[Congressional Record: July 29, 2008 (Senate)]
[Page S7595-S7619]
FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED--Resumed
Mr. REID. Mr. President, I now move to proceed to S. 2035, which is
the media shield bill.
The PRESIDING OFFICER. The motion is now pending.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. 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the quorum call be rescinded.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. LEAHY. Mr. President, I thank the distinguished Presiding
Officer. I want the distinguished Presiding Officer to know the weather
in our home State is much nicer today than it is here.
I support the Free Flow of Information Act, S. 2035, which the
distinguished majority leader has moved to. I hope the minority will
allow us to consider this important legislation.
I thank the majority leader for his willingness to bring this
legislation before the Senate. I have worked with him on this matter to
find an opportunity for Senate action since the Judiciary Committee
reported this bill last October. I appreciate the support of the
majority leader. He has offered a generous response to the bipartisan
request Senator Specter and I made to him and the Republican leader
earlier this year to proceed to this bill. In a bipartisan letter, we
asked if he would proceed to the bill. He has done that. I applaud him
for it.
Our bill has 20 Senate cosponsors, Members of both parties. I hope
the Republican cosponsors will join us in moving to the bill and will
bring along the seven or eight Republicans we will need to overcome yet
another filibuster and make progress.
I have also supported and urged the Senate to proceed to the strong
House-passed version of the Free Flow of Information Act, H.R. 2102.
That bill passed the House of Representatives by a vote of 398 to 21--
so it obviously has overwhelming bipartisan support. The House bill has
more than 70 cosponsors--both Republicans and Democrats alike.
Years ago, my mother and father owned a small daily newspaper in
Waterbury, VT, the Waterbury Record. As a child, I grew up hearing, at
the kitchen table, that a free and vibrant press is essential to a free
society. That has been demonstrated again and again over the last eight
years. That is why I cosponsored the Senate version of this bill and I
have worked hard to enact a meaningful reporters' shield law this year.
That is why I made sure that for the first time ever--for the first
time ever--the Senate Judiciary Committee reported a media shield law
to protect the public's right to know. The Judiciary Committee reported
a bill sponsored by Senators Lugar, Dodd, Specter, Schumer, Graham, and
myself with a strong bipartisan 15-to-4 vote.
I wish to commend the leadership of Senator Lugar and Senator Dodd in
connection with this matter. They began this quest for fairness when it
seemed an impossibility several years ago. They have worked diligently
to bring us to where we are today--at the cusp of achieving a Federal
shield law--if only the Senate gets the support of a handful of
Republican Senators to proceed to the bill.
All of us--whether Republican, Democratic or Independent--have an
interest in enacting a balanced and meaningful shield bill to ensure a
free flow of information to the American people. Forty-nine States and
the District of Columbia currently have codified or common law
protections for confidential source information. But even with these
State law protections, the press remains the first stop, rather than
the stop of last resort, for our Government and private litigants when
it comes to seeking information. Time and time again--especially during
the years when this Congress refused to do real oversight of the
current administration--when there was waste in Government, when there
were serious mistakes in Government, even when Government was breaking
the law, we found out about it first and foremost because of the press
in America.
Earlier this year, Toni Locy, a professor of journalism at West
Virginia University, also a former USA TODAY reporter, was held in
contempt of court for refusing to divulge her confidential sources.
There are scores of other reporters who have been questioned by Federal
prosecutors about their sources, notes, and reports in recent years.
This is a dangerous trend that can have a chilling effect on the press,
but even more so, on the public's right to know. If you don't have a
free press,
[[Page S7596]]
then you don't have a free society. If you don't have a way for
Americans to know what their Government is doing, then we will all
hurt. To paraphrase Mark Twain, you should support your country all the
time but question your government when it deserves it. We need a press
willing and able to do that.
Enacting the Free Flow of Information Act--which carefully balances
the need to protect confidential source information with the need to
protect law enforcement and national security interests--would help to
reverse this troubling trend and benefit all Americans. The bill
creates a qualified privilege to protect journalists from being forced
to reveal their confidential sources. The bill contains exceptions to
the privilege for criminal conduct or national security. The
legislation also requires that Federal courts weigh the need for the
information with the public's interest in the free flow of information,
before compelling reporters to disclose their confidential sources.
Although I strongly support the enactment of a Federal shield law, I
have some reservations about possible revisions to the bill we passed
out of Committee. I am pleased that language has been drafted to
address my concerns about making sure that legitimate bloggers and
freelance journalists are included in the definition of the persons
covered by this bill.
However, I hope that any amendments to this legislation will include
stronger protections for journalists and their sources with regard to
matters of national security and classified information. No one would
quibble with the notion that there are circumstances when the
Government can and should have the right to compel information in order
to keep us safe. But many newsworthy stories concerning national
security, such as the exceptional reporting on the CIA's secret prisons
and the warrantless--and many feel illegal--wiretapping by the National
Security Agency were published with the help of confidential sources,
to the great benefit of the general public and the accountability that
ordinary Americans deserve from their Government.
I fear that proposals from some in this body do not go far enough to
protect against Government abuse in this area or to protect the
public's interest in the dissemination of newsworthy information.
Not all reporters will be as lucky as Bill Gertz of the Washington
Times was when a judge recently upheld his claim in a case in a
California Federal court. Even with this victory, however, the
Government has responded by broadening its inquiries. To prevent
further intrusions on our fundamental first amendment rights, we need
some uniform standards. We need procedures to evaluate claims of
privilege and protect the public's right to know. To do that, of
course, the Congress must act.
In a much touted speech to the American Enterprise Institute last
week, current Attorney General Mukasey, who still opposes a Federal
shield law, articulated principles that argue for enacting one.
Attorney General Mukasey endorsed congressional legislative action when
there exists a ``serious risk of inconsistent rulings and considerable
uncertainty.'' He noted that congressional action to provide procedures
in national security cases is ``well within the historic role and
competence of Congress.'' Although he was proposing action in another
setting, the Attorney General's remarks likewise support congressional
action to standardize and clarify the procedures governing a Federal
statutory press shield law. In view of the disparate rulings and
outcomes that have developed in the courts since the Supreme Court's
Branzburg decision 36 years ago, it is now time for Congress to
establish a framework for the courts to resolve press privilege
assertions fairly and consistently, and we can do this while preserving
our national security.
When he testified before the Senate Judiciary Committee in favor of
the Federal shield law in 2005, William Safire told us that the essence
of news gathering is this: If you do not have sources you trust and who
trust you, then you don't have a solid story--and the public suffers
for it. Well, Bill Safire is exactly right. We simply have no idea how
many newsworthy stories have gone unwritten and unreported out of fear
that a reporter would be forced to reveal a source or face jail time.
We also do not know how many potential whistleblowers, or other
confidential sources, have chosen to remain silent out of fear that
journalists could be compelled to disclose their identity.
Just recently, investigative journalism and confidential sources have
helped to uncover significant Government failures in Iraq, in New
Orleans, as well as Government neglect at the Walter Reed Medical
Center. We wouldn't have found out how poorly the returning soldiers
were being treated--people who have lost limbs or have been paralyzed
or blinded in the war in Iraq--by the Veterans' Administration and the
problems and events at our Government facilities. We would not have
found out about that if a confidential source hadn't told a reporter.
We have seen just in the past few days news articles about
politicization at the Department of Justice. A lot of the spotlight on
how politicized this administration's Justice Department has become
came out of hearings we held in the Judiciary Committee. But much of
what we found out about what was going on at the Justice Department
came out of press reports based on confidential sources.
We learned from the press that the White House, afraid that they
might find out the truth, avoided implementing the Environmental
Protection Agency's recommendations on global warming by not opening
the agency's e-mails. Again, we find out about that from confidential
sources.
As a former prosecutor, I understand the importance of making sure
that the Government can effectively investigate criminal wrongdoing,
combat terrorism, and preserve national security. The Federal shield
legislation we are seeking to bring before the Senate strikes a balance
among these important objectives. The bill addresses the legitimate
need for law enforcement to obtain information from reporters to
prevent a crime or a national security threat.
In addition, by providing a qualified and not an absolute privilege
to withhold the identity of confidential sources, the bill also
advances other important law enforcement objectives, such as
encouraging whistleblowers to disclose fraud, waste, and abuse that
might otherwise go unreported.
The opposition to this carefully crafted bill by the Department of
Justice and Office of the Director of National Intelligence, ODNI, is
simply misplaced. Although 49 States, the District of Columbia, and
several Federal courts have recognized a reporter's privilege either by
statute or common law for years, the Department of Justice and ODNI
have not cited a single circumstance where the privilege caused any
harm to national security or to law enforcement. In fact, the
legitimate concerns about the need to effectively combat crime and
protect national security have been satisfied by the bill and by
amendments to this bill offered in a bipartisan fashion by Senators
Feinstein, Brownback, and Kyl.
A free press in our country is what sets us apart from so many other
nations in the world. The distinguished Presiding Officer, in his years
in the House and in the Senate, can certainly point to examples where
we have found out things that have been kept hidden from the Congress
only because the press uncovered them. Certainly, that has been my
experience in my years here in the Senate.
I also know that there is a temptation--when any administration has
made a serious mistake or is trying to hide wrongdoing by their
administration, the first thing they want to do is to make sure nobody
in the press or the Congress or the public finds out what they have
done. For every administration, it is easy to have all of their press
people go out and tout the things they want us to know, the things they
consider a success. None want us to hear about the embarrassments or
the mistakes or, more recently, out-and-out wrongdoing. That is where
you need a press willing to go in and uncover Government wrongdoing and
protect the sources who help them to do so.
Do you think even with all of the hearings I and others have held we
would have found out how law enforcement was manipulated and thwarted
by this administration in the selection and manipulation of U.S.
attorneys?
[[Page S7597]]
We found out about it first and foremost by the press, and then through
witness testimony in hearings, and now by the Justice Department's
Inspector General who had the willingness to stand up and point to the
wrongdoing of this administration. And then there was Abu Ghraib--how
did we find out about that? We learned about it in the press, not
because the administration was willing to say: Look at this terrible
thing we have done.
So after months and months of delaying tactics and opposition by the
Bush administration, the time has come to pass a Federal shield law. I
thank and commend the more than 60 news media and journalism
organizations including ABC News, the Associated Press, CNN, the
National Newspaper Association, the Society of Professional
Journalists, and the Vermont Press Association, that worked so hard to
get us to this point.
I ask unanimous consent to have a copy of a support letter from the
Media Coalition Supporting the Free Flow of Information Act printed in
the Record following my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. Mr. President, I will just leave with this: Let's make
sure the Congress--especially this Senate--takes steps, as the other
body did, to make it easier for the public to know not all the things
the Government wants them to know but the times when our Government has
made mistakes, the times when our Government has not followed the law,
the times when our Government has tried to give disinformation. We are
a stronger nation if we know the truth. We are a weaker nation if our
laws allow the truth to be shielded from the American people. I trust
the American people. I trust the American people to question our
Government. I trust the American people to be able to handle the
information. I do not trust those who would try to use every barrier to
keep that information from the American people.
Mr. President, I yield the floor.
Media Coalition Supporting the Free Flow of Information Act
July 21, 2008.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, Russell Bldg., U.S.
Senate, Washington, DC.
Re: S. 2035--The Free Flow of Information Act.
Dear Chairman Leahy: On behalf of the men and women across
the country who work to bring the American people vital news
and information, we, the undersigned media companies and
organizations, thank you for your support and co-sponsorship
of S. 2035, the Free Flow of Information Act. Your leadership
in support of this bill has been invaluable in fighting to
ensure that the American public has access to news and
information about their government and the institutions that
affect their daily lives. Protecting confidential sources
through federal legislation has broad support on both sides
of the aisle, in both chambers of Congress, and from state
attorneys general across the nation.
The legislation is vitally important to the national
interest, an informed citizenry, and a free and vibrant
press. As you know last October, S. 2035 was favorably
reported out of the Senate Judiciary Committee on a strong
15-4 bipartisan vote and is supported by the presumptive
Republican and Democrat presidential nominees, Sens. John
McCain and Barack Obama. A similar shield bill (H.R. 2102)
passed by an overwhelming 398-21 vote.
Chairman Leahy, we appreciate your leadership and
respectfully request that you do whatever you can to make
sure that S. 2035 is approved by the Senate, without any
further amendments that would weaken the well-reasoned
protections in the bill.
Very truly yours,
ABC News, ABC Owned Television Stations, Advance
Publications, Inc., A. H. Belo Corporation, Allbritton
Communications Company, American Business Media, American
Society of Magazine Editors, American Society of Newspaper
Editors, The Associated Press, The Associated Press Managing
Editors Association.
Association of Alternative Newsweeklies, Association of
American Publishers, Association of Capitol Reporters and
Editors, Belo Corp., Bloomberg News, CBS Corporation, Clear
Channel, CNN, Coalition of Journalists for Open Government,
The Copley Press, Inc.
Cox Television, Cox Newspapers, Cox Enterprises, Inc.,
Daily News, L.P., First Amendment Coalition of Arizona, Inc.,
Freedom Communications, Inc., Gannett Co., Inc., Gray
Television, Hachette Filipacchi Media U.S., Inc., Hearst
Corporation.
Lee Enterprises, Inc., Magazine Publishers of America, The
McClatchy Company, The McGraw-Hili Companies, Media Law
Resource Center, National Association of Broadcasters,
National Conference of Editorial Writers, National Federation
of Press Women, The National Geographic Society, National
Newspaper Association.
National Press Photographers Association, National Public
Radio, NBC Universal, News Corporation, Newspaper Association
of America, The Newspaper Guild-CWA, Newsweek, The New York
Times Company, North Jersey Media Group Inc., Online News
Association.
Pennsylvania Newspaper Association, Radio-Television News
Directors Association, Raycom Media, Inc., The Reporters
Committee for Freedom of the Press, Reuters America LLC, E.
W. Scripps, Society of Professional Journalists, Stephens
Media LLC, Time Inc.
Time Warner, Tribune Company, truTV, The Walt Disney
Company, The Washington Post, U.S. News & World Report, White
House News Photographers Associations.
[...]
The PRESIDING OFFICER (Mrs. McCaskill). The Senator from New York.
Mr. SCHUMER. Madam President, I will be brief. I know Senator
Grassley has been waiting as well. I will not speak for very long.
I rise to speak about S. 2035, the Free Flow of Information Act, a
bill that Senator Specter and I have spent a lot of time on, worked on,
and is cosponsored by many in the House and notably Senators Dodd and
Lugar who had a previous bill, as well as, of course, Senator Leahy who
led the charge on so many different issues and has been very helpful in
us moving this legislation forward.
I am going to speak tomorrow when we address the bill, but I wanted
to let my colleagues know of a substitute amendment that Senator
Specter, I, and others will offer because it will modify the bill and
meet some of the objections.
First let me say the bill is very much needed. We have to find the
right balance between the free flow of information and the ability of
reporters to get that information from those in Government and, at the
same time, not be so far in that direction that we allow people to
either break the law or harm the security of the United States.
This has been much more difficult than it appears to achieve, but we
are very close. The bill codifies and standardizes existing tests used
by Federal courts so that journalists, say, in Illinois are not subject
to different treatment than journalists in California.
It certainly allows whistleblowers to be protected when they tell
somebody about something untoward. We certainly don't want, if a test
is being fixed in the FDA because a drug company wants it, to prevent
some public servant in the Government from letting a reporter know to
prevent harm. But at the same time, there is no absolute privilege and
there are exceptions in terms of harming national security, acts of
terrorism, and other matters, such as kidnaping or murder.
Again, I will talk about this bill at some length tomorrow. But I do
want to go over some of the changes we have made so my colleagues are
aware of them before we vote.
As I said, Senator Specter and I have put together a substitute which
if we adopt the motion to proceed--and I hope we will--we will
immediately offer, and that will be the base bill we will discuss. Let
me talk about the changes made.
First, the intelligence community had concern that it would be too
difficult to prosecute leaks of classified information. The new bill
moves consideration of leaks of classified information from section 2
of the bill to section 5, and that removes two major hurdles for
Federal prosecutors.
Under the new law, prosecutors will not have to prove any longer that
they have exhausted all options for finding the information or that the
information is essential to their investigation. These hurdles still
remain in the Department of Justice internal guidelines, but the bill
is not as strict in that regard.
The bill also no longer requires that the person who leaked the
information was authorized to have it.
This substitute clarifies that the act will have zero impact on
intelligence gathering under the Foreign Intelligence Surveillance Act.
This bill does not affect FISA.
[[Page S7600]]
Third, the substitute explicitly provides that sensitive Government
information will not be disclosed in open court. There was worry that
under a whistleblower law, that might happen. We make it clear that
security has to come first, but there also has to be balance in the
test.
Four, the definition of a covered person--and this has been one of
two areas of some controversy--has been narrowed to ensure that it
protects only legitimate journalists, first used in the Second Circuit
case of von Bulow v. von Bulow to determine who qualifies as a covered
person. Someone who blogs occasionally is not going to get the
protection here. Of course, someone on a blog who is a regular
journalist but happens to use the blog as a medium will be protected.
And that is how it ought to be.
Five, the substitute creates an expedited appeals process ensuring
that litigation regarding whether the protection applies will be
resolved as quickly as possible. In section 8, we expedite the appeals
process.
These are the changes made. They make the bill better. The bill has
the support of the journalistic community. It has the support of 41
sitting States attorneys general, both Democrats and Republicans. It is
one of those rare bipartisan moments. It has the support of Senator
Obama and Senator McCain and, of course, passed out of the Judiciary
Committee 15 to 4. A similar bill passed out of the House by 398 to 21
and, obviously, it has been endorsed by 100 newspapers. That is easy to
say, but in this town both the Washington Post, a more liberal paper,
and the Washington Times, a more conservative paper, have endorsed it.
This bill has taken lots of time and lots of work to achieve a
careful balance. This is a rare moment, praise God, a broad consensus,
and I hope we can move this bill forward tomorrow.
Madam President, I will speak at greater length tomorrow when we are
on the bill, but I wanted to let my colleagues know the substitute
changes which we will publish in the Record this evening so people will
have a chance to look at it.
I yield the floor so that my colleague from Iowa can speak.
The PRESIDING OFFICER. The Senator from Iowa.
[...]
EPA Administrator Stephen L. Johnson
Mr. WHITEHOUSE. Madam President, I rise to speak about a matter that
I very much regret being here to discuss, but events have driven me to
this point and, with me, the chairman of the Environment and Public
Works Committee, Mrs. Boxer, Senator Klobuchar, and others as well.
For most of its nearly four-decade history, Americans could look to
the Environmental Protection Agency for independent leadership,
grounded in science and the rule of law. It was an agency whose clear
mission was to protect our environment and health.
At its very founding, EPA's first Administrator, William Ruckelshaus,
stated unequivocally:
EPA is an independent agency. It has no obligation to
promote agriculture or commerce; only the critical obligation
to protect and enhance the environment.
During the tenure of Administrator Stephen Johnson, we have seen that
clear mission darkened by the shadowy handiwork of the Bush White
House, trampling on science, ignoring the facts, flouting the law,
defying Congress and the courts, while kneeling before industry
polluters, and all for rank and venal purposes. Under Administrator
Johnson, EPA is an agency in distress, in dishonor, and in bad hands.
Events last week have shed new light on the extent of the damage done
to this great agency, but the evidence of Mr. Johnson's dismal record
has been growing for many months. The charges are serious and fall in
three separate categories: his repeated decisions putting the interests
of corporate polluters before science and the law, even when it puts at
risk our environment and the health of American people; his deliberate
actions to degrade the procedures and institutional safeguards that
sustain the agency; and his apparent dishonesty to us in testimony
before Congress.
The particulars are these. Count 1: On pollution from ozone, the EPA,
under Administrator Johnson, departed from the consistent
recommendations of agency scientists, public health officials, and the
agency's own scientific advisory committees and instead set an ozone
standard that favored polluters. The standard he set was inadequate to
protect the public, especially children and the elderly, from the
harmful effects of ozone pollution, from asthma and lung disease.
Indeed, it was so inadequate that EPA's own Clean Air Scientific
Advisory Committee took the unique step of writing to the Administrator
to state that they ``do not endorse the new primary ozone standard as
being sufficiently protective of the public health'' and that the EPA's
decision ``fail[ed] to satisfy the explicit stipulations of the Clean
Air Act that you ensure an adequate margin of safety for all
individuals, including sensitive populations.''
Setting this inadequate ozone standard against the evidence was a
dereliction of Administrator Johnson's duty to the Agency he leads and
of EPA's duty to protect the health of the American people.
Count 2: On pollution from lead, Administrator Johnson has proposed a
standard that fails to sufficiently strengthen the regulation aimed at
limiting exposure to lead pollution.
Lead has poisoned tens of thousands of children in Rhode Island and
many more all over the country. Both an independent scientific review
panel and EPA's own scientific staff recommended a lead standard of no
greater than 0.2 micrograms per cubic meter. Yet Administrator Johnson
proposed a range of 0.1 up to .05 micrograms--2\1/2\ times.
Mr. Johnson further diluted even that lax standard by using what
public health advocates have labeled ``statistical trickery''--
statistical trickery--allowing polluters a longer period of time over
which to average the amount of lead they discharge into the air.
Again, by not adequately protecting children from lead, Administrator
Johnson was derelict in his duty to his Agency.
Count 3: On pollution from soot, technically called ``particulate
matter,'' Administrator Johnson bowed to pressure from industry and
failed to strengthen a decade-old standard limiting particulate matter
pollution from smokestacks.
Again, the Agency's own scientific advisory committees had called for
a tougher standard to protect public health. Again, Administrator
Johnson yielded to polluters. Again, Administrator Johnson failed in
his duty to the Agency he leads.
Count 4: On vehicle tailpipe emissions, Administrator Johnson denied
a waiver that would have allowed the State of California, my State of
Rhode Island, and many other States to enact strict restrictions on
global warming pollution from automobiles.
EPA staff indicated in briefing materials that ``we don't believe
there are any good arguments against granting the waiver.'' EPA lawyers
cautioned the Administrator that all of the arguments against granting
the waiver were ``likely to lose in court.'' Yet Administrator Johnson
issued an unprecedented denial of that waiver.
I will separately discuss my grave concerns about the Administrator's
testimony on this matter. I believe he has lied to us. But for this
purpose now, looking only at the substantive outcome, in ignoring the
law, the dictates of science, the recommendations of his regulatory and
legal staff, the role of Congress, the wishes of the States, and the
welfare of the American people, Administrator Johnson failed again in
his duty to the Agency he leads.
Count 5: On global warming pollution, in defiance of the Supreme
Court's decision in Massachusetts v. EPA, Administrator Johnson has
failed to take action after the Court's ruling that EPA has the
authority, under the Clean Air Act, to regulate greenhouse gas
emissions that pollute our air and warm our planet.
It is now nearly 18 months since the Court's decision, and the EPA
has shown no indication it will act before President Bush leaves
office. In ignoring a ruling of this Nation's highest Court empowering
him to act on a matter important to the public health of Americans,
Administrator Johnson again failed in his duty to the Agency he leads.
But it was not enough for Administrator Johnson to rule for the
polluters on pollutant after pollutant.
Administrator Johnson has also systematically dismantled
institutional safeguards and processes that protect his Agency's
integrity and guide its mission.
Jonathan Cannon served at EPA during the Reagan, George H.W. Bush,
and Clinton administrations. He warns of ``extreme friction within the
agency and institutional damage . . . demoralizing the legal staff, and
. . . further separating staff from the political leadership at the
agency.'' We saw similar sabotage of institutional safeguards in the
Gonzales Department of Justice, and this institutional damage raises
four further charges, taking us to count six.
On the question of the Agency's legal integrity, under Administrator
Johnson, the EPA offered legal arguments for its insufficient pollutant
standards so shallow they provoked ridicule by the courts that heard
them. When EPA tried to defend its weak mercury cap-and-trade system,
the DC Circuit Court of Appeals--which, as we know, is hardly a liberal
bench--accused the Agency
[[Page S7606]]
of employing the ``logic of the Queen of Hearts'' in attempting to
evade the intent of Congress and the clear meaning of the Clean Air
Act.
The same court said EPA's argument under the Clean Air Act allowing
power companies to avoid upgrading their pollution control technologies
made sense only in ``a Humpty Dumpty world.'' In adopting
``Wonderland'' legal analysis that contravenes the clear will of
Congress and embarrasses his Agency before the courts, Administrator
Johnson failed again in his duty to uphold the mission of the Agency he
leads.
Count 7: On the integrity of EPA's scientific advisory boards,
Administrator Johnson did not just ignore these boards'
recommendations, he willingly allowed those panels to be infiltrated by
the very industries they are meant to regulate and control.
For example, an employee of ExxonMobil served on the panel to assess
the carcinogenicity of ethyl oxide--a chemical manufactured by
ExxonMobil.
Another scientist received research support from Dow Agro and served
on that panel, even though ethyl oxide is also manufactured by Dow
Agro.
A scientist whose research was funded by American Cyanamid and CYTEC
sits on the EPA panel on acrylamide, which is manufactured by American
Cyanamid and marketed by CYTEC. EPA did not see any conflict of
interest.
But at the beck and call of the American Chemistry Council, an
industry lobby group, Administrator Johnson removed Dr. Deborah Rice, a
prominent toxicologist, from a scientific review board investigating
chemicals used in common plastic goods.
The industry argued that she had a conflict of interest. Incredibly,
the conflict of interest was that, at a public hearing in the State of
Maine, as a representative of the State's Government, Dr. Rice had
stated her professional opinion regarding the dangers associated with
these chemicals. The industry did not like her professional opinion.
Not only was Dr. Rice removed from the panel, but in a particularly
Orwellian maneuver, the fact that she had ever been on the panel was
stricken from the advisory committee's records.
In packing EPA's scientific panels to please industry polluters,
Administrator Johnson is guilty of a particularly chilling dereliction
of his duty to the Agency he leads.
Count 8: A report issued on April 23 by the Union of Concerned
Scientists, entitled ``Interference at the EPA,'' uncovered widespread
political influence in EPA decisions. The report found that 60 percent
of EPA career scientists surveyed had personally experienced at least
one incident of political interference during the past 5 years--60
percent of the career scientists. It is a plague over there.
The report documented, among other things, that many EPA scientists
have been directed to inappropriately exclude or alter information from
EPA science documents, or have had their work edited in a manner that
resulted in changes to their scientific findings.
The survey also revealed that EPA scientists have often objected to
or resigned or removed themselves from EPA projects because of that
pressure to change scientific findings.
Allowing this corrosive political influence to persist among the
career scientists at EPA is yet another dereliction of Administrator
Johnson's duty to the Agency he leads.
Count 9: Administrator Johnson has twisted the very administrative
procedures of the Environmental Protection Agency to allow the White
House Office of Management and Budget secret influence over Agency
decisionmaking.
For example, the IRIS process for determining the toxicity of
chemicals that all of us are exposed to allows OMB three separate
chances to exert its dark influence: at the beginning, in the middle,
and again at the end of the Agency's process. In the words of the GAO,
this process is ``inconsistent with the principle of sound science that
relies on, among other things, transparency.''
This is not just a potential concern. The current chair of EPA's
Clean Air Scientific Advisory Panel has testified that the ozone
standard was ``[set] . . . by fiat behind closed doors,'' has testified
that the entire Agency's scientific process was ``for naught,'' and
testified that ``the OMB and the White House set the standard, even
though theoretically it was set by the EPA Administrator.'' She
testified that as a result, ``willful ignorance triumphed over sound
science.'' That is her testimony.
In manipulating his Agency's processes to let willful ignorance
triumph over sound science, Administrator Johnson has again been
derelict in his duties to this once proud Agency.
The third and final category of charges relates to Johnson's
relationship to Congress. In defiance of his charge under the
Constitution of the United States, Administrator Johnson has personally
repeatedly refused to cooperate with Congress in our efforts to conduct
proper oversight over the executive branch.
The Senate Environment and Public Works Committee has repeatedly
requested documents in connection with EPA's denial of the California
waiver and its failure to adequately regulate ozone pollution in our
efforts to determine whether the White House improperly influenced
these decisions.
Administrator Johnson has rebuffed these proper requests. He has
repeatedly declined to appear before the EPW Committee to explain his
Agency's policies. And when he has appeared, he has resorted to canned,
stock, evasive answers in response to legitimate questions about
political influence infiltrating his Agency.
Just last week, he refused to appear before the Judiciary Committee
on which I also serve for a hearing to look further into his failure to
cooperate with Congress and provide documents and other information we
have sought.
In what is perhaps the gravest matter of all, I believe the
Administrator deliberately and repeatedly lied to Congress, creating a
false picture of the process that led to EPA's denial of the California
waiver, in order to obscure the role of the White House in influencing
his decision.
Today, Senator Boxer and I have sent a letter to Attorney General
Mukasey--along with Senator Klobuchar--asking him to investigate
whether Administrator Johnson gave false and misleading statements,
whether he committed perjury, and whether he obstructed Congress's
investigation into the process that led to the denial of the California
waiver request.
I ask unanimous consent that the letter and its attached recitations
be printed in the Record as an exhibit to these remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. WHITEHOUSE. There is more. These are not isolated counts but
signs of an agency corrupted in every place the shadowy influence of
the Bush White House can reach.
Administrator Johnson forced the resignation of EPA's Regional
Administrator for the Midwest, Mary Gade, who was locked in a struggle
with corporate polluter Dow Chemical Company. The circumstances are
highly suspicious. Administrator Johnson has replaced Ms. Gade with a
former attorney for the automobile industry, whose record on behalf of
the environment has been described as ``horrible.''
The EPA, under Administrator Johnson, has reduced the reporting
burdens on industries that release toxic chemicals into our land, sea,
and air. It has weakened enforcement and monitoring by opening fewer
criminal investigations, filing fewer lawsuits, and levying fewer fines
against corporate polluters.
It has failed to protect agency employees who pointed out problems or
reported legal violations or attempted to correct factual
misrepresentations made by their superiors and created an atmosphere
where employees fear reprisals.
In the face of widespread criticism that his agency is in crisis and
that he is a pawn of the White House and its allies in polluting
industries, Administrator Johnson's response was to label all those
concerned, many of whom are dedicated career employees of his agency,
as ``yammering critics,'' clearly a man after Spiro Agnew's own heart.
The EPA has a vital mission. When this great agency is weakened and
its work subverted by political interference, there is a great cost to
this country. When EPA scientists and career employees become
discouraged as their voices go unheard, there is a great cost to this
country. When the
[[Page S7607]]
people of America lose faith that the Environmental Protection Agency
actually lives up to its name, there is a great cost to this country.
When those who were chosen to serve this country instead serve
themselves, their political allies, and their patrons, there is a great
and lasting cost to this country. It is a failure of integrity, and
that is a failure we can no longer afford.
We demand integrity--democracy demands integrity--of our public
officials, not just because integrity is an abstract moral good but
because democracy fails without it.
Integrity sustains our democracy in such important ways. The first is
integrity to the truth. In Government, when the facts are clear enough
for responsible people to act, it is a failure of integrity to fail to
confront those facts. As the late Senator from New York, Daniel Patrick
Moynihan, famously said: ``You are entitled to your own opinion; you
are not entitled to your own facts.''
America has traditionally been characterized by candid and practical
assessment of the facts, a can-do attitude about responding to those
facts, and bold decisionmaking to find our way through those facts.
Practical, can-do, optimistic, realistic--that is the American way.
When Government doesn't face the truth about the facts, it will almost
certainly fail to meet the demands of the moment and fail to serve the
interests of our people. That is what is happening at EPA. They simply
will not face facts plain to any responsible person.
However, facts are stubborn things. They do not yield to ideology or
influence. They do not care about your politics. Unanswered they stand,
getting worse, and eventually the piper must be paid. If facts aren't
candidly, realistically, and responsibly faced, not only will the
problem get worse but the very capacity of the Government to address
problems candidly, realistically, and responsibly, that capacity will
itself degrade when not put to use. So there are ugly, lasting
consequences when Government officials fail at their obligation to meet
the truth head on.
Another integrity is to honesty. As failures of truth have a harsh
cost in Government, so do failures in honesty. I have sworn in new
assistant U.S. attorneys. I have sworn in new State assistant attorneys
general. I have presided at nomination hearings. Every time I have seen
the same thing: a little spark of fire, a moral fire sparked when
someone makes a choice to earn less money than they would otherwise, to
work a lot harder than they would otherwise, to dare greater challenges
than they might otherwise, all in order to serve the larger purpose, to
serve an ideal, to serve America.
This spark of fire inspires young men and women to tackle problems
that may seem unmanageable. This spark of fire keeps people at their
desks late into the night when others have gone home to their families.
This spark of fire brings idealism and principle to decisions and
illuminates a moral path through the complexities of Government.
The value in Government of that spark of fire burning in the hearts
of a thousand men and women--our real thousand points of light--is
immeasurable. EPA is sustained by that spark of fire.
But this spark of fire is quenched in the toxic atmosphere of
dishonesty whose guiding principles are help your friends, please your
patron, dodge your responsibilities, and fudge the truth. Dishonesty
and idealisms do not cohabit.
The third integrity is competence, a vital integrity. If we are to
address the present and looming problems a new administration will have
to face--a war without end in Iraq, an economy on a sickening slide, a
broken health care system, a country divided into two increasingly
separate Americas, a public education system that is failing, the
dangerous weight of an alarming national debt, foreign policies that
have unhinged us from responsible world opinion, bickering and
irresolution on problems such as immigration and global warming--we
must see competence as a core integrity. We must demand competence of
Government officials as a bare minimum, a core necessity.
Unfortunately, as one discouraged official has complained: ``In the
Bush administration, loyalty is the new competence.''
Administrator Stephen Johnson is a failure in all these dimensions.
From everything we have seen, Administrator Johnson has done the
bidding of the Bush administration and its political allies without
hesitation or question and in violation of his clear duty. He has tried
to cover up his dereliction of duty with evasive and discreditable
testimony. He has acted without regard for the law or the
determinations of the courts. He has damaged the mission, the morale,
and the integrity of his great institution--the Environmental
Protection Agency--and he has betrayed his solemn duty to Americans who
depend on him to protect their health, particularly our very youngest
and our very oldest whose vulnerability is greatest.
Administrator Johnson suggests a man who has every intention of
driving his agency onto the rocks, of undermining and despoiling it, of
leaving America's environment and America's people without an honest
advocate in their Federal Government. This behavior not only degrades
his once great agency, it drives the dagger of dishonesty deep into the
very vitals of American democracy. The American people cannot accept
such a person in a position of great responsibility.
I am truly sorry it has come to this, but that is why this afternoon
I called on Administrator Johnson to resign his position. I encourage
my colleagues to look closely at these concerns. Look at the reasons.
Look at what I have prepared. Whatever decision colleagues may come to,
I hope all understand I come to this decision sincerely and after much
review and reflection and with no pleasure.
I thank the President, and I yield the floor.
Exhibit 1
U.S. Senate, Committee on Environment and Public Works,
Washington, DC, July 29, 2008.
Hon. Michael Mukasey,
Attorney General, U.S. Department of Justice,
Washington, DC.
Dear Attorney General Mukasey: As members of the Senate
Committee on Environment and Public Works (EPW), we are
writing to ask that you open an investigation into whether
the Administrator of the U.S. Environmental Protection Agency
(EPA), Stephen L. Johnson, has made false or misleading
statements before the EPW Committee.
We do not make this request lightly. However, we believe
that there is significant evidence to suggest that Mr.
Johnson has provided statements that are inconsistent with
sworn testimony and documents provided in connection with an
investigation conducted by this Committee. These false,
misleading, or intentionally incomplete statements relate to
the decision announced by EPA on December 19, 2007, to deny
the request by California for a waiver under Section 209 of
the Clean Air Act. After Mr. Johnson's testimony, a former
senior aide to Mr. Johnson at EPA, Jason Burnett, provided
sworn testimony before the EPW Committee on July 22, 2008,
that appears to contradict Mr. Johnson's testimony on key
factual matters.
For example, Mr. Johnson stated under oath before the EPW
Committee on January 24, 2008 that he based his denial of the
California waiver request on California's failure to meet the
``compelling and extraordinary'' circumstances criterion
under Section 209, and that he reached this decision
independently. However, Mr. Burnett testified that Mr.
Johnson had in fact determined that California met this
criterion and the other Clean Air Act criteria necessary for
approval of the waiver, and that the Administration's
decision to deny the waiver was based on the President's
policy preferences, rather than the lack of compelling and
extraordinary circumstances.
In addition, Mr. Johnson testified before the EPW Committee
that the decision to deny that waiver was solely his
decision. However, Mr. Burnett testified that Mr. Johnson had
a plan to grant the waiver and had concluded that the
statutory criteria for granting it were met, until it was
``clearly articulated'' by the White House that the
President's ``policy preference'' was to deny the waiver.
We also are concerned about Mr. Johnson's testimony that
the energy legislation enacted by Congress and signed by the
President on December 19, 2007, was not substantively related
to his decision announced on the same day to deny the
California waiver, which he asserted was based upon his
finding that the waiver did not meet the Clean Air Act
statutory criteria. Mr. Burnett testified, however, that Mr.
Johnson had required extensive analysis of the impact of this
energy bill in evaluating whether to grant the waiver, and
that it was the President's policy preference that led to the
denial of California's waiver request, because granting the
waiver or a partial grant of the waiver would have led to two
standards, not one, as the President desired. The energy bill
established a single standard for vehicle fuel efficiency, as
the President desired.
[[Page S7608]]
It appears that Mr. Johnson's account of the California
waiver decision is factually inaccurate or misleading. We
take the inconsistency between Mr. Johnson's testimony and
other evidence very seriously. False testimony by any witness
is serious and undermines our ability to fulfill our
constitutional duties on behalf of the American people. Our
concern is heightened because this decision by the EPA
Administrator affects the health and wellbeing of the
American people. For these reasons, we have no choice but to
refer the matter to you for appropriate investigation and
prosecutorial action.
We look forward to your prompt response on this matter.
Sincerely,
Barbara Boxer,
Chairman.
Sheldon Whitehouse,
U.S. Senator.
Amy Klobuchar,
U.S. Senator.
Frank R. Lautenberg,
U.S. Senator.
____
EPA Administrator Johnson's Testimony Before Congress on the California
Waiver Decision
Specifically, the concerns we have regarding Administrator
Johnson's testimony arise out of conflicts between his
testimony before the EPW Committee, and that of Jason
Burnett, a former EPA official who worked closely with
Administrator Johnson on the California waiver issue.
It appears from Mr. Burnett's testimony that Administrator
Johnson's testimony was at best misleading and at worst
untruthful in many specific ways.
Administrator Johnson repeatedly claimed that the decision
to deny the California waiver was ``mine and mine alone.'' He
said this repeatedly, over and over:
I was not directed by anyone, I was not directed by anyone
to make the decision. This was solely my decision based upon
the law, based upon the facts that were presented to me. It
was my decision. (1/24/08 EPW Committee Oversight hearing
(``1/24/08 hearing''), unofficial transcript at p. 29).
I made the decision. It was my decision and my decision
alone. (2/27/08 EPW Committee hearing on EPA FY2009 Budget
(``2/27/08 hearing''), unofficial transcript at p. 58)
The decision was mine and mine alone. I made the decision.
(2/27/08 hearing, unofficial transcript at p. 59).
Certainly the California waiver was my decision under the
Clean Air Act and mine alone. I made the decision, I made it
independently, I carefully considered all the comments and I
made that decision. (Id. at p. 30)
Mr. Burnett's testimony, however, indicates that these
statements were not true in any meaningful sense. First, in
point of fact, the decision Administrator Johnson made was to
grant a partial waiver:
There was an effort that we were engaged in and that I was
engaged in to make the case that it would be appropriate to
issue at least a partial grant of the waiver. (Testimony of
Jason Burnett at EPW Committee hearing, 7/22/08, unofficial
transcript at p.31)
The Administrator had a plan to partially grant the waiver
provided that the Clean Air Act was not enacted [sic] by
Congress. (Id. at p. 42).
Second, Mr. Burnett's testimony makes clear that this
decision to grant the partial waiver was vetted thoroughly
within EPA and reflected the Agency's consensus view that at
least a partial waiver was appropriate:
We did our best to ensure that all policy officials
involved in this decision were apprised and informed of the
law and EPA's assessment that all three criteria were, that
the, clearly the most supportable case under the law is that
all three criteria had been met. (Id. at p.43)
My advice, my recommendation, as well as the advice and
recommendation of all other advisors within EPA that I am
aware of was for Administrator Johnson to grant the waiver or
at least grant the first few years of the waiver. (Id. at p.
21)
Third, Mr. Burnett testified that Administrator Johnson's
decision to partially grant the waiver was then taken to the
White House:
But we went forward with our plan, told the White House
about our plan to have a partial grant of the waiver. . . .
(Id. at p. 32)
Fourth, Mr. Burnett was clear that when the White House was
informed of the plan, the Administrator was told of the
President's ``policy preference'' and reversed his decision
to support the partial waiver.
But we went forward with our plan, told the White House
about our plan to have a partial grant of the waiver, and in
response, we were reminded of the President's policy
preference. (Id. at p. 32)
Mr. Burnett: I believe that we continued throughout the
early December to explain the case for a partial grant. I
believe that it was early December when the Administrator
made his plan known. Of course, that plan ultimately was not
followed.
Senator Whitehouse: And in between that, the White House
response came back that the President desired there to be the
single standard?
Burnett: yes. (Id. at p. 38)
The repeated, false emphasis by the Administrator that the
decision to deny the waiver was ``mine and mine alone,'' when
in fact the Administration effectively reversed Administrator
Johnson's decision to grant the waiver, was part of a larger
plan to mislead the EPW Committee about the decision-making
process regarding the waiver.
A second part of this plan was Administrator Johnson's
suggestion that there was staff debate on the California
waiver, during which a wide range of options were presented
by staff, and after which, based on this debate, the
Administrator made the decision to deny the waiver:
Again, a great team of people, the lawyers and scientists
and policy staff. They presented me with a wide range of
options [on the waiver]. Those options ranged from approval
to denial. I listened to them carefully, I weighed the
information and I made an independent judgment. I concluded
that California does not meet the standard under Section 209.
(1/24/08 hearing unofficial transcript, at p. 45).
Again, as I have stated and will state again, the decision
was mine, solely mine. I heard a wide range of comments from
inside the agency, outside the agency, I was presented with a
range of options. I made the decision. It was my decision and
my decision alone (2/27/08 hearing unofficial transcript at
p. 58).
During the briefing process, I encouraged my staff to take
part in an open discussion of issues, and due to their value
[sic?] options and opinions, I was able to make a
determination. As you know, the Clean Air Act requires the
EPA Administrator to determine whether or not the criteria
for a waiver have been met. It was only after a thorough
review of the arguments and material that I announced my
direction to staff to prepare a decision document for my
signature. (1/24/08 hearing unofficial transcript at p. 16)
Senator Whitehouse: The last time we spoke about this, you
said that sometimes the EPA staff gave you a single
consolidated recommendation, Mr. Administrator, this is what
we think you should do, and sometimes they give you an array
of options, Mr. Administrator, we think these are your
options. You have testified that in this case, they gave you
an array of options, not a single, consolidated opinion,
correct?
Administrator Johnson: That is what I remember, yes. (2/27/
08 hearing unofficial transcript at p. 61)
In fact, however, Mr. Burnett was clear that there was
staff agreement on the issue, as manifested in the plan
agreed to by the Administrator, and presented to the White
House, to grant a partial waiver:
My advice, my recommendation, as well as the advice and
recommendation of all other advisors within EPA that I am
aware of was for Administrator Johnson to grant the waiver or
at least grant the first few years of the waiver. (7/22/08
hearing, unofficial transcript at p. 21).
Mr. Burnett made clear, however, that the Administrator
went to the White House armed with a plan to partially grant
the waiver but, after being informed of the Bush ``policy
preference'' that the waiver not be granted, reversed course
and denied the waiver:
We went forward with our plan, told the White House about
our plan to have a partial grant of the waiver, and in
response, we were reminded of the President's policy
preference. (7/22/08 hearing unofficial transcript at p. 32)
Senator Whitehouse: In the Clean Air Act waiver, after the
White House was notified of the proposed decision that you
put together, did the White House respond to that notice that
you intended to partially grant the waiver?
Burnett: The response was clearly articulating that the
President had a policy preference for a single standard that
would be inconsistent with granting the waiver. (Id.)
Burnett: I believe that we continued throughout the early
December to explain the case for a partial grant. I believe
that it was early December when the Administrator made his
plan known. Of course, that plan was ultimately not followed.
SW: And in between that, the White House response came back
that the President desired there to be the single standard?
Burnett: Yes. (Id. at p. 38)
Administrator Johnson deliberately and repeatedly left
these steps out of his discussion of the process that led to
denial of the waiver.
Moreover, when questions regarding White House contact were
raised, he said things that were not true, if words are given
their meanings in common usage.
For example, Administrator Johnson testified repeatedly
that his contacts with the White House regarding the waiver
were limited to ``routine discussions'' that were nothing
more than status updates for the White House on the waiver
issue and were part of meetings involving multiple issues:
Senator Boxer: Did you contact [the White House about the
California waiver]?
Administrator Johnson: As part of good government, I tell
them what is the status of major actions that are before the
Agency to give them an update. That is what I do on
petitions, on regulations, and----
Senator Boxer: Did you discuss this waiver with members of
the Administration in the White House, the Vice President's
Office, or the OMB? Did you discuss this?
Administrator Johnson: I have routine discussions. (EPW 7/
26/07 Hearing on Status of California Waiver unofficial
transcript at pp. 15-16 )
Senator Whitehouse: Was there or was there not contact from
the White House regarding the waiver decision?
Administrator Johnson: As I said, I have routine contacts
with members of the Administration, including the White
House.
[[Page S7609]]
Senator Whitehouse: And did that routine contact include
contact regarding the waiver decision?
Administrator Johnson: Again, I have routine conversation
on a wide range of topics that I believe is good government
and indeed, it included what our status was on the issue of
the California waiver. (2/27/08 EPW hearing unofficial
transcript at p. 58)
In fact, Mr. Burnett's testimony makes clear that there
were specific White House meetings dedicated to the waiver:
Senator Whitehouse: Were the meetings . . . related to the
California waiver . . . specific to that? Or were they part
of a routine schedule that the Administrator had, going to
the White House on a regular basis and this would be on the
agenda, this particular time? Or were these meetings that
were scheduled specifically to address this and not part of a
routine, ongoing scheduled meeting process?
Mr. Burnett: Both. There were some meetings that were
specifically scheduled to talk about the California waiver,
and other meetings to talk about a range of issues relating
particularly to climate policy, including the response to the
Supreme Court and the California waiver.
Senator Whitehouse: And were there meetings specific to the
California waiver, that you would not characterize as routine
that were specifically scheduled for that purpose?
Mr. Burnett: Well, there were meetings specifically
scheduled for that purpose, as I said.
Senator Whitehouse: Not just dropped in as an agenda point
on a regularly-scheduled meeting?
Mr. Burnett: Yes, meetings that were specific to talk about
the California waiver. But I'm not sure if that means they
were routine or not. It certainly was the case that this
issue of the California waiver received a great deal of
attention from a number of people throughout the
Administration. (7/22/08 hearing unofficial transcript at p.
31.)
Mr. Burnett also testified that the waiver decision was a
very important matter to EPA and the Administration:
It certainly was the case that this issue of the California
waiver received a great deal of attention from a number of
people throughout the Administration. (Id.)
This issue is one of the most important issues that was
facing EPA. It received very high level attention, many
meetings with the Administrator and many meetings with senior
officials at the White House (Id. at p. 43)
Thus, the meetings clearly were more than ``routine,'' both
in terms of their timing (Webster's II New Riverside
University Dictionary, at p. 1022--``A set of customary and
often mechanically performed procedures;'' ``prescribed and
detailed course of action to be followed regularly'' and
substance (``not special,'' ``ordinary'').
Moreover, Administrator Johnson's testimony that the
meetings were merely to provide the White House with status
updates was also directly contradicted by Mr. Burnett, who
testified that at least some meetings were held at the White
House to present the Administration with EPA's plan to grant
a partial waiver.
We went forward with our plan, told the White House about
our plan to have partial grant of the waiver, and in
response, we were reminded of the President's policy
preference. (Id. at p. 32)
Senator Whitehouse: Would it be accurate to say that in
those meetings Administrator Johnson's contribution was
limited to an update on the status of the waiver action?
Mr. Burnett: There was an effort that we were engaged in
and that I was engaged in to make the case that it would be
appropriate to issue at least a partial grant of the waiver.
(Id. at p. 31)
Administrator Johnson was also misleading and not credible
regarding the staff process on the waiver decision. He
testified that he had been presented a range of options from
denial to outright grant, but that he could not remember any
of the options beyond the extremes of a full grant or
outright denial of the waiver:
Senator Whitehouse: What would you list? You said a wide
range of options? Can you specify what those options were?
Administrator Johnson: As I have said, a range from
approving the waiver to denying the waiver.
Senator Whitehouse: That is not a range, that is two.
Administrator Johnson: Well, there were options in between
and--
Senator Whitehouse: Such as?
Administrator Johnson: I was trying to recall. I don't
recall the specific options in between but that certainly is
a matter of record.
Senator Whitehouse: Do you recall any of the specific
options in between?
Administrator Johnson: As I said, the options ranged from
approval to denial and included other options in between. I
don't recall how they were entitled or the specifics.
Senator Whitehouse: Without their title, their fundamental
nature, do you recall?
Administrator Johnson: Again, there was a range of options
and I don't recall the specifics of the intermediate ones.
(2/27/08 hearing unofficial transcript at p. 63)
In fact, however, Mr. Burnett's testimony makes clear that
there was a unanimous staff recommendation for a partial
waiver so fully developed that he agreed to it and took it to
the White House after extensive briefing:
My advice, my recommendation, as well as the advice and
recommendation of all other advisors within EPA that I am
aware of was for Administrator Johnson to grant the waiver or
at least grant the first few years of the waiver. (7/22/08
hearing unofficial transcript at p. 21)
The Administrator had a plan to partially grant the waiver,
provided that the Clean Air Act was not enacted [sic] by
Congress. (Id. at p. 42)
There was an effort that we were engaged in and that I was
engaged in to make the case that it would be appropriate to
issue at least a partial grant of the waiver. (Id. at p. 31)
I believe that we continued throughout early December to
explain the case for a partial grant. I believe that it was
early December when the Administrator made his plan known. Of
course, that plan ultimately was not followed. (Id. at p. 38)
We went forward with our plan, told the White House about
our plan to have a partial grant of the waiver, and in
response, we were reminded of the President's policy
preference. (Id. at p. 32)
It is simply unimaginable that Administrator Johnson could
forget that a partial waiver plan had been recommended to and
developed for him, that it had been adopted as the Agency
plan on this critical matter, and that he had presented it to
the White House.
Administrator Johnson said there was no White House
reaction to his update, or that he could not recall any White
House response or reaction:
Senator Boxer: Did you discuss the California waiver with
someone from the President's office, the Vice President's
office, OMB?
Administrator Johnson: I routinely have conversations with
members of the White House.
Senator Boxer: The answer is yes, then. What did they say?
What was their reaction? How did they feel about the waiver?
Administrator Johnson: I don't recall their reaction
because I was giving them an update of the status of this
action and a lot of other actions before the Agency. (7/26/07
hearing unofficial transcript at 16).
Senator Boxer: Is this a fair analysis of what you have
told us? That no one ever contacted you to give an opinion on
the waiver, or to tell you to slow it up or anything; no one
from the President's, Vice-President's, OMB; no one from the
DOT. But you did contact them just to fill them in on what
was happening, and the waiver was one of the issues, but you
don't recall anything that they said. You just briefed them,
but they never made any opinion. Yes or no?
Administrator Johnson: If you would add ``to the best of my
recollection,'' then I would say, ``yes.'' (Id. at p. 17)
Given Mr. Burnett's testimony, it is simply unimaginable
that Administrator Johnson cannot recall getting a response
from the White House suggesting that he reverse his plan to
grant a partial waiver:
Senator Whitehouse: In the Clean Air Act waiver, after the
White House was notified of the proposed decision that you
put together, did the White House respond to that notice that
you intended to partially grant the waiver?
Mr. Burnett: The response was clearly articulating that the
President had a policy preference for a single standard that
would be inconsistent with granting the waiver. (7/22/08
hearing unofficial transcript at p. 32)
Mr. Burnett: . . . the Administrator certainly knew the
President's policy preference for a single standard. (Id.).
Mr. Burnett: [W]e went forward with our plan, told the
White House about our plan to have a partial grant of the
waiver, and in response, we were reminded of the President's
policy preference. (Id.)
Mr. Burnett: I believe that we continued throughout the
early December to explain the case for a partial grant. I
believe that it was early December when the Administrator
made his plan known. Of course, that plan ultimately was not
followed.
Senator Whitehouse: And in between that, the White House
response came back that the President desired there to be the
single standard?
Mr. Burnett: Yes. (Id. at p. 38)
It is unimaginable that the head of a major government
agency could take a plan on a vital public issue to the White
House, fully vetted and briefed, to make the case for the
plan, come back to the agency with a completely different
plan as a result of the White House meeting, and then not
remember that this event had taken place. It can only be a
lie.
Administrator Johnson claimed that his decision to deny the
waiver was based on criterion two of the waiver test under
the Clean Air Act: that is, whether California demonstrated
compelling and extraordinary conditions in support of its
request:
I came to the conclusion that of the criteria that I am
required to evaluate, it was the second criteria, that the
State does not have compelling, extraordinary conditions. So
that is the basis of my decision. (1/24/08 hearing unofficial
transcript, p. 22)
I made my decision for the California waiver under Section
209 of the Clean Air Act. And I found that California does
not meet the compelling and extraordinary conditions. (Id. at
p. 55)
In fact, as noted above, Mr. Burnett's testimony makes
clear that Administrator Johnson was prepared to grant a
partial waiver, based on the compelling and extraordinary
factor and other factors having been met:
[[Page S7610]]
As part of the plan to grant a partial waiver, certainly it
was the case that all three criteria in the Clean Air Act
would be met, including the criteria that California has
compelling and extraordinary circumstances. (7/22/08 hearing
unofficial transcript at p. 19)
We did our best to ensure that all policy officials
involved in this decision were apprised and informed of the
law and EPA's assessment that all three criteria were, that
the, clearly, the most supportable case under the law is that
all three criteria had been met. (Id. at p. 43)
Indeed, it was only after President Bush's ``policy
preference'' was explained to Administrator Johnson at a
White House meeting that he decided to deny the waiver. The
rationale that California did not meet was evidently an
after-the-fact embellishment designed to cover up the initial
plan to grant the waiver, the White House meeting at which
President's Bush's ``policy preference'' was explained, and
Administrator Johnson's reversal of course, and to create a
post hoc legal explanation for the decision.
The following summary of Administrator Johnson's testimony
by Chairman Boxer was admitted by Johnson to be accurate ``to
the best of [his] recollection.''
Senator Boxer: So just to wrap this up, and then I will
turn to Senator Inhofe. So just to wrap this up, no one ever
contacted you. You contacted them, meaning the White House,
the Vice President's office, the OMB, the DOT. You contacted
them just to give them an update on this issue, but no one
ever contacted you and you don't recall anybody in the White
House giving you their opinion on the waiver.
Administrator Johnson: I don't recall anyone contacting me.
I do recall making contacts to others because as I said, I
have routine conversations with----
Senator Boxer: You keep repeating this. I am just trying to
see, and tell me if I am saying this in a fair way and a just
way.
Mr. Johnson: Okay.
Senator Boxer: All right. Nobody ever contacted you from
the White House, the Vice President's office, the OMB, or the
DOT? You contacted them just to update them and you don't
recall anything they said to you about the waiver?
Mr. Johnson: To the best of my recollection, again, I have
a lot of conversations with members of the White House, a lot
of conversations. I said I do recall me making contact
because----
Senator Boxer: I just said that. So did I say it in a fair
way? I will repeat it the last time and then I will stop,
because I would like a yes or no. Is this a fair analysis of
what you have told us? That no one ever contacted you to give
an opinion on the waiver, or to tell you to slow it up or
anything; no one from the President's, Vice President's, OMB;
no one from the DOT. But you did contact them just to fill
them in on what was happening, and the waiver was one of the
issues, but you don't recall anything that they said. You
just briefed them, but they never made any opinion. Yes or
no?
Mr. Johnson: If you would add ``to the best of my
recollection,'' then I would say ``yes.'' (7/26/07 hearing
unofficial transcript at p. 17).
Again, in light of the Burnett testimony, Administrator
Johnson's failure to recollect the Administration's reaction
to his proposal is simply incredible.
Finally, it is worth noting President Bush's ``policy
preference'' for a single standard does not bear in any way
on the existence vel non of compelling and extraordinary
conditions, and is known by Administrator Johnson not to be
one of the statutory criteria for decision:
Administrator Johnson: . . . I tried to make it clear in
the letter to Governor Schwarzenegger [announcing denial of
the waiver] that the bases of my decision were on the three
criteria under Section 209 [of the Clean Air Act] and
compelling and extraordinary was the issue that the criteria,
that was not met. I pointed out in the letter that that
certainly isn't a context of what is the policy of both what
is happening as a Nation, and that is the policy, again my
words, policy context. But that was not the decision
criteria. The decision criteria are very clear in Section 209
on whether or not----
Senator Klobuchar: That is fine. When I come back, I will
talk about it. But you have said before that this could
create a confusing patchwork of State rules.
Administrator Johnson: And again, that is not one of the
criteria for the decision. (1/24/08 hearing unofficial
transcript at p. 36)
[...]
Mr. KYL. [...]
Media Shield
Something we haven't taken up yet is this so-called media shield
bill. I am not going to go through all the arguments about it, but
simply to point out the history of it and describe what it does and why
it is so problematic.
This basically says that reporters don't have to disclose their
sources if they don't want to. You can imagine a lot of bad things will
happen as a result of that. People break the law for disclosing very
highly classified information. The reporter says: I am not going to
tell you, Mr. FBI Agent, who did that. Yes, I know who did it--it is
against the law--but I am not going to tell you. And this bill would
provide the protection for that.
The first problem is it doesn't even define media in a way with which
everyone can agree. We don't know whether a blogger, who is trying to
put material out on the blogs, is in the media, whether a reporter for
some kind of terrorist newsletter is a member of the media or what.
They have tried and tried to get a good definition. It is very
difficult to do.
When the bill was in the Judiciary Committee, on which I sit, it was
not a perfect bill. Back then people said: Yes, we need to pass this;
we need to not change a comma in it. I think there were 10 or 12
amendments adopted that day. Clearly, it needed work. Most of those
amendments had strong bipartisan, if not unanimous, support, and we
agreed at the end of the process that it needed more work. Since then,
there have been a lot of meetings held to try to refine the bill.
I take my hat off to Senator Arlen Specter who has tried very hard to
find a way to resolve some of the problems that have been raised. At
the end of the day, the Attorney General of the United States, Attorney
General Mukasey, the intelligence community, and the White House have
all raised very serious doubts and problems about the bill.
Let me refer to some of the things that have been said about it. The
Secretary of Defense, Secretary Gates, wrote at the end of March this
year that ``the Department of Defense is concerned that this bill will
undermine our ability to protect national security information and
intelligence sources and methods, and could seriously impede
investigations of unauthorized disclosures.''
The problem I just identified. Because of that, of course, President
Bush is expected to veto the bill.
Very recently--I think yesterday--the Director of National
Intelligence, Mike McConnell, published in USA Today an op-ed in which
he described some of the problems he has with the bill, one of many
commentaries. Here is what he said:
I have joined the attorney general, the Secretaries of
Defense, Energy, Homeland Security, and Treasury, and every
senior intelligence community leader in expressing the
belief, based on decades of experience, that this bill will
gravely damage our ability to protect national security
information. Unauthorized disclosure of classified
information disrupts our efforts to track terrorists,
jeopardizes the lives of intelligence and military personnel
and inhibits international cooperation critical to detecting
and preventing threats.
It is not just our intelligence community and Government sources.
Last week, the U.S. Chamber of Commerce and the National Association of
Manufacturers circulated a letter expressing ``deep reservations with
the way the current version of the media shield bill, S. 2035, applies
to the private sector. As drafted, it would have significantly adverse
ramifications on the ability of Americans to legitimately protect
personal and proprietary information and we must oppose the bill in its
current form.''
It is interesting, despite all of these issues that have been raised
by a variety of private groups and all of the national defense and
intelligence community of our Government, there has not been a single
hearing during the 110th Congress on this legislation, let alone a
hearing on the general need for the media shield legislation. It is
obviously not ready for prime time.
Let me mention one problem--and I will speak more on this tomorrow--
to illustrate some of the other problems the bill has, one illustration
of what additional work needs to be done. This is one that could easily
be resolved, and I don't understand why the sponsors of the legislation
would not be willing to deal with it.
The bill fails to provide an exception to the privilege for
information necessary to investigate a terrorist attack. Let me repeat
that. You could not investigate a terrorist attack under the exclusion
that is provided in the bill. The committee-reported bill would only
provide an exception in section 5 for ``protected information that a
Federal court has found . . . would assist in preventing an act of
terrorism,'' or ``other significant and articulable harm to national
security.''
[[Page S7614]]
I raised this question in a hearing. The exception makes no mention
of information that would assist in investigating a terrorist attack or
other significant event. It only talks about preventing. This is the
kind of thing that could be fixed, and I don't understand why the
authors of the bill wouldn't be willing to fix it.
Under the form in which it would be brought forward, obviously the
majority leader would fill the parliamentary tree, there would be no
opportunity for amendments, and we would be stuck on a take-it-or-
leave-it basis with a piece of legislation that is highly flawed,
totally criticized by the intelligence community and many in the
private sector, as well.
The point, of course, is that the Democratic leader is simply
throwing legislation out on the floor with the hope that somehow or
another we will be able to divert attention from the subject of energy,
the bill we are currently on. We should neither vote for cloture for
the media shield bill nor the tax extenders bill nor any other piece of
legislation, as I said, until we complete our work on energy. We could
do that in a matter of 2 or 3 days. We can clearly do it before we
leave here in August. But under no circumstances should we leave the
important Energy bill to go off onto a piece of legislation such as
this media shield bill.
I hope when we have the cloture vote tomorrow, my colleagues will
join me in voting no on cloture on this legislation so we can deal with
the No. 1 priority of the American people, and that is our energy
crisis in America.
[...]
[Congressional Record: July 29, 2008 (Senate)]
[Page S7704-S7708]
FREE FLOW OF INFORMATION ACT
Mr. SPECTER. Mr. President, I have sought recognition to speak on the
[[Page S7705]]
Free Flow of Information Act, which is the reporters' privilege
legislation. At the outset, I thank the cosponsors, Senators Schumer,
Lugar, Dodd, and Graham. I especially thank Senator Lugar for his
contribution to this legislation, because he was the first to take a
stand for this issue some time ago.
This legislation is very important to maintain the flow of
information to the American people from the newspapers and radio and
television stations. It is necessary because we have seen in recent
times a flurry of subpoenas being issued to reporters to disclose their
confidential sources. A reporter's source of information depends upon
their being able to fulfill a commitment of confidentiality. It is
unnecessary to recite the long history of the investigative reporting
which has provided so much good to the American people or, for that
matter, the people of the world. We have had reporters ferret out
corruption in government, misfeasance, and wrongdoing. Senators turn
the first part of every day to the newspapers to see what is occurring
in the world. Frequently in the mix of the news, there are
investigative reports which tell Senators more than even our staffs
know. I believe Thomas Jefferson put it best in the founding days of
the Republic, when he said that if he had to choose newspapers without
government or government without newspapers, he would choose newspapers
without government.
This legislation passed the Senate Judiciary Committee by the
decisive vote of 15 to 4. A version passed the House of Representatives
by an overwhelming margin of 398 to 21. It is worth noting that both of
the presumptive candidates for President are supportive of this
legislation. Senator Obama is a cosponsor, and Senator McCain has
publicly confirmed that he would vote for this legislation. A group of
some 40 sitting State attorneys general, including both Democrats and
Republicans, have written in support of this legislation. More than 100
newspapers from all parts of the country have endorsed this
legislation, including the Washington Post, the Washington Times, the
New York Times, and the Philadelphia Inquirer. I will make a part of
the Record a full list of those newspapers and public media operations
in support of this legislation.
There have been some 72 subpoenas issued since 2006. The chilling
effect has been overwhelming, in part because of the issuance of
subpoenas and contempt citations. For example, the case of Judith
Miller of the New York Times has received extensive publicity. She was
jailed for around 85 days for failing to disclose the source of
information she had in the case involving the outing of CIA agent
Valerie Plame. It has always been a mystery to me why Judith Miller was
held in contempt, when it was known that Deputy Secretary of State
Armitage was the source of the information. But a special prosecutor
subpoenaed numerous witnesses and conducted a very high profile
publicity investigation. Ultimately, Judith Miller spent 85 days in
jail under very unpleasant circumstances. I can personally attest to
the conditions because Michael O'Neal, my chief counsel when I chaired
the Judiciary Committee, and I visited her in the Virginia prison where
she was detained. The legislation which we are proposing is necessary
to maintain the flow of information.
I think it is vital to emphasize that this legislation benefits the
American people, allowing them access to the news and information that
results from investigative reporting. Investigative reporting has done
so much for the public welfare in disclosing fraud, corruption,
misfeasance, and wrongdoing at all levels of the Government, as well as
at all levels of private, corporate, and public life.
This issue and the vote which is imminent pose a problem for this
Senator because of the practice which has evolved to preclude
amendments from being offered. We are only facing tomorrow the motion
for cloture on the motion to proceed. I do think we ought to proceed to
this bill. It is my hope that the majority leader will not act to
preclude other Senators from offering amendments. This is a subject I
have addressed at considerable length on the global warming bill. I
have talked about it on the FAA bill. I have discussed it with the oil
speculators bill. It is a matter of great concern as to what has
happened to the operation of the Senate.
When I came to this world's greatest deliberative body some 28 years
ago, the tradition of the Senate had been maintained that any Senator
could offer virtually any amendment on any bill at any time. That was
the great unique quality of the Senate and the ability of any Senator
to offer an amendment to call public attention to an important issue,
to have the floor of the Senate to publicize the issue and to move for
the enactment of legislation. But what has happened, surprisingly only
in the last 15 years--and it has happened by majority leaders of both
parties--is that a procedure has been adopted on what is called filling
the tree. That is an arcane expression, known only inside the Beltway.
But let me explain it.
When a bill is on the agenda, it is the prerogative of the majority
leader to call for action of the Senate. Then the majority leader,
under Senate practice and custom, has the right of first recognition.
So that the rule that the first Senator to ask for recognition gets the
recognition is true, unless the majority leader has sought recognition.
On cases of a tie, it is the majority leader. As a matter of practice,
nobody challenges the majority leader's right to first recognition. So
after the bill is before the Senate, the majority leader then offers an
amendment. Then he offers another amendment. Without going into all of
the details, a procedure is adopted where no other Senator can offer an
amendment.
What has happened on global warming, for example, where I came to the
floor and outlined four amendments which I intended to offer on a very
important bill, I was precluded from offering them, because the Senate
majority leader had taken action to put this procedure in effect on so-
called filling the tree. The FAA bill came up, which had funding for a
new satellite system for air safety. I had amendments to offer, very
important for my State, on overflights from the Philadelphia
International Airport and for scheduling issues, where the airport was
overscheduled, leading to long delays; people, myself included, sitting
on the tarmac waiting to take off.
The tearing that I undertake is a result, for those who see me wiping
my eyes, not for any sorrow about what I am doing but a consequence of
having Hodgkin's. It makes a fellow pale and thin. Tough but tolerable,
as I put it, and I have been able to stay on the job. But if anybody is
watching on C-SPAN 2, which is highly doubtful, they may wonder why I
am tearing. I am not crying. I am tearing because of the impact of all
of the chemicals from the treatment of Hodgkin's.
At any rate, I was commenting about the Philadelphia airport. This
affects the State of New Jersey. The Presiding Officer is a Senator
from the State of New Jersey. You sit on the tarmac at the Philadelphia
airport for a long time because they are overbooked. It is like a
restaurant that has 100 seats and they put in 150 patrons. Well, you
can't get your table on a reservation. You have a flight leaving at 7
a.m. You wait until many other planes have left. Or when you land, the
airport is overbooked, and it is not a very pleasant sensation to
circle the city of Philadelphia for a long period of time in the fog
and in the rain, wondering how good those air controllers are. They are
pretty good, but it is something you wonder about in any event.
We weren't able to offer amendments on the FAA bill. We haven't been
able to offer amendments on the oil speculators bill. The headlines in
the newspapers over the weekend were: Republicans block oil speculators
bill. They recited the Senators from the Philadelphia region, and they
noted that the distinguished Senator who is presiding now, Senator
Menendez, voted in favor of advancing the bill, as did Senator
Lautenberg, as did Senator Casey, as did Senator Carper, as did Senator
Biden. Only Arlen Specter voted not to advance the bill. You don't get
the picture in a short story. You don't get the picture in the
recitation of the vote that I voted against cloture because neither I
nor any other Senator had the opportunity to offer amendments. So that
if we get to that point, I am conflicted as to what to do. But I don't
think we will face that tomorrow with the motion to proceed. I am
hopeful we will pass that by a very substantial majority.
[[Page S7706]]
There have been opponents who have come to the floor to debate this
bill. It is important to note that as a result of the hearings which
were held when I was chairman, Senator Kyl stated there have been no
hearings on this bill in the 110th Congress. Well, when I chaired the
Judiciary Committee in the 109th Congress in 2005 and 2006, we had
three hearings on the subject and went into the issue in some detail.
Senator Kyl said the Government could not get information to
investigate an act of terrorism. That is not so. The bill states
specifically that it is reasonably likely to stop, prevent, or mitigate
any, or identify the perpetrator of an act of international terrorism
or domestic terrorism, there will be no shield.
Those who have raised objections to the bill have been taken into
account. The bill has been substantially improved.
For example, the bill now explicitly states that sensitive
governmental information will not be disclosed in open court. The
provisions have always been subjected to the Classified Information
Protection Act. It had always been available to prosecutors. But when
the concern was raised, we put in the specific provision that a
``Federal court may receive and consider submissions from the parties
in camera or under seal, and where the court determines appropriate, ex
parte'' in order to protect sensitive information.
The bill further provides that the definition of a covered person has
been narrowed to ensure it protects only legitimate journalists. The
definition of the Second Circuit has been adopted. That definition has
worked very well. It requires that the individual have the intent to
distribute the information to the public and that he or she had such
intent at the time that he or she gathered the information.
The provision also provides that even if terrorists pose as
journalists, they do not qualify for the act's protections. The
modifications create an expedited appeals process, ensuring that
litigation regarding whether the privilege applies will be quickly
resolved.
This is motivated by the case involving USA Today reporter, Tony
Loci, who was held in contempt of court and fined $5,000 a day. The
judge entered an order that her employer or friends and relatives could
not pay it. Fortunately for Tony Loci, that case was settled so the
contempt citation did not stand.
Numerous journalists across the country have seen what happened to
Tony Loci and Judith Miller. It has had a very chilling effect on their
activities. People who might give sensitive information under the
promises of confidentiality are reluctant to share that information.
Also, under the revisions, prosecutors will not have to prove they
have exhausted all other options for finding the information or the
information is essential to their investigation.
So what we have, in essence, is very important legislation. It is
very important to the functioning of the democracy that there be a free
press to report to the American people what has happened, especially on
investigative reporting. You cannot have a free press if a reporter
cannot obtain information from a confidential source, promise
confidentiality, and then deliver. And you cannot have a free press if
people such as Tony Loci and Judith Miller are subjected to contempt
citations--large fines with Tony Loci, actual imprisonment with Judith
Miller of some 85 days.
So this bill is long past due. I am glad to see it brought to the
floor. I am hopeful the majority leader will not pursue a course of
filling the tree to preclude amendments. I am hopeful we can return to
the day when the Senate regains its luster as the world's greatest
deliberative body, which means that any 1 of the other 99 Senators can
offer amendments, and that it is not just the one Senator, the senior
Senator from Nevada, who has the position of majority leader, who can,
in effect, dictate what happens in the Senate.
Yesterday, we had a heated exchange on the floor. When we finished
voting on the cloture motion, the majority leader refused to allow a
quorum call to be taken off. If anyone may be watching on C-SPAN, a
quorum call is when there is the absence of a quorum. There are
frequent quorum calls when no one seeks recognition. But it is a
relatively infrequent occurrence that there is quorum. A quorum means
51 or more Senators. Right now, we are 50 Senators short of a quorum.
Most of the time, you only have a few Senators on the floor who may be
speaking--three or four. When there are votes, there are many Senators
on the floor.
But it is a relatively rare occurrence that a quorum is present. So
if someone suggests there is an absence of a quorum, there is a quorum
call. And a quorum call cannot be taken off except by unanimous consent
or to have a live quorum or to have a motion for the attendance of
absent Senators.
But, invariably, when there is a quorum call and someone asks
unanimous consent--or virtually invariably--it is granted unless
somebody wants to hold up an action on something that is pending. But I
have not seen, in my tenure in the Senate, a denial of an application
to eliminate the quorum call so speeches can be made.
I and other Senators were waiting for more than an hour. And in
conjunction with what the majority leader has done on filling the tree
in denying 99 other Senators--mostly minority Senators--the right to
offer amendments and refusing to allow the quorum to be lifted, I used
the word ``tyrannical,'' and I stand by that.
This body is a great body and has earned great prestige worldwide and
I think has earned the stature of the world's greatest deliberative
body because of the ability of Senators to offer amendments and the
ability of Senators to speak. To be on this floor in a quorum call and
to be denied an opportunity to speak is not quite a denial of my first-
amendment rights. I can go to the Radio and TV Gallery and call a news
conference or walk out and talk to reporters or go on the steps. But
having been elected to the Senate, and having a commission to serve
here, when no one is on the floor speaking, and there is no reason why
I ought to be denied an opportunity to speak except for the
technicality of a quorum call, I take umbrage at it. It is just one
indication of how we have to go back to the--well, you might call them
the old days. Maybe they were good old days, where the Senate
functioned with every Senator being able to offer amendments.
A critical part of the functioning of our Government, I suggest, is
the ability of the free press to function and reporters to get
confidential information, to be able to promise confidentiality and to
be able to deliver without being fearful of being held in contempt of
court and being put in jail.
Mr. President, before yielding the floor, I ask unanimous consent
that the full text of a substitute be printed in the Record, which
contains the modifications referred to in the course of my oral
statement.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Flow of Information Act
of 2008''.
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.
(a) Conditions for Compelled Disclosure.--In any proceeding
or in connection with any issue arising under Federal law, a
Federal entity may not compel a covered person to comply with
a subpoena, court order, or other compulsory legal process
seeking to compel the production of protected information,
unless a Federal court in the jurisdiction in which the
subpoena, court order, or other compulsory legal process has
been or would be issued determines, by a preponderance of the
evidence, after providing notice and an opportunity to be
heard to such covered person--
(1) that the party seeking to compel production of such
protected information has exhausted all reasonably known
alternative sources of the protected information; and
(2) that--
(A) in a criminal investigation or prosecution--
(i) there are reasonable grounds to believe, based on
information obtained from a source other than the covered
person, that a crime has occurred;
(ii) there are reasonable grounds to believe, based on
information obtained from a source other than the covered
person, that the protected information sought is essential to
the investigation or prosecution or to the defense against
the prosecution; and
(iii) nondisclosure of the information would be contrary to
the public interest, taking into account both the interest in
compelling disclosure (including the extent of any harm to
national security) and the public interest in gathering and
disseminating the information or news conveyed and
maintaining the free flow of information; or
(B) in a matter other than a criminal investigation or
prosecution--
[[Page S7707]]
(i) based on information obtained from a source other than
the covered person, the protected information sought is
essential to the resolution of the matter; and
(ii) the interest in disclosure clearly outweighs the
public interest in gathering and disseminating the
information or news conveyed and maintaining the free flow of
information.
(b) Limitations on Demand for Protected Information.--A
subpoena, court order, or other compulsory legal process
seeking protected information that is compelled under
subsection (a) shall, to the extent possible be narrowly
tailored in purpose, subject matter, and period of time
covered so as to avoid compelling production of peripheral,
nonessential, or speculative information.
SEC. 3. EXCEPTION RELATING TO EYEWITNESS OBSERVATION OR
CRIMINAL OR TORTIOUS CONDUCT BY THE COVERED
PERSON.
(a) In General.--Section 2 shall not apply to any protected
information obtained as the result of the eyewitness
observations by a covered person of alleged criminal conduct
or the commission of alleged criminal or tortious conduct by
the covered person, including any physical evidence or visual
or audio recording of the observed conduct.
(b) Exceptions.--
(1) In general.--This section shall not apply, and section
2 shall apply, if the alleged criminal or tortious conduct is
the act of communicating information to a covered person.
(2) Classified information.--Notwithstanding paragraph (1),
this section shall not apply, and section 5 shall apply, if
the alleged criminal or tortious conduct is an unauthorized
release of properly classified information.
SEC. 4. EXCEPTION TO PREVENT AN ACT OF TERRORISM, DEATH,
KIDNAPPING, SEXUAL ABUSE OF A MINOR, OR
SUBSTANTIAL BODILY INJURY.
(a) In General.--Section 2 shall not apply to any protected
information that a Federal court finds is reasonably likely
to stop, prevent, or mitigate, or identify the perpetrator
of, an act of international terrorism or domestic terrorism,
as those terms are defined in section 2331 of title 18,
United States Code.
(b) Other Activities.--Section 2 shall not apply to any
protected information that a Federal court finds is
reasonably likely to stop, prevent, or mitigate a specific
case of--
(1) death;
(2) kidnapping;
(3) substantial bodily harm;
(4) conduct that would violate section 2251 or section 2252
of title 18, United States Code (relating to the sexual
exploitation of children and child pornography); or
(5) incapacitation or destruction of critical
infrastructure (as defined in section 1016(e) of the USA
PATRIOT Act (42 U.S.C. 5195c(e))).
SEC. 5. EXCEPTION TO PREVENT HARM TO THE NATIONAL SECURITY.
Section 2 shall not apply to any protected information, and
a Federal court shall compel the disclosure of such protected
information, if the court--
(1) finds that the protected information--
(A) would assist in stopping or preventing significant and
articulable harm to national security; or
(B) relates to an unauthorized release of properly
classified information that has caused or will cause
significant and articulable harm to the national security;
and
(2) takes into account the balancing of the harm described
in paragraph (1) against the public interest in gathering and
disseminating the information or news conveyed.
SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE
PROVIDERS.
(a) Conditions for Compelled Disclosure.--If any document
or other information from the account of a person who is
known to be, or reasonably likely to be, a covered person is
sought from a communications service provider, sections 2
through 5 shall apply in the same manner that such sections
apply to any document or information sought from a covered
person.
(b) Notice and Opportunity Provided to Covered Persons.--A
Federal court may compel the disclosure of a document or
other information described in subsection (a) only after the
covered person from whose account such document or other
information is sought has been given--
(1) notice of the subpoena, court order, or other
compulsory legal process for such document or other
information from the communications service provider not
later than the time at which such subpoena, court order, or
other compulsory legal process is issued to the
communications service provider; and
(2) an opportunity to be heard by the court.
(c) Exception to Notice Requirement.--Upon motion by a
Federal entity, notice and opportunity to be heard under
subsection (b) may be delayed for not more than 45 days if
the court determines that there is substantial basis for
believing that such notice would pose a substantial threat to
the integrity of a criminal or national security
investigation or intelligence gathering, or that exigent
circumstances exist. This period may be extended by the court
for an additional period of not more than 45 days each time
the court makes such a determination.
SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE OR
AGREEMENT OF CONFIDENTIALITY.
Nothing in this Act shall supersede, dilute, or preempt any
law or court decision regarding a subpoena, court order, or
other compulsory legal process relating to disclosure by a
covered person or communications service provider of--
(1) information identifying a source who provided
information without a promise or agreement of confidentiality
made by the covered person; or
(2) records or other information, or contents of a
communication obtained without a promise or agreement that
such records, other information, or contents of a
communication would be confidential.
SEC. 8. PROCEDURES FOR REVIEW AND APPEAL.
(a) Conditions for Ex Parte Review or Submissions Under
Seal.--With regard to any determination made by a Federal
court under this Act, upon a showing of good cause, that
Federal court may receive and consider submissions from the
parties in camera or under seal, and if the court determines
it is necessary, ex parte.
(b) Contempt of Court.--With regard to any determination
made by a Federal court under this Act, a Federal court may
find a covered person to be in civil or criminal contempt if
the covered person fails to comply with an order of a Federal
court compelling disclosure of protected information.
(c) To Provide for Timely Determination.--With regard to
any determination to be made by a Federal court under this
Act, that Federal court, to the extent practicable, shall
make that determination not later than 30 days after the date
of receiving a motion requesting the court make that
determination.
(d) Expedited Appeal Process.--
(1) In general.--The courts of appeal shall have
jurisdiction--
(A) of appeals by a Federal entity or covered person of an
interlocutory order of a Federal court under this Act; and
(B) in an appeal of a final decision of a Federal court by
a Federal entity or covered person, to review any
determination of a Federal court under this Act.
(2) Expedition of appeals.--It shall be the duty of a
Federal court to which an appeal is made under this
subsection to advance on the docket and to expedite to the
greatest possible extent the disposition of that appeal.
SEC. 9. RULE OF CONSTRUCTION.
Nothing in this Act may be construed to--
(1) preempt any State law relating to defamation, slander,
or libel;
(2) modify the requirements of section 552a of title 5,
United States Code, or Federal laws or rules relating to
grand jury secrecy (except that this Act shall apply in any
proceeding and in connection with any issue arising under
that section or the Federal laws or rules relating to grand
jury secrecy);
(3) preclude a plaintiff from asserting a claim of
defamation against a covered person, regardless of whether
the claim is raised in a State or Federal court; or
(4) create new obligations, or affect or modify the
authorities or obligations of a Federal entity with respect
to the acquisition or dissemination of information pursuant
to the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
SEC. 10. DEFINITIONS.
In this Act:
(1) Communications service provider.--The term
``communications service provider''--
(A) means a person that transmits information of the
customer's choosing by electronic means; and
(B) includes a telecommunications carrier, an information
service provider, an interactive computer service provider,
and an information content provider (as such terms are
defined in sections 3 or 230 of the Communications Act of
1934 (47 U.S.C. 153 and 230)).
(2) Covered person.--The term ``covered person''--
(A) means a person who--
(i) with the primary intent to investigate events and
procure material in order to disseminate to the public news
or information concerning local, national, or international
events or other matters of public interest, regularly
gathers, prepares, collects, photographs, records, writes,
edits, reports, or publishes on such matters by--
(I) conducting interviews;
(II) making direct observation of events; or
(III) collecting reviewing or analyzing original writings,
statements, communications, reports, memoranda, records,
transcripts, documents, photographs, recordings, tapes,
materials, data or other information whether in paper,
electronic or other form; and
(ii) has such intent at the inception of the newsgathering
process;
(B) includes a supervisor, employer, parent company,
subsidiary, or affiliate of such person; and
(C) does not include any person--
(i) who is a foreign power or an agent of a foreign power,
or as to whom there is probable cause to believe that the
person is a foreign power or an agent of a foreign power, as
those terms are defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);
(ii) who is a foreign terrorist organization designated
under section 219(a) of the Immigration and Nationality Act
(8 U.S.C. 1189(a));
(iii) who is designated as a Specially Designated Global
Terrorist by the Department of the Treasury under Executive
Order Number 13224 (50 U.S.C. 1701 note);
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(iv) who is a specially designated terrorist, as that term
is defined in section 595.311 of title 31, Code of Federal
Regulations (or any successor thereto); or
(v) who is a terrorist organization, as that term is
defined in section 212(a)(3)(B)(vi)(II) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).
(3) Document.--The term ``document'' means writings,
recordings, and photographs, as those terms are defined by
rule 1001 of the Federal Rules of Evidence (28 U.S.C. App.).
(4) Federal entity.--The term ``Federal entity'' means an
entity or employee of the judicial or executive branch or an
administrative agency of the Federal Government with the
power to issue a subpoena, court order, or issue other
compulsory legal process.
(5) Properly classified information.--The term ``properly
classified information'' means information or documents that
have been classified in accordance with Executive Orders,
statutes, applicable procedures, and regulations regarding
classification of information or documents.
(6) Protected information.--The term ``protected
information'' means--
(A) information identifying a source who provided
information under a promise or agreement of confidentiality
made by a covered person; or
(B) any records, contents of a communication, documents, or
information that a covered person obtained or created upon a
promise or agreement that such records, contents of a
communication, documents, or information would be
confidential.
Amend the title so as to read: ``A bill to maintain the
free flow of information to the public by prescribing
conditions under which Federal entities may compel disclosure
of confidential information from journalists.''.
Mr. SPECTER. I thank the Chair and yield the floor.
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