    [House Hearing, 106 Congress]
    [From the U.S. Government Publishing Office]

                       THE PRIVACY ACT AND THE PRESIDENCY

    =======================================================================

                                    HEARING

                                   before the

                       SUBCOMMITTEE ON CRIMINAL JUSTICE,
                        DRUG POLICY, AND HUMAN RESOURCES

                                     of the

                                  COMMITTEE ON
                               GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED SIXTH CONGRESS

                                 SECOND SESSION

                                   __________

                               SEPTEMBER 8, 2000

                                   __________

                               Serial No. 106-259

                                   __________

           Printed for the use of the Committee on Government Reform

      Available via the World Wide Web: http://www.gpo.gov/congress/house
                          http://www.house.gov/reform

                                   __________

                        U.S. GOVERNMENT PRINTING OFFICE
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                         COMMITTEE ON GOVERNMENT REFORM

                         DAN BURTON, Indiana, Chairman
    BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
    CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
    CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
    ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
    JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
    STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
    JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
    THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
    DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington,
    MARK E. SOUDER, Indiana                  DC
    JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
    STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
    MARSHALL ``MARK'' SANFORD, South     DENNIS J. KUCINICH, Ohio
        Carolina                         ROD R. BLAGOJEVICH, Illinois
    BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
    DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
    ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
    LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
    JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
    GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
    DOUG OSE, California                             ------
    PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont
    HELEN CHENOWETH-HAGE, Idaho              (Independent)
    DAVID VITTER, Louisiana

                          Kevin Binger, Staff Director
                     Daniel R. Moll, Deputy Staff Director
                         James C. Wilson, Chief Counsel
                            Robert A. Briggs, Clerk
                     Phil Schiliro, Minority Staff Director
                                     ------

       Subcommittee on Criminal Justice, Drug Policy, and Human Resources

                        JOHN L. MICA, Florida, Chairman
    BOB BARR, Georgia                    PATSY T. MINK, Hawaii
    BENJAMIN A. GILMAN, New York         EDOLPHUS TOWNS, New York
    CHRISTOPHER SHAYS, Connecticut       ELIJAH E. CUMMINGS, Maryland
    ILEANA ROS-LEHTINEN, Florida         DENNIS J. KUCINICH, Ohio
    MARK E. SOUDER, Indiana              ROD R. BLAGOJEVICH, Illinois
    STEVEN C. LaTOURETTE, Ohio           JOHN F. TIERNEY, Massachusetts
    ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
    DOUG OSE, California                 JANICE D. SCHAKOWSKY, Illinois
    DAVID VITTER, Louisiana

                                   Ex Officio

    DAN BURTON, Indiana                  HENRY A. WAXMAN, California
               Sharon Pinkerton, Staff Director and Chief Counsel
                  Andrew Richardson, Professional Staff Member
                               Ryan McKee, Clerk
               Micheal Yeager, Minority Professional Staff Member

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on September 8, 2000................................     1
    Statement of:
        Treanor, William M., Deputy Assistant Attorney General,
          Office of Legal Counsel, Department of Justice.............    18
        Walden, Greg, former associate counsel for the President from
          1991 to 1993; Larry Klayman, chairman, Judicial Watch;
          Jonathan Turley, George Washington University School of
          Law; and Roger Pilon, the CATO Institute...................    45
    Letters, statements, etc., submitted for the record by:
        Cummings, Hon. Elijah E., a Representative in Congress from
          the State of Maryland, prepared statement of...............     9
        Klayman, Larry, chairman, Judicial Watch:
            Prepared statement of....................................    67
            Prepared statement of Billy Ray Dale.....................    63
        Mica, Hon. John L., a Representative in Congress from the
          State of Florida, prepared statement of....................     5
        Mink, Hon. Patsy T., a Representative in Congress from the
          State of Hawaii, prepared statement of.....................    14
        Pilon, Roger, the CATO Institute, prepared statement of......   101
        Treanor, William M., Deputy Assistant Attorney General,
          Office of Legal Counsel, Department of Justice, prepared
          statement of...............................................    21
        Turley, Jonathan, George Washington University School of Law,
          prepared statement of......................................    74
        Walden, Greg, former associate counsel for the President from
          1991 to 1993, prepared statement of........................    50

                       THE PRIVACY ACT AND THE PRESIDENCY

                                  ----------

                           FRIDAY, SEPTEMBER 8, 2000

                      House of Representatives,
    Subcommittee on Criminal Justice, Drug Policy, and
                                       Human Resources,
                                Committee on Government Reform,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 9:35 a.m., in
    room 2247, Rayburn House Office Building, Hon. John L. Mica
    (chairman of the subcommittee) presiding.
        Present: Representatives Mica, Barr, Mink, Cummings,
    Kucinich, and Turner.
        Staff present: Sharon Pinkerton, staff director and chief
    counsel; Steve Dillingham, special counsel; Ryan McKee, clerk;
    Jason Snyder, intern; Sara Despres, minority counsel; and Jean
    Gosa, minority assistant clerk.
        Also present: Representative Burton.
        Mr. Mica. Good morning. I'd like to call to order the
    Subcommittee on Criminal Justice, Drug Policy, and Human
    Resources. This morning, our hearing is entitled the Privacy
    Act and the Presidency. Today we are going to hear from two
    witness panels dealing with the Privacy Act. And also try to
    conclude promptly today. I know the House went out of session
    last evening and Members are trying to get back to their
    districts.
        I do also want to apologize for the delay in this hearing.
    I did have a death in the family and we had to postpone this.
    It was scheduled before the recess and I do sincerely
    appreciate everyone's willingness to cooperate in changing the
    schedule of both the Members and also the witnesses.
        I will begin today's proceeding with an opening statement
    in the regular order of business, and then yield to other
    Members as they arrive for their opening statements. And will
    also include them in the record accordingly.
        So with that opening comment, I'd like to begin. Again, the
    title of this hearing is the Privacy Act that we are dealing
    with, the title of our hearing today is the Privacy Act and the
    Presidency. And the question we are asking is: Is the office of
    the President beyond the law?
        Today's hearing before the Subcommittee on Criminal
    Justice, Drug Policy, and Human Resources will examine the
    application of the Privacy Act to the White House. This has
    been the topic of substantial public attention and debate
    recently, and is also currently being examined by the courts.
        It is regretful and unfortunate that the White House and
    this administration that their abuses of personal privacy have
    occurred a number of times in recent years. Congress has sought
    protection for personal privacy from government abuse by
    passing the Privacy Act over a quarter of a century ago. As a
    Congress, we are obligated to determine whether failures to
    safeguard individual privacy and prevent abuses, particularly
    by this White House, are products of either an imperfectly
    crafted law, or simply lax enforcement. To state this issue
    succinctly, we have to ask ourselves the question: Is the
    President above the law?
        Issues of personal privacy protections and enforcement of
    the Privacy Act enforcement go to the very heart of our
    Democratic principles and practices, and should be of
    bipartisan concern. The passage of the Privacy Act, in fact,
    took place in 1974 and was intended to prevent the types of
    abuses that led to President Nixon's resignation and departure
    from the White House.
        Past abuses that led to the passage of the Privacy Act
    included such actions as the creation of an enemies list by the
    White House and their involvement in collecting and using
    intelligence against political opponents and others.
        Sadly enough, decades later, such privacy abuses have
    reoccurred. They have been demonstrated as we have seen, by
    incidents of Filegate, Travelgate, a host of other well-
    publicized abuses. As under the Nixon administration, the
    current White House and administration officials have--
    unfortunately have misused their powers and violated personal
    privacy interests to pursue perceived enemies and to achieve
    political ends.
        In the early 1970's, this Nation was justifiably outraged
    by White House-sponsored secret investigations and illegal
    intelligence gathering activities aimed at the President's
    opponents. Today, we should be equally concerned that the
    issues of White House and administration involvement in hiring
    private investigators, conducting secret investigations,
    maintaining secret files, misusing government files, and
    selectively disclosing private information regarding political
    opponents and others with whom they disagree or choose to go
    after.
        The fact that private and political intelligence can be
    illegally obtained through simple White House requests to the
    FBI or others without resorting to burglaries should provide us
    with little comfort. Instead, it should raise our greater
    concerns.
        This hearing will not, and could not, address the litany of
    privacy abuses and violations that have occurred in recent
    years. Still, it is important that we understand that such
    violations and abuses result in a very real and tragic harm to
    people, to their families, to their friends, and also to their
    personal livelihoods.
        Today, our aim is to understand why these abuses occur and
    whether they may reoccur despite Privacy Act protections,
    remedies and penalties.
        The Privacy Act provides a number of personal protections,
    government requirements, and also restrictions. Among them are
    the following, and these are parts of the Privacy Act: First,
    citizens have a right to inspect and correct their records;
    second, agencies are required to provide notice of their
    records on individuals; third, agencies are required to
    maintain accurate and timely records; fourth, agencies are
    restricted in how they use personal information; and fifth,
    violations may result in remedies and punishments, including
    criminal penalties.
        To me, absent a compelling exception such as a national
    security reason, these protections and safeguards seem both
    reasonable and necessary, and should be adhered to by all who
    occupy the White House, the Office of the President, just the
    same as we impose on any other government agency.
        Today, we will hear arguments over whether the term
    ``agency,'' as used in the Privacy Act, however, covers the
    Office--whether or not it covers the Office of the President
    and actions by White House officials. We will hear arguments
    that the meaning of the term ``agency'' may hinge upon
    definitions, interpretations and court rulings applicable to
    the Freedom of Information Act, FOIA, which serves a quite
    different purpose. Without splitting legal hairs and
    recognizing past problems of the White House in defining words
    as simple as ``is,'' we need to assess whether the law itself
    is in need of change or whether changes in enforcement
    practices are, in fact, required.
        It is certainly my strong opinion that the President should
    not be considered above the law--especially laws that protect
    against abuses of collecting, maintaining, and disclosing
    private or false information. Our government was founded on
    principles that protect personal liberties and privacy, and I
    am unaware of an exception for that has been made for abuse by
    the White House.
        If we find that there is a statutory deficiency, then I
    think we should fix it. But I am perturbed that the President
    can issue Executive orders almost weekly and the Justice
    Department is legal counsel for Federal agencies, yet there is
    no indication that the protection of personal privacy is, in
    fact, a priority. Instead, it seems that the priority is given
    to protecting the White House and the administration officials
    accused much privacy violations and abuses. Our Nation simply
    cannot allow such abuses to continue. Legal or enforcement
    changes must be made. We are either going to have to change the
    law or the process of enforcement, regardless of the upcoming
    election or whatever results that may have.
        Today, we will hear the legal arguments from the Department
    of Justice that the White House is not subject to the same
    privacy laws and requirements that govern Federal agencies. We
    will hear from an individual who was on the receiving end of
    White House privacy abuses while serving in one of the White
    House offices. We will also hear from witnesses' legal
    representative who heads a public interest group that is
    engaged in fighting privacy abuses in court. Additionally, we
    will hear from an associate legal counsel who advised the
    President in a privacy administration, as well as from
    distinguished constitutional scholars.
        I noticed in today's papers, a quick aside, that we are not
    the only ones interested in this. Senator Lieberman had
    requested last year a survey of on-line privacy protections of
    government Web sites and a study of that by the General
    Accounting Office. Today's paper reveals that the GAO found
    that 23 of 70 agencies surveyed have disclosed personal
    information gathered from Web sites to a third party, mostly
    other government agencies. But at least four agencies were
    found sharing information with private entities.
        This whole application of the Privacy Act, while we are not
    going to deal with some of the electronic distribution and
    problems that we have with the Internet, but there are problems
    based on new technologies. Mark Rothenburg, executive director
    of the Electronic Privacy Information Center said the report
    clearly shows the White House isn't effectively enforcing
    Privacy Act provisions on executive branch agencies. And
    furthermore, this article says that Web sites run by the White
    House itself have been embroiled in privacy concerns.
        In June, the Scripps-Howard News Service reported that
    Internet sites run by the White House drug czar's office, as we
    heard, were secretly putting cookie programs in the computers
    of visitors to track what they were doing. Of course, this
    practice was immediately stopped as our committee was told. But
    this whole area of application of the Privacy Act does raise
    new concerns.
        Also, I might add many folks wonder what happens with some
    of the various investigations conducted by the Committee on
    Government Reform and some of our committees. I'm pleased to
    report that when we did look at the White House travel office
    and some of the problems that evolved from that particular
    incident, we were able to go back and change--we found that the
    Congressional Accountability Act that we passed making the
    Congress and other agencies comply with the law which they were
    not complying with, or be subject to, we were able to pass a
    White House and Executive Office Accountability Act which, in
    fact, now makes them accountable and subject to the same laws
    as the Congress and the people of the land.
        So some positive changes have come from some of those
    investigations and committee oversight responsibilities. It's
    my hope that we can do the same with the Privacy Act if it
    needs fixing, or if we need to see that we should take some
    other enforcement measures.
        With those opening comments, I'm pleased to yield to the
    gentleman from Maryland, Mr. Cummings, for an opening
    statement.
        [The prepared statement of Hon. John L. Mica follows:]

        [GRAPHIC] [TIFF OMITTED] T4494.001

        [GRAPHIC] [TIFF OMITTED] T4494.002

        Mr. Cummings. First of all I want to thank you, Mr.
    Chairman, for this hearing. I have always been one who was
    concerned about privacy. Sometimes I do believe that government
    reaches too far into the private lives of too many Americans.
    And so we meet today to discuss the Privacy Act as it applies
    to the Executive Office of the President and the intent of the
    act to protect citizen privacy.
        Webster's Dictionary defines privacy as the freedom from
    unauthorized intrusion. I believe this is a freedom entitled to
    all Americans. And the Privacy Act is intended to provide
    individuals with safeguards against the loss of their privacy
    through the misuse of their records by Federal agencies. The
    act and the Freedom of Information Act are the two major
    statutes that control information disclosure practices within
    the government.
        Just as it is important that we protect the privacy of
    individuals, I think we have to also make sure that we set the
    record straight. Because I think when we put out information
    that is not accurate to the public, and don't give both sides
    of it, I think we do just as much injustice as we do when we
    invade one's privacy.
        Serious allegations have been made with regard to the White
    House in your opening. Specifically, allegations have been made
    that the White House illegally acquired and misused FBI files.
    It is critical that the record be complete on this issue.
    Independent Counsel Robert Ray issued his report on this matter
    in March 2000. I'm not talking about you, Mr. Chairman, I'm
    just talking in general that these allegations have been made.
        In that report, he concluded that no, ``No senior White
    House official or the First Lady Hillary Rodham Clinton engaged
    in criminal conduct to obtain, through fraudulent means,
    derogatory information about former White House staff.'' Those
    are his words, not mine.
        Independent Counsel Ray also concluded, ``No senior White
    House official or Mrs. Clinton was involved in requesting FBI
    background reports for improper partisan advantage.''
        Again, those are his words, not mine.
        Allegations have also been made that information from IRS
    files have been misused against perceived adversaries of Bill
    and Hillary Clinton and Al Gore. It is important to point out
    that the Joint Committee on Taxation conducted a 3-year--and I
    emphasize that, 3-year bipartisan investigation of allegations
    that the Clinton administration was abusing its power by using
    the IRS to retaliate against, quote, political enemies,
    specifically, tax exempt organizations. That bipartisan report
    found that there was, quote: No credible evidence of
    intervention by the Clinton administration officials in the
    selection of tax exempt organizations for examination. Again,
    that's the report that comes from a bipartisan panel.
        On another note, I've often said that we should not hold
    hearings, endless hearings just to hold them and not reach
    conclusions. And not make a difference. One of the most moving
    statements that has ever been made before this committee since
    I have been here was one by former White House counsel Cheryl
    Mills, when she talked about what government reform ought to be
    about. It ought to be about making a difference in people's
    lives. It ought to be about addressing the things that people
    have to deal with every day. And don't get me wrong, I think
    that the questions that we raise here are important questions
    and we should deal with them, but when I look at my 4\1/2\
    years with regard to this subcommittee, there are so many
    questions that we have not addressed at all.
        And so the question we must ask ourselves is what will be
    the outcome of this hearing? We have 1 month left before the
    House is scheduled to recess. There are numerous issues that
    Congress and this committee should address like prescription
    drug coverage for our seniors, and I can't help but think about
    the seniors that I was with a few days ago who literally are
    cutting pills in half and trying to figure out what is
    government doing about that. Access to affordable health care,
    education, drug use by our youth and targeted tax relief for
    all Americans before October.
        On the note of drugs, Mr. Chairman, I want to thank you for
    your assistance as you said a little bit earlier in our private
    conversation, Baltimore has made some great strides, but on
    that subject, it is because this committee tried to address
    that issue with regard to drug abuse in Baltimore and we are
    seeing a difference being made, but we need to see those things
    done in other matters. And the reason I point out that is, as I
    said before, we have 1 month left and that is it.
        So hopefully we can move forward to address other issues
    that current American people, the people who look at us today
    and who depend upon us to make a difference in their lives, we
    will address the privacy issue. And as you said, we will
    address it in a way where, if it needs--the act needs to be
    amended, I'm sure we will take appropriate action to do that.
    But the fact still remains that there is so much more to be
    done. So many issues to be addressed. So many people who still
    are suffering.
        And so with that, Mr. Chairman, I again thank you for this
    hearing, and I look forward to hearing from our witnesses and
    in advance, I thank the witnesses for taking time out of your
    busy schedules to make our government the very best that it can
    be.
        [The prepared statement of Hon. Elijah E. Cummings
    follows:]

    [GRAPHIC] [TIFF OMITTED] T4494.003

    [GRAPHIC] [TIFF OMITTED] T4494.004

        Mr. Mica. I thank the gentleman from Maryland, and now
    pleased to yield to the gentleman from Georgia, Mr. Barr.
        Mr. Barr. Thank you, Mr. Chairman. Just taking a moment,
    Mr. Chairman, to read the memo that went to all members of the
    subcommittee with regard to the hearing today, because I
    thought, listening to the prior speaker, that I was at the
    wrong hearing. I don't think we are here today to talk about
    prescription drugs, although that may be part of the agenda to
    constantly talk about those issues, no matter how incongruous
    with the subject matter at hand. We are not here today to
    relieve the suffering of the world. We are here today, Mr.
    Chairman, to discuss a very specific aspect of Federal law that
    applies to this subcommittee.
        I appreciate the efforts by the other side to continue the
    deification of Ms. Mills, but that is not the subject matter of
    the hearing today. The subject matter of the hearing today is
    to discuss a very specific legal aspect of a very specific
    Federal statute that needs clarification. And I think it would
    help all of us if Members would stick to the issue at hand.
        The fact of the matter is, Mr. Chairman, this is an
    important issue. This is an important Federal statute, the
    Privacy Act. Yes, it has nothing to do with feeding the hungry.
    It has nothing to do with solving problems in the world. But it
    does have quite a bit to do with the rule of law in this
    country and whether or not we are going to have a single
    standard for the protection of the privacy rights, as the other
    side states so eloquently from time to time that they support,
    or whether we are going to continue to allow certain Federal
    agencies, certain Federal employees, certain elected officials
    to operate under a different standard.
        I would think that all of us would agree that there ought
    to be one standard. Yet today with regard to different
    interpretations of the Privacy Act on some specific legal
    issues, there is not that consensus. And, Mr. Chairman, you
    have assembled a very distinguished group of individuals here
    today from the government and from the legal profession to
    answer some questions that we have with regard to the
    consistent applicability and interpretation of the Privacy Act
    and to help guide us in this Congress and perhaps into the next
    Congress, to decide whether or not changes need to be made to
    the statute in light of the differing interpretations, or
    whether the statute serves the American people well and the way
    it was intended to. I think changes are necessary.
        We had another hearing that I participated in with a
    different subcommittee just 2 days ago, Mr. Chairman, and it
    had to do with another aspect of privacy. It had to do with
    privacy on the Internet. And I know you have alluded to that
    with regard to the article that I too saw in today's paper. But
    the hearing that we had in the Constitution Subcommittee of the
    Judiciary Committee 2 days ago had to do with another important
    aspect of privacy, and that is, efforts by the administration
    to stretch existing statutes as they relate to electronic
    surveillance beyond the intent of the Congress. And the
    question there was what is the legitimate expectation of
    privacy on the part of American citizens when they engage in
    the Internet or e-mail transactions? And should the government
    have essentially an unfettered and plenary right to violate
    that privacy and to monitor these?
        And we heard from administration witnesses who would not
    even concede that American citizens have some reasonable
    expectation of privacy when they use forms of electronic
    communication such as the Internet, such as e-mails, such as
    telephones, such as cell phones. And we spent several hours
    listening to administration witnesses take different pieces of
    different court decisions over the years and apply them, as
    broadly as the magnificent ability of the Clinton
    administration to stretch language, allows it to cover whatever
    it is that the administration wants to do in terms of
    electronic surveillance and invasion of privacy.
        And I suspect today that we will hear in this context the
    same modus operandi. The administration coming in and using the
    very broadest legal reasoning, stretching precedents just as
    broadly as possible to allow it to do whatever it is that it
    wants to do.
        And that is really in essence, Mr. Chairman, the heart of
    what you are trying to get at here. Should we be a party to
    allow an administration to do whatever it wants to do to say,
    despite the clear intent of the Privacy Act, to provide an
    affirmative right to an American citizen to ensure that the
    government is not misusing information, should the
    administration be allowed to hide behind a very, very pinched
    definition from another statute, to avoid answering legitimate
    questions?
        Now, despite the incongruity of an administration, which I
    think self-styled itself as the most ethical in history as well
    as constantly tried to remind people that it was concerned
    about privacy, the record, and I suspect that we will hear
    today something quite different. We will hear today yet more
    explanations as to why the laws don't apply to the White House,
    don't apply to individuals there, and that the rights that
    American citizens legitimately do have an expectation, whether
    it is privacy in collection of government data or interception
    of their private communications does actually mean something.
    And I appreciate, Mr. Chairman, your efforts to keep us focused
    on a very specific issue that is clearly within the
    jurisdiction of this subcommittee, and I hope that we listen to
    these witnesses carefully, ask questions that will allow us to
    come to grips with an important issue of the applicability of
    the Privacy Act to the White House and to persons employed and
    operating out of or in the White House. And I appreciate this
    hearing and appreciate the witnesses here and appreciate your
    leadership on this issue, Mr. Chairman. Thank you.
        Mr. Mica. Thank the gentleman from Georgia. Pleased now to
    recognize the gentlewoman from Hawaii, Mrs. Mink.
        Mrs. Mink. I thank the chairman for allowing me this
    opportunity to make a statement. We are having a hearing on the
    protections of the Privacy Act, whether they apply to the
    Executive Office of the President. It is a technical legal
    issue with a series of statutory interpretations currently
    being litigated. Two district court judges in the District of
    Columbia have had the occasion to rule on this issue in the
    last several years, and these two judges have reached different
    conclusions.
        Unfortunately, some Members on the other side are trying to
    use this issue for partisan purposes. They claim that the
    President committed a criminal act by releasing certain
    information, and as proof, they cite one of these district
    court opinions which the Court of Appeals harshly criticized as
    gratuitously sweeping in its pronouncements. This issue is not
    simple. It has been a longstanding position of the Department
    of Justice that the Privacy Act does not apply to certain
    elements of the White House. That position dates back to 1974
    and spans both Democratic and Republican administrations.
        In 1975, Antonin Scalia, now a Supreme Court Justice, was
    an assistant Attorney General in the Ford administration. He
    considered whether the Freedom of Information Act's definition
    of ``agency'' extended to all units of the Executive Office of
    the President. Assistant Attorney General Scalia wrote that it
    does not extend to all portions of the executive office. He
    also said that because the Privacy Act explicitly borrowed the
    definition from the Freedom of Information Act, it's essential,
    he said, quote, of course, that we apply the same conclusion to
    both Freedom of Information Act and the Privacy Act.
        The more recent District Court decision held that the
    Privacy Act did not apply to the White House Office. On August
    9th of this year, Judge June Green granted summary judgment to
    the White House in a case brought by Representative Barr. In
    that case, Mr. Barr alleged that the White House violated the
    Privacy Act. The court disagreed, instead adopting the White
    House's position and the position of every administration since
    the enactment of the statute that the Privacy Act does not
    apply to the President's immediate staff.
        It's worthwhile for the Congress to explore this, but
    certainly I do not believe that we could make a case that the
    interpretation given by every administration since its
    enactment is incorrect. Thank you, Mr. Chairman.
        [The prepared statement of Hon. Patsy T. Mink follows:]

        [GRAPHIC] [TIFF OMITTED] T4494.005

        [GRAPHIC] [TIFF OMITTED] T4494.006

        [GRAPHIC] [TIFF OMITTED] T4494.007

        [GRAPHIC] [TIFF OMITTED] T4494.008

        Mr. Mica. I thank the gentlewoman for her opening
    statement.
        And the gentlewoman from Hawaii moves that the record be
    left open for a period of 2 weeks.
        Mrs. Mink. Do I? So be it.
        Mr. Mica. I am willing to entertain that motion for
    additional opening statements or information to be added to the
    record of the hearing. Without objection, so ordered.
        At this time, we will turn to our first panel. We have two
    panels this morning. And this consists of one individual,
    William Treanor. And he is the Deputy Assistant Attorney
    General and the Office of Legal Counsel. Welcome, sir. You have
    that large table, come and join us.
        As possibly a new witness to our subcommittee, I'm not sure
    if you have testified before Congress before or our committee,
    this is an investigation and oversight subcommittee of the
    House of Representatives, and particular, the full Committee on
    Government Reform. We do swear in our witnesses. And if you
    would please stand to be sworn at this time.
        [Witness sworn.]
        Mr. Mica. The witness answered in the affirmative. We will
    let the record reflect that.
        I would like to welcome you. Since you are the only
    panelist, we're not going to run the clock on you and we are
    anxious to hear your side of the issue from the administration
    and from the Department of Justice. So with those opening
    comments, welcome, sir, and you are recognized.

      STATEMENT OF WILLIAM M. TREANOR, DEPUTY ASSISTANT ATTORNEY
        GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

        Mr. Treanor. Thank you very much, Mr. Chairman.
        Mr. Mica. You might pull the mic up as close as you can.
        Mr. Treanor. Thank you very much, Mr. Chairman. Good
    morning, Mr. Chairman, and members of the subcommittee. I am
    pleased to be here today to testify regarding the Department's
    longstanding position that the Privacy Act does not apply to
    the White House Office, which is also known as the Office of
    the President. The Department's legal position that the Privacy
    Act does not apply to the White House Office was first stated
    in an Office of Legal Counsel opinion in April 1975, less than
    4 months after the Privacy Act was enacted, by then Assistant
    Attorney General Antonin Scalia, and has been reiterated in
    subsequent Office of Legal Counsel opinions and briefs filed by
    the Department of Litigation.
        The position rests on three premises. First, the Privacy
    Act by its terms applies only to ``agencies.'' Second, the
    Privacy Act defines the term ``agency'' to mean the same thing
    as the term means in Freedom of Information Act, and third, the
    Supreme Court has concluded that the White House Office is not
    an ``agency'' within the meaning of FOIA.
        The Privacy Act governs the collection, maintenance, use
    and disclosure of information concerning individuals by Federal
    agencies. The requirements of the act by their terms apply only
    to Federal agencies. In defining the term ``agency'' in the
    Privacy Act, Congress incorporated by reference the definition
    of ``agency'' set forth in FOIA. It provided that the term
    ``agency'' means ``agency'' as defined in section 552(e) of
    FOIA. Therefore, the applicability of the Privacy Act to the
    White House Office turns on whether the White House Office is
    an agency as defined in FOIA.
        Congress enacted the FOIA definition of agency in 1974,
    just 40 days before the Privacy Act was enacted. That
    definition provides that, ``the term `agency' includes any
    establishment in the executive branch of the government,
    including the Executive Office of the President.''
        The conference report to the 1974 FOIA amendments provides
    that the term ``Executive Office of the President is not to be
    interpreted as including the President's immediate personal
    staff or units in the executive office whose sole function is
    to advise and assist the President.'' The Supreme Court relied
    on this legislative history when it held in 1980 in Kissinger
    v. Reporters Committee for Freedom of the Press that the FOIA
    definition of agency doesn't include the Office of the
    President. The court stated that, ``the legislative history is
    unambiguous in explaining that the `Executive Office' does not
    include the Office of the President.''
        Adhering to the tests set forth in Kissinger, the D.C.
    Circuit Court of Appeals has consistently concluded that the
    President's immediate personal staff and units in the Executive
    Office of the President whose sole function is to advise and
    assist the President are not considered ``agencies'' for
    purposes of FOIA. And like the Supreme Court in Kissinger, the
    D.C. Circuit has made clear that the White House Office is
    among the components of the EOP that are exempt from the FOIA
    definition of ``agency.''
        The district court decision in Alexander v. Federal Bureau
    of Investigation, which rejected the Department's position is,
    in our opinion, incorrectly decided. In that case, Judge Royce
    Lamberth took the view that the FOIA definition does not govern
    whether the Privacy Act applies to the immediate staff of the
    President. In his view, ``agency'' means one thing for the
    Privacy Act, and another for FOIA, because the purposes of the
    two statutes are, in his view, different. Congress precluded
    this interpretive move, however, when it affirmatively stated
    that the term should have the same meaning in both statutes.
    The text of the Privacy Act is straightforward. It provides
    that, ``the term `agency' means agency as defined in FOIA.''
        As the D.C. Circuit observed in Dong v. Smithsonian
    Institution, the Privacy Act, ``borrows the definition of
    agency found in FOIA.'' And as then-assistant Attorney General
    Scalia stated in his 1975 OLC opinion addressing which units of
    the Executive Office of the President are covered by the
    Privacy Act, ``it is essential, of course, that we apply the
    same conclusion to both the Freedom of Information Act and the
    Privacy Act.''
        Judge Lamberth's decision stands in marked contrast to the
    D.C. Circuit's analysis in Rushforth v. Council of Economic
    Advisers, in which the court addressed the question of whether
    the President's Council of Economic Advisers is an agency for
    purposes of the Government in the Sunshine Act. That statute,
    like the Privacy Act, incorporates the FOIA's definition of
    agency. The court reasoned that ``inasmuch as the CEA is an
    agency for FOIA purposes, it follows of necessity that the CEA,
    is under the terms of the Sunshine Act, not subject to that
    statute either.''
        Moreover last month, District Judge June Green issued an
    opinion in the separate case of Barr v. Executive Office of the
    President in which she did not follow Judge Lamberth's
    analysis, but applied the FOIA definition of agency and held
    that the Privacy Act does not apply to the White House Office.
        Consistent with Dong and Rushforth, Judge Green reasoned
    that ``as the Privacy Act borrows the FOIA definition, it
    fairly borrows the exceptions thereto as provided in
    legislative history and by judicial interpretation.''
        In light of our disagreement with Judge Lamberth's analysis
    in the Alexander decision, the Department does not believe that
    the decision requires that the White House modify its records
    management practices to come into compliance with the Privacy
    Act. The D.C. Circuit agreed with this view in its recent
    appellate decision in Alexander stating that notwithstanding
    Judge Lamberth's decision, ``in activities unrelated to the
    Alexander case, the White House, as it has done for many years
    on the advice and counsel of the Department of Justice, remains
    free to adhere to the position that the Privacy Act does not
    cover members of the White House Office.''
        I am free to answer any questions that you may have about
    this longstanding Department of Justice legal position.
        Mr. Mica. Well, thank you, Mr. Treanor. We appreciate your
    testimony.
        [The prepared statement of Mr. Treanor follows:]

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        Mr. Mica. And I do have some questions. I'm not an
    attorney, but I've tried to sort through this problem and we
    have a serious problem before us. I guess Judge Royce C.
    Lamberth of the Federal District Court has found that President
    Clinton had committed a criminal violation of the Privacy Act
    in his estimation. I guess this was in releasing the Kathleen
    Willey letters in March 1998. And we have a dispute in the
    courts about whether the President is subject to the Privacy
    Act. And I think some of that is going to play out in the
    courts in different court cases.
        This subcommittee has to decide whether, in fact, the law
    needs to be changed and whether, in fact, we need to have the
    President subject to the Privacy Act. I think that's a major
    question that the Congress is going to ask. The courts will
    have to sort out, I guess, whether the President is guilty as
    this Federal judge has indicated, and I think that is going to
    sort itself out.
        Has the Department of Justice made any recommendation for
    any changes in this law?
        Mr. Treanor. The Department doesn't have any position on
    changes in the law.
        Mr. Mica. As I understand it, there are a couple of parts
    to this. I guess in the Filegate case there was--first of all,
    you said that agencies must comply, there is no question that
    agencies must comply with the Privacy Act; is that correct?
        Mr. Treanor. That's correct.
        Mr. Mica. OK. But if an agency say in the Filegate case has
    a request for private information an agency, gets that
    information and then discloses that, would the White House be
    in violation of the law?
        Mr. Treanor. I'm sorry; could you----
        Mr. Mica. Yes, we'll say a private agency, the FBI has
    files. OK? And the White House requests that information that
    an agency couldn't give out but they request it from the FBI.
    They get that information and then give that out, would that be
    a violation of the law?
        Mr. Treanor. Well, let me just----
        Mr. Mica. I view this as a couple of problems, because if
    the White House isn't subject to the Privacy Act in your
    interpretation, but they could go to another agency, get that
    information and then disclose that information, is that
    something that we need to be concerned about? Would you
    estimate under the law--I'm not an attorney, but is the White
    House allowed to get private information from an agency, an
    agency now that you clearly state, or Department of Justice
    states, cannot disclose that information, and then take that
    information as the White House and use it?
        Mr. Treanor. As a legal matter, the position that we've
    taken----
        Mr. Mica. Well, is that something that we should--I mean,
    today, with this incredible amount of personal information, you
    try to make certain--and you know, I bring these issues up--
    others have brought them up. I pointed out Senator Joseph
    Lieberman asked for a study on this as far as other aspects.
    Mr. Barr referred to, I guess, the Judiciary hearing that is
    also looking at other aspects of this. But what I'm trying to
    do today is find out if the law needs to be fixed and if the
    President should be subject to this law.
        And then there are ways around this as I just described. If
    the Office of the President gets private information from an
    agency then releases it, you're not able to tell me whether
    that is a current--would be a current violation of the law?
        Mr. Treanor. The position that we've taken for 25 years
    since Justice Scalia----
        Mr. Mica. They can release it?
        Mr. Treanor. They're not, as a legal matter, covered by the
    Privacy Act because they're not an agency.
        Mr. Mica. OK.
        Mr. Burton. Will the gentleman yield?
        Mr. Mica. Yes. We have been joined by the chairman of the
    full committee, Mr. Burton, and I'm pleased to yield to him.
        Mr. Burton. Along that same line, Chuck Colson went to jail
    for disclosing information back during the Watergate debacle.
    Do you remember under what statute he went to jail? Because as
    I understand it, he was supposed to have given FBI information
    on one individual out to some kind of a newsman.
        Mr. Treanor. I'm not familiar with that. It would be--since
    the Privacy Act was passed during the Ford administration, it
    would not have been the Privacy Act. But I'm not familiar with
    the Colson case.
        Mr. Burton. Would you yield to Mr. Barr?
        Mr. Mica. Yes, go ahead.
        Mr. Barr. I think, Mr. Chairman, part of that answer was
    very revealing. Part of the problem here is this administration
    either doesn't know why people go to jail for certain things or
    is being very disingenuous and coming up here and telling us
    they are not familiar with this.
        You are telling us, Mr. Treanor, as a top official at the
    Department of Justice, you are not familiar with the Colson
    case and the statute under which he was sent to prison?
        Mr. Treanor. I don't know which statute----
        Mr. Barr. Do you know who Mr. Colson was?
        Mr. Treanor. I do.
        Mr. Barr. Do you know what Watergate was?
        Mr. Treanor. I do.
        Mr. Barr. But you don't know anything about the specifics
    of it as these cases relate to the Department of Justice and
    the White House's behavior?
        Mr. Treanor. I don't know which statute----
        Mr. Barr. Maybe that's the real problem here, Mr. Chairman.
    Thank you.
        Mr. Mica. Reclaiming my time. Again, I'm not an attorney
    and I see two parts of this as a layperson. One, should the
    President be subject to the law or above the law? And I think
    that's a question that we have to decide and possibly change
    it. Then the other thing, the other part of this is can the
    President take information, private information from an agency
    and distribute that?
        You're not willing to tell me whether you think that the
    President or the Office of President can take information from
    an agency which is clearly prohibited from doing that under the
    testimony you have given today?
        Mr. Treanor. What I'm here to talk about is whether the
    White House Office and whether the President are covered by the
    Privacy Act, and they're not. Whether there is some--whether
    there is a separate violation outside of the White House Office
    is not something that I've considered in preparation for
    today's testimony. But the White House Office would not be
    covered.
        Mr. Mica. Do you see a problem there? Again, the White
    House--there's an incredible array of private information in
    agencies, not just the FBI, but today agencies have an
    incredible amount of personal information about people
    throughout the land. The question is, is there a deficit in the
    law that allows the White House, who we are saying is above the
    law, the President is not subject to this law, they can get
    information from that agency and then, in fact, disclose it for
    their own whatever? You're not prepared to--to state that----
        Mr. Treanor. As far as the policy question, whether or not
    the law should be changed, the Department doesn't have a
    position on that. And a policy question like that is one on
    which DOJ would defer to the Office of Management and Budget,
    which has the lead on Privacy Act policy questions.
        Mr. Mica. The other question I would have is I'm not sure
    who is defending the White House at this point. Is that the
    White House legal counsel or are resources of the Department of
    Justice also being combined with the White House to defend this
    position in the courts on this issue?
        Mr. Treanor. In the litigation, the Department of Justice
    has been----
        Mr. Mica. Have you taken the lead or worked with the White
    House counsel on this?
        Mr. Treanor. We represent the United States in the
    litigation. I'm not involved in the litigation, so as far as
    the facts of individual cases, I'm not in a position to
    comment. But we represent the United States in litigation.
        Mr. Mica. So the Department of Justice is taking the lead
    in defending the White House position that they're not subject
    to the law?
        Mr. Treanor. And it's our position. It's our position.
    Again, it goes back for a quarter of a century. It goes back to
    Justice Scalia when he was Assistant Attorney General. So it's
    a consistent Department of Justice position for a very long
    period of time.
        Mr. Mica. Well, I appreciate your testimony. Let me yield
    now to ranking member of our subcommittee, Mrs. Mink.
        Mrs. Mink. Thank you very much. The point that I think is
    relevant here for our purposes is whether the position which
    you now take with reference to the applicability of the Privacy
    Act to the White House Office is a position that has been
    sustained by every single administration, every single
    Department of Justice, since the Privacy Act was enacted.
        Mr. Treanor. That's correct.
        Mrs. Mink. Has there been any change or difference in
    position in the years since 1974 through all the Republican
    administrations up to the current one?
        Mr. Treanor. The Department of Justice has consistently
    taken the position that the White House Office is not covered
    by the Privacy Act.
        Mrs. Mink. Now, has there been occasion for this particular
    position to be tested or questioned other than the current
    administration, say, during the Republican administrations?
    Were there contests? Were there issues? Was there litigation
    which required that this matter be analyzed and scrutinized by
    those Republican administrations?
        Mr. Treanor. Well, there were.
        Mrs. Mink. Could you cite those instances?
        Mr. Treanor. Sure. In terms of my office, the Office of
    Legal Counsel, there are three fundamental opinions that the
    office has issued in which we've stated the position that the
    Privacy Act doesn't cover the White House Office. The first was
    during the Ford administration when Justice Scalia was
    Assistant Attorney General. The second was during the Carter
    administration. The third was during the Reagan administration
    in 1982.
        There has been subsequent litigation, for example, Meyer v.
    Bush, which was an attempt to extend the Freedom of Information
    Act to the President's Task Force on Regulatory Reform that was
    headed by then-Vice President George Bush. And the Department
    took the position that it was not subject to FOIA because its
    role was to advise the President. And the D.C. Circuit Court of
    Appeals found in favor of the Department.
        So there are--the Rushforth decision, which is 1985, is
    another D.C. Circuit opinion, also involving FOIA. That's a
    Reagan--President Reagan administration case. And that involved
    the question of whether the Council of Economic Advisers was
    covered by FOIA. Again, the Department of Justice took the
    position that it wasn't, and again, the Department prevailed in
    litigation.
        Mrs. Mink. Has there been any specific cases involving the
    Privacy Act? Both that you cited had to do with the Freedom of
    Information Act.
        Mr. Treanor. Well, involving the Privacy Act, there is case
    law on the Privacy Act from the D.C. Circuit; there's Dong v.
    Smithsonian, which is a decision in which the D.C. Circuit said
    that the Privacy Act definition of ``agency'' is borrowed from
    FOIA.
        In terms of litigation involving the Privacy Act, the two
    principal decisions are the ones that I believe you mentioned
    in your opening statement. Judge Lamberth's decision and more
    recently, Judge Green's decision.
        Mrs. Mink. Other than those two, the question of the
    Privacy Act's applicability to the White House Office has not
    come into question?
        Mr. Treanor. There are a number of other suits that are
    currently before the courts in which that issue has been
    presented. The only ones in which there have been decisions on
    point are the two that I mentioned.
        Mrs. Mink. Now, is it a normal practice in the Department
    of Justice, when there is a standing opinion as Mr. Scalia's
    opinion on this issue was filed, is there a standing routine in
    the Department of Justice to take a look at these opinions and
    to review them and to incorporate them as the current policy
    when the administration changes? Or is it simply made reference
    to and never looked at? In other words, the Scalia opinion, has
    that been under review and subject to discussions in the
    Department of Justice since it was written or simply accepted
    as the rule of law that the Department of Justice is to apply
    when--when any question relative to privacy is raised?
        Mr. Treanor. When we have an opinion of the Office of Legal
    Counsel like Justice Scalia's opinion from 1975, it has
    precedential weight within the Department of Justice. In other
    words, we take it seriously. But when new issues come up, it's
    also reconsidered and revisited. If it was our decision that it
    was an inappropriate decision, then it certainly would have
    been revisited and changed when the issue came up.
        But, again, it has been an issue--it has been a position
    the Department has stayed with for this point 25 years.
        Mrs. Mink. Has there been any time in the history of the
    Department since the Scalia opinion was written, any major
    discussion as to its pertinence or its relevance or that it
    needed to be changed? Has there ever been any question as to
    its standing as good law?
        Mr. Treanor. Of Justice deliberations over the past 25
    years, I haven't seen anything that suggests any hesitancy in
    that position, as we have revisited it in a number of contexts.
        Mrs. Mink. Did Judge Green's decision alter the validity of
    Judge Scalia's opinion in any way?
        Mr. Treanor. No. His opinion was that the Privacy Act
    didn't cover the Office of the President, and that is the
    position that Judge Green reached as well. So it is consistent
    with the Department's position since 1975.
        Mrs. Mink. Thank you, Mr. Chairman.
        Mr. Mica. We have been joined by the chairman of the full
    committee, Mr. Burton, and so I would like to recognize the
    gentleman from Indiana both for the purposes of an opening
    statement and also for questions that he would like to ask at
    this time.
        Mr. Burton. Thank you, Mr. Chairman. I have a couple of
    questions. I don't know that I want to make an opening
    statement. I do have a couple of questions.
        There was a decision rendered on March 29 of this year, and
    I think you have alluded to that already, but it says,
    according to the information that I have, that the definition
    of agency as used in the Freedom of Information Act has been
    held to specifically apply to the Executive Office of the
    President. The Clinton administration responded to this suit by
    arguing that the Office of Personnel Security and the Office of
    Records Management, both units of the Executive Office of the
    President, were not subject to the Privacy Act. On March 29
    this year, the Federal District Court hearing the case rejected
    the administration's argument and held that under the Privacy
    Act, the word ``agency'' includes the Executive Office of the
    President.
        And yet even though that decision has been rendered, the
    Department of Justice continues to argue that the Privacy Act
    does not apply to the President and the White House, and one of
    the problems that our committee has had is the appearance has
    been dramatic over the past 4 years that I have been chairman
    of this committee, that the Department of Justice has been
    blocking every effort, every single effort by every
    organization and every committee of the Congress to give
    information or to apply the laws fairly and equitably to
    everybody.
        And we have sent subpoenas over to the White House. We have
    had Chuck Ruff, the President's chief counsel and other chief
    counsels, Mr. Nolan and others, use all kinds of dilatory
    tactics to block us from getting information. We have had to
    fight and fight and fight the Department of Justice. We have
    sent criminal referrals over there. Nothing has happened. We
    have had 122 people take the fifth amendment and flee the
    country. Nothing has happened. Some underlings, some lower
    level people have been brought to trial and justice, but people
    in the Executive Office of the President where there has been
    allegations of wrongdoing, nothing has happened.
        Most recently, the head of the task Air Force just
    appointed by Janet Reno, Mr. Conrad said there should be a
    special prosecutor appointed to investigate Mr. Gore. Others
    have said that to her on other occasions about other
    individuals, including other people in the White House.
        The attorney general once again declined, even though the
    second or third in a row head of the task force suggested that
    there should be an independent counsel. We had Louis Freeh, Mr.
    LaBella, Mr. DeSarno, all back when we had the independent
    counsel statute, and Mr. Freeh and Mr. LaBella said that there
    should be an independent counsel to investigate the entire
    campaign finance scandal. She turned that down.
        Now the latest thing, and the FBI has said there were
    misrepresentations made by the Vice President to the FBI and
    Mr.--the latest counsel, Mr. Conrad, appointed by Ms. Reno,
    said there should be a special prosecutor appointed. Once
    again, she rejected that even though the FBI said there were
    some inconsistencies in what the Vice President said. Even
    though it was recommended by Mr. Conrad, nothing happened.
        So here today we are having this hearing on this and a
    court, a court here in Washington, I believe it is in
    Washington, the Federal District Court in Washington on March
    29 said--they rejected the administration's argument that held
    under the Privacy Act the word ``agency'' includes the
    Executive Office of the President. And I presume that the
    reason that the Executive Office of the President and the
    Justice Department are working hand in glove on this is because
    when you go back to the Marsisa case, and he just admitted that
    he lied on the Filegate case, I presume that the Executive
    Office of the President wants to continue to protect itself,
    and the Justice Department is continuing to try to protect the
    President so there is no further investigation into this or any
    other issue regarding that.
        I wish the American people across the country can see the
    consistency that we have seen over the past 4 years, is that
    the Justice Department under Janet Reno has blocked, and they
    have gone so far as to fight this in the courts, and now they
    have been rejected by the courts, and I understand that they
    are going to appeal. Don't you find that unusual that this
    consistent pattern has gone on for the past 4, 5, 6 years?
        Mr. Treanor. Let me focus on this specific case because we
    did appeal and the D.C. Circuit said that the activities
    related to the Alexander case, the White House as it has done
    for many years on the advice and counsel of the Department of
    Justice remains free to adhere to the position that the Privacy
    Act does not cover members of the White House Office.
        Mr. Burton. How does that square with what the court just
    decided?
        Mr. Treanor. Congressman Burton, I think you are referring
    to Judge Lamberth's decision, but we did appeal that and what I
    was reading you from was the D.C. Circuit's decision.
        Mr. Burton. Who is the judge on D.C. Circuit?
        Mrs. Mink. In the appeal, Green, Judge Green.
        Mr. Burton. Who appointed Judge Green to the Federal bench?
        Mr. Treanor. Judge Green--there are two District court
    decisions.
        Mr. Burton. Who appointed Judge Green to the bench, do you
    know?
        I would like to find that out.
        In any event, and I won't belabor this anymore, the
    frustration level that we have in our committee, Mr. Barr and
    Mr. Mica, who have been in these hearings, we have had people
    take the fifth amendment. One of the top advisors to the
    President took the fifth amendment before our committee 25 or
    30 times. What was his name?
        Mr. Mica. There are a number of them.
        Mr. Burton. There are a number of them. There have been so
    many. We have had so many problems like this and we have a very
    high level of frustration, so when we see the Justice
    Department going to bat trying to protect the Office of the
    President from laws that apply to every person in this country
    and every other person in this government, once again we are
    holding the President out as something special, and the laws
    don't apply equally to him like they do everybody else, that
    really frustrates us because we believe that the laws of this
    Nation were made to apply to everybody, regardless of their
    station in life and position in government. If we say one
    organization is above the laws passed for everybody else, then
    the foundations of the Nation start to crack and it bothers me
    a great deal.
        Mr. Mica. I thank the gentleman from Indiana and I am
    pleased to recognize the gentleman from Maryland, Mr. Cummings.
        Mr. Cummings. Thank you very much. A little earlier, Mr.
    Barr said we were dealing with a specific issue and that there
    had been more than one interpretation with regard to how this
    whole privacy issue should be resolved, and so I have some
    specific questions.
        Tell me how the Freedom of Information Act plays into these
    decisions, decisions that you talked about, there is a
    relationship with the Privacy Act and the Freedom of
    Information Act, and I want to know how they play together?
        Mr. Treanor. The agency definition of FOIA was passed in
    1974.
        Mr. Cummings. Right.
        Mr. Treanor. The same Congress 40 days later passed the
    Privacy Act. What the Privacy Act does is for its definition of
    ``agency'' it says--it is the definition of ``agency'' under
    FOIA. So it looks back, it incorporates directly the FOIA
    definition of agency. So as the FOIA definition of ``agency''
    is interpreted by the courts, that is also the Privacy Act
    definition of ``agency.'' .
        When FOIA was passed, the committee, the conference report,
    said that it doesn't cover as an agency those whose sole
    function is to advise and assist the President.
        Mr. Cummings. So that was part of the conference report?
        Mr. Treanor. That was part of the conference report on
    FOIA.
        Mr. Cummings. So if one were looking for the legislative
    intent, one would go to the conference report, along with other
    documents that were available; is that right?
        Mr. Treanor. That's correct. So in 1980 when then-Justice
    Rehnquist in the Kissinger case was confronted with the
    question of was Henry Kissinger subject to FOIA disclosure, he
    said well, we look at the legislative history and the
    legislative history is unambiguous that those whose sole
    function to advise and assist the President are not agencies
    within the meaning of FOIA and therefore, FOIA doesn't apply.
        But even before then in 1975, 4 months after the Privacy
    Act was passed, Justice Scalia said in his opinion for the
    Office of Legal Counsel, the FOIA definition of ``agency'' is
    borrowed by the Privacy Act, and therefore the two have to be
    construed in tandem.
        Mr. Cummings. Now, one of the things that we hear--let's go
    back to something that Mr. Burton said--Mr. Burton was talking
    about the rules being applied to everyone, and I think he was
    talking about privacy and all people in this country who come
    under our constitution have the same rights of privacy. But
    there seems to be something that is parallel to that same
    argument, and on that note I agree with him, that we should all
    have the same rights of privacy no matter who we are, but there
    is something else that goes along with that, and he complained
    vigorously about how the Justice Department consistently stood
    in the way of requests by Congress to have certain documents.
    But as I listen to your testimony, there is something called
    the Office of the President, and no matter who the President
    has been, either Republican or Democrat, either Carter or
    Reagan or whoever, that this has been a consistent posture of
    the various Presidents? In other words, when this issue comes
    up, it is addressed this way by the Justice Department; is that
    correct?
        Mr. Treanor. That's right. This has been a consistent
    position of the Department for a quarter century.
        Mr. Cummings. I remember when we had the impeachment
    hearings, there was a question that came up with regard to the
    Secret Service and whether or not they could testify. And the
    arguments were made then that there were certain things that go
    along with the Office of the President, there are certain
    defenses that would be raised irrespective of who the President
    was, and so for you all to do this, for the Justice Department
    to do what you are doing here is nothing unusual; is that
    correct?
        Mr. Treanor. This is a well established, longstanding
    Department of Justice position.
        Mr. Cummings. Now, do you know, going back now to that
    legislative intent, and I want to go backward, when you talked
    about the conference report in the original legislation I think
    you said back in 1974, was there any basis for why the Office
    of the President would not be included under FOIA and therefore
    under the Privacy Act? In other words, were there Congressmen,
    legislators that stood up and said these are the reasons why
    the Office of the President should not be included? Or just
    said they are not part of the definition?
        Mr. Treanor. I think there was--prior to 1974 there was a
    D.C. Circuit decision, Soucie v. David, which concerned the
    Office of Science and Technology in the Executive Office of the
    President, and the question was whether that was covered by
    FOIA. The D.C. Circuit in that decision created the test of
    whether the sole function of the entity or the individual was
    to advise and assist the President. So that is the test that
    the FOIA committee was codifying. They make reference to Soucie
    v. David in the conference report.
        Mr. Cummings. I think Mr. Mica asked a very crucial
    question, and it does concern me and maybe you can help us with
    it. I think whenever we on this side of the aisle draft
    legislation, one of our major concerns is that the legislation
    actually carries out what our purpose is, and we would hate to
    think that there are loopholes in the very legislation that we
    passed.
        The question that Mr. Mica asked that concerns me, too, as
    I listen to all of this, is if an agency gives the information,
    and I know the agency is subject, but if the agency gives the
    information to the President, is there anything that controls
    that? In other words, is the agency in violation of anything or
    is the matter of just presenting it to the President enough?
    Has that issue, that exact issue arisen in the courts? Has
    there been--I mean, if there was an opinion that you have to
    give to--let's say an agency came to you and said look, our
    concern is if we turn over this information, it may be
    released. What would your opinion be--and we don't want to get
    in trouble. So what is your opinion as to what our--how
    vulnerable we might be?
        Mr. Treanor. Again, as I said to the chairman, this isn't
    something that I have thought through in anticipation of this
    meeting so I don't have an answer to that question.
        Mr. Cummings. So you don't know whether that narrow issue
    that I just stated, has arisen? I take it that you have not had
    to render an opinion on that; is that a fair statement?
        Mr. Treanor. Off the top of my head I can't think of any
    decision that addresses that. Again, that is just off the top
    of my head.
        Mr. Cummings. Last question. Is that because it is almost a
    moot point, because once it comes within the Office of the
    President, the agency is sort of taken out of the mix?
        Mr. Treanor. Again, it may be the case that in the various
    litigations that have involved the Privacy Act that there are
    challenges to the agency's activity. But again, that is not
    something that I have focused on.
        Mr. Mica. Will the gentleman yield?
        Mr. Cummings. Yes.
        Mr. Mica. There are a couple of parts to that. The part
    that you and I raised are very troubling. You had in Filegate,
    I believe it was, where someone from the Executive Office of
    the President as a security guy asked for the FBI files. Well,
    if he took those and then disbursed them, the White House has
    the right, according to what the Department of Justice is
    saying in some of these court opinions, to release information.
    You cited the Ray investigation of that and said there weren't
    any violations. I am concerned that there may be a gap in the
    law.
        I am also concerned, should the President of the United
    States or the Executive Office of the President, and we will
    have a different one in a few months here, be able to release
    any information about individuals? I think this is a very
    serious problem, and you have got the President charged with a
    criminal violation by another Federal judge. It is something
    that we have got to address to say what the White House can do
    and then can an agency or the White House request this through
    an agency which is subject to the law now which they are saying
    and disburse that information. So we have got a situation that
    isn't clear. A law that isn't well defined and that is my
    concern. We may have to come back and make some changes with
    this. I yield.
        Mr. Cummings. Reclaiming my time, just one comment. I think
    what concerns me as I listen to Mr. Burton who I have
    tremendous respect for, I think we have to be very careful with
    this whole idea of the Office of the President. We are
    talking--and the testimony that we have heard is that this has
    been a consistent defense and not just because Mr. Burton is
    the chairman of the committee or Republicans are in control of
    the Congress, and then we have a President who is a Democrat,
    but that Republican Presidents have asserted the same kinds of
    defenses and presented it--it has been consistent.
        So I think, Mr. Chairman, when we are talking about
    clarification, I think it would be good to know whether the
    issue--this particular issue has arisen and how it has been
    resolved, if at all, and at the same time, protect the Office
    of the President no matter who is in there, be it a Republican
    or Democrat. That is one of my concerns. With that I yield back
    the balance of my time.
        Mr. Mica. I appreciate that. I just want to say that--
    interject here that--the law was enacted because of the abuses
    of a Republican President, and I thought it would apply to the
    Office of the President. Obviously from these mixed court
    decisions, it doesn't or it is in question. That is part of the
    reason for this hearing. Then we have this other point of the
    agencies clearly being prohibited, according to the testimony,
    the court decisions and FOIA is a different kind of animal.
    FOIA is someone from the outside requesting information as
    opposed to the White House or an agency just giving out
    personal private information. That is the reason for this
    hearing today.
        Mr. Cummings. Would the gentleman yield?
        Mr. Mica. Yes.
        Mr. Cummings. I just want to say that one of the things
    that we have to be concerned about, sometimes if there is
    anything good resulting from what you are talking about, Mr.
    Chairman, sometimes it is good to have clarification of the law
    so that we don't have Presidents that come into office who then
    have to go through a process which--where they are constantly
    defending themselves when the law is not clear. That might be a
    good thing to have some kind of clarification.
        Mr. Mica. I appreciate that.
        Mr. Barr has been waiting patiently. I recognize Mr. Barr
    at this time.
        Mr. Barr. Thank you, Mr. Chairman.
        Mr. Treanor, we have two laws here; is that correct? The
    Freedom of Information Act and the Privacy Act?
        Mr. Treanor. That's correct.
        Mr. Barr. They are different laws and different provisions
    of the Federal code?
        Mr. Treanor. That's right.
        Mr. Barr. They, therefore, serve different purposes,
    otherwise we wouldn't have two distinct laws; is that correct?
    Or in your mind, do they serve identical purposes?
        Mr. Treanor. They don't serve identical purposes.
        Mr. Barr. OK. They serve somewhat different purposes,
    correct?
        Mr. Treanor. I think that is right.
        Mr. Barr. The Freedom of Information Act is what might be
    termed a passive statute. It simply provides access to
    government information? It doesn't provide any criminal
    penalties, does it?
        Mr. Treanor. I am not aware whether it does or doesn't.
        Mr. Barr. You are not aware whether it does or doesn't?
        Mr. Treanor. I'm not.
        Mr. Barr. Are you aware of the fact that the Privacy Act
    does provide criminal penalties for violations?
        Mr. Treanor. It does.
        Mr. Barr. We are making some progress here. The fact that
    the Privacy Act provides criminal penalties means that there is
    a purpose to be served by those criminal penalties?
        Mr. Treanor. That's correct.
        Mr. Barr. And that is a check on misuse of information
    against individuals by government officials, correct?
        Mr. Treanor. That's correct.
        Mr. Barr. Why, then, is it the position of the Department
    of Justice that it is OK for an individual in one office within
    the executive branch to release that information and not be
    subject to those criminal penalties, and yet one block away a
    different individual, simply because that person happens to
    work in a different office in the executive branch, would be
    subject to criminal prosecution? What is the rationale, and I
    am not interested in you just relying on prior decisions by
    prior Departments of Justice, what is the justification for the
    Department of Justice saying it is OK for one member of the
    executive branch to disclose private information, yet somebody
    else, simply because they happen to be in a different physical
    location or work for a different agency within the executive
    branch, that they would be subject to criminal prosecution?
    What is the distinction? Why is that proper?
        Mr. Treanor. It is a question of what the statute reaches.
        Mr. Barr. The statute makes it criminal. If you look at the
    statute itself, you want to talk about the statute, the statute
    is very clear on its face. The Executive Office of the
    President is included within the parameters of the Privacy Act,
    including the criminal provisions. So don't tell me that the
    statute doesn't provide for it. The statute does. What you are
    doing is looking to another statute that serves, as you've
    conceded, a different purpose for justification for saying the
    Privacy Act criminal provisions apply to one agency but not to
    another, but the language of the statute supports our position,
    not yours. We are looking to legislative history in a different
    statute.
        Mr. Treanor. The language of FOIA is explicitly referenced
    in the Privacy Act. The Privacy Act says agency under the
    Privacy Act means agency under FOIA.
        Mr. Barr. Which includes the Executive Office of the
    President, if you agree with that. You can't disagree with it.
        Mr. Treanor. The text of FOIA says that agency under FOIA
    includes the Executive Office of the President.
        Mr. Barr. Which is the language adopted for the Privacy
    Act. So on the face of it the Privacy Act, including its
    criminal provisions, apply to the Executive Office of the
    President, correct?
        Mr. Treanor. It applies to the Executive Office of the
    President, subject to the same limitation that the Freedom of
    Information Act----
        Mr. Barr. That is your interpretation. That is your excuse
    for saying that it doesn't.
        Are you saying that as a matter of law, general law, that
    every single time one statute picks up a definition from
    another statute or a provision from another statute, it picks
    up all of the legislative history that applied to consideration
    of that other statute, regardless of the purpose? Is that your
    position?
        Mr. Treanor. This is a case in which the two statutes are
    40 days apart in enactment. It is the same Congress.
    Congressman Moorhead----
        Mr. Barr. I would prefer if you answer the question that I
    posed.
        Mr. Treanor. Could you please restate the question.
        Mr. Barr. See, that is the problem when you don't answer
    questions.
        The fact of the matter is, the clear language of the
    Privacy Act applies in its criminal provision to the Executive
    Office of the President. You are saying, because there is
    legislative history in another statute that serves a different
    purpose, namely, the Freedom of Information Act, that limits
    the applicability of the Privacy Act to the Executive Office of
    the President, that simply, because it brings in the
    definition, it brings in all of that other baggage, and I am
    asking you whether that is the position of the Department of
    Justice that, as a matter of general law and legislative
    interpretation, that in every instance where a statute by
    reference picks up a definition or another provision from a
    different statute, that it necessarily is limited by all of the
    legislative history of that other statute, even though that
    other statute deals with something different? Is that your
    proposition? Is that the position of the Department of Justice?
        Mr. Treanor. I don't know that we have ever taken a
    position on whether it is, in effect, the case.
        Mr. Barr. You are taking the position in this case, and
    unless the Department is saying that we are taking the position
    in this case and not something else, then you have to agree
    with me.
        Mr. Treanor. First of all, there is a general presumption
    that when two statutes have the same language, that they are to
    be interpreted the same. There is substantial case law on that.
        Mr. Barr. There is not substantial case law for the
    proposition that you are putting forward here. All of the cases
    that have been discussed so far, with the exception of the
    Alexander case, don't apply to the Privacy Act. Those are FOIA
    cases.
        Mr. Treanor. The Rushforth case, which is a 1985 D.C.
    Circuit decision involving the Sunshine Act, which does the
    same thing----
        Mr. Barr. This isn't the Sunshine Act. What we are talking
    about here is the Privacy Act and whether its criminal
    provisions should apply to all government officials. You are
    saying no. It shouldn't apply to the President and it shouldn't
    apply to Ms. Mills and Charles Ruff, but that, if somebody else
    does the exact same thing that they did, it would be--they
    would be subject to criminal penalties, and I think that is a
    very strange and improper position for the Department of
    Justice to take. And I think what you would be coming up here
    and saying is that in order to protect the public, we ought to
    have one standard here. That is what all prior Departments of
    Justice have always said.
        Given the fact that there is confusion here, make your
    case, either for the confusion to be clarified by saying
    clearly that the President is not subject to the Privacy Act
    and its criminal provisions and can do whatever he wants and
    his advisors can, or come in here and say yes, we recognize
    that there are some interpretations of case law that support a
    restrictive definition. But we think in the public interest
    that it ought to be clarified, and that the Privacy Act
    provisions that purport to provide a remedy for violations
    ought to apply to everybody. That would be the right thing to
    do.
        That is not what you are doing. You are coming in here and
    trying to say because there is some legislative history that
    applies to this other statute that serves a different purpose,
    that fits our purpose of defending the President and his
    advisors against improperly releasing information on
    individuals, they are exempt. And that is the frustration that
    I think the chairman, both chairmen, exhibit with this
    Department of Justice. That is not the type of position that a
    Department of Justice traditionally has taken. You are right,
    you may be strictly interpreting, consistent with prior
    internal memoranda and arguments regarding the applicability of
    the Freedom of Information Act by prior administrations, but
    that doesn't make it right, does it? That doesn't make right
    the argument that this group of individuals, because they are
    located here, can violate someone's privacy rights, but these
    over here can't? That is not right, is it?
        Mr. Treanor. I have been talking about our interpretation
    of the statute.
        Mr. Barr. Is it right?
        Mr. Treanor. Again, the question of whether the Privacy Act
    should be amended is one that the Department doesn't have a
    position on.
        Mr. Barr. Is my question right? See, there you go again. I
    asked a very simple question, and now I have to repeat it.
        Is it right to say that this group of individuals can
    violate somebody's privacy rights and not be subject to
    criminal sanctions, this group over here, also government
    employees can do exactly the same thing, but because they are
    clothed with being in a slightly different office, they are
    subject to criminal penalties; is that right?
        Mr. Treanor. I think--I understand the fairness and----
        Mr. Barr. Do you understand the question?
        Mr. Treanor. I do understand the question.
        Mr. Barr. Then answer it yes or no.
        Mr. Treanor. It is not something that I have a position on.
        Mr. Barr. The Department of Justice doesn't have a position
    on whether laws ought to be applied equally?
        Mr. Treanor. The Department of Justice, in the context of
    this statute, does not have a position on whether it should be
    amended to cover the White House Office.
        Mr. Barr. So the answer to my question is that you think
    that it is OK for somebody's privacy to be violated by this
    person but not this person, simply because of what office they
    serve in? That the Privacy Act does not apply uniformly--should
    not?
        Mr. Treanor. Again, we don't have a position.
        Mr. Barr. And that is your position, isn't it?
        Mr. Treanor. We don't have a position on whether it should
    be amended.
        Mr. Barr. I asked you whether that is your position on the
    current state of the Privacy Act applicability?
        Mr. Treanor. It is our position as a matter of law right
    now that it doesn't cover the White House Office.
        Mr. Barr. And that is OK with you?
        Mr. Treanor. Again, the Department of Justice----
        Mr. Barr. Otherwise you would be making an argument that
    you don't believe in court, and that is unethical.
        Mr. Treanor. We are making an argument which we believe is
    the best interpretation of the statute.
        Again as I said before, the policy question of whether it
    should be changed is one that the Department of Justice doesn't
    have a lead on.
        Mr. Barr. I bet if we proposed to change it, they would
    oppose it. Do you want to bet?
        Mr. Treanor. We, of course, review any particular
    legislation for constitutionality.
        Mr. Barr. If I were you, I wouldn't take that bet up either
    because you would lose. This administration would oppose it.
    Thank you, Mr. Chairman.
        Mr. Mica. I thank the gentleman.
        Mrs. Mink.
        Mrs. Mink. I think this matter has been somewhat fuzzed up
    by the questions and responses that you have given.
        Can you clarify your earlier testimony in response to my
    questions which go to whether this decision or the opinion of
    the Department, which was initially rendered by Mr. Scalia, was
    an opinion just out of the blue or was this an opinion which
    interpreted what Congress said in the legislation which it
    enacted, that this is not a judgment call randomly made in
    order to suit the purposes of one administration or the other,
    but a clear statement of position of the Department of Justice
    by Mr. Scalia upon reading the two statutes in question, the
    Privacy Act and the Freedom of Information Act?
        Mr. Treanor. That's correct.
        Mrs. Mink. What is correct?
        Mr. Treanor. It is correct that what Justice Scalia was
    doing was he was looking at the two statutes. He was looking--
    he was looking at the fact that the Privacy Act says agency--it
    means agency under FOIA.
        Mrs. Mink. Now, is that language explicit in the Privacy
    Act? The definition of ``agency'' is as defined in the Freedom
    of Information Act?
        Mr. Treanor. It is explicit.
        Mrs. Mink. It is absolutely explicit?
        Mr. Treanor. That's right. ``Agency'' is defined in section
    552 E, and it is a reference to----
        Mrs. Mink. So if you wanted to define it differently, you
    are stuck because that is what the law said?
        Mr. Treanor. The law says that they will be construed
    together.
        Mrs. Mink. So if anyone has a problem with the way that it
    is now interpreted, you would have to change the law? It is not
    a matter of your coming here and saying this is your opinion.
    This is an application of the law by the Department of Justice;
    is that correct?
        Mr. Treanor. This is the view of the Department of Justice
    on the best reading of the law that was announced in 1975 and
    that we have consistently held.
        Mrs. Mink. Thank you, Mr. Chairman.
        Mr. Mica. Thank you. Additional questions?
        Mr. Cummings. I just have one more question. Just so we can
    hear the rest of the story, based upon what Mrs. Mink just said
    and who makes the law?
        Mr. Treanor. Congress makes the law.
        Mr. Cummings. Thank you very much. In other words, it is
    our decision. We make the law, not you. We do it and if we have
    a problem with the law, then we have to change it. That is our
    job. That is what we are paid to do.
        Mr. Barr. Mr. Chairman.
        Mr. Mica. Mr. Barr.
        Mr. Barr. Thank you, Mr. Chairman.
        You know, sure, that is true and you can look in my primer
    that says Congress makes the law, but that is not the final
    answer here and everybody knows that. What we are talking about
    here is an interpretation of the law; is that not correct, Mr.
    Treanor?
        Mr. Treanor. It is our best reading of the law.
        Mr. Barr. Right. It is an interpretation of the law. The
    law itself is absolutely clear on its face. The Executive
    Office of the President is covered by the Privacy Act. The
    Privacy Act is clear on its face. Congress has made that law,
    right? What you are looking to, to carve out an exception is
    what is called legislative history which is not part of the law
    itself, to carve out an exemption, that is what you are doing.
    So Congress has spoken. Congress has said the Privacy Act
    includes within its definition of ``agency'' the Executive
    Office of the President, the four corners of the statute say
    that.
        So if we are talking about Congress making laws, it seems
    to me that Congress has already done that. Now in a different
    law, the Freedom of Information Act, Congress included some
    legislative history that related to that act. That is
    legislative history that can be used to interpret the law which
    is what you are doing. But you have made this--this Department
    of Justice has made a decision to interpret the Privacy Act
    using legislative history from another act to carve out an
    exemption. That is what we are looking at here to determine
    whether that is proper.
        A number of us feel that it is not. Others feel that it is
    proper to carve out an exemption and say that the criminal
    provisions of the Privacy Act should not apply to some people.
    People on the other side of the aisle and the Department of
    Justice believe that. I don't. I think that the law ought to
    apply equally. If in fact, as we now see because of a number of
    decisions by different Departments of Justice and two recent
    decisions which conflict on this issue, there has been
    interjected a degree of lack of clarity, and I think we ought
    to go back and address it because I think the law ought to
    apply equally. If people disagree, they can vote against such a
    bill.
        I would be happy to yield.
        Mrs. Mink. Thank you for yielding. I am not interested in
    making my argument and stating my case with reference to my
    questions. I am not interested in carving out an exemption. I
    don't believe in carving out anything.
        The law states the explicit situation here that the
    definition of ``agency'' as found in the Freedom of Information
    Act applies to the Privacy Act. That is all that I am saying. I
    am interested in what the law says and applying that law.
    That's all. I feel that the Department of Justice is stating
    the law as it is written. Congress wrote it. I happen to have
    been here at that time and the Freedom of Information Act was
    something in which I was very much involved.
        I was hoping that Mr. Treanor would cite the case in which
    I was the principal plaintiff, Mink v. EPA, et al. Some five or
    six other executive agencies were involved. I was trying to get
    information out of these agencies that had transmitted an
    opinion to the White House. We felt that the executive
    exclusion of those opinions from the public was wrong. I went
    to court and my case was heard all the way up to the Supreme
    Court of the United States.
        This debate whether agencies are covered or not covered was
    an intricate part of the debate when we enacted the Freedom of
    Information Act in 1974, and the use of that definition which
    we agreed to in the FOIA to the Privacy Act was an explicit
    decision made by Congress.
        If we disagree with it now, we should fix it. But the
    implication that the Justice Department since 1974 has been in
    any way complicit in trying to avoid the application of law to
    the White House is wrong. Congress did that. I can attest to
    that since I was here when those statutes were enacted.
        Thank you.
        Mr. Barr. Reclaiming my time, I don't recall any
    legislative history in which the Congress said we think that
    the provisions of the Privacy Act should not apply to a person
    in the executive office of the White House--Executive Office of
    the President. As a matter of fact, the statute itself provides
    that the Executive Office of the President is covered. But
    there is legislative history in this other act, and I
    understand the gentlelady's position and she is absolutely
    correct, with regard to the congressional interpretation or
    direction with regard to the Freedom of Information Act, which
    the Department of Justice concedes serves a different purpose
    from the Privacy Act, there are additional limitations. But
    that does not mean that those necessarily are incorporated into
    the Privacy Act definition which makes very clear that it
    applies to the Executive Office of the President.
        Thank you, Mr. Chairman.
        Mr. Mica. I thank the members of the panel for their
    questions. I also want to thank our witness, Mr. Treanor, for
    representing the Department of Justice at this hearing and also
    providing us with your testimony.
        I think we will excuse you at this point. There may be
    additional questions we will submit in writing for you or for
    the Department of Justice to respond to.
        Mr. Treanor. Thank you, Mr. Chairman. Thank you, members of
    the committee.
        Mr. Mica. I would like to call our second panel this
    morning. The second panel consists of four witnesses. The four
    witnesses are Greg Walden, former associate counsel for the
    President from 1991 to 1993. Mr. Larry Klayman, who is the
    chairman of Judicial Watch, Professor Jonathan Turley, George
    Washington University school of law and Roger Pilon who is a
    constitutional scholar with the CATO Institute.
        We do swear in our witness. If you would all please stand
    and raise your right hands.
        [Witnesses sworn.]
        Mr. Mica. The witnesses have answered in the affirmative.
    We welcome you and we try to get you to limit your
    presentations to 5 minutes. I make an exception to Mr. Klayman,
    when we recognize him. Mr. Dale is not appearing this morning.
    He was on the witness list, but Mr. Klayman is going to read
    his statement from Mr. Dale.
        I will first recognize Greg Walden, former associate
    counsel for the President, 1991 to 1993 for your testimony.
    Welcome, and you are recognized, sir.

      STATEMENTS OF GREG WALDEN, FORMER ASSOCIATE COUNSEL FOR THE
    PRESIDENT FROM 1991 TO 1993; LARRY KLAYMAN, CHAIRMAN, JUDICIAL
    WATCH; JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY SCHOOL OF
                LAW; AND ROGER PILON, THE CATO INSTITUTE

        Mr. Walden. Thank you. While I serve now as counsel to the
    law firm of Patton Boggs, LLP, the views expressed are my own
    and this marks my fifth appearance before the committee, and I
    am honored by your invitation. I will respond to two questions.
    The ``is'' question and the ``ought'' question. First, whether
    the Privacy Act does now apply to the White House Office; and
    second, assuming that it does not apply to the White House
    Office, whether the act should be amended.
        My first answer to the question is frankly I am not sure;
    but the answer to my second question is an unqualified yes, the
    act should be amended to clarify the ambiguity. As previously
    noted, the Privacy Act expressly incorporates FOIA's definition
    of an agency, and that definition expressly includes the
    Executive Office of the President. So if all we were talking
    about was the language of the statutes, the White House would
    have no exemption from FOIA; the White House Office would have
    no exemption from the Privacy Act. But there is legislative
    history dealing with FOIA, and that legislative history was
    used by the Supreme Court in Kissinger v. Reporter Committee in
    1980, so what is going on here is judicial gloss on a statute,
    FOIA, based on the legislative history in a conference report.
        When I served in the Justice Department in the 1980's and
    later in the Bush White House, we understood that based on
    these court decisions, FOIA applied within the Executive Office
    of the President to OMB, the Office of Administration, the
    Council on Environmental Quality, the U.S. Trade Representative
    and the Office of National Drug Control Policy, but that FOIA
    did not apply to the Council of Economic Advisers or the units
    within the White House Office such as the counsel's office, the
    Office of Presidential Personnel, the executive residence and
    the like.
        With regard to the National Security Council, we treated
    the council as a hybrid. Its staff was considered covered by
    FOIA; the National Security Adviser insofar as he served as a
    member of the President's inner circle of advisers was not. His
    files were segregated into NSC files covered by FOIA and White
    House Office files exempt from FOIA. And in 1993, the Office of
    Legal Counsel withdrew a 1978 opinion upon which we had relied
    and determined that the NSC in its entirety is not an agency
    under FOIA, and the Court of Appeals ultimately agreed with the
    more recent opinion. But in response to a previous question
    from Representative Mink, the Office of Legal Counsel has
    changed its position with regard to the application of FOIA to
    the National Security Council.
        With regard to applying the Privacy Act to the White House,
    I do not believe this issue was ever litigated to a judicial
    decision during my tenure at the Department of Justice or in
    the White House, and I believe the only two reported decisions
    are Judge Green's and Judge Lamberth's. I do believe, though,
    at the time we would have relied on the views of the Office of
    Legal Counsel.
        The District Court in Alexander v. FBI was the first court
    to face the question, and Judge Lamberth concluded that the
    White House was not exempt because he distinguished the purpose
    of the Privacy Act from the purpose of FOIA. Unlike FOIA, which
    provides only a public right of access to government documents,
    the Privacy Act protects individual privacy by placing
    restrictions on the acquisition, maintenance, use and
    disclosure of certain documents pertaining to that individual.
        So the thrust of FOIA is to open up the government and
    release documents. The thrust of the Privacy Act is to withhold
    documents to protect an individual's privacy. Judge Lamberth
    found no evidence that the privacy protection provided by
    Congress in the Privacy Act must be necessarily limited for
    reasons of Presidential authority. And therefore, the District
    Court said there is no need to ignore the plain language of the
    statute, and limit of the word ``agency'' as has been done in
    the FOIA cases.
        Now, Judge Lamberth recognized the issue was not free from
    doubt and he certified the question to the Court of Appeals.
    The Court of Appeals refused to accept the question and said
    well, we will wait--we will decide this question on appeal from
    the final judgment. In March of this year when the District
    Court broadened its holding to encompass the President and
    found that the President had violated the Privacy Act, the
    government sought a writ of mandamus from the Court of Appeals,
    asking again, for the Court of Appeals to bless its
    interpretation that the Privacy Act didn't apply to the White
    House Office, and again the D.C. Circuit declined.
        These refusals might suggest that the Court of Appeals is
    not inclined to disturb Judge Lamberth's ruling. Much time and
    effort could have been avoided had the Court of Appeals
    determined in 1977 that count 2 of the complaint in Alexander
    could not be pursued because the Privacy Act does not apply to
    the White House Office. Yet as Mr. Treanor has noted, the Court
    of Appeals sent some strong contrary signals, too. No one can
    confidently predict whether the Court of Appeals will affirm or
    reverse Judge Lamberth. The language of the statute alone does
    not dispose of the matter, but when we consider it in
    connection with the Supreme Court's Kissinger decision, there
    is some support for the Justice Department's opinion.
        As for legislative history, there is only the scantest
    legislative history on the Privacy Act, and all that history on
    the Privacy Act deals with is whether you use the FOIA
    definition, not the specific question before us as to whether
    the White House is exempt.
        On the other hand, I do agree with the District Court that
    the policies reflected in the Privacy Act do not favor
    exempting the White House Office from the law. And whatever the
    D.C. Circuit's decision on this, eventually it will be a strong
    candidate for Supreme Court review. But the problem with
    waiting for the court system to work its will is that it will
    take a long time. This issue was first raised in 1997, or at
    least the government first objected to the application of the
    Privacy Act to the White House in 1997, it has gone on for 3
    years with no end in sight.
        Therefore, I recommend that Congress tackle the issue now
    and it would be beneficial if Congress were to clarify the
    issue, apply the Privacy Act to the White House Office before
    the beginning of the next administration. There would be no
    question whether Congress is taking a partisan act. No one
    knows who is going to be President in January.
        So as to whether the Privacy Act should be amended to
    expressly apply to the White House, I say the answer is yes.
    Had I been called to testify when I served in the Bush White
    House, I would probably be up here, rather nervously, but
    advocating, please keep us exempt. Why? The fewer the
    restrictions on the Presidency, the lesser the burdens on that
    office, the greater the discretion and flexibility, and every
    chief executive desires that.
        But you are Congress, and you can make the law and put
    restraints on what the President can or cannot do. I still
    believe the White House Office should be exempt from FOIA
    because of the nature of Presidential decisionmaking and in
    particular, to encourage the frank and candid advice from the
    President's advisers, but Congress can get documents from the
    executive branch without regard to FOIA. The Privacy Act is
    different. As Judge Lamberth found, the protection of an
    individual's privacy from unwarranted disclosures, whether to
    the public or another agency, is the cardinal purpose of the
    Privacy Act.
        In response to a question again from the committee as to
    whether there would be a problem with an agency such as the FBI
    or the Department of Defense sending documents to the White
    House that if they were released by the FBI or the Department
    of Defense would be a violation of the Privacy Act, whether
    sending them to the White House and the White House then
    releasing them, would be no problem. I think--and I don't know
    if there is a court decision on the question, I don't believe
    that there is a reported decision, but in the Privacy Act,
    subsection 552a(b) reads no agency shall disclose any record
    which is contained in a system of records by any means of
    communication to any person. I would say that if the FBI or the
    DOD, an agency, discloses to someone in the White House, that
    is, a person, because we are not dealing with the definition of
    an agency, and then that person discloses, the violation is the
    FBI's and the FBI's official or the DOD and the DOD's
    officials. Per the Justice Department interpretation, the White
    House is still off the hook. And that again is why I would
    recommend that the law be clarified.
        True, FOIA disclosures may injure one's reputation and
    cause embarrassment, and where that injury or embarrassment
    results from a government decision, that is the price to be
    paid for having a transparent government. But FOIA contains
    exemptions designed to protect individuals from unwarranted
    invasions of privacy. In fact, those enumerated exemptions form
    the backbone of the Privacy Act. Records protected under the
    Privacy Act may also be disclosed, but the FOIA presumption is
    reversed and any disclosure must fit within an enumerated
    exemption.
        Viewed from the perspective of an individual whose personal
    information is contained in a government record and disclosed
    to the public, whether it is Leslie Alexander, Billy Dale,
    Kathleen Willey, or any of the hundred of Clinton
    administration appointees whose background files are maintained
    in the White House, it matters little whether the disclosure is
    made by the Pentagon, the State Department, FBI or the White
    House. The damage is the same. From my own experience in the
    Bush White House reviewing the background files of prospective
    Presidential employees, those clearance files and personnel
    files include information, the disclosure of which would
    clearly constitute an unwarranted invasion of personal privacy.
        I would submit that disclosure by the White House would
    result in a wider republication of the information than if it
    were done by a cabinet agency, and I have seen no
    countervailing Presidential interest that would justify
    allowing the White House the freedom to reveal to the media
    information which would be a crime for a DOD, State or FBI
    official to reveal. I also believe that applying the Privacy
    Act to the White House would not frustrate or interfere with
    the President's conduct of his office nor would it inhibit the
    candid exchange of views between the President and his
    assistants, the major rationale for the FOIA exemption.
        Thus, I recommend that Congress codify Judge Lamberth's
    holding that the Privacy Act applies to the White House.
        Thank you.
        Mr. Mica. Thank you for your testimony, Mr. Walden.
        [The prepared statement of Mr. Walden follows:]

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        Mr. Mica. And I would like to recognize at this time Mr.
    Larry Klayman, who is chairman of Judicial Watch. You are
    recognized.
        Mr. Klayman. Thank you, Mr. Chairman. I want to commend
    you, Chairman Mica and Congressman Barr for being leaders in
    the protection of the privacy rights of American citizens, and
    never more have we needed you but in the last 7\1/2\ years of
    this administration. As you stated, my name is Larry Klayman,
    and I am general counsel of Judicial Watch, a public interest
    law firm which brings lawsuits to redress government corruption
    and educates the American public about the need for ethics,
    morality and respect for the law. In recent years since our
    founding on July 24, 1994, regrettably, we have been very
    active in matters involving the violation of privacy rights of
    American citizens.
        During the current Clinton-Gore administration, the
    American people have witnessed a wholesale violation of their
    rights to privacy through the misuse of not only FBI files, but
    IRS and other government files containing confidential and
    personal information under the Privacy Act which can be found
    at 5 USC 552(a) et seq. Specifically, the committees uncovered,
    this committee, in June 1996, as part of the White House travel
    office investigation involving my client, Billy Dale, who was
    wrongfully terminated, prosecuted and smeared by the Clinton-
    Gore administration, yet a bigger scandal which became known as
    Filegate.
        Filegate involved the illegal acquisition and misuse by the
    Clinton-Gore White House of the files of over 900 people, not
    only just files, but summary reports and raw data obtained from
    the U.S. Department of Justice, yes, the same people who were
    sitting here before, who handed them over to that White House
    and that information was misused. The reason for this later
    proved to be obvious. Not only with regard to Mr. Dale who was
    smeared by the Clinton-Gore White House to justify his firing,
    thereby enabling Bill and Hillary Clinton to hire their
    Hollywood friends, Harry and Susan Bloodworth Thomasson to run
    that office, but also during the impeachment proceedings of
    1998 when Republican House managers had information leaked
    obviously contained in FBI and other government files to
    discredit them as part of an effort to stave off the conviction
    of the President.
        In addition, over these Clinton-Gore years, information
    from IRS and other government files has been misused against
    perceived adversaries of Bill and Hillary Clinton and Al Gore.
    An article in the Capitol Hill Blue, which I am attaching to
    our written witness statement, a well-known Internet
    publication, states uncategorically that House managers, one of
    them sitting here, Mr. Barr, will be retaliated against through
    the misuse of FBI and IRS files for him simply carrying out his
    duty under the constitution of the United States to bring
    articles of impeachment. This cannot be permitted.
        This campaign of terror was seen during the Nixon
    administration and can never be permitted to occur again. It
    was for that reason that not since Watergate and the abuses of
    that Nixon administration that a law came into effect known as
    the Privacy Act. It was the Democratic Congress that deserves
    credit for enacting that law. It was a just law and as
    reflected in the legislative history itself, and we didn't hear
    anything about that before, not only does the express language
    of the statute state that it applies to all of the Executive
    Office of the President's agencies and offices, but the
    legislative history of the Privacy Act says the exact same
    thing. That was noticeably absent from some of the questions of
    the minority during this committee hearing this morning.
        To do otherwise would create a loophole in the Privacy Act
    and allow the President to flout the law. An article written by
    John Fund in the Wall Street Journal of April 10, 2000, which I
    also attached to the witness statement, explains the logic in
    including the President and his advisors within the scope of
    the Privacy Act. And thank God for the American people that
    along came not only just Judicial Watch that decided to
    represent the people whose FBI files were illegally obtained by
    this White House--and they're not all Republicans, some of them
    are Democrats, if you can believe that. Perhaps this White
    House didn't trust some of its friends. But the reality is that
    along came a district court judge, perhaps the finest sitting
    district court judge in this country today; Judge Royce C.
    Lamberth has taken a tremendous amount of abuse for his
    courage. In fact, it was Democrat Members of the Senate who
    said that because of his decisions, he would never rise to a
    higher level. We gave that issue to Louis Freeh of the FBI.
    That's judge-tampering. But he came forward and he stated that
    in fact the plain language of the statute has to apply. That is
    the law. If there's no ambiguity, you don't go to legislative
    history. And as Greg said, as Mr. Walden said, it is a natural
    inclination of the Justice Department, which works for the
    President of the United States, to give him opinions that he
    wants to hear.
        But I urge you to read the opinion of Mr. Sirica when he
    was a young guy--much younger than myself even, and I'm not
    that young anymore--back at the Justice Department. He didn't
    issue an unequivocal decision. Read that decision. This has
    been miscited during this hearing. But in any event, people
    make mistakes. And to rely on that, over 25 years ago, is
    another mistake. The plain language of the law states that the
    President and his advisors are indeed included.
        Your Honor, our client, Billy Dale, would have liked to
    have been in front of the committee this morning. Unfortunately
    he is not able to do so. And he asked me to read this
    statement, and with the consent of the committee I'd like to
    read it on his behalf.
        Mr. Mica. Please proceed.
        Mr. Klayman. And this is what he asked me to read. In fact,
    I talked to him last night.

        I was formerly director of the White House Travel Office
    for 11 years and have served both Democrat and Republican
    administrations. In my previous days in the White House Travel
    Office, before the Clinton-Gore administration, I was honored,
    deeply honored to serve my country. However, 1 day in May 1993,
    my staff and I were summarily fired and accused of financial
    wrongdoing. To justify my firing when an uproar ensured among
    members of the media who knew me, the Clinton-Gore White House
    illegally obtained my FBI file and attempted to smear me with
    its contents in public. If this was not enough, it then used
    the IRS to intimidate me, along with a Clinton-Gore White House
    political operative who revealed improperly that I was being
    criminally investigated.
        Indeed, I was later prosecuted by a corrupt Clinton-Gore
    Justice Department but, predictably, I was acquitted in record
    time. And when all was said and done, my life was nearly
    ruined. I incurred hundreds of thousands of dollars in
    attorneys' fees for which Republicans, regrettably not the
    Democrats, and Congress sought to have me compensated. And my
    emotional well-being was severely affected. For 18 months and
    more, I felt like I had to guard my words very carefully. In
    many ways, I feel as if I have been raped and that my private
    life was violated.
        I have asked Mr. Klayman and his group Judicial Watch to
    bring a lawsuit against the Clinton-Gore White House for
    violating my privacy rights. Typically, this White House denies
    that the law applies to the President and his closest advisors.
    If this is true, then there will be many more Billy Dales in
    the future, and no citizen of this country can feel secure that
    his or her government will not do to them what the Clinton-Gore
    administration has done to my wife, my son, two daughters,
    their families, and me. I will not feel at ease until President
    Clinton is out of the White House. Respectfully submitted Billy
    Dale, September 8th, 2000.

        [The information referred to follows:]

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        Mr. Klayman. It's a powerful statement Mr. Chairman. But
    there are two other things here that I can't leave unsaid. We
    heard about the position of the Justice Department in the
    Alexander case, and I'm speaking now on behalf of Judicial
    Watch and its clients. This case with regard to the travel
    office unturned a document written to John Podesta who's now
    White House chief of staff, I'm going to ask that it be made a
    part of the record. And it states unequivocally with regard to
    the personnel folders of Mr. Dale and the other State of
    California office employees--and this is a memorandum for John
    D. Podesta June 30, 1993--it states: Case closed. The contents
    of these records are covered by the Privacy Act of 1974, have
    restricted use and should be protected carefully. Please keep
    these folders in a locked place when not in use. Their contents
    should not be disclosed to anyone unless they demonstrate an
    official need.
        This is the smoking gun document that shows that this
    Clinton-Gore White House has known the Privacy Act always
    applied to it. And if that's not enough, in my supplemental
    statement, which I also ask be made part of the record, I don't
    have time to read it, five other admissions, four or five other
    admissions by White House officials that they knew the Privacy
    Act applied. We're talking about this White House.
        And last but not least, and, most incredibly, it was
    Hillary Clinton who claimed early on during the Filegate
    scandal that she did not know Craig Livingstone, or she was
    hazy whether she knew him. In the course of this Alexander
    case, we have uncovered photographs that indeed Mrs. Clinton
    did know Craig Livingstone. This is an 8 by 10 photograph
    produced by the White House, not voluntarily I might add. They
    are in each other's presence, and we have several. In addition,
    we have an 8 by 10 photograph, produced by the White House, of
    Attorney General Janet Reno with Craig Livingstone, if you can
    believe that. If you can believe that, believe this one: When
    we sought to have these documents produced to Judge Lamberth,
    the White House asserted the Privacy Act, said we cannot
    produce these documents because they're in a system of records
    and we can't produce them to you, Your Honor. And it had to
    take a special order of Judge Lamberth, who is one of the most
    courageous judges in this country, if not the most courageous
    judge, to force the White House to produce those photographs.
        So we're not only talking about a misinterpretation of law,
    we're not only talking about hypocrisy of the highest
    magnitude, we're talking about cover-up. And that's the problem
    here, is that we look to this Congress, we look to Democrats in
    this Congress, to perform the noble purpose which they began in
    1974 when they enacted a law to redress the outrageous abuse of
    privacy by a Republican President. There can be no
    justification for violating privacy, whether it's been a
    Democratic administration or a Republican administration.
        And Judicial Watch, which is nonpartisan as we go into the
    future, whoever wins the next election, will move just as
    aggressively against any President of the United States who
    seeks to destroy the citizens, as this administration has, by
    leaking Privacy Act protected material to smear and destroy
    them so it can remain in office. Thank you.
        Mr. Mica. Without objection, your entire statement and the
    document you referred to will be made part of the record. Thank
    you for your testimony.
        [The prepared statement of Mr. Klayman follows:]

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        Mr. Mica. And I'd like to now recognize Professor Jonathan
    Turley who is with the George Washington University School of
    Law. Welcome, and you're recognized, sir.
        Mr. Turley. Thank you, Mr. Chairman. Thank you members of
    the committee. It's an honor to appear before you on a subject
    of this significance. I realize your time is short so I've
    submitted an excessively long testimony that shamelessly cites
    my own work.
        Mr. Mica. Without objection, your entire statement will be
    made part of the record. Thank you.
        Mr. Turley. Thank you very much. This is an area in which
    many academics have submitted provocative pieces on either
    side. While I have shamelessly ignored all their writings, I do
    cite a few of them. I don't yield entirely to academic
    immodesty.
        We're at this hearing at an important juncture, I think.
    The fog and frenzy of scandal is beginning to dissipate.
    Regardless of the merits of the allegations involved in these
    scandals, I think it's time for people of good faith to look at
    lingering questions, lingering questions that were litigated
    and largely left unresolved during this entire period of
    crisis.
        One of those issues is the issue of privacy. As
    Congresswoman Mink noted, Members on both sides of the aisle
    feel deeply about privacy and feel deeply about FOIA, and I
    think that's a very important ground upon which we can meet and
    a ground on which we may be able to agree. The key to this
    issue is the linchpin between the Privacy Act and the Freedom
    of Information Act.
        Now, in my testimony, I note that I happen to agree with
    the position of Judge Lamberth that the Privacy Act should be
    interpreted as applying to the White House. I also say that I
    believe this is a matter of good faith disagreement, that there
    are arguments on both sides. But I feel that a faithful reading
    of the act should be that it applies to the White House. But
    more importantly, I believe that good policy and good
    government dictates that it does apply. And as we move away
    from the litigation currently in the court, that's the issue
    upon which there may be agreement, regardless of who's in the
    White House in a matter of months. That's an issue on which I
    think that there are very essential values in our government at
    stake. And I believe there are very few compelling arguments
    raised by the White House as to why it should not apply.
        Now, the difference between these acts could be described
    as a difference between a sword and a shield. That is, FOIA in
    some ways is a sword given to the American people. It's a sword
    because it forces the government to yield information. It is
    sometimes information that's quite embarrassing to the
    government. The Privacy Act is different. The Privacy Act is a
    shield. It's a shield to keep citizens from being abused
    through the release of personal information. It's a very
    important guaranty to every individual citizen.
        Now, obviously, most citizens are not going to be the
    subject of a target of the White House, thank God. But when you
    are a target of the White House, there is little that an
    individual citizen can do. When you come under that type of
    pressure and destruction, there is not enough of you to pour
    into a shot glass at the end of the day because you just don't
    have the ability to defend against that type of attack.
        Now, we have two decisions written by two very good judges,
    Judge Lamberth and Judge Green. They disagree, obviously. The
    Alexander decision found that agencies under the Privacy Act do
    include, as the act is written, members of the White House. The
    Barr decision concludes otherwise. Now, in my view, Judge
    Green's analysis is misplaced, as much as I respect her. And
    it's not just because she's a graduate of my institution, but
    even our graduates can be slightly wrong on occasion.
        The reason I disagree with Judge Green is, first of all I
    disagree with the use of legislative history. It's of course
    funny to hear Associate Justice Scalia cited in this
    controversy, because there's nobody on the face of the planet
    that hates legislative history more than Scalia.
        Mrs. Mink. That's why he's cited.
        Mr. Turley. That's a very good point. On the issue of
    legislative history, we have two essential problems. One is
    when a statute is plain on its face, there usually is not a
    call to go to legislative history. And the reason is that
    judges can do great mischief through use of legislative
    history. As you know, legislative history often compiles
    hundreds of pages and hundreds of statements.
        Now, I have to acknowledge that the FOIA legislative
    history is pretty core legislative history. But the problem is
    that both the Privacy Act and FOIA are crystal clear on their
    face. The language is quite express, and normally faced with
    that type of language, courts do not go to legislative history.
    And if there's an issue of conflict, they leave it to those who
    made the law. They leave it to you to change the law.
        But putting aside that issue, which admittedly is a close
    one, I have significant problems with Judge Green's view that
    her interpretation of the Privacy Act is compelled by
    constitutional concerns. Now, it is very much the case that
    courts are supposed to avoid constitutional questions in
    statutory interpretation. But not all constitutional arguments
    are equal. There are powerful and good-based--well-based
    constitutional questions, and there are those who are not as
    well based. I consider the constitutional questions raised with
    regard to the Privacy Act to be not well based. The reason is
    that nothing in the Privacy Act stops the President from
    carrying out his duties or functions. Quite to the contrary. I
    honestly don't think that if the act was applied to the White
    House that it would have any material effect on those duties or
    functions.
        We have to remember that the Privacy Act has exceptions
    that protect the White House in most of the areas in which they
    would be concerned. The only area in which the White House
    would be restrained is the release of personal information that
    is damaging to individual citizens. Frankly, I believe that
    does not offer a very compelling rationale. I certainly don't
    think that it rises to an issue of a constitutional claim. It's
    on that issue that I think we can reach middle ground since
    this institution has a very significant interest in preserving
    the shield of the Privacy Act.
        If the interpretation of Judge Green was correct, we have a
    rather bizarre situation. Whether it's well based or not, it's
    certainly bizarre. It means that if a person in the White House
    who's an FBI agent is carrying a folder with personal
    information about me, she can't release that information, and
    she could be charged with a criminal violation. But if she
    places it on the desk of an associate White House counsel and
    that counsel opens it up and calls up the New York Times,
    suddenly what was a shield for me as a citizen has evaporated.
    That obviously is not a good policy.
        It doesn't make for good government. And I don't see the
    functional rationale of why the White House should have that
    authority.
        Now, if Congress intervenes, I think that it must realize--
    and I'm singing to the choir, to the members of this committee
    that the greatest enemy of privacy is ambiguity and
    uncertainty. That is always the greatest enemy. It's when you
    don't know. And right now, because of these decisions, we don't
    know the scope of privacy protections. Whether we disagree on
    how the law is written, it must at a minimum be clear.
        One of the reasons I believe that good government calls for
    this shield to be completely protective for citizens is that
    there are hundreds, as many as 400 people who will be exempted
    from the Privacy Act under this interpretation. That includes
    the White House counsel. Yet, many of our worst instances of
    abuse have come from White House counsel members. I've just
    written a piece for a symposium documenting the problems we've
    had in the failure to have clear lines between the roles of
    government officials in the White House and private counsel.
    That was best personified by Bernie Nussbaum who actually said,
    when he came in as White House counsel, that he was like the
    private counsel to the First Couple. I disagree with that. Such
    a misguided view creates the type of latent condition in which
    abuses can occur.
        So, if there's one office that should be covered by the
    Privacy Act it is this office. It's the most political part of
    the government. It's where the pressures are most severe. It's
    where the temptation to yield is the greatest.
        The greatest disappointment I have with the Clinton
    administration is not that it's fighting for prerogatives, but
    it's failure to realize that good government sometimes demands
    that you yield on a prerogative, not yield to temptation. To
    yield, because it makes for better government. When the Justice
    Department says, we haven't thought about whether this is good
    for the government or not, I am mystified. You have to think
    about it. It's not just a question of whether you think you
    have the prerogative, but whether you're going to fight that
    prerogative in court, to assert it over a judgment that it
    doesn't make for good government.
        Now, these types of hearings sometimes make for more heat
    than light. But, as we're coming to the end of this
    administration, I truly believe that we can concentrate on the
    two different acts and not what we've gone through in the last
    few years. FOIA and the Privacy Act represent our most noble
    moments as a people. I truly believe that. FOIA represented a
    government taking an acquired power and giving it back to
    citizens. It's an extraordinary thing and, in the Privacy Act,
    the government created a shield from itself. Those are
    remarkable acts that set this country apart.
        And we now have a significant question of whether one of
    those acts will be seriously degraded and a major loophole
    presented. I think we can close that loophole and we can do it
    together as people of good faith, separate from the scandal,
    but looking at the legacy this body created in these two acts.
        I will stop there, and I appreciate your time today.
        Mr. Mica. Thank you for your testimony Professor Turley.
        [The prepared statement of Mr. Turley follows:]

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        Mr. Mica. I'd like to recognize now--and apologize if I've
    gotten the pronunciation wrong--is it Roger Pilon?
        Mr. Pilon. It's Pilon.
        Mr. Mica. Who is a constitutional scholar with the CATO
    Institute. Pleased to welcome you and recognize you for your
    testimony, sir.
        Mr. Pilon. Thank you, Mr. Chairman, and members of the
    committee. And thank you for inviting me to be here today. I am
    Roger Pilon. I'm vice president for legal affairs at the CATO
    Institute where I direct the Center for Constitutional Studies.
        My purposes here are threefold: First, I want to argue that
    the President and his immediate advisors are already subject to
    the requirements of the Privacy Act. And I will do that with
    reference to some of the larger presumptions and burdens of
    proof, the framing of the issue that seems to me is too little
    done.
        Second, I want to argue with respect to any ambiguities
    there may be on that point that Congress should indeed act to
    correct those.
        And third, I'd like to make a few political points, drawing
    from my own experience litigating against the Justice
    Department under the Privacy Act, because I think that bears
    directly on points that have been raised by you, Mr. Chairman,
    and by Mr. Cummings.
        I'm not going to, as the final witness, repeat the legal
    issues that are before us; I'll just simply summarize those. As
    we know, the two acts, the Freedom of Information Act [FOIA],
    and the Privacy Act are at issue here. And the question is
    whether the explicit language that applies both acts to the
    White House is to be drawn upon in interpreting and applying
    the Privacy Act, or whether the exception that came out of a
    conference report with respect to FOIA is to carry over to the
    Privacy Act as well.
        I would frame my remarks by simply saying that if the
    latter is the case, why on Earth would Congress have ever
    applied that exception to the Privacy Act? Because it creates
    such a gaping hole in the Privacy Act, as has already been
    brought out, that it leads us to ask what was Congress thinking
    of if it meant to apply that conference report exception for
    the FOIA to the Privacy Act as well?
        Now, it goes without saying, of course, that congressional
    intent, especially when it runs contrary to explicit text, is
    always a difficult jurisprudential matter, and that's been
    proven in the litigation in these cases, the two cases that
    have recently been litigated on the Privacy Act. In Judge
    Lamberth's case, the Alexander, case and the FBI found that the
    White House was covered by the Privacy Act. In August, however,
    Judge June Green found, in Congressman Barr's case, that it did
    not apply. So we have the split right there at the district
    court level.
        So let me try to frame these issues--given that Congress
    did not make its intent clearly known as to whether the FOIA
    exception was meant to apply to the Privacy Act. And here
    there's no substitute for going back to first principles. And
    as Chief Justice Rehnquist announced in United States v. Lopez
    in 1995, there is no principle that is more basic than the
    principle known as the Doctrine of Enumerated Powers, which
    says that Federal officials, whatever the branch of government,
    may act only from authority delegated by the people through the
    Constitution. Absent such authority, they have no power to act.
        And so the question before us is what authority does the
    President have to release documents as he has done? Pursuant to
    his enumerated powers, he may acquire, maintain, and disclose
    personal information about citizens, but that's not an
    unlimited power. It's limited at the most general level by his
    enumerated powers. Thus, even absent a Privacy Act, the
    President may not disclose information obtained pursuant to his
    authorized powers for reasons unrelated to such powers. He has
    the executive power, he has the power to see that the laws be
    faithfully executed. But I submit that he will be hard pressed
    to answer, in service of what constitutional authority or what
    statutory authority does he release documents, as he has done
    in numerous cases?
        So what is so troubling about June Green's opinion in
    Representative Barr's case is that she seems oblivious to these
    fundamental presumptions and burdens of proof. She seems to be
    in total deference to the executive branch in this, as if the
    President were not already constrained, absent the statute, as
    to what he can do. And she recites, for example, the arguments
    from the Justice Department to the effect that the application
    of the Privacy Act to the White House would restrict what
    information the President may disclose and to whom it may
    disclose. That strikes me as hardly problematical. And yet she
    poses it as raising a serious constitutional question.
        Here I join Professor Turley in saying that these
    constitutional concerns, as she put it, are merely that; they
    are concerns, they are not conclusions. In fact, she goes on to
    the old shibboleth that statutes should be construed to avoid
    doubts about constitutionality. That, of course, is only a
    prima facie presumption. It only gets the argument off the
    ground. It remains then to litigate the case by bringing
    arguments on the opposite side. And here Judge Green cites as a
    corollary the principle that Congress, in enacting legislation
    restricting Presidential action, must make its intent clear.
    Congress has not done that here, she continues. Therefore, the
    implication seems to be that because Congress did not make its
    intent clear, the President can do pretty much what he wants to
    do.
        That, I submit, gets the presumptions of our system exactly
    backward. The premise of our system is not all that is not
    retained by the people is given to the government; rather, as
    the 10th amendment makes clear, the presumption is that all
    that is not given to the government is retained by the people.
    That is the elementary presumption of our system of government.
    It isn't that the President has plenary power and it's now up
    to us to try to find rights to assert against him. It's the
    other way around, namely, that the President's powers are
    strictly enumerated, just like those of Congress. The burden is
    upon government to show it has a power, not upon the citizen to
    assert rights against that power.
        Now, none of this goes to the merits, it's just speaking to
    the procedures of the case. But when we go to the merits, it
    seems to me that Judge Lamberth far and away had the better of
    the argument when he looked at the functions of the two acts.
    Indeed, in a democracy, the function of the FOIA act is to see
    that information is readily available. And in a liberty-
    respecting free society, the function of the Privacy Act is to
    see that the rights of the people to be secure in their private
    affairs and to have information about them that is needed by
    the government retained in documents that are secure.
        Indeed, the exceptions under FOIA preclude release, whereas
    the exceptions under the Privacy Act allow release. And it is
    the burden upon those who are asserting the exceptions to carry
    that case forward. So in sum, Judge Lamberth got it right: The
    two acts serve very different purposes. In fact, as I said a
    moment ago, it's hard to imagine why Congress ever would have
    excluded the White House from coverage under the Privacy Act if
    it had noticed the gaping hole that would exist in the act. Any
    administration that wanted to release damaging information
    about a person could then simply channel it through the White
    House Office, which is the most advantageous place to release
    such information in any event. Indeed, one might add, that if
    there is any agency that should be covered by the Privacy Act,
    it's the White House.
        Now let me just simply conclude on a personal note. I
    litigated under the Privacy Act when I was under investigation
    for, of all things, espionage when I was serving in the Reagan
    Justice Department. My wife at the time was up for Assistant
    Secretary of the Interior, and we were both charged with
    espionage. An investigation was conducted. At the end of 9
    months we were cleared. We thought the case was over. A year
    later, however, the case went public when the Office of
    Professional Responsibility, of all offices in the Justice
    Department, released its annual report. There followed a
    complaint from us to the Justice Department another 9-month
    investigation, two more clearances of us, and finally a profuse
    apology from the Justice Department to the effect that this
    would never happen again, and a $25,000 payment to offset legal
    fees.
        Two days after the press reports on that, however, another
    leak occurred. We found out about it 3 months later when we
    read it in the AP wire service and in the newspapers. At that
    point we did what every red-blooded American would do: We sued.
    The case went for 6 years longer, as the Justice Department
    fought us every step of the way.
        One of the noteworthy aspects of this case is that it
    raises precisely the issue that you, Mr. Chairman, and Mr.
    Cummings raised, the possibility of sending a document to
    someone not covered by the Privacy Act. Here it's the White
    House. In our case, it was a former Justice Department
    employee. The Department argued that it had not ``disclosed''
    the document because that employee had seen the document when
    he was in the Justice Department, and you cannot disclose a
    document to someone who had previously seen it.
        Incredibly, Judge Harold Green, in a two and a half page
    opinion, bought that argument. But a unanimous appellate court
    overturned him. And in fact, at that point the Justice
    Department settled not for $25,000, but for a quarter of a
    million dollars of the taxpayers' money, to say nothing of the
    money that was spent in the litigation.
        Now, I raise this case for a simple reason. First, it's a
    clear example of exactly what it is that Mr. Cummings and you,
    Mr. Chairman, were concerned about: Why couldn't someone from
    another department take this document to the White House? Of
    course, that other person, as Mr. Walden said, would be subject
    to violations under the Privacy Act. However, the White House
    itself would not be subject to any sanctions as the Justice
    Department is currently interpreting the act.
        Any my case, after all, involved the watchdogs, the Office
    of Professional Responsibility, the office that is in charge of
    overseeing the ethics of the rest of the Justice Department.
    Yet they were the ones who leaked the document. It was the
    Director who tried to release the document and had it handed
    back to him by the former Deputy Attorney General. And then the
    Director's Deputy finally leaked the document by faxing it out
    to a former official, who turned right around and faxed it to
    the Associated Press and to ABC News.
        All of this reminds us of Lord Acton's adage of a century
    ago, that power tends to corrupt; absolute power corrupts
    absolutely; which, of course, was understood implicitly by the
    Founders, which is why they separated and divided power as they
    did in our constitutional framework.
        The Privacy Act is a statement about the perils of power.
    If it reaches anywhere, it should reach the most powerful
    officer in the Nation, where power is most susceptible to
    abuse, as this administration has demonstrated in spades.
        Thank you, Mr. Chairman.
        Mr. Mica. Thank you for your testimony Mr. Pilon. Also the
    other witnesses.
        [The prepared statement of Mr. Pilon follows:]

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        Mr. Mica. At this time I'm going to yield the first round
    of questioning to Mr. Barr, the gentleman from Georgia. I know
    he has another commitment. I want to honor that. So we'll yield
    first to you, Mr. Barr.
        Mr. Barr. Thank you, Mr. Chairman. I'd like to first of all
    commend you, Mr. Chairman, and your staff for the subcommittee,
    for putting together a very excellent two panels here today.
    All of these gentlemen, including Mr. Treanor, have presented,
    I think, a very clear picture of the problem, whether they
    wanted to or not. And we've heard from this panel in particular
    a very, very learned explanation both in terms of
    constitutional law as well as practical application of Federal
    statutes of the problem here, and perhaps at least some
    direction for us in it. And it's that aspect of this that I'd
    like to address to the panel now. I think we've done a very
    good job. You all have done a particularly good job of laying
    out the constitutional issues and the statutory issues here.
        The problem is one of remedy. We have a statute, as we all
    agree, that is clear on its face; that is, the provision of the
    Privacy Act as it pulled in the definition of agency, which
    includes the Executive Office of the Presidency. We have, on
    the other hand, interpretations of that which bring in from the
    Freedom of Information Act a separate statute with a separate
    purpose and intent into the Privacy Act in order to justify a
    limitation on the applicability of the Privacy Act.
        Well, if we say OK, we need to address this problem, if we
    say there is a problem and we need to address it by proposing
    an amendment to the Privacy Act, do we not run a risk of
    setting a precedence that a statute clear on its face, for
    which you really shouldn't need to go into legislative history
    for another statute, has to be amended? How do you address this
    question?
        Given the fact that we have a statute clear on its face,
    and yet interpretations by the Departments of Justice, not just
    one but several, and one court decision here, should we proceed
    by proposing an amendment to clarify this; and, if so, how can
    we do so without setting a precedent that other statutes that
    don't need clarification need clarification?
        Mr. Klayman. Congressman Barr, in answer to your question,
    I'd like to read a portion of the legislative history from the
    Senate report which was not discussed this morning. The Justice
    Department knows about this provision. I'm surprised they
    didn't bring it up. And it states--this is the Senate report
    No. 1183, 93rd Congress, Second Session 102. It's in our
    supplemental filing of my hearing statement. And it states that
    the purpose of the Privacy Act--I'm inserting Privacy Act--it's
    Senate 3418, that was the bill as amended, is to promote
    governmental respect for the privacy of citizens by requiring
    all, all, departments and agencies of the executive branch and
    their employees to observe certain constitutional rules in the
    computer station collection, management use, and disclosure of
    personal information about individuals.
        If you also look in other provisions of the legislative
    history of the Privacy Act, not the Freedom of Information Act,
    the one that actually applies, even if you had to go beyond the
    plain language of the statute, which you don't have to, you'll
    find it specifically was enacted because of the abuses of
    Richard Nixon in having a plumbers' unit inside of the Oval
    Office. Not much different than what we've seen in the 7\1/2\
    years; misusing the IRS, misusing the FBI and other government
    agencies and their own files as well.
        So our position is you don't need an amendment. If you want
    to call it something, call it a clarification. But you don't
    even need a clarification. But that's why I made specific
    reference to this particular Judge Royce Lamberth. What we need
    are judges like Judge Lamberth who don't read things because
    they happened to be nominated by a President of a different
    political party. Just simply read the law. We need better
    judges. That's the bottom line here.
        With regard to the D.C. Circuit decision, there was no
    statement when the mandamus action was filed, when Judge
    Lamberth found that by releasing Kathleen Willey's letters from
    the recordkeeping--Kathleen Willey was one of the women he
    harassed--when it was released from the recordkeeping system
    into the public domain to discredit her and destroy her
    reputation during the impeachment proceedings, that was a
    criminal violation of the Privacy Act. Judge Lamberth made that
    finding in the context of a discovery dispute, which was
    whether or not conversations that the President had with his
    advisors were covered by the attorney/client privilege.
    Lamberth had to make that ruling. Consequently, the court
    refused to hear it on mandamus because discovery disputes don't
    go up on mandamus.
        Gratuitously, some judges again appointed by the other
    party that weren't affected by what happened with Ms. Willey,
    made some gratuitous remarks in that decision, they have no
    force and effect. No force and effect. What they criticize
    Judge Lamberth for doing, which wasn't even accurate, making a
    finding that he had--that Willey's privacy rights were
    violated, which he had to make, to pierce the attorney/client
    privilege, they violated their own principles and put this
    dicta into their decision.
        So the bottom line here is the law is fine, let's get some
    judges who enforce the law. That's the problem here.
        Mr. Barr. I mean, that is certainly the problem. The
    problem is also any system of government or any branch of any
    system of government is only going to be as good as the people
    behind it, whether it's judges or executive branch officials.
    And history has proved that there are certain things that
    executive branch officials do, regardless of party, and that is
    to seek power and do everything they can to resist giving up
    power. The very eloquent historical recitation by Mr. Turley
    notwithstanding, that was unfortunately the exception, for a
    government to give up power. And that didn't happen exactly
    voluntarily on the part of the executive branch.
        Mr. Pilon, would you address the question? How can we
    address this? We obviously have a problem with
    misinterpretation here. And while Mr. Klayman is absolutely
    correct, ultimately the resolution has to rest with our judges.
    Is there something the Congress should do here and can do
    without setting a bad precedence?
        Mr. Pilon. It's unfortunate that the two statutes, which
    are very different statutes, were linked from the outset by
    this common definition of agency by reference from one to the
    other. That's where the problem begins. Because then it raises
    the possibility, which the Justice Department has seized upon,
    of drawing from the conference report exception to interpret
    the Privacy Act. And that's where all the mischief occurs,
    obviously.
        So my first suggestion is that you decouple the two
    statutes in some way by subsequent language, if necessary. But
    the setting of a bad precedent, which seems to concern you, I'm
    not sure I understand. Perhaps you could elaborate on that and
    tell us what you mean by setting a bad precedent--the bad
    precedent has already been set by the coupling and then the
    infusion later on of this conference report.
        Mr. Barr. It may be just too theoretical. It may not be a
    problem.
        Mr. Pilon. I don't see a problem, but the problem is when a
    judge gets in.
        Mr. Barr. If you have a statute, in this case the Privacy
    Act, that is clear on its face, for which you normally would
    not even have to reach into legislative history for that
    statute, much less a different statute, because it is clear on
    its face, and if we now say if we were to take the position
    that we need to go back and amend the Privacy Act to make clear
    that it applies to the Executive Office of the President, when
    the statute already clearly says that on its face, does that
    set some sort of precedent for other statutes that are clear on
    their face being interpreted as not really being clear?
        Mr. Pilon. I don't think so. I mean, all you're asking for
    is what we often ask for with the Constitution. The founders
    should have added four words: ``and we mean it.'' And that's
    pretty much what should have been done in the Privacy Act, too.
    Right after the definition of agency, ``and we mean it.''
        Mr. Barr. Mr. Turley, do you have anything to add?
        Mr. Turley. I actually think there is a problem. I agree
    with everything Roger said, as usual. But I think there is a
    problem in one sense, in that you shouldn't have to do it. I am
    troubled by the methodology used in the Barr case. I'm troubled
    because you have sort of a two-step process. Both of those
    steps is controversial. First, you must go to legislative
    history on a statute that on its face is unclear. We can debate
    about whether it's appropriate or not to take that step all
    day. People have different philosophies on statutory
    construction. However, you must then go the further step and
    say that the legislative history of a reference statute comes
    in, jot for jot, into the other statute. This is not common.
    You have an incorporation provision in the Privacy Act that
    says we hereby adopt the definition in FOIA. Usually that means
    that you adopt the textual definition in that section of the
    statute. It's never assumed that the legislative history
    attached to the act will piggyback on the incorporation of a
    textual provision. This case is a good example why, because the
    Freedom of Information Act has various purposes that makes the
    exception of the White House far more compelling. I happen to
    disagree with the FOIA decision in that I believe that the
    White House should be under FOIA's coverage. But you can come
    up with reasons why it would not apply under FOIA. But none of
    those reasons are relevant to the Privacy Act.
        So to answer your question, I think there is a fundamental
    problem here, because judges too often use as an excuse that if
    Congress doesn't like it, they can change it. That's not a very
    good excuse for either liberal or conservative judges. If you
    enact legislation, I think there should be a sense of the House
    as to the need for a clarification because we can't afford to
    continue with the ambiguity. Whether or not we have new judges
    of one kind or another, that's going to take time. The makeup
    of the Federal bench changes at a glacial pacem. But the
    privacy issue needs to be addressed now. As for the ambiguity--
    this body just doesn't have the luxury of standing by with
    claimed ambiguity in an area this sensitive.
        Mr. Barr. So would all of you agree that it really ought to
    be addressed legislatively?
        Mr. Walden. Yes. In this Congress I know time is short, but
    as I mentioned before, how can anyone say that you're going to
    gore a particular administration's ox when we don't know who's
    going to be President? It's going to apply across the board.
        Mr. Klayman. Let me add, Congressman Barr, there is one
    area that I am in agreement that needs not just to be clarified
    but changed; that the violation of Privacy Act should not just
    be a criminal misdemeanor, it should be a felony, with what has
    occurred in the last 7\1/2\ years, people's lives destroyed,
    the attempts made to destroy you, quite unfairly, outrageously,
    a Federal officer who is simply carrying out his duty that he
    had to do under the Constitution. This needs to be a felony and
    it's currently just a misdemeanor.
        That's why Independent Counsel Ray--and it was incorrect,
    again, for the Justice Department to come forward and give this
    misimpression that Ray exonerated people. He didn't exonerate
    people. If it wasn't Justice, then it was somebody on the
    panel. He said, I can't reach it because I don't have
    jurisdiction over misdemeanors. If he had jurisdiction over
    felonies he could have reached it. Of course, I still question
    whether he would have wanted to. But, of course, that's another
    story for another hearing. But I think it needs to be made a
    felony, because this is the most egregious thing that can
    happen to an American citizen is to be smeared with information
    by his own government that, through his tax dollars, he's
    paying to keep in operation.
        Mr. Barr. Thank you. I'd like to thank the panel. I'd also
    like to go on the record thanking Mrs. Mink for her historical
    work in this area. She was much too modest in simply referring
    to the opinion. I mean, this very, very sincerely. As Professor
    Turley said, that was a historic law and a historic precedent.
    We benefit from that. I don't want any of my remarks today
    regarding current interpretations of one aspect of the Privacy
    Act to be interpreted in any way as a criticism--far from it--
    from her work. What I'm trying to do is to buttress and
    strengthen what I think she clearly intended to do many years
    ago. And I appreciate it.
        Mr. Mica. I'm very fortunate to have both you as vice
    chairman, Mrs. Mink as the ranking member, both very personally
    involved in this issue in both the Freedom of Information Act
    and Privacy Act. Did you have further comments?
        Mr. Barr. No, Mr. Chairman. Thank you for the time.
        Mr. Mica. Thank you again for your time. I recognize now
    our ranking member.
        Mrs. Mink. I have no questions. I simply want to thank Mr.
    Barr for his comments praising my work on the Freedom of
    Information Act. I think that from a historic perspective, it
    would be I think useful to underscore the reason why the
    Privacy Act was so essential at the particular time that we
    were debating the Freedom of Information Act. The Freedom of
    Information Act called upon the agencies of government to
    release information upon the request of private individuals. We
    wanted to make sure that at the release of that information,
    that private personal information was excluded.
        So if you have been involved in seeking information from
    the government under the FOIA statute, you will note that all
    the references to individuals are blacked out. And sometimes
    it's a real agony to figure out what the agency was saying,
    because so much of it is inked out. But that was the reason for
    the linkage between the two statutes. And at the particular
    time, the definitions, the applicability of both with the other
    was considered important. And so it's not by accident that
    there was a reference to the necessity to relate the two
    definitions as to the applicability of one statute with the
    other, but it was considered an essential part of the
    organizing of these two statutes.
        So I think that the current events, of course, put to
    question as to whether all the litigation under FOI should be
    made applicable to the now definition of the Privacy Act. I
    would certainly admit that we need to look at that. But to
    infer on this administration some ulterior application of the
    Privacy Act and their exclusion as they saw it, I think is an
    extreme situation with which I do not concur.
        It seems to me that the decision that was rendered by Mr.
    Scalia in his early days in the Justice Department should not
    be impugned in any way. He was not under any pressure to
    interpret the definition or applicability of the executive
    branch to benefit anyone. He was simply looking at the statutes
    and trying to interpret it as best he could as to what the
    definition was. So I think that to try to extend what has
    happened to some sort of a conspiracy on the part of this
    administration goes too far.
        Having said that, Mr. Chairman, I hope that this committee
    will continue to consider this question, and hopefully a third
    panel convened in which all four will concur with Justice
    Scalia. Thank you very much.
        Mr. Mica. Thank you Mrs. Mink.
        Let me just ask a few questions in conclusion here. First
    of all, Mr. Klayman had recommended--and I understand the
    penalty now--I guess the President is charged right now with a
    violation of the Privacy Act, and that's under dispute or
    appeal. And there's a 1-year and $5,000 fine and it's a
    misdemeanor.
        Now, Mr. Klayman has recommended that it be changed to a
    felony.
        Mr. Walden, Mr. Turley, Mr. Pilon could you give me your
    recommendation about such a change?
        Mr. Walden. Yes. My immediate recommendation is to keep it
    civil, because if it includes criminal provisions, you might
    have to refer it to the Judiciary Committee. And I am--and I am
    sincere in wanting the law clarified within this session.
        Mr. Mica. Professor Turley.
        Mr. Turley. I agree. I think the priority should be to
    quickly close this gap in the privacy law. I would tend to
    favor an increased penalty for privacy violations because I
    think they have an inordinately severe effect on individual
    citizens. They warrant a felony count, but I think the priority
    needs to be to close this gap, hopefully in this Congress,
    without delay.
        Mr. Mica. Mr. Pilon.
        Mr. Pilon. I agree with what has been said, except I would
    not characterize it as a gap. And that raises, it seems to me,
    a point that needs to be raised with respect to what Mrs. Mink
    just said, and the concern that Representative Barr just raised
    with respect to the implications of correcting this.
        I would be loath to see Congress make clear what should
    already be clear at the cost of litigation that is already
    ongoing under the Privacy Act. That is to say, insofar as a
    ``correction'' is read as a correction rather than as a
    clarification, it might be construed as saying that up to this
    point the Privacy Act did not apply to the White House, and
    courts would be inclined to construe that against plaintiffs
    who are engaged in ongoing litigation, or who might in the
    future be engaged in litigation, regarding acts that took place
    prior to any clarification Congress might pass.
        And so I think that Congress ought to stand pat, saying
    that the Privacy Act has always applied against the White
    House. Indeed, I would put to Representative Mink the following
    proposition--question, rather: Does she recall any discussions
    during the congressional debates over the Privacy Act to the
    effect that the White House should be excluded from coverage
    under the Privacy Act? One can understand those discussions
    perfectly well with FOIA--indeed, that's what the conference
    report is about, because the President needs to have
    confidential advice from his confidential advisors and needs to
    keep that from the public. There are no such concerns in the
    case of the Privacy Act. Indeed, the concerns are all on the
    other side.
        Therefore, I would ask Representative Mink, were there any
    discussions that you can recall, because there are none that I
    have discovered in the records, to the effect that the White
    House was to be excluded under the Privacy Act?
        Mrs. Mink. I have to only say that our primary discussions
    went to FOIA. My litigation was an attempt to get information
    from the White House. The Amchitka underwater nuclear test was
    the source of my concern. And five executive agencies had
    provided recommendations to the President as to the test and
    made recommendations against it. And so we were debating this
    matter in the Congress and I wanted desperately to get those
    recommendations from these agencies. And I was prevented from
    doing so. So we sued. So our attention was primarily on the
    executive branch. And so we struggled with this issue when we
    were clarifying the FOI, and tried to write it consistent with
    what the Supreme Court said in my case. And it was our attempt
    to try to keep the two statutes similar, and not make them
    different in terms of their applicability.
        So while we didn't discuss specifically the executive
    branch's relevance to privacy, what was attempted was to make
    them consistent.
        Mr. Klayman. If I may followup on that--and I agree with
    what Mr. Pilon said, very well put--but Congresswoman Mink, you
    are to be commended for the Mink case. I studied that when I
    was at the Justice Department and I did FOIA cases. But can you
    explain to me----
        Mrs. Mink. Did you agree with me?
        Mr. Klayman. I don't agree with you on the last point. I
    want to ask your opinion on this. This is a photograph showing
    Craig Livingston, who was the one who was responsible for
    getting the FBI files on Republicans and others, improperly,
    and gave rise to the Filegate litigation which is still
    ongoing. This is a photograph of Craig Livingstone, on the
    right-hand side where my hand is, with Mrs. Clinton. And of
    course initially she didn't know whether she ever knew Mr.
    Livingstone.
        Why would the White House invoke, under the reasoning that
    you're talking about, the Privacy Act to avoid providing this
    to Judicial Watch's clients and the court in this Filegate
    litigation. They actually invoked the Privacy Act so they
    wouldn't have to turn this photograph over. Why would they do
    that if they were in good faith?
        Mrs. Mink. I can't respond for the White House. I can only
    discuss the statute and how I see it has been written and
    interpreted. So I can't speak for Hillary.
        Mr. Mica. Mr. Turley.
        Mr. Turley. Just a very quick point, Mr. Chairman. I
    disagree with one thing that Roger said. I don't believe that
    if an amendment is made to the Privacy Act, it can be
    legitimately applied to answer the interpretive question in
    either Barr or Alexander. There are prior cases in which courts
    have said that a subsequent decision by Congress is not very
    persuasive in reading the earlier language. In fact, Congress
    has repeatedly, when faced with a court opinion, stepped in to
    correct that opinion.
        Now, I would agree with Roger if we didn't have two cases
    in disagreement and you simply amended the statute, that would
    create the danger that Roger talked about. But now that you
    have a statute--I'm sorry, a case saying that you really did
    intend for ``agency'' not to include in its definition the
    White House. I think you can make that corrective change and it
    would not be appropriate for a court to read that as to suggest
    any meaning with regard to the original language.
        Mr. Pilon. It may not be appropriate for a court to do, but
    that's not to say that a court might not do it.
        Mr. Mica. Thank you, Mr. Pilon. The only other question I
    might have is the question of exemption. Are the exemptions
    adequate, or the law? I mean, given this thing plays out and
    the White House is found to be subject to the Privacy Act, are
    the exemptions adequate under the current statute?
        Mr. Walden.
        Mr. Walden. The exemptions in the Privacy Act?
        Mr. Mica. Yes.
        Mr. Walden. That allow for disclosures. I think they
    provide sufficient flexibility within the executive branch to
    conduct its business, but at the same time protect the privacy
    interests. I would not touch the exemptions.
        Mr. Mica. Mr. Klayman, exemptions adequate?
        Mr. Klayman. Yes, they're more than adequate. They're used
    broadly. When this administration came in, Congressman Mica,
    President Clinton stated that he was not going to assert those
    exemptions because the people should have the information. This
    is the FOIA exemptions. But the same exemptions are applicable
    under the Privacy Act as well. They have been widely used and
    they protect the White House more than it deserves to be
    protected.
        Mr. Mica. Like from the testimony you've presented today,
    they've used all sides of the argument.
        Mr. Klayman. Whatever suits them at any moment of time. One
    last point----
        Mr. Mica. The Podesta memo, was that--what was the context
    on which that was given? I thought that was kind of interesting
    that he's now chief--what is he? The----
        Mr. Klayman. White House chief of staff.
        Mr. Mica. Chief of staff now. In that position, what was
    he, in what position?
        Mr. Klayman. He was assistant to the President, which is
    just one notch below.
        Mr. Mica. But he was in that case using it to make the
    Privacy Act apply.
        Mr. Klayman. Well, the document, which comes from an
    individual from personnel management, Mary Beck, to Mr.
    Podesta, is saying to Mr. Podesta that if only Mr. Podesta had
    followed her advice and kept these documents under the Privacy
    Act. Now we know that Billy Dale, our client, was smeared. We
    believe that he was smeared with information covered by the
    Privacy Act.
        So apparently Ms. Beck was trying to do the right thing,
    but Mr. Podesta and others higher up did not do the right
    thing. This is an admission.
        Mr. Mica. I wasn't sure of the context of whether he had
    written that.
        Mr. Turley, the exemption question.
        Mr. Turley. I think the exemptions are adequate. Part of
    the problem with Judge Green's opinion is that she doesn't
    really address the fact that you have a routine use exemption
    under the Privacy Act. You also have an exemption that says
    anything that's obtainable under the Freedom of Information Act
    is exempt. Now that's a large amount of information. And so the
    exemption already afforded to the White House is very generous.
        Mr. Mica. Mr. Pilon.
        Mr. Pilon. The exceptions are, by and large, functional.
    There is an exception for consent, of course. If a party
    consents to have his information transferred from one agency to
    another or to a private party, that's all permissible. There is
    an exception for court orders. But other than that, it seems to
    me that they're perfectly adequate as is.
        Mr. Klayman. Congressman Mica, if I may put one thing on
    the record.
        Mr. Mica. One final quick statement, since you are
    representing two folks today.
        Mr. Klayman. In the context of this Filegate case, which
    has given rise to Judge Lamberth's decision on the Privacy Act,
    it is this Justice Department that appeared in front of the
    committee today that is currently--and I'm not overstating
    this--under criminal investigation by the independent counsel
    and its own criminal division for withholding e-mail, hundreds
    of thousands, if not millions, participating in that as alleged
    over this whole Filegate scandal. So obviously their testimony
    is tainted.
        Mr. Mica. Well, I want to thank each of our witnesses
    today. This has been most enlightening about a very difficult
    subject. Something that is very important. I think we have
    heard, I think Mr. Turley gave a very outstanding presentation
    on importance of these two laws, Freedom of Information Act and
    also the Privacy Act, which do separate our systems of
    government from many others and give our citizens some
    protections and some rights that are very important in a
    democratic system and also a system of checks and balances, and
    we want to make certain that works.
        So we appreciate your testimony, your being with us today.
    I appreciate the Members staying over and also participation.
        We have no further business to come before the subcommittee
    on Criminal Justice, Drug Policy, and Human Resources so
    therefore I declare this meeting adjourned.
        [Whereupon, at 12:31 p.m., the subcommittee was adjourned.]
        [Additional information submitted for the hearing record
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