, the CIA, FBI, MA. Anybody I left out, Mr. Braswell?
Mr. BRASWELL. NSA, I think.
Senator SYMINGTON. Yes, and they all said these papers from the standpoint of national security must not be utilized by the Watergate Committee. We sat around this table. I said, the best thing to do would be to first read the papers Mr. Dean put in his safe before we consider making a decision to request Senator Ervin not to use them. So we read the papers. They literally had nothing to do, that we could see, with the national security. One of the staff members said, after we had read for 10 or 15 minutes, it looks to me as if this is more a case of national embarrassment than national security. In my opinion, he could not have been more right. So having been through that syndrome last summer, that particular aspect, and because of all of the various stories that have been getting out, I would join the Senator from Iowa and hope we make a full report on this situation, one way or the other because I do not see any national security involved. Admiral Moorer said he knew everything being done. So I do not see the national security angle.
The CHAIRMAN. I have already told you twice that I have not run across anything yet that is national security.
Here, supposedly the most sensitive materials are considered classified by the heads of these respective agencies mentioned, yet the language which would be included in the committee amendment to the Freedom of Information Act would add some presumption to their conclusion. That presumption is what the Senator from Maine is attempting to erase. And these excerpts illustrate his point.
I think the amendment makes sense, and I am extremely hopeful that this body will support the Senator from Maine. I think it is a responsible approach. It is sensitive, as we reviewed earlier, in terms of protecting the kinds of classified material, where that protection is legitimately essential to our security and the national defense. The amendment would reach the kinds of abuses we have seen far too often in recent times.
I hope the amendment is agreed to.
Mr. MUSKIE. Mr. President, I yield myself 2 minutes.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Mr. MUSKIE. Mr. President, first may I say that if the committee bill prevails, I would like to see something that minimizes the question of presumption, but I am afraid to raise the issue because, in the proper perspective, we have to describe the situation as it is.
Then, Mr. President, I would like to make one technical point with respect to the letter to Senator HRUSKA by the Attorney General, William Saxbe, which was put in the RECORD earlier. The Attorney General's letter reads:
In addition, the suggested change would call for de novo review by a court and shift the burden to the government.
I wish to correct that. Section (a) of the Freedom of Information Act provides that in court cases "the burden is on the agency to sustain its action." That is no shifting of the burden. The Freedom of Information Act imposes this burden for a very real reason. That reason is the weight of the Federal bureaucracy, which has made it almost impossible for us to come to grips with secrecy control and limit the classification process.
I withhold the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. MUSKIE. Mr. President, I am happy to yield 4 minutes to the distinguished Senator from North Carolina (Mr. ERVIN).
Mr. ERVIN. Mr. President, I rise in support of this amendment. It seems to me that we ought not to have artificial weight given to agency action, which the bill in its present form certainly would do.
It has always seemed to me that all judicial questions should be determined de novo by a court when the court is reviewing agency action. One of the things which has been most astounding to me during the time I have served in the Senate is the reluctance of the executive departments and agencies to let the American people know how their Government is operating. I think the American people are entitled to know how those who are entrusted with great governmental power conduct themselves.
Several years ago the Subcommittee on Constitutional Rights, of which I have the privilege of being chairman, conducted quite an extensive investigation of the use of military intelligence to spy on civilians who, in most instances, were merely exercising their rights under the first amendment peaceably to assemble and to petition the Government for redress of grievances. At that time, as chairman of that subcommittee, I was informed by the Secretary of Defense, when the committee asked that one of the commanders of military intelligence appear before the committee to testify that the Department of Defense had the prerogative of selecting the witnesses who were to testify before the subcommittee with respect of the activities of the Department of Defense and the Department of the Army.
On another occasion I was informed by the chief counsel of the Department of Defense that evidence which was quite relevant to the committee's inquiry, and which had been sought by the committee, was evidence which, in his judgment, neither the committee nor the American people were entitled to have or to know anything about.
And so the Freedom of Information Act, the pending bill, is designed to make more secure the right of the American people to know what their Government is doing and to preclude those who seek to keep the American people in ignorance from being able to attain their heart's desire.
I strongly support the amendment offered by the distinguished Senator from Maine, of which I have the privilege of being a cosponsor, because it makes certain that when one is seeking public information, or information which ought to be made public, the matter will be heard by a judge free from any presumptions and free from any artificial barriers which are designed to prevent the withholding of the evidence; and I sincerely hope the Senate will adopt this amendment.
I thank the Senator for yielding.
Mr. MUSKIE. I thank the distinguished Senator from North Carolina.
Mr. President, at this time I withhold the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. HRUSKA. Mr. President, I yield myself 3 minutes.
A little while ago the question was asked whether the Director of the CIA or the Secretary of State is the only man who knows whether information should be classified or whether a district judge equally situated with regard to matters relating to national security or foreign policy as any other officer of the Government.
Mr. President, it is not a question whether or not he is the only man. The courts themselves have said, as has already been cited in Epstein versus Resor in 1970, wherein certiorari was denied by the Supreme Court, that the judiciary has neither the "aptitude, facilities, nor responsibility" to make political judgments as to what is desirable in the interest of national defense and foreign policy. That is their decision, Mr. President – it is not the court's business to attempt to weigh public interests in the disclosure of this information. These are political judgments outside the province of the courts.
The Supreme Court, in the case of C. & S. Air Lines against Waterman Corp., in 1948, held to the same effect.
The Harvard Law Review note reached that same conclusion.
It is not a matter of any one person's knowing who is the one who would best know. There is the review, the trial de novo, to be sure. The bill is written so as to place upon the district judge the responsibility of determining whether or not there is a reasonable basis. If there is no reasonable basis, then he orders the information disclosed. If there is a reasonable basis, he is charged with the responsibility of maintaining the confidentiality of the information. Under that system, it would be an appealable order. It would be something that could be reviewed.
The further suggestion is made that there is no indication that a district judge will be unreasonable in acting under the amendment of the Senator from Maine. I would not think that any judge would be unreasonable. But that is not the point. If the district judge finds that there is no reasonable basis for it, should he still have the power to say, "Release the information, anyway"? That is the position for which the Senator from Maine is arguing. That is exactly the position for which he is arguing.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. HRUSKA. I yield myself 3 minutes more.
In all applications for the disclosure of public documents, the procedures, under the amendment of the Senator from Maine as well as under the bill, are the same. The documents would be available if the matter cannot be resolved on the basis of affidavits. The documents are available for examination in camera, and it will be for the judge to examine them and determine whether there is a reasonable basis.
Under the amendment proposed there is no standard to guide the courts in this difficult area. The purpose of the language in the bill is to require the judge to determine whether or not there is a reasonable basis. If there is, he holds the document; if there is no reasonable basis, he may order it disclosed.
Mr. President, there are difficulties in getting papers from the Government and its agencies. There is no question that there are abuses. But, as I indicated in my earlier remarks, many steps have been taken pursuant to the Executive Order 11652 to correct those abuses. However, again, I say that the issue of abuses is not relevant to a consideration of the amendment proposed by the Senator from Maine.
Finally, I must say, Mr. President, that the adoption of this amendment could endanger the passage and approval of the bill into law. It will substantially alter that finely tuned balance. We have competing interests that are highly controversial in this field that must be encompassed and balanced.
Mr. President, it is my hope that the amendment will be defeated.
Mr. MUSKIE. Mr. President, I yield to the Senator from North Carolina.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. ERVIN. Mr President, the question involved here would be whether a court could determine this is a matter which does affect national security. The question is whether the agency is wrong in claiming that it does.
The court ought not to be required to find anything except that the matter affects or does not affect national security. If a judge does not have enough sense to make that kind of decision, he ought not to be a judge. We ought not to leave that decision to be made by the CIA or any other branch of the Government.
The bill provides that a court cannot reverse an agency even though it finds it was wrong in classifying the document as being one affecting national security, unless it further finds that the agency was not only wrong, but also unreasonably wrong.
With all due respect to my friend, the Senator from Nebraska, is it not ridiculous to say that to find out what the truth is, one has to show whether the agency reached the truth in a reasonable manner?
Why not let the judge determine that question, because national security is information that affects national defense and our dealings with foreign countries? That is all it amounts to.
If a judge does not have enough sense to make that kind of judgment and determine the matter, he ought not to be a judge, and he ought not to inquire whether or not the man reached the wrong decision in an unreasonable or reasonable manner.
The PRESIDING OFFICER. Who yields time?
Mr. HRUSKA. Mr. President, I yield myself 3 minutes.
Mr. President, will the Senator respond to a question on that subject? He and I have discussed this matter preliminarily to coming on the floor.
If a decision is made by a court, either ordering a document disclosed or ordering it withheld, is that judgment or order on the part of the district court judge appealable to the circuit court?
Mr. ERVIN. I should think so.
Mr. HRUSKA. What would be the ground of appeal?
Mr. ERVIN. The ground ought to be not whether a man has reached a wrong decision reasonably or unreasonably. It ought to be whether he had reached a wrong decision.
Mr. HRUSKA. I did not hear the Senator.
Mr. ERVIN. The question involved ought to be whether an agency reached a correct or incorrect decision when it classified a matter as affecting national security. It ought not to be based on the question whether the agency acted reasonably or unreasonably in reaching the wrong decision.
That is the point that the bill provides, in effect. In other words, a court ought to be searching for the truth, not searching for the reason for the question as to whether someone reasonably did not adhere to the truth in classifying the document as affecting national security.
Mr. HRUSKA. The bill presently provides that a judge should not disclose a classified document if he finds a reasonable basis for the classification. What would the Senator from North Carolina say in response to the following question: Should a judge be able to go ahead and order the disclosure of a document even if he finds a reasonable basis for the classification?
Mr. ERVIN. I think he ought to require the document to be disclosed. I do not think that a judge should have to inquire as to whether a man acted reasonably or unreasonably, or whether an agency or department did the wrong thing and acted reasonably or unreasonably.
The question ought to be whether classifying the document as affecting national security was a correct or an in. correct decision. Just because a person acted in a reasonable manner in coming to a wrong conclusion ought not to require that the wrongful conclusion be sustained.
Mr. HRUSKA. Mr. President, I am grateful to the Senator for his confirmation that such a decision would be appealable.
However, on the second part of his answer, I cannot get out of my mind the language of the Supreme Court. This is the particular language that the Court has used: Decisions about foreign policy are decisions "which the judiciary has neither aptitude, facilities, nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." C. & S. Air Lines v. Waterman Corp., 333 U.S. 103 (1948).
That is not their field; that is not their policy.
Mr. ERVIN. Pardon me. A court is composed of human beings. Sometimes they reach an unreasonable conclusion, and the question would be on a determination as to whether the conclusion of the agency was reasonable or unreasonable.
Mr. HRUSKA. Mr. President, I yield myself 2 minutes to read from the Supreme Court case of C. & S. Airlines versus Waterman Corp., 333 U.S. 103 (1948):
[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by out Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy.
They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
Mr. President, I think that is pretty plain language. I stand by it.
In this connection, as I understand Senator MUSKIE's amendment, the burden of proof is upon the Government to demonstrate what harm would befall the United States if such information would be made public and the court is to weigh such factors against the benefit accruing to the public if such information were released. However, no standards for guiding the court's judgment are included.
It seems obvious to me that in an area where the courts have themselves admitted their inadequacies in dealing with these issues, Congress should endeavor to provide the proper guidance. The reported version of the bill does so. It provides that only in the event a court determines the classification of a document to be without a reasonable basis according to criteria established by an Executive order or statute may it order the document's release.
Therefore, I respectfully submit that Senator MUSKIE’s proposed amendment does not adequately come to grips with the various competing concerns involved in this issue.
Mr. MUSKIE. Mr. President, how much time have I remaining?
The PRESIDING OFFICER. The Senator from Maine has 21 minutes remaining.
Mr. MUSKIE. Mr. President, I yield myself 3 minutes.
Mr. President, I have listened to the distinguished Senator from Nebraska expound at length on what he believes to be the facts and say that the judges are not qualified to make evaluations of classification decisions.
If he believes what he says he believes, he has got to be opposed to the committee bill because the committee bill establishes a procedure for judicial review. If he believes judges to be as unqualified as he describes them, eloquently and vigorously, on the floor of the Senate, he has to be against the bill to which he has given his name and support, because that bill rests on the process of judicial review.
The second point that I wish to make is, of course, that judges can be unreasonable, as my good friend the Senator from North Carolina has pointed out. But what about the executives? Let me read, from the committee report, the language of Justice Potter Stewart in concurring with the majority opinion of the Supreme Court in the Mink case that we seek in this bill to alter.
Justice Stewart stated:
Congress has built into the Freedom of Information Act an exemption that provides no means of questioning an executive decision that determine a document is secret, however, cynical, myopic, or even corrupt that decision might have been.
Now that is the opinion of a justice who concurred in the decision in the Mink case which denied judges in camera review of executive decisions to classify in the national security field, clearly urging the Congress, in my judgment, to do something about it, and that is what we seek to do.
I simply cannot understand the position of the Senator from Nebraska (Mr. HRUSKA) in supporting, on the one hand, a judicial review process designed to open the door to examination of executive decision, and then on the other hand closing that door part way back again, because that is the clear purpose of the presumption written into the act.
So I hope, Mr. President, that, having this step, that we will not take part of it back, and I urge the support of my amendment for the reasons that I have amply discussed this afternoon.
I am ready for a vote at any time, but I will withhold the remainder of my time until it is clear that the Senate is ready for the vote.
Mr. TAFT. Mr. President, the Judiciary Committee deserve our appreciation for the significant work that is embodied in the bill before us today.
These amendments to the Freedom of Information Act will accomplish the committee objective of providing more open access to Government activities. The fresh air that open access will bring can only strengthen our form of Government. Informed citizens and responsive Government agencies will go a long way toward restoring the faith and confidence that the American people must have in our institutions.
The amendment offered to S. 2543 by the Senator from Maine which deals with classified information relating to national defense or foreign policy will not serve the interests of clear legislation or assist in the delicate process of making available such sensitive classified material.
It seems to me that the committee version of S. 2543 offers a definite procedure and a definite standard by which national defense or foreign policy classified information may be examined in a court proceeding. The court is not required to conduct a de novo review, most courts are not knowledgeable in the sensitive foreign policy factors that must be weighed in determining whether material deserves or in fact demands classification. Under the committee version a court needs to determine if there is a reasonable basis for the agency classification. The standard "reasonable basis" is not vague. The standard of reasonableness has been applied in our judicial system for centuries.
The proposed amendment would call for a de novo weighing of all of the factors and leave the determination to the court according to a weighing of all the information which is much more vague than that standard promulgated by the committee.
The executive branch has especially significant responsibilities in foreign policy and national defense. The recently conducted Middle East negotiations by our Secretary of State had to be conducted in secret and we are now enjoying fruit of the successful culmination of these negotiations.
I believe foreign policy considerations and national defense considerations deserve special attention and the committee version of S. 2543 accords them such special attention.
It does not seem worthwhile to confuse the standard that the committee has set nor does it seem useful to diminish the executive branch's flexibility in dealing with sensitive foreign policy matters.
I intend to support S. 2543 and urge my colleagues to approve it without amendment.
Mr. KENNEDY. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. KENNEDY. Are there a sufficient number of Senators present to order the yeas and the nays?
The PRESIDING OFFICER. There is not a sufficient second.
Mr. HRUSKA. Mr. President, I have no further requests for time on this side or in opposition to the amendment.
Mr. KENNEDY. Mr. President, I suggest the absence of a quorum, with the time to be charged to my time.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I ask for the yeas and nays on the Muskie amendment.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Maine (Mr. MUSKIE).
On this question the yeas and nays have been ordered, and the clerk will call the roll.
The legislative clerk called the roll.
The result was announced – yeas 56, nays 29, as follows:
[Roll call vote tally omitted]
So Mr. MUSKIE'S amendment (No. 1356) was agreed to.
Mr. MUSKIE. Mr. President, I move that the vote by which the amendment was agreed to be reconsidered.
Mr. KENNEDY. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.