Sen. Patrick Leahy, Accepting Open Government Award, November 2005
Remarks Of Senator Patrick Leahy (D-Vt.)
On Receiving The Matthew Lyon First Amendment Award
Vermont Press Association
November 6, 2005
As many of you know by now, I am the son of a printer. So I come by my affection for the First Amendment honestly, and directly. My father instilled in me a profound respect for the press and speech liberties that are foundational freedoms of our great democracy.
And as Vermonters, we were lucky enough to grow up in a place where our culture nourishes the love of liberty and press freedom. After all, our state held out in joining the Union until 1791, after the Bill of Rights was ratified. Just a few years later, the citizens of Vermont vigorously supported Matthew Lyon in his fight against the Alien and Sedition Acts. The first person arrested under this ill-conceived law, Matthew Lyon challenged its constitutionality. When he lost his trial and while he was imprisoned, Vermonters overwhelmingly re-elected him to the House of Representatives. His campaign for civil liberties was instrumental in the eventual overturning of the Sedition Act. I consider it a humbling and unforgettable honor that you have chosen me to receive this award in Matthew Lyon’s name.
Earlier this year I was asked by a journalist what compelled me to devote so much energy to defending the Freedom of Information Act. That question caused me to reflect on the culture of open government that I knew in Vermont as a young man and as a prosecutor. In those days, we had the opportunity to speak with our elected officials and other leaders on a regular basis. Their doors were open to one and all. Even if we must modify that culture of transparency in today’s world to meet security needs and to protect personal privacy, the public will always have a right to know. And the press is absolutely critical to protecting that right.
These have been tough times for the public’s right to know, both for members of Congress and for journalists and editors. Freedom and security are always in tension in our society, and especially so after the attacks of September 11. We all understand that protecting our national security requires that certain information be kept out of the public eye. But even before that terrible attack, we saw the Bush Administration drape a cloak of secrecy around all kinds of information. In 2001, President Bush signed a new Executive Order limiting the release of presidential records, despite the clearly stated intent of Congress that such records should become public 12 years after a president leaves office. Since this Administration took office, classification has greatly increased. More records are being classified and roped away from public and press access, at enormous cost to taxpayers, and fewer old records are being routinely declassified.
Even more important, one of the bulwarks of open government, the Freedom of Information Act itself, is under assault. In 2001, Attorney General Ashcroft reversed his predecessor’s policy on FOIA. Janet Reno told the government, “When in doubt, disclose.” John Ashcroft flipped this policy on its head, sending the message that government agencies should err on the side on non-disclosure. And then he went further by promising that the Department of Justice would defend those decisions to withhold information in the courts.
In nearly every piece of legislation that touches on FOIA, we can count on government agencies or powerful special interests to work overtime to tack on statutory exemptions from FOIA. For example, right now the Defense Intelligence Agency is trying to get a special exemption from FOIA for what it calls “operational files.” FOIA already protects classified and other national security information from disclosure. This new exemption is not necessary.
Even more shocking is a proposal to create a new biodefense research agency that would be completely exempt from FOIA. The purpose of this agency, called the Biomedical Advanced Research and Development Agency, would be to prepare for pandemics, whether naturally occurring or the result of terrorist attack. We can all agree that the nation must prepare, but it should not do so in abject secrecy. This Administration has not earned our trust. The need for vigorous public and government oversight is all the more important in the wake of the Nation’s recent tragic experience with Hurricane Katrina, an experience made worse by the appalling failure of the federal government to respond appropriately, effectively and promptly.
We must demand transparency from any government, but this Administration, with its penchant for secrecy, requires vigilant attention. This Administration’s default position unfortunately has been secrecy and non-transparency, and at a great cost in accountability to the public.
The Bush Administration has tried to control the flow of information through the news media. It tried to prevent the press from displaying photos of the deceased in the shameful aftermath of Hurricane Katrina. It blocked the publication of respectful photos of coffins holding the remains of American soldiers killed in Iraq. The Administration broadcast ads featuring Armstrong Williams, a conservative commentator, supporting the No Child Left Behind Act without disclosing that it paid for Williams’ endorsement. The Government Accountability Office found that the government engaged in illegal propaganda. And just days ago, a high level White House official was indicted for lying to federal prosecutors in the CIA leak investigation. This last case, which remains under investigation, is an incredible example of the government seeking to manipulate press coverage of a highly sensitive issue -- namely, why this Nation went to war in Iraq.
We Vermonters are a bit skeptical by nature, but the current climate forces us to press hard for the truth and keep asking questions. The Nation cannot afford to be spoon fed information by the government. In addition to beating back this rising tide of secrecy, I am working with a conservative Republican, Senator John Cornyn of Texas, to improve the implementation of FOIA. I am also working with Senators Specter and Grassley to bring cameras into our federal courtrooms. Some of us are also working to allow cameras in the Supreme Court chamber, both as a step for open government and as a way to educate our citizens about the Court and the impact its decisions have on all of us.
The First Amendment — including freedom of speech and of the press — is one of the magnificent bequests of earlier Americans to all the generations that follow. These rights are a fragile gift, needing nurturing and protection by each new generation. As writers and editors, you as much as any Americans have kept these issues before the public because of their importance to our democracy, and that has been a public service of incalculable importance to our generations, and for generations to come. And I thank you.
