[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
74-494 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
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Mail: Stop SSOP, Washington, DC 20402-0001
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.
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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
follows:]
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