The Clerk announced the following pairs: Mrs. Boggs with Mr. Baker. Mr. Hébert with Mr. Conlan. Mr. Rooney of New York with Mr. Eshleman. Mr. Mitchell of Maryland with Mr. Davis of Georgia. Mr. Jarman with Mr. Camp. Mr. Jones of North Carolina with Mr. Kuykendall. Mr. Gray with Mr. Rarick. Mr. Nichols with Mr. Roncallo of New York. Mr. Roncalio of Wyoming with Mr. Conable. Mr. Shoup with Mr. Thomson of Wisconsin. Mrs. Vander Jagt with Mr. Veysey. The result of the vote was announced as above recorded. The SPEAKER. The Clerk will notify the Senate of the action of the House. GENERAL LEAVE Mr. MOORHEAD of Pennsylvania. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks, and include extraneous matter, on the bill just passed. The SPEAKER. Is there objection to the request of the gentleman from Pennsylvania? There was no objection. G. SENATE ACTION AND VOTE ON PRESIDENTIAL VETO, NOVEMBER 21, 1974; PP. S19806-S19823 FREEDOM OF INFORMATION ACT-VETO The PRESIDING OFFICER. Under the previous unanimous consent agreement, the hour of 1 o'clock having arrived, the Senate will now proceed to the consideration of the veto message on H.R. 12471. The PRESIDING OFFICER (Mr. Talmadge) laid before the Senate a message from the House of Representatives, which was read, as follows: The House of Representatives having proceeded to reconsider the bill (H.R. 12471) entitled "An Act to amend section 552 of title 5, United States Code, known as the Freedom of Information Act," returned by the President of the United States with his objections, to the House of Representatives, in which it originated, it was Resolved, That the said bill pass, two-thirds of the House of Representatives agreeing to pass the same. The PRESIDING OFFICER. The question is, Shall the bill pass, the objections of the President of the United States to the contrary notwithstanding? The time for debate will be limited to 1 hour, to be equally divided between and controlled by the majority leader and the minority leader or their designees. Who yields time? Mr. ROBERT C. BYRD. I yield myself 1 minute. Mr. President, on behalf of the distinguished majority leader, I take this time merely to express appreciation to Mr. Stafford, Mr. Randolph, and Mr. Cranston, for their consideration of the time element that developed as a result of the desire on the part of various Senators to speak earlier this morning on another subject. These Senators-Mr. Stafford, Mr. Randolph, and Mr. Cranston-certainly deprived themselves of time which they had hoped to use in their discussions of the necessity of overriding the President's veto. I want to express appreciation on behalf of the leadership for their understanding and their splendid cooperation. Mr. President, how much time does the distinguished Senator from Massachusetts desire? Mr. KENNEDY. Is the minority leader going to control the time? Mr. ROBERT C. BYRD. Mr. President, on behalf of the majority leader, I yield the time to the distinguished Senator from Massachusetts (Mr. Kennedy) for his control on this side of the aisle. Mr. KENNEDY. I thank the Senator from West Virginia. Mr. President, at the outset, I ask unanimous consent that the following persons, who are members of staffs of affected committees in connection with this measure, be permitted the privilege of the floor: Bert Wise, James Davidson, AI From, Jan Alberghini, and Mr. Sussman. Mr. HRUSKA. Mr. President, will the Senator yield for the purpose of adding the name of Douglas Marvin, a member of the staff of the Committee on the Judiciary? Mr. KENNEDY. I add that name, Mr. President. I ask unanimous consent that those persons have the privilege of the floor during the discussion of this matter and the vote. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. KENNEDY. Mr. President, I yield myself such time as I may take. Mr. President, the Senate is today faced with an important challenge. We are moving out of the "Watergate era," and are focusing our attention and our energies on the pressing economic issues of the day. But one question that our children, and our children's children,. will surely ask in the years to come is how our Nation and its elected representatives responded to the abuse and misuse of the institutions of government, and to the corruption of the political processes, that characterized Watergate. We will surely tell them about how the Senate Watergate Committee and the House Judiciary Committee laid bare the evidence of official misfeasance and malfeasance, leading to the resignation of a President and the prosecution of some of the highest officials in the executive branch. We will tell them that Congress enacted campaign finance reforms. to begin to free our election processes from the corroding influence of large private campaign donors. I hope we can tell them about legislation enacted to protect individual privacy, and to guard against future misuse of governmental institutions. I also hope, Mr. President, that we can tell them about how Congress stood up against a hostile bureaucracy and passed, over a Presidential veto, legislation to give the public greater access to Government information. President Ford last summer promised the American people an. "open Government." Congress gave him a chance to give substance. to that promise when it sent to the White House last month H.R. 12471, a bill to strengthen the Freedom of Information Act. With his veto of this bill, however, returned to the Congress just minutes before our recess on October 17, the President yielded to the pressures of his bureaucracy to keep the doors shut tight against public access in many areas. I do not believe that President Ford personally harbors any desire to perpetuate the kind of insidious secrecy that characterized the Watergate years. But that is precisely the result of his veto of the Freedom of Information Act amendments. The President's former press secretary, Mr. terHorst, stated the problem most clearly in the Star-News earlier this month when he wrote: The Nixon holdovers in the Administration have sandbagged the new President's pledge of new openness in government. The lesson for Ford is that there still remains an excessive amount of anti-media zeal anong the Nixonites in government, despite his own desire that federal agencies make more, not less,. information available to the public. I think that a vote today to override the President's veto must be viewed not as any affront to the President, but rather as a visible and concrete repudiation by Congress of both the traditional bureau- cratic secrecy of the federal establishment and the special antimedia, antipublic, anti-Congress secrecy of the Nixon administration. The late Chief Justice Earl Warren made the need for this override clear last year when he observed If we are to learn from the debacle we are in, we should first strike at secrecy in government whenever it exists, because it is the incubator for corruption. Extensive hearings in both the House and Senate have brought out clearly the need to broaden and strengthen the 1966 Freedom of Information Act. Court construction of some loosely drafted provisions in the law have opened gaping loopholes which have engulfed entire buildings of Government files. Even where the law clearly and unambiguously requires disclosure of certain documents, bureaucratic sleights of hand continue to keep them out of reach of the public and the press. Our hearings identified the problems. In the course of extensive subcommittee, committee, floor, and conference deliberations the legislation was sharpened, clarified, adjusted, and readjusted. At each stage, agency views were heard, considered, debated, and accommodated. The end product was H.R. 12471. The bill was passed by the House and Senate overwhelmingly; the conference report was approved by both bodies again overwhelmingly. This legislation, Mr. President, was given close attention at each stage of the legislative process. President Ford objects to the legislation. Last week before a journalists' group he called his objections "minor differences" that could be ironed out if Congress would go along. He intimated that his proposed changes were fresh and new and that Congress should look at them carefully, as if for the first time. Unfortunately, the President's proposals, which he sent up a few weeks ago, are simply warmed-over agency suggestions which have been made time and again at each level of congressional deliberation. They involve the shopworn incantation that our bill threatens national security and imposes extreme burdens on the already overworked Federal bureaucracy. The difference is that now the old national security scare tactic and the bureaucrat's perennial lament of overwork have been emblazoned with a Presidential seal. These proposals would give us more of precisely what our bill was carefully designed to avoid-more secrecy, more footdragging, and ultimately more Government irresponsibility. Let me discuss each of the administration objections and suggested changes in turn. First, the administration wants to tie the hands of Federal judges in reviewing executive classification decisions. This, we are told, is necessary to protect our national security. This national security argument should be placed in its proper perspective. John Ehrlichman gave us a clue to how the executive branch views national security when he told President Nixon, during a discussion of the Ellsberg break-in, "I would put the national security tent over this whole operation." National security improvements to the San Clemente swimming pool; national security wiretaps on journalists; national security burglaries. The White House taped conversation of April 17, 1973, has the President summing up the Watergate coverup thusly. It is national security-national security area-and that is a national security problem. What about the operation of the formal classification system, carried out under Executive order by Federal officials with specially delegated authority? The former President shed some light on this system too, when he said: The controls which have been imposed on classification authority have proved unworkable, and classification has frequently served to conceal bureaucratic mistakes or to prevent embarrassment to officials and administrations. We know too well how the classification system has been overused and misused. We know too well that of the millions of documents marked "secret," most should rightfully be open to scholars, journalists, and the interested public. Yet the administration proposes to limit review of classification decisions, allowing courts to require disclosure only if the Government had no reasonable basis whatsoever to classify them. This would make the secrecy stamp again practically determinative. The President writes the classification rules in his Executive order. If those rules are inadequate to protect important information vital to our national defense, then let the President change the rules. But make the Government abide by them. Judicial review means executive accountability. Judicial review will be effective only if a Federal judge is authorized to review classification decisions objectively, without any presumption in favor of secrecy. That is what our system of checks and balances is all about. I think Senator Ervin best presented the issue of judicial review standards to the Senate during our debate on the original legislation— The ground ought to be not whether a man has reached a wrong decision reasonably or unreasonably. It ought to be whether he had reached a wrong decision. This bill is not going to endanger military secrets or defense information. It will not require disclosure of sensitive international negotiations or confidential military weapons research. Our conference statement of managers makes clear that we expect an agency head's affidavit to be given considerable weight in judicial determinations on classified material. But if the agency cannot produce enough evidence to justify keeping a document secret, then that document should be released. If the agency can show that it has properly classified the document in the interest of national defense or foreign policy, then that document should be withheld, and the courts will so rule. I therefore reject out of hand the President's argument against this bill's provisions for de novo judicial review of classified material, and I reject along with it his proposed changes. Second, there is the issue of time limits. Our bill provides an agency 10 working days to respond initially to a request for information, 20 working days on appeal, and an additional 10 working days where unusual circumstances are present. That gives the agency 40 working days, or almost two calendar months-more than enough time for any agency to complete the process of finding and reviewing requested documents. If a person sues the agency after that time, and the agency is still diligently trying to complete review of the materials under exceptional circumstances, then we have another escape valve in the bill-added |