[Congressional Record (Bound Edition), Volume 152 (2006), Part 6]
[House]
[Pages 7471-7474]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   THE BIG CHILL IN WASHINGTON, D.C.

  Mr. McDERMOTT. Mr. Speaker, I ask unanimous consent to speak out of 
turn.
  The SPEAKER pro tempore. Without objection, the gentleman from 
Washington (Mr. McDermott) is recognized for 5 minutes.
  There was no objection.
  Mr. McDERMOTT. Mr. Speaker, it is awfully cold in Washington, D.C. 
these days, and the arrival of spring is not going to change the frigid 
temperature beginning to grip the Nation's Capital.
  No matter how much we stand in the bright sunlight, Washington, D.C. 
is fast becoming a cold, cold place under this President and 
administration.
  The Big Chill is on and it is becoming an ice age for the ``People's-
Right-to-Know.''
  The New York Times and The Washington Post recently won Pulitzer 
Prizes for breaking through the administration's secrecy to inform the 
American people about secret prisons and secret wiretapping.
  In response, the administration wants journalism stopped. It just 
gets in the way of the administration telling people only what they 
want them to know.
  Maintaining this veil of secrecy is so important that the 
administration directed the Attorney General to see if he might invoke 
the 1917 Espionage Act as a way to make the first amendment disappear. 
By controlling what you know, they hope to control what you think.
  It is the solution to their Iraq dilemma. You don't have to mislead 
the people, as the President did, if the people simply don't know 
anything at all. That is what this assault on free speech is all about.
  I seek permission to enter into the Record an editorial promoted by 
the Washington Times by Nat Hentoff entitled ``Chilling Free Speech.''

[[Page 7472]]

  The President and his administration are doing everything possible to 
impose censorship. They know that secrecy is the fastest, most 
effective way to silence dissent.
  If the American people know what they are doing, the American people 
could make them accountable for what they are doing. But there is no 
accountability for their actions, so they hide them under a blanket of 
secrecy.
  The President cried ``shameful'' that the Pulitzer Prize-winning 
journalism had reunited the American people with the truth about secret 
prisons and secret wiretapping ordered by the President and his 
administration.
  In other words, the truth made it out into the open, and that was not 
part of their plan. The only way to account for it was to attack those 
responsible for telling us. It is the centerpiece of the Republican 
playbook. Attack anyone who disagrees. I know those tactics firsthand.
  But the cracks are beginning to show in the Republican wall of silent 
acquiescence.

                              {time}  1945

  A rubber stamp is still being used in this Congress by the 
Republicans, but many of my colleagues, my Republican colleagues, know 
that their mandatory vote at the discretion of the President is not in 
the best interest of the American people, and the people are beginning 
to listen to other voices, when they can hear them above the clatter of 
the Republican noise machine. Here is the proof.
  David Wise in the Los Angeles Times recently wrote an article 
entitled, ``Secrecy's Shadow Falls on Washington.'' I ask permission to 
enter this article in the Record. To help the American people 
understand how pervasive secrecy in the administration is, let me read 
a short excerpt from Mr. Wise's article, quote, ``The National Archives 
and Records Administration have been embarrassed by the revelation that 
at least 55,000 documents formerly available to researchers have been 
withdrawn and reclassified under secret agreements with the military 
and the CIA. The deals were so secretive that the documents simply 
disappeared from the shelves.'' That is the end of the quote.
  At least temporarily the head of the National Archives has suspended 
the disappearance of American history. It doesn't mean the threat has 
passed; it just means someone is fighting to keep America free. We have 
two choices, the free flow of information or the outright control of 
information. America is strong because of the protections within the 
free flow of information. It is guaranteed by the first amendment.
  But the President and his majority want to tell you what to think 
through the outright control of the information. Geoffrey Stone, author 
and law professor at the University of Chicago wrote an article in the 
New York Times the other day called, ``Scared of Scoops.'' Again, I ask 
to enter it in the Record.
  As the writer points out, the administration's primary tactic is 
intimidation. When in doubt, they try to make you afraid. When 
unpopular, they try to make you afraid. When they are losing their hold 
on power because of their record, they tend to make you afraid. The 
only reason you know this President has no energy policy for America is 
because he can't hide the price of gasoline at the pumps. He would make 
it a secret if he could.
  Don't be surprised if the President tries to classify the price of 
gasoline as a national security matter. That is his method of 
accountability to the American people. None. In a Nation where free 
speech is the last defense against absolute power, they don't want you 
to know because the more you know, the worse they look.

               [From the Washington Times, May 8, 2006.]

                          Chilling Free Speech

                            (By Nat Hentoff)

       Beyond the firing of CIA officer Mary O. McCarthy for 
     leaking classified information to the press is a much larger 
     story of the administration's increasing investigation of 
     other such press leaks as a possible prelude to an American 
     version of Britain's stringent Official Secrets Act. In 
     February, CIA Director Porter Goss told the Senate 
     Intelligence Committee of the need for a grand jury 
     investigation including reporters who receive these leaks.
       The charge against Miss McCarthy, which she denies, is that 
     she was a source of highly classified information for Dana 
     Priest's report in The Washington Post on CIA secret prisons 
     in Eastern Europe. Miss Priest, a 2006 winner of a Pulitzer 
     award for the story, has been writing about the CIA's ``black 
     sites'' since late 2002; and Sen. Pat Roberts, chairman of 
     the Senate Intelligence Committee, continually refuses to 
     authorize an investigation of the CIA's violations of 
     American and international laws in its prisons wholly hidden 
     from our rule of law.
       Miss Priest is already subject to a Justice Department 
     investigation, as are New York Times reporters James Risen 
     and Eric Lichtblau for their disclosure of the president's 
     secret approval of the National Security Agency's warrantless 
     surveillance of Americans. (Those reporters have also 
     received Pulitzers this year, despite the president's 
     characterization of their reporting as ``shameful.'')
       The administration's position has been clearly stated by 
     FBI spokesman Bill Carter (The Washington Post, April 19): 
     ``Under the law, no private person (including journalists) 
     may possess classified documents that were illegally provided 
     to them. These documents remain the property of the 
     government.''
       The law Mr. Carter cited is this administration's expansion 
     of the Espionage Act of 1917, which is now before the courts 
     in a case that can greatly diminish the First Amendment 
     rights of the press--and the right of Americans to receive 
     information about such lawless government practices as the 
     CIA's secret interrogation centers and the president's 
     violation of the Foreign Intelligence Surveillance Act in 
     unleashing the National Security Agency.
       This espionage case--United States of America v. Lawrence 
     Anthony Franklin, Steven J. Rosen and Keith Weissman--is the 
     first in which the federal government is charging violations 
     of the Espionage Act by American citizens--who are not 
     government officials--for being involved in what until now 
     have been regarded as First Amendment-protected activities 
     engaged in by hundreds of American journalists.
       Messrs. Rosen and Weissman, former staff members of the 
     American Israel Public Affairs Committee (AIPAC)--who have 
     since been fired--are accused of receiving classified 
     information from Defense Department analyst Franklin 
     regarding U.S. government Middle East and terrorism strategy. 
     Messrs. Rosen and Weissman are charged with then providing 
     that classified information to an Israeli diplomat--and a 
     journalist.
       Government official Franklin has pleaded guilty and been 
     sentenced to prison. But defense attorneys for Rosen and 
     Weissman declare: ``Never (until now) has a lobbyist, 
     reporter or any other nongovernment employee been charged . . 
     . for receiving oral information the government alleges to be 
     national-defense material as part of that (accused) person's 
     normal First Amendment-protected activities.''
       In an amicus brief to the U.S. District Court for the 
     Eastern District of Virginia, the Reporters Committee for the 
     Freedom of the Press (with which I am affiliated) says:
       ``These charges potentially eviscerate the primary function 
     of journalism--to gather and publicize information of public 
     concern--particularly where the most valuable information to 
     the public is information that the government wants to 
     conceal'' so that the public cannot ``participate in and 
     serve as a check on the government.'' (That's why the First 
     Amendment's freedom of the press was added to the 
     Constitution in 1791.)
       But the judge now hearing this espionage case, T.S. Ellis 
     III, already said in March: ``Persons who come into 
     unauthorized possession of classified information must abide 
     by the law. That applies to academics, lawyers, journalists, 
     professors, whatever.'' Recently, the judge appears to be 
     backing off.
       However he decides, and it's uncertain, Steven Aftergood--
     head of the Project on Government Secrecy at the Federation 
     of American Scientists--says: ``To make a crime of the kind 
     of conversations Rosen and Weissman had with Franklin over 
     lunch would not be surprising in the People's Republic of 
     China. But it's utterly foreign to the American political 
     system.'' (This censorship of the press was cut out of the 
     Espionage Act of 1917.)
       If the Supreme Court agrees with the Bush administration on 
     this case, we will, as Mr. Aftergood says, have to build many 
     more jails--and disarm the First Amendment.
                                  ____


                      [From the Los Angeles Times]

                  Secrecy's Shadow Falls on Washington

                            (By David Wise)

       Unencumbered by a First Amendment, Britain for almost 100 
     years has had an Official Secrets Act to prevent leaks to the 
     media and to prosecute offenders, including journalists.
       Some Bush administration officials and members of Congress 
     are casting a longing eye at the British law. If only the 
     United States had a similar law, their reasoning goes, the 
     reporters who revealed CIA-run prisons in Eastern Europe and 
     the National Security Agency's warrantless wiretapping of 
     terrorism suspects would be prosecuted instead of receiving 
     Pulitzer Prizes.

[[Page 7473]]

       The U.S. Constitution remains a barrier to those who would 
     restrict the flow of information to the media--and thus to 
     the public. But administration policies are chipping away at 
     its protections. The nation is in danger of having an 
     Official Secrets Act not through passage of a law--although 
     that is a possibility--but through incremental steps.
       The evidence is mounting: Judith Miller, as a reporter for 
     The New York Times, spent 85 days in jail after refusing to 
     name a confidential source in the investigation by Special 
     Prosecutor Patrick J. Fitzgerald into the leak of the name of 
     CIA officer Valerie Plame. Miller and half a dozen other 
     reporters have been questioned by the prosecutor.
       Two former staff members of the American Israel Public 
     Affairs Committee, or AIPAC, a pro-Israel lobby, are on trial 
     in federal court on charges of conspiring to violate 
     espionage statutes by obtaining defense information from a 
     Pentagon official. Both lobbyists are civilians, and the 
     government does not claim they received any documents, 
     classified or otherwise.
       The National Archives and Records Administration has been 
     embarrassed by the revelation that at least 55,000 documents 
     formerly available to researchers have been withdrawn and 
     reclassified under secret agreements with the military and 
     the CIA. The deals were so secretive that the documents 
     simply disappeared from the shelves.
       Historian Matthew Aid, who discovered the reclassification, 
     pointed out that because he possesses some of the documents, 
     he might be in violation of the Espionage Act. Allen 
     Weinstein, who heads the National Archives, has halted the 
     documents' reclassification.
       The FBI is seeking access to the papers of the late 
     muckraking columnist Jack Anderson to seize classified 
     documents in his files. Anderson broke many stories the 
     government tried to keep secret. His family, citing the First 
     Amendment, has refused the agency's request. It is unclear 
     how far the FBI plans to push the matter, or whether the 
     government will try next to examine the files of other 
     journalists, dead or alive.
       Porter J. Goss, director of the CIA, has testified that 
     ``it is my aim and it is my hope'' that reporters who receive 
     leaks on intelligence subjects are hauled before a grand jury 
     and forced ``to reveal who is leaking this information.'' The 
     CIA dismissed Mary O. McCarthy, a senior official, for 
     allegedly having unauthorized contacts with the media and 
     disclosing classified information to reporters. The agency 
     let stand the impression that she had leaked the story of the 
     CIA secret prisons for terrorists in Eastern Europe to Dana 
     Priest of The Washington Post, who won a Pulitzer Prize for 
     her account. McCarthy's attorney says she was not the source 
     of the story and has never leaked classified information.
       Congress is considering legislation that would enable 
     intelligence agencies to revoke the pensions of employees who 
     make unauthorized disclosures. The measure also would allow 
     the CIA and NSA to arrest suspicious people outside their 
     gates without a warrant.
       Although the indictment of the two lobbyists for the 
     American Israel Public Affairs Committee is replete with 
     references to ``classified information,'' the espionage laws, 
     with one narrow exception, refer only to ``information 
     relating to the national defense.'' The spy laws were passed 
     in 1917 during World War I. A 1951 presidential executive 
     order created the current system of classifying documents.
       There is no law prohibiting leaks, so the government has 
     used the espionage laws to combat the practice. President 
     Clinton vetoed anti-leak legislation passed in 2000 that 
     would have made it a crime for a government official to 
     disclose classified information.
       To criminalize leaks of government information simply 
     because the information is marked ``classified'' is absurd. 
     In 2004, the most recent year for which figures are 
     available, the government classified over 15.3 million 
     documents. It is hardly likely that the government has that 
     many real secrets to withhold from its citizens.
       Unnecessarily classifying documents is a fact of life in 
     Washington. Many bureaucrats know that unless they stamp a 
     document ``secret'' or ``top secret,'' their superiors may 
     not even bother to read it. One agency classified the fact 
     that water does not flow uphill. During World War II, the 
     Army labeled the bow and arrow a secret, calling it a 
     ``silent flash less weapon.''
       The government's theory in the lobbyists' prosecution 
     could, if it stands, change the nature of how news is 
     gathered in Washington and how lobbyists and academics 
     interact with the government.
       ``What makes the AIPAC case so alarming,'' said Steven 
     Aftergood, director of the Project on Government Secrecy of 
     the Federation of American Scientists, ``is the defendants 
     are not being charged with being agents of a foreign power 
     but with receiving classified information without 
     authorization. Most Americans who read the newspaper are also 
     in possession of classified information, whether they know it 
     or not. The scope of the charges is incredibly broad.''
       Officials in Washington talk to reporters every day about 
     matters that may, in some government file cabinet, in some 
     agency, be stamped with a secrecy classification. How would a 
     journalist be expected to know that he or she was a 
     ``recipient'' of classified information and, in theory, 
     subject to prosecution under a law that was meant to catch 
     spies?
       The original British Official Secrets Act, passed in 1911, 
     allowed the crown to prosecute anyone, even a journalist, who 
     published a railroad timetable. The act was made less 
     draconian in 1989, but still carries tough provisions and can 
     apply to journalists.
       Until recently, the U.S. government applied the espionage 
     laws to officials who leaked, not to the recipients.
       ``Otherwise,'' Aftergood said, ``Bob Woodward would not be 
     a wealthy, bestselling author. He would be serving a life 
     sentence.''
                                  ____


                       [From the New York Times]

                            Scared of Scoops

                         (By Geoffrey R. Stone)

       While tensions between the federal government and the press 
     are as old as the Republic itself, presidential 
     administrations have never been inclined to criminally 
     prosecute the news media for publishing information they 
     would rather keep secret. In recent weeks, however, the Bush 
     administration and its advocates, including Attorney General 
     Alberto Gonzales, have spoken of prosecuting The Washington 
     Post and The New York Times for publishing Pulitzer Prize-
     winning exposes of the administration's secret prisons in 
     Eastern Europe and secret National Security Agency 
     surveillance of Americans.
       Specifically, the president and some of his supporters say 
     reporters and publishers have violated a provision of the 
     1917 Espionage Act, which provides in part that anyone in 
     unauthorized possession ``of information relating to the 
     national defense, which information the possessor has reason 
     to believe could be used to the injury of the United States'' 
     who willfully communicates it to any person not entitled to 
     receive it ``shall be fined under this title or imprisoned 
     not more than 10 years, or both.''
       But for at least three reasons, such threats are largely 
     empty. First, the provision was never intended to be used 
     against the press. When the Espionage Act was proposed by 
     President Woodrow Wilson, it included a section that would 
     expressly have made it a crime for the press to publish 
     information that the president had declared to be ``of such 
     character that it is or might be useful to the enemy.'' 
     Congress overwhelmingly rejected that proposal, with members 
     of both parties characterizing it as ``un-American'' and ``an 
     instrument of tyranny.''
       Second, if the 1917 act were meant to apply to journalists, 
     it would unquestionably violate the First Amendment. Laws 
     regulating speech must be precisely tailored to prohibit only 
     speech that may constitutionally be proscribed. This 
     requirement addresses the concern that overbroad laws will 
     chill the willingness of individuals to speak freely.
       Not surprisingly, because the act was drafted before the 
     Supreme Court had ever interpreted the First Amendment in a 
     relevant manner, it does not incorporate any of the 
     safeguards the court has since held the Constitution 
     requires. For example, the provision of the act is not 
     limited only to published accounts that pose a ``clear and 
     present danger'' to the nation. For this reason, it seems 
     clear, any prosecution of the press under it would be 
     dismissed out of hand by the judiciary.
       Third, if Congress today enacted legislation that 
     incorporated the requirements of the First Amendment, it 
     could not apply to articles like those published by The Times 
     and The Post. Such a statute would have to be limited to 
     articles that, first, do not disclose information of 
     legitimate and important public interest and, second, pose a 
     clear and present danger. Nobody could deny that articles 
     like those on secret prisons and electronic surveillance of 
     Americans clearly concerned matters of legitimate and 
     important public interest; nor could the administration show 
     that such disclosures created a clear and present danger of 
     serious harm to the national security.
       I do not mean to suggest that the government has no 
     interest in keeping military secrets or that it may never 
     punish the press for disclosing classified information. To 
     the contrary, the government may take many steps to keep such 
     information secret, including (in appropriate circumstances) 
     firing and even prosecuting public employees who unlawfully 
     leak such information.
       Moreover, in narrowly defined circumstances, the government 
     may prosecute the press for disclosing classified national 
     security information. Such a prosecution might be consistent 
     with the First Amendment, for example, if a newspaper 
     revealed that the government had secretly broken an important 
     Qaeda code, thus causing that group to change its cipher. But 
     revelations like those in The Times and Post revealed 
     significant government wrongdoing and therefore are essential 
     to effective self-governance; they are at the very core of 
     the First Amendment.
       Although the threats of the White House are largely 
     bluster, they must nonetheless be taken seriously. Not 
     because newspapers are really in danger of being prosecuted, 
     but because such intimidation is the latest step in this 
     administration's relentless campaign to

[[Page 7474]]

     control the press and keep the American people in the dark.)

                          ____________________