November 21, 1974
Page 36869
Mr. MUSKIE. Mr. President, first, I express my appreciation to the distinguished Senator from Massachusetts for taking the leadership with respect to this issue and this piece of legislation. I wish to express the satisfaction I have had in working with him in advancing this measure and now defending it and urging the override of the President's veto.
Mr. President, the vote before us this afternoon is, in my opinion, one of the most important we will consider during this post-election session.
Throughout the campaign period this fall flowed an increasingly visible undercurrent of voter frustration with government and politics as usual. Among many signals transmitted by the voting public on November 5 was that government has become too big, too unresponsive, and too closed to the people it is supposed to serve.
Candidates across the Nation were confronted with demands for openness and candor to a degree unparalleled in recent years. To many observers, these demands reflect the voters' cynical belief that most of the public's business is conducted far from the public's eye.
If this reading is correct – and I believe it is – then one of the best ways to deal with such cynicism is to open up the business of government to greater public scrutiny. The legislation before us now – the amendments to the Freedom of Information Act of 1966 – is intended to do just that.
During joint hearings on the Freedom of Information Act held last year by Senators ERVIN and KENNEDY and myself, it became evident that loopholes in the original 1966 act were interfering substantially with the public's right to know.
The cost of challenging Government secrecy claims in court remained too great for most citizens to bear.
Red tape and delay generated in response to a request for information tested both the patience and endurance of the citizen making the request.
And, as demonstrated in the case of Environmental Protection Agency against PATSY MINK, there was no mechanism for challenging the propriety of classifications under the national defense and foreign policy exemptions of the 1966 act. Thus, the mere rubber-stamping of a document as "secret" could forever immunize it from disclosure.
The legislation before us today is designed to close up the loopholes which have led to such abuse of both the spirit and the letter of the law. It will enable courts to award costs and attorneys' fees to plaintiffs who successfully contest agency withholding of information. It will require agencies to respond promptly to requests for access to information, and thereby help bar the stalling tactics which too many agencies have used to frustrate requests for information. And most importantly, the legislation will establish a mechanism for checking abuses by providing for review of classification by an impartial outside party.
These amendments are not just a hasty, patchwork effort. On the contrary, they represent many months of careful study by three subcommittees in the Senate, and the Subcommittee on Foreign Operations and Government Operations in the House. And they were sent to the President with the overwhelming support of both Houses of Congress.
Unfortunately, the same President who began his administration with a promise of openness, sided with the secret-makers on the first big test of that promise.
The President claims to have several problems with the legislation we sent to him. But his major problem goes to the heart of what these amendments are all about.
When the Freedom of Information Act amendments were first considered by the Senate, I offered a change which would authorize the courts to conduct in camera a review of documents classified by the Government to determine if the public interest would be better served by keeping the information in question secret – or making it available to the public.
My amendment was a response to the increased reliance by former administrations to use national security to shield errors in judgment or controversial decisions.
It was a response as well to the mounting evidence, more recently confirmed in tapes of Presidential conversations, that national security reasons were deliberately used to block investigations of White House involvement in Watergate.
That amendment was incorporated in the legislation sent to the President for his signature. And it is primarily that amendment which caused the President to veto the legislation.
The President does not seem to object to the concept of judicial review of classified documents.
The changes he proposed in returning the bill to Congress adopted the same mechanism of in camera review.
What the President does object to is the standard to be used in reviewing such documents. And on this point his proposals would deal another setback to the public's right to know.
The legislation passed by Congress would call for a determination by the judge reviewing the documents in question that the documents were properly classified, in accordance with rules and guidelines for classification set out by the executive branch itself.
The judge would be required to give substantial weight to the classifying agency's opinion in determining the propriety of the classification.
The President's counterproposal on this point would make it even more difficult to extract information of questionable classification from the executive branch. Under his proposal, the court could only enjoin an agency from withholding agency records after finding the agency had no reasonable basis whatsoever for classifying them in the first place. Thus, in spite of the record. of abuse, we are being asked once again to assume that the Government is right, on the basis of a very vague standard indeed, and to accept that the stamp of secrecy is challengable only in the most blatant cases of misuse.
The conflict on this particular point boils down to one basic concern – trust in the judicial system to handle highly sensitive material. The administration seems to feel that only the agency dealing with specific information is capable of passing judgment on the legitimacy of classification, except in cases where that judgment has been found to be grossly inappropriate.
The bill passed by Congress recognizes that special weight should be given agency judgments where highly sensitive material is concerned.
But that bill also expresses confidence in the Federal judiciary to decide whether the greater public interest rests with public disclosure or continued protection.
I cannot understand why we should trust a Federal judge to sort out valid from invalid claims of executive privilege in litigation involving criminal conduct, but not trust him or his colleagues to make the same unfettered judgments in matters allegedly connected to the conduct of foreign policy.
As a practical matter, I cannot imagine that any Federal judge would throw open the gates of the Nation's classified secrets, or that they would substitute their judgment for that of an agency head without carefully weighing all the evidence in the arguments presented by both sides.
On the contrary, if we constrict the manner in which courts perform this vital review function, we make the classifiers themselves privileged officials, immune from the accountability necessary for Government to function smoothly.
A final point that needs to be made about the President's opposition to this legislation concerns his claim that the bill is unconstitutional.
On Tuesday I placed in the RECORD an opinion I solicited from Prof. Philip Kurland on this question. I would like to quote from Professor Kurland's letter again, because he has so succinctly and finally laid the President's claim to rest.
I would repeat that the issue between Congress and the President here is not whether there is or should be a privilege for military and state secrets. Both are in agreement that there should be such a privilege. Nor is the issue between the President and the Congress the question whether the federal courts should have the power of in camera inspection in order to determine whether the materials that are classified should retain their privilege. Both are in agreement that in camera inspection is appropriate. The controversy is solely over the question of the standard to be applied by the courts in making determinations of availability. Congress says that the materials in question must in fact have been properly classified in accordance with the executive's own standards for classification. The President wants the secrecy maintained if the court finds a "reasonable," if erroneous, basis for the classification ... I do not see how it is possible to say that the Presidential position is constitutional, but the congressional position unconstitutional.
The President's charge that this bill is unconstitutional is a serious one to make. I hope that my colleagues will not be swayed by it, for I believe it to be without foundation.
In closing, I want to underscore my feeling that this legislation represents. a unique opportunity to bring the people of this country closer to the facts and figures on which governmental decisions are based.
We must not delay any further the people's opportunity to know more about their Government.
For too long that opportunity has been eroded by not enough candor and too much secrecy.
The people are saying that they want to know more. I hope that by our action today, we will give them that chance.