Congressional Record: May 9, 2006 (House) Page H2302-H2304 THE BIG CHILL IN WASHINGTON, D.C. Mr. McDERMOTT. Mr. Speaker, I ask unanimous consent to speak out of turn. The SPEAKER pro tempore. Without objection, the gentleman from Washington (Mr. McDermott) is recognized for 5 minutes. There was no objection. Mr. McDERMOTT. Mr. Speaker, it is awfully cold in Washington, D.C. these days, and the arrival of spring is not going to change the frigid temperature beginning to grip the Nation's Capital. No matter how much we stand in the bright sunlight, Washington, D.C. is fast becoming a cold, cold place under this President and administration. The Big Chill is on and it is becoming an ice age for the ``People's- Right-to-Know.'' The New York Times and The Washington Post recently won Pulitzer Prizes for breaking through the administration's secrecy to inform the American people about secret prisons and secret wiretapping. In response, the administration wants journalism stopped. It just gets in the way of the administration telling people only what they want them to know. Maintaining this veil of secrecy is so important that the administration directed the Attorney General to see if he might invoke the 1917 Espionage Act as a way to make the first amendment disappear. By controlling what you know, they hope to control what you think. It is the solution to their Iraq dilemma. You don't have to mislead the people, as the President did, if the people simply don't know anything at all. That is what this assault on free speech is all about. I seek permission to enter into the Record an editorial promoted by the Washington Times by Nat Hentoff entitled ``Chilling Free Speech.'' The President and his administration are doing everything possible to impose censorship. They know that secrecy is the fastest, most effective way to silence dissent. If the American people know what they are doing, the American people could make them accountable for what they are doing. But there is no accountability for their actions, so they hide them under a blanket of secrecy. The President cried ``shameful'' that the Pulitzer Prize-winning journalism had reunited the American people with the truth about secret prisons and secret wiretapping ordered by the President and his administration. In other words, the truth made it out into the open, and that was not part of their plan. The only way to account for it was to attack those responsible for telling us. It is the centerpiece of the [[Page H2303]] Republican playbook. Attack anyone who disagrees. I know those tactics firsthand. But the cracks are beginning to show in the Republican wall of silent acquiescence. {time} 1945 A rubber stamp is still being used in this Congress by the Republicans, but many of my colleagues, my Republican colleagues, know that their mandatory vote at the discretion of the President is not in the best interest of the American people, and the people are beginning to listen to other voices, when they can hear them above the clatter of the Republican noise machine. Here is the proof. David Wise in the Los Angeles Times recently wrote an article entitled, ``Secrecy's Shadow Falls on Washington.'' I ask permission to enter this article in the Record. To help the American people understand how pervasive secrecy in the administration is, let me read a short excerpt from Mr. Wise's article, quote, ``The National Archives and Records Administration have been embarrassed by the revelation that at least 55,000 documents formerly available to researchers have been withdrawn and reclassified under secret agreements with the military and the CIA. The deals were so secretive that the documents simply disappeared from the shelves.'' That is the end of the quote. At least temporarily the head of the National Archives has suspended the disappearance of American history. It doesn't mean the threat has passed; it just means someone is fighting to keep America free. We have two choices, the free flow of information or the outright control of information. America is strong because of the protections within the free flow of information. It is guaranteed by the first amendment. But the President and his majority want to tell you what to think through the outright control of the information. Geoffrey Stone, author and law professor at the University of Chicago wrote an article in the New York Times the other day called, ``Scared of Scoops.'' Again, I ask to enter it in the Record. As the writer points out, the administration's primary tactic is intimidation. When in doubt, they try to make you afraid. When unpopular, they try to make you afraid. When they are losing their hold on power because of their record, they tend to make you afraid. The only reason you know this President has no energy policy for America is because he can't hide the price of gasoline at the pumps. He would make it a secret if he could. Don't be surprised if the President tries to classify the price of gasoline as a national security matter. That is his method of accountability to the American people. None. In a Nation where free speech is the last defense against absolute power, they don't want you to know because the more you know, the worse they look. [From the Washington Times, May 8, 2006.] Chilling Free Speech (By Nat Hentoff) Beyond the firing of CIA officer Mary O. McCarthy for leaking classified information to the press is a much larger story of the administration's increasing investigation of other such press leaks as a possible prelude to an American version of Britain's stringent Official Secrets Act. In February, CIA Director Porter Goss told the Senate Intelligence Committee of the need for a grand jury investigation including reporters who receive these leaks. The charge against Miss McCarthy, which she denies, is that she was a source of highly classified information for Dana Priest's report in The Washington Post on CIA secret prisons in Eastern Europe. Miss Priest, a 2006 winner of a Pulitzer award for the story, has been writing about the CIA's ``black sites'' since late 2002; and Sen. Pat Roberts, chairman of the Senate Intelligence Committee, continually refuses to authorize an investigation of the CIA's violations of American and international laws in its prisons wholly hidden from our rule of law. Miss Priest is already subject to a Justice Department investigation, as are New York Times reporters James Risen and Eric Lichtblau for their disclosure of the president's secret approval of the National Security Agency's warrantless surveillance of Americans. (Those reporters have also received Pulitzers this year, despite the president's characterization of their reporting as ``shameful.'') The administration's position has been clearly stated by FBI spokesman Bill Carter (The Washington Post, April 19): ``Under the law, no private person (including journalists) may possess classified documents that were illegally provided to them. These documents remain the property of the government.'' The law Mr. Carter cited is this administration's expansion of the Espionage Act of 1917, which is now before the courts in a case that can greatly diminish the First Amendment rights of the press--and the right of Americans to receive information about such lawless government practices as the CIA's secret interrogation centers and the president's violation of the Foreign Intelligence Surveillance Act in unleashing the National Security Agency. This espionage case--United States of America v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman--is the first in which the federal government is charging violations of the Espionage Act by American citizens--who are not government officials--for being involved in what until now have been regarded as First Amendment-protected activities engaged in by hundreds of American journalists. Messrs. Rosen and Weissman, former staff members of the American Israel Public Affairs Committee (AIPAC)--who have since been fired--are accused of receiving classified information from Defense Department analyst Franklin regarding U.S. government Middle East and terrorism strategy. Messrs. Rosen and Weissman are charged with then providing that classified information to an Israeli diplomat--and a journalist. Government official Franklin has pleaded guilty and been sentenced to prison. But defense attorneys for Rosen and Weissman declare: ``Never (until now) has a lobbyist, reporter or any other nongovernment employee been charged . . . for receiving oral information the government alleges to be national-defense material as part of that (accused) person's normal First Amendment-protected activities.'' In an amicus brief to the U.S. District Court for the Eastern District of Virginia, the Reporters Committee for the Freedom of the Press (with which I am affiliated) says: ``These charges potentially eviscerate the primary function of journalism--to gather and publicize information of public concern--particularly where the most valuable information to the public is information that the government wants to conceal'' so that the public cannot ``participate in and serve as a check on the government.'' (That's why the First Amendment's freedom of the press was added to the Constitution in 1791.) But the judge now hearing this espionage case, T.S. Ellis III, already said in March: ``Persons who come into unauthorized possession of classified information must abide by the law. That applies to academics, lawyers, journalists, professors, whatever.'' Recently, the judge appears to be backing off. However he decides, and it's uncertain, Steven Aftergood-- head of the Project on Government Secrecy at the Federation of American Scientists--says: ``To make a crime of the kind of conversations Rosen and Weissman had with Franklin over lunch would not be surprising in the People's Republic of China. But it's utterly foreign to the American political system.'' (This censorship of the press was cut out of the Espionage Act of 1917.) If the Supreme Court agrees with the Bush administration on this case, we will, as Mr. Aftergood says, have to build many more jails--and disarm the First Amendment. ____ [From the Los Angeles Times] Secrecy's Shadow Falls on Washington (By David Wise) Unencumbered by a First Amendment, Britain for almost 100 years has had an Official Secrets Act to prevent leaks to the media and to prosecute offenders, including journalists. Some Bush administration officials and members of Congress are casting a longing eye at the British law. If only the United States had a similar law, their reasoning goes, the reporters who revealed CIA-run prisons in Eastern Europe and the National Security Agency's warrantless wiretapping of terrorism suspects would be prosecuted instead of receiving Pulitzer Prizes. The U.S. Constitution remains a barrier to those who would restrict the flow of information to the media--and thus to the public. But administration policies are chipping away at its protections. The nation is in danger of having an Official Secrets Act not through passage of a law--although that is a possibility--but through incremental steps. The evidence is mounting: Judith Miller, as a reporter for The New York Times, spent 85 days in jail after refusing to name a confidential source in the investigation by Special Prosecutor Patrick J. Fitzgerald into the leak of the name of CIA officer Valerie Plame. Miller and half a dozen other reporters have been questioned by the prosecutor. Two former staff members of the American Israel Public Affairs Committee, or AIPAC, a pro-Israel lobby, are on trial in federal court on charges of conspiring to violate espionage statutes by obtaining defense information from a Pentagon official. Both lobbyists are civilians, and the government does not claim they received any documents, classified or otherwise. The National Archives and Records Administration has been embarrassed by the revelation that at least 55,000 documents formerly available to researchers have been withdrawn and reclassified under secret agreements with the military and the CIA. The deals were so secretive that the documents simply disappeared from the shelves. Historian Matthew Aid, who discovered the reclassification, pointed out that because he [[Page H2304]] possesses some of the documents, he might be in violation of the Espionage Act. Allen Weinstein, who heads the National Archives, has halted the documents' reclassification. The FBI is seeking access to the papers of the late muckraking columnist Jack Anderson to seize classified documents in his files. Anderson broke many stories the government tried to keep secret. His family, citing the First Amendment, has refused the agency's request. It is unclear how far the FBI plans to push the matter, or whether the government will try next to examine the files of other journalists, dead or alive. Porter J. Goss, director of the CIA, has testified that ``it is my aim and it is my hope'' that reporters who receive leaks on intelligence subjects are hauled before a grand jury and forced ``to reveal who is leaking this information.'' The CIA dismissed Mary O. McCarthy, a senior official, for allegedly having unauthorized contacts with the media and disclosing classified information to reporters. The agency let stand the impression that she had leaked the story of the CIA secret prisons for terrorists in Eastern Europe to Dana Priest of The Washington Post, who won a Pulitzer Prize for her account. McCarthy's attorney says she was not the source of the story and has never leaked classified information. Congress is considering legislation that would enable intelligence agencies to revoke the pensions of employees who make unauthorized disclosures. The measure also would allow the CIA and NSA to arrest suspicious people outside their gates without a warrant. Although the indictment of the two lobbyists for the American Israel Public Affairs Committee is replete with references to ``classified information,'' the espionage laws, with one narrow exception, refer only to ``information relating to the national defense.'' The spy laws were passed in 1917 during World War I. A 1951 presidential executive order created the current system of classifying documents. There is no law prohibiting leaks, so the government has used the espionage laws to combat the practice. President Clinton vetoed anti-leak legislation passed in 2000 that would have made it a crime for a government official to disclose classified information. To criminalize leaks of government information simply because the information is marked ``classified'' is absurd. In 2004, the most recent year for which figures are available, the government classified over 15.3 million documents. It is hardly likely that the government has that many real secrets to withhold from its citizens. Unnecessarily classifying documents is a fact of life in Washington. Many bureaucrats know that unless they stamp a document ``secret'' or ``top secret,'' their superiors may not even bother to read it. One agency classified the fact that water does not flow uphill. During World War II, the Army labeled the bow and arrow a secret, calling it a ``silent flash less weapon.'' The government's theory in the lobbyists' prosecution could, if it stands, change the nature of how news is gathered in Washington and how lobbyists and academics interact with the government. ``What makes the AIPAC case so alarming,'' said Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, ``is the defendants are not being charged with being agents of a foreign power but with receiving classified information without authorization. Most Americans who read the newspaper are also in possession of classified information, whether they know it or not. The scope of the charges is incredibly broad.'' Officials in Washington talk to reporters every day about matters that may, in some government file cabinet, in some agency, be stamped with a secrecy classification. How would a journalist be expected to know that he or she was a ``recipient'' of classified information and, in theory, subject to prosecution under a law that was meant to catch spies? The original British Official Secrets Act, passed in 1911, allowed the crown to prosecute anyone, even a journalist, who published a railroad timetable. The act was made less draconian in 1989, but still carries tough provisions and can apply to journalists. Until recently, the U.S. government applied the espionage laws to officials who leaked, not to the recipients. ``Otherwise,'' Aftergood said, ``Bob Woodward would not be a wealthy, bestselling author. He would be serving a life sentence.'' ____ [From the New York Times] Scared of Scoops (By Geoffrey R. Stone) While tensions between the federal government and the press are as old as the Republic itself, presidential administrations have never been inclined to criminally prosecute the news media for publishing information they would rather keep secret. In recent weeks, however, the Bush administration and its advocates, including Attorney General Alberto Gonzales, have spoken of prosecuting The Washington Post and The New York Times for publishing Pulitzer Prize- winning exposes of the administration's secret prisons in Eastern Europe and secret National Security Agency surveillance of Americans. Specifically, the president and some of his supporters say reporters and publishers have violated a provision of the 1917 Espionage Act, which provides in part that anyone in unauthorized possession ``of information relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States'' who willfully communicates it to any person not entitled to receive it ``shall be fined under this title or imprisoned not more than 10 years, or both.'' But for at least three reasons, such threats are largely empty. First, the provision was never intended to be used against the press. When the Espionage Act was proposed by President Woodrow Wilson, it included a section that would expressly have made it a crime for the press to publish information that the president had declared to be ``of such character that it is or might be useful to the enemy.'' Congress overwhelmingly rejected that proposal, with members of both parties characterizing it as ``un-American'' and ``an instrument of tyranny.'' Second, if the 1917 act were meant to apply to journalists, it would unquestionably violate the First Amendment. Laws regulating speech must be precisely tailored to prohibit only speech that may constitutionally be proscribed. This requirement addresses the concern that overbroad laws will chill the willingness of individuals to speak freely. Not surprisingly, because the act was drafted before the Supreme Court had ever interpreted the First Amendment in a relevant manner, it does not incorporate any of the safeguards the court has since held the Constitution requires. For example, the provision of the act is not limited only to published accounts that pose a ``clear and present danger'' to the nation. For this reason, it seems clear, any prosecution of the press under it would be dismissed out of hand by the judiciary. Third, if Congress today enacted legislation that incorporated the requirements of the First Amendment, it could not apply to articles like those published by The Times and The Post. Such a statute would have to be limited to articles that, first, do not disclose information of legitimate and important public interest and, second, pose a clear and present danger. Nobody could deny that articles like those on secret prisons and electronic surveillance of Americans clearly concerned matters of legitimate and important public interest; nor could the administration show that such disclosures created a clear and present danger of serious harm to the national security. I do not mean to suggest that the government has no interest in keeping military secrets or that it may never punish the press for disclosing classified information. To the contrary, the government may take many steps to keep such information secret, including (in appropriate circumstances) firing and even prosecuting public employees who unlawfully leak such information. Moreover, in narrowly defined circumstances, the government may prosecute the press for disclosing classified national security information. Such a prosecution might be consistent with the First Amendment, for example, if a newspaper revealed that the government had secretly broken an important Qaeda code, thus causing that group to change its cipher. But revelations like those in The Times and Post revealed significant government wrongdoing and therefore are essential to effective self-governance; they are at the very core of the First Amendment. Although the threats of the White House are largely bluster, they must nonetheless be taken seriously. Not because newspapers are really in danger of being prosecuted, but because such intimidation is the latest step in this administration's relentless campaign to control the press and keep the American people in the dark.) ____________________