U.S. GOVERNMENT PRINTING OFFICE

74–494 DTP WASHINGTON : 2001

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

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

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

BENJAMIN A. GILMAN, New York

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

ASA HUTCHINSON, Arkansas

DOUG OSE, California

DAVID VITTER, Louisiana

PATSY T. MINK, Hawaii

EDOLPHUS TOWNS, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

JANICE D. SCHAKOWSKY, Illinois

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

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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

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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.

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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;

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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.

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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:]

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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

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raise here are important questions and we should deal with them,

but when I look at my 41⁄2 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:]

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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?

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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

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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:]

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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, ConVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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gress 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 folVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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lows 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.

30

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?

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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?

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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 administraVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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tion 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

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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?

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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

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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

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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

38

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.

39

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

40

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.

41

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

42

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?

43

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

44

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

45

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 PriVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
46

vacy 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.

47

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

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48

gress 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.

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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 71⁄2 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 ClintonGore 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

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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 ClintonGore 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

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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 ClintonGore 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.

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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.

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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

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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

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ple 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

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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 funcVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00102 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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tion 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. ChairVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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man, were concerned about: Why couldn’t someone from another

department take this document to the White House? Of course,

that other person, as Mr. Walden said, would be subject to violations under the Privacy Act. However, the White House itself

would not be subject to any sanctions as the Justice Department

is currently interpreting the act.

Any my case, after all, involved the watchdogs, the Office of Professional Responsibility, the office that is in charge of overseeing

the ethics of the rest of the Justice Department. Yet they were the

ones who leaked the document. It was the Director who tried to release the document and had it handed back to him by the former

Deputy Attorney General. And then the Director’s Deputy finally

leaked the document by faxing it out to a former official, who

turned right around and faxed it to the Associated Press and to

ABC News.

All of this reminds us of Lord Acton’s adage of a century ago,

that power tends to corrupt; absolute power corrupts absolutely;

which, of course, was understood implicitly by the Founders, which

is why they separated and divided power as they did in our constitutional framework.

The Privacy Act is a statement about the perils of power. If it

reaches anywhere, it should reach the most powerful officer in the

Nation, where power is most susceptible to abuse, as this administration has demonstrated in spades.

Thank you, Mr. Chairman.

Mr. MICA. Thank you for your testimony Mr. Pilon. Also the

other witnesses.

[The prepared statement of Mr. Pilon follows:]

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Mr. MICA. At this time I’m going to yield the first round of questioning to Mr. Barr, the gentleman from Georgia. I know he has

another commitment. I want to honor that. So we’ll yield first to

you, Mr. Barr.

Mr. BARR. Thank you, Mr. Chairman. I’d like to first of all commend you, Mr. Chairman, and your staff for the subcommittee, for

putting together a very excellent two panels here today. All of

these gentlemen, including Mr. Treanor, have presented, I think, a

very clear picture of the problem, whether they wanted to or not.

And we’ve heard from this panel in particular a very, very learned

explanation both in terms of constitutional law as well as practical

application of Federal statutes of the problem here, and perhaps at

least some direction for us in it. And it’s that aspect of this that

I’d like to address to the panel now. I think we’ve done a very good

job. You all have done a particularly good job of laying out the constitutional issues and the statutory issues here.

The problem is one of remedy. We have a statute, as we all

agree, that is clear on its face; that is, the provision of the Privacy

Act as it pulled in the definition of agency, which includes the Executive Office of the Presidency. We have, on the other hand, interpretations of that which bring in from the Freedom of Information

Act a separate statute with a separate purpose and intent into the

Privacy Act in order to justify a limitation on the applicability of

the Privacy Act.

Well, if we say OK, we need to address this problem, if we say

there is a problem and we need to address it by proposing an

amendment to the Privacy Act, do we not run a risk of setting a

precedence that a statute clear on its face, for which you really

shouldn’t need to go into legislative history for another statute, has

to be amended? How do you address this question?

Given the fact that we have a statute clear on its face, and yet

interpretations by the Departments of Justice, not just one but several, and one court decision here, should we proceed by proposing

an amendment to clarify this; and, if so, how can we do so without

setting a precedent that other statutes that don’t need clarification

need clarification?

Mr. KLAYMAN. Congressman Barr, in answer to your question, I’d

like to read a portion of the legislative history from the Senate report which was not discussed this morning. The Justice Department knows about this provision. I’m surprised they didn’t bring it

up. And it states—this is the Senate report No. 1183, 93rd Congress, Second Session 102. It’s in our supplemental filing of my

hearing statement. And it states that the purpose of the Privacy

Act—I’m inserting Privacy Act—it’s Senate 3418, that was the bill

as amended, is to promote governmental respect for the privacy of

citizens by requiring all, all, departments and agencies of the executive branch and their employees to observe certain constitutional

rules in the computer station collection, management use, and disclosure of personal information about individuals.

If you also look in other provisions of the legislative history of

the Privacy Act, not the Freedom of Information Act, the one that

actually applies, even if you had to go beyond the plain language

of the statute, which you don’t have to, you’ll find it specifically

was enacted because of the abuses of Richard Nixon in having a

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plumbers’ unit inside of the Oval Office. Not much different than

what we’ve seen in the 71⁄2 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 conVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00112 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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ference 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 legislaVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00113 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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tion, 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 71⁄2 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

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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 inVerDate 11-MAY-2000 09:37 Sep 05, 2001 Jkt 000000 PO 00000 Frm 00115 Fmt 6633 Sfmt 6633 C:\DOCS\74494.TXT HGOVREF1 PsN: HGOVREF1
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creased 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

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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?

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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

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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.]

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