Forty years ago this week, on July 4, 1966, President Lyndon Johnson signed the Freedom of Information Act.
The choice of July 4 for the signing ceremony was no coincidence.
The signing of the Freedom of Information Act represented the realization of the promise of self governance that may have been born on July 4, 1776, butthat was never fully realized until 190 years later.
Why is the Freedom of Information Act such a big deal?
Because, as James Madison, the father of the Constitution, explained, ""Apopular Government without popular information or the means of acquiring it,is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge willforever govern ignorance, and a people who mean to be their own Governors,must arm themselves with the power knowledge gives."
Until the enactment of the Freedom of Information Act, Americans were deniedaccess to information that should rightfully have been available to them,and without which they could not be their own governors. As John Moss, thecrusading California congressman who secured its passage, frequently noted,the Freedom of Information Act was the first law in the long history of theRepublic that gave Americans the right to access the records of federalagencies that are funded with their tax dollars and that are, supposedly, attheir service.
That is a right that, Moss argued, was every bit as essential to realizingthe full potential of America democracy as the protections contained in theBill of Rights. And, of course, he was correct. What good is freedom ofspeech if that speech is not informed by knowledge of what the government isdoing in our name but without our informed consent? What good is freedom ofthe press if reporters are unable to find out what government agencies areup to?
The American people well recognize the value of the Freedom of InformationAct. Millions of citizens have made FOIA requests over the past fourdecades.
Unfortunately, the hyper-sensitive and hyper-secretive Bush administrationis now at war with the Freedom of Information Act -- just as the New York Times-bashing president and his allies are battling Freedom of the Press.
In the first year of hispresidency, Bush's then attorney general, John Ashcroft, dispatched a memoto federal agencies that told their administrators to use delaying tacticsto thwart the intent of the Freedom of Information Act (FOIA). Ashcroft'sorder directed federal agencies to stall the release of requestedinformation until the completion of a painstakingly slow "full anddeliberate consideration" of the implications of releasing any particulardocument.The response by federal agencies to FOIA requests slowed to a crawl,creating an outcry that finally led Bush to issue an order last year thatappeared to endorse the values contained in the Freedom of Information Act.In fact, that was not the case.
While Bush's language seemed to support openness – "Agencies shall processrequests under the FOIA in an efficient and appropriate manner and achievetangible, measurable improvements in FOIA processing" – his order wasactually a vague statement that was issued not to get agencies jumping onFOIA requests but to head off Congressional action on the bipartisan OpenGovernment Act.
Written to strengthen the Freedom of Information Act, the Open GovernmentAct seeks to end stonewalling by establishing a deadline – 20 days after thefiling of an FOIA request -- by which agencies must respond.
It's a timely and necessary reform.
Yet, at this point, both the House and Senate versions of the OpenGovernment Act are languishing in the Judiciary Committees of the respectivechambers.
If Americans want on this 4th of July Holiday to honor the democratic values that arethis country's greatest strength, perhaps of the best way to do so is bymaking a resolution to contact our representatives in the House and Senateand tell them to support the Open Government Act. This enactment of thissimple reform will renew the promise not just of the Freedom of InformationAct but of the Declaration of Independence and the American experiment.
There is no small measure of irony in the fact that the final vote by the U.S. House of Representatives before leaving for an extended Fourth of July break involved a basic question of American freedom – and there is no small measure of tragedy in the fact that the majority of House members took a position closer to that of King George III than the American revolutions who will be celebrated next Tuesday.
The question so basic that it should not have produced a division at all: Should the United States have a free press that challenges and exposes government wrongdoing, or should the United States have a subservient press that "cooperates" with government to report the "news" in a manner that pleases those in power?
Yet, in a flurry of last-minute procedural votes on House resolutions rebuking the news media for reporting leaks about Bush administration schemes to spy on Americans produced a variety of results, the Congress consistently came down on the side of a subservient press that performs stenography to power.
The final measure of authoritarian sentiment came in the vote Thursday evening on the measure introduced by Ohio Republican Mike Oxley: House Resolution 896. And the result was even worse than on some of the earlier votes: Only 183 of the House's 435 members voted to uphold the Constitution.
The Oxley resolution, written as part of the Bush administration's push to punish the New York Times for reporting on a secret program that monitors millions of bank transfers was fairly draconian in its language – despite the efforts of some House Republicans to temper their caucus' vitriolic response to recent leaks and news stories about Bush-backed domestic and international spying programs.
Among other things, it declares that the House "expects the cooperation of all news media organizations" in keeping secret spying programs that the Bush administration claims are part of a war on terrorism but that could easily be used to invade the privacy of Americans.
No member of Congress who took seriously his or her oath to "defend the constitution of the United States against all enemies, foreign and domestic" could vote for legislation that is so clearly at odds with the Freedom of the Press protections contained in the First Amendment to that document, and with the clear intention of founders such as Thomas Jefferson, who famously declared, "were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.
Yet, the final tally on the Oxley resolution was 227 in favor, 183 against.
The party breakdown was murkier than on some of the earlier votes, which pretty much divided along partisan lines.
Two hundred and ten Republicans endorsed the "expects the cooperation of all news media organizations" language, as did 17 Democrats.
The anti-First Amendment Democrats were John Barrow of Georgia, Melissa Bean of Illinois, Dan Boren of Oklahoma, Leonard Boswell of Iowa, Henry Cuellar of Texas, Pete DeFazio of Oregon, Chet Edwards of Texas, Bart Gordon of Tennessee, Brian Higgins of New York, Jim Marshall of Georgia, Jim Matheson of Utah, Charles Melancon of Louisiana, Collin Peterson of Minnesota, Mike Ross of Arkansas, John Salazar of Colorado, Ike Skelton of Missouri and Gene Taylor of Mississippi.
The 183 voted for a free press came from 174 Democrats, 8 Republicans and Vermont Independent Bernie Sanders.
The pro-First Amendment Republicans were Roscoe Bartlett of Maryland, Scott Garrett of New Jersey, Walter Jones of North Carolina, Donald Manzullo of Illinois, Butch Otter of Idaho, Ron Paul of Texas, Chris Shays of Connecticut and Jim Walsh of New York.
Through the various procedural votes, Shays was the most consistent backer of Freedom of the Press. But all the Republicans who voted against the resolution deserve praise. They provided a faint signal that there is still bipartisan support for the First Amendment in Congress – even if that there was not enough of it to carry the day for the Constitution.
It's been a rough year for Democratic softball.
Renegade Republicans seceded (sound familiar?) and formed their own Capitol Hill league.
The RNC beat the DNC last week.
And last night Congressional Republicans trounced Congressional Democrats 12-1 at RFK stadium. The GOP has won four in a row and 11 of their last 13.
Ouch. Maybe Democrats need to bring in reinforcements from High Times?
Hopefully for Democrats their sluggishness at the batter's box doesn't translate to the ballot box in November.
Today President Bush visits Graceland, the legendary Memphis home of Elvis, with outgoing Japanese prime minister Junichiro Koizumi. The visit is a reward for Koizumi's sending troops to Iraq. The Japanese prime minister is a big fan of The King; when Bush visited Japan, Koizumi sang "I Want You, I Need You, I Love You" to him -- a diplomatic first.
The visit to Graceland provides a golden opportunity for Bush critics to mobilize the King against the President. Some suggestions for signs for demonstrators:
"It's Now Or Never: Fight Global Warming"
"You Ain't Nothin' but a Hound Dog – if you don't End the War Now"
"Don't Be Cruel – stop torture by Americans"
"Suspicious Minds – want ballots with a paper trail"
"Jailhouse Rock – for Karl Rove"
"It'll make you so lonely you could die -- Close Gitmo Now"
A welcome of this kind could leave the president all shook up.
The first test of the GOP's new "American Values Agenda" got off to a shaky start yesterday, when Republicans failed to protect the words "Under God" in the pledge of allegiance in a House Judiciary Committee vote.
Even though Republicans have a six person advantage on the Committee, seven Republicans skipped the vote and fourteen Democrats opposed the challenge to the courts, resulting in a 15-15 tie.
The pledge challenge is one of ten items in the new legislative package unveiled by House Republicans two days ago, "aimed at energizing social conservatives five months before the midterm elections," CNN reported. Only 30 percent of Republicans are more excited about voting in November than in past elections, according to a new Pew poll. Bashing the New York Times, apparently, is not enough to get them to the polls. Here's the full agenda, for your reading pleasure:
Pledge Protection Act (HR 2389; Akin)Summary: Protects the Pledge of Allegiance from attacks by activist federal judges seeking to rule it unconstitutional.
Freedom to Display the American Flag Act (HR 42; Bartlett)Summary: Ensures an individual has the right to display the U.S. flag on residential property.
The Public Expression of Religion Act (HR 2679; Hostettler)Summary: Ensures local officials and communities do not face financial ruin to defend their rights to free speech under the Constitution (provides that when state or local officials are sued over public expressions of religion, no monetary damages, costs, or attorney's fees may be awarded).
Marriage Amendment (HJRes 88; Musgrave) Summary: Constitutional amendment declaring marriage to be between a man and a woman
Unborn Child Pain Awareness Act (HR 356; C. Smith)Summary: Requires that those performing late-term abortions inform the woman seeking an abortion of the medical evidence that the unborn child feels pain, and ensure that if she chooses to continue with the abortion procedure, she has the option of choosing anesthesia for the child, so that the unborn child's pain is less severe.
Human Cloning Prohibition Act (HR 1357; D. Weldon)Summary: Bans human cloning and the importation of products derived from a cloned human embryo (e.g. stem cells).
BATFE Reform (HR 5092; Coble) Summary: Reforms the federal Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) to protect citizens' rights.
Internet Gambling Prohibition (Leach/Goodlatte):Summary: Addresses the issue of illegal internet gambling by making gambling laws apply equally to the internet.
Permanent Tax Relief for FamiliesSummary: Likely series of votes on the child tax credit, marriage penalty relief, tax incentives for adoption, and other priorities for American citizens.
Disaster Recovery Personal Protection Act (HR 5013; Jindal) Summary: Prohibits governments from using federal funds to confiscate guns from law-abiding citizens during emergencies.
The Bush administration's attempt to demonize the New York Times -- a newspaper that gave the administration plenty of aid and comfort when the White House was spinning lies about WMDs in Iraq -- will be remembered as one of the ugliest chapters in the history of press freedom in the United States.
The question that will ultimately be asked is not whether the Times did the right thing in revealing to the American people the details of Bush-authorized spying programs--by any measure, the newspaper was right to do what it did and history will provide more than enough vindication.
The ultimate question is this: When the White House, its allies in Congress and its echo chamber in the right-wing media attempted to intimidate mainstream outlets into keeping secret the details of invasions of privacy authorized by an out-of-control executive branch, did responsible members of Congress move to check and balance an irresponsible president?
The line is being drawn by a group of House Republicans, who are promoting a hastily-drawn resolution to condemn the Times.
Any member of the House who votes for the resolution will earn a place in history alongside the sponsors of the Alien and Sedition acts and other assaults on basic freedoms.
But how many members will stand strong for the First Amendment?
How many will do more than just vote right? How many will say this is a question of whether the U.S. House of Representatives supports freedom of the press?
One of the most outspoken members of the Congress -- a member with a long record of standing up to both Democratic and Republican presidents when they have abused the Constitution -- has answered with a stirring speech on the House floor.
On Wednesday, Congressman Dennis Kucinich, D-Ohio, said:
"This Administration is angry that the media leaked the story about it snooping into the bank records of millions of Americans. It supporters in Congress want to formally condemn the New York Times. What a bunch of baloney.
"It is about time the media did its job of protecting the public interest. If the media and this Congress had shown some independence from the party line of this Administration, the claims of WMDs would have been dismissed, and fact there was no connection between Iraq and 9/11 would have been well established and we would not have gone to war against Iraq.
"A few years ago, a movie, Wag the Dog, told of how a US administration misused its communications power to create phony stories to put the nation into an international conflict. This Administration not only wagged the dog in Iraq, but, with the help of its fabricators at the Rendon and Lincoln groups, it has wagging a whole kennel.
"In a free society the media cannot be a lap dog of any Administration. The First Amendment states, 'Congress shall make no law abridging freedom of speech', except of course, under this Administration."
O.K., so can we just admit that when it comes to redistricting – the processby which politicians define the legislative branch of the federal government– there are few if any limits on partisan power grabs?
That certainly seems to be the signal from the U.S. Supreme Court, which hasruled that disgraced former House Majority Leader Tom DeLay and his henchmenin the Texas legislature were fully within their rights to radically alterthe maps of the state's U.S. House districts in order to solidify Republicancontrol of the U.S. House of Representatives.
The redistricting of congressional districts – a process traditionallycarried out once every ten years by state legislators, who are supposed touse fresh Census data to assure that all of state's districts have similarpopulations – is the single most powerful tool by which the make up of theU.S. House of Representatives is determined. By gerrymandering districts togive advantages to incumbents from one party or another, legislators haveover the years made most House elections irrelevant. Even a well-fundedchallenger with the issues on his or her side cannot upset an incumbent whohas been given a district with favorable lines. As a result, in any givenelection year, only a few dozen of the nation's 435 House districts seecompetitive contests.
As bad as the circumstance was, in 2003, DeLay made things dramaticallyworse. After using his national contacts to raise the money to putRepublicans in charge of the state legislature in 2002, he had his allies inAustin radically redraw the state's congressional map with the expresspurpose of defeating Democratic incumbents and electing more Republicans.
It worked. Republicans picked up six Texas congressional seats in 2004.
Democrats challenged the redistricting, but the court's ruling has placed astamp of approval on DeLay's map – with one minor objection – and assuredthat the gains Republican gains engineered by DeLay will be retained.
But the importance of the 7-2 Supreme Court decision issued Wednesday goes far beyond Texas.
Three dangerous precedents have been set:
• The court has stated that the map DeLay's produced did not represent an"unconstitutional political gerrymander" of the state's district lines.Since it would be difficult to imagine a more politically-motivated map, thecourt has effectively said that partisans can draw maps that suit theirpolitical purposes without fear of intervention or objection by the courts.While some analysts interpret a line from a previous court ruling assuggesting that critics of a redistricting map could come up with a"reliable standard" for challenging a map, if such a standard could not beapplied to the DeLay map it is hard to say where it would ever be viable.
• The court has upheld the right of states to change their congressionaldistrict boundaries more frequently than once every ten years -- followingthe completion of a U.S. Census. – which is the traditional standard. Whatthis means is that, when control of a state legislature shifts, so too couldthe state's congressional district lines.
• The court has held that there is "nothing inherently suspect about alegislature's decision to replace mid-decade a court-ordered plan with oneof its own." Thus, court-ordered plans – which are usually the fairest tovoters, in that they tend to set up more competitive districts – can bereplaced by legislators who don't like them. This is a hugely significantdevelopment, in that it effectively removes the fall-back position that goodgovernment groups have used when challenging legislative gerrymandering.Foes of a particular map might get it thrown out by the courts, and theymight even get a panel of judges to draw a new map, but there is no longerany certainty that the new map will stand.
The court did rule that the lines of one Texas district will need to be redrawn because DeLay and his minions moved 100,000 Hispanic voters out of the southwest Texas 23rd District in order to protect a Republican incumbent, Henry Bonilla, politically. The court determined that move to undercut the influence of Hispanic voters was a violation of the Voting Rights Act. But, notably, the four most conservative justices on the court opposed even that determination.
Anyone who was looking to the Supreme Court to clean up the redistricting process and to provide for competitive elections is making a mistake. As Rob Richie, executive director of the Center for Voting and Democracy says, "If we're really concerned about fair elections, we have stop counting on the courts and start looking for political solutions."
In the short-term, Richie says, Congress should set national standards for redistricting. "Congress could establish standards for transparency -- sunshine-on-the-process standards that could be defined so that redistricting can't be done behind closed doors. A second step could be to set guidelines for when you can and cannot do redistricting. That would address some of the concerns about the court's ruling."
In the long-term, Richie says that reformers should begin pushing from a proportional representation system that might see three members of Congress elected from larger, more competitive districts using an instant-runoff voting model.
"If you are concerned about what the court ruling has done, there are immediate steps that can be taken," says Richie. "But what we need to do is dig in to really reform how elections for Congress are conducted."
Last year, the Securities and Exchange Commission (SEC) began investigating one of the nation's largest hedge funds, Pequot Capitol Management, for possible insider trading. Up until last summer, the inquiry was headed by SEC lawyer Gary Aguirre.
His investigation proceeded smoothly, Aguirre claims, until he asked for testimony from former Pequot chairman and Morgan Stanley CEO, John Mack, a top Bush donor whom Aguirre's supervisor said had "powerful political connections."
Bush accepted more money from Wall Street than any other industry for his re-election campaign and Mack was one of nine Wall Street "Rangers" who raised $200,000 for W.
Aguirre's supervisors blocked Mack's testimony and fired Aguirre on September 1, only 11 days after he received a pay increase and was praised by his boss.
"His efforts have uncovered evidence of potential insider trading and possible manipulative trading by the fund," wrote his supervisor, Robert Hanson. "He has consistently gone the extra mile, and then some."
Pequet purchased $44 million of stock in a company, Heller Financial, a day before it was bought out by General Electric. The day of the buyout's announcement, Heller's stock price jumped 50 percent. Aguirre suspected Mack tipped Pequet off.
After supervisors blocked Aguirre from questioning Mack, he sent 30 complaints to SEC higher-ups, including SEC Chairman Chris Cox.
"I am compelled to write to you today, my last day with the Commission, out of a sense of duty to the Commission's mission--to maintain the integrity of financial markets and to protect the investor," Aguirre wrote to Cox. "Unfortunately, my supervisors--as far up the chain as I can see--have lost sight of that mission in the above manner."
Upon his dismissal, Aguirre described his allegations in an 18-page letter sent to Senators Chuck Hagel and Chris Dodd and the chairman of the Senate Banking and Finance Committees.
"Aguirre wrote to Hagel and Dodd that the SEC halted the investigation only a short while after having said that the evidence should be presented to federal prosecutors for a possible criminal investigation," Reuters reported.
"Those details are definitely disconcerting," former SEC Chairman Harvey Pitt told CNBC. "The SEC and the inspector general will want to look into that. There's no question that these developments are troubling."
Aguirre testified on Capitol Hill this morning. Both the Senate Banking and Finance Committees have asked the SEC to launch an internal investigation. As Aguirre writes in his letter, "It is not surprising that the US Office of Management and Budget gave SEC enforcement its lowest performance assessment: 'Results Not Demonstrated.'"
Representative Peter King – and now President Bush – are demonizing the New York Times and threatening to prosecute the paper for its story on a secret money monitoring program. This attack is part of a broader, undeclared war on the media intended to intimidate journalists from doing their jobs.
As I wrote earlier this month, even the former chief spokesman for Attorney General John Ashcroft characterized the actions of Alberto Gonzales in threatening reporters as "…the most reckless abuse of power I have seen in years."
This very abuse demonstrates that the need for an independent media is greater now than ever before. Sure, there is a balance to be struck between security and liberty. But that balance is gone – thanks to a Bush administration that has displayed reckless contempt for the media, for the Constitution, and for our Bill of Rights.
A free press is the cornerstone of a vibrant democracy – our system of checks and balances – holding accountable those who would abuse power at the expense of citizens and the public interest. If ever we've witnessed Executive Power run amok, now is that time. And since this Republican Congress has abdicated its oversight responsibilities it's up to the media to fill that void. As Matt Rothschild wrote in his blog for The Progressive, "What King, Cheney, Bush, Gonzales, and many rightwing pundits don't seem to appreciate is that we, the American people, need to have a free press to check the excesses of government."
Stories on money tracking also appeared in the Wall Street Journal and Los Angeles Times last week. But King's ire is focused on the New York Times. Why? When I debated him on MSNBC's Scarborough Country Monday night, he called the paper "a recidivist" because of its previous important (and Pulitzer-prize winning) report exposing domestic surveillance.
And so this administration and its allies are once again doing what they do best: labeling those they believe are interfering with their ability to escape accountability and oversight as "disgraceful," "treasonous," and "damaging."
Right pejoratives, wrong targets.
Wow! Is it an election year already?
It must be because Republican leaders in the U.S. Senate have initiated the debate over amending the Constitution to ban flag desecration that always marks the opening of the political season.
Senate Judiciary Committee chairman Arlen Specter, the Pennsylvania Republican who sometimes lapses into sanity, was having a bad day Monday when he led the committee to a 10-7 vote to add this line to the Constitution: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
The division was almost along party lines. Nine Republicans and California Democrat Dianne Feinstein, a frequent disappointment when it comes to Constitutional matters, voted for the amendment. Seven Democrats opposed it, including Vermont Senator Patrick Leahy, the committee's ranking Democrat, and Wisconsin Senator Russ Feingold, the ranking Democrat on the Constitution subcommittee.
When the full Senate took up the issue today, the amendment failed by one vote. It needed 67 votes to pass. It got 66.
But that won't stop Republican strategists from plotting fall campaigns based on empty rhetoric about how the amendment is needed to "support the troops" or to "honor those who fought for freedom."
But what do prominent people who fought in past wars actually have to say about the amendment?
The most decorated war veteran in the Senate, Hawaii Democrat Dan Inouye opposed the amendment. "This objectionable expression is obscene, it is painful, it is unpatriotic," Inouye said of flag burning. "But, the winner of the Medal of Honor for his service in World War II, told the Senate, "I believe Americans gave their lives in many wars to make certain all Americans have a right to express themselves, even those who harbor hateful thoughts."
Inouye was hardly alone in that sentiment.
"The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous," explained former Secretary of State and former Chairman of the Joint Chiefs of Staff Colin Powell, in his classic statement of opposition to attempts to craft a "flag-burning" amendment. "I would not amend that great shield of democracy to hammer a few miscreants. The flag will be flying proudly long after they have slunk away."
Former U.S. Senator John Glenn, a World War II Marine Corps veteran and space-program hero, shares the view that it is not necessary to alter the Constitution. "Those who have made the ultimate sacrifice, who died following that banner, did not give up their lives for a red, white and blue piece of cloth," said Glenn. "They died because they went into harm's way, representing this country and because of their allegiance to the values, the rights and principles represented by that flag and to the Republic for which it stands.
Lawrence J. Korb, a Vietnam veteran and top aide in Ronald Reagan's Department of Defense, said, "(During) my years of military and civilian service during the cold war, I believed I was working to uphold democracy against the totalitarianism of Soviet Communism expansionism. I did not believe then, nor do I believe now, that I was defending just a piece of geography, but a way of life. If this amendment becomes a part of our Constitution, this way of life will be diminished. America will be less free and more like the former Soviet Union and present-day China.
James Warner, a former prisoner of war and domestic policy adviser to President Reagan, argued against the proposed amendment, saying, "People are born free. It says that in the Declaration of Independence. They have a right to express their opinions, even if I don't like the opinions they express or the means by which they express it. They have a right to say it, even if those opinions are incoherent."
Luckily, before they voted, a good many senators considered the words of these veterans, and of Gary May, the chairman the national group Veterans Defending the Bill of Rights, who said. "I lost both of my legs in combat while serving in the U.S. Marine Corps in Vietnam. I challenge anyone to find someone who loves this country, its people and what it stands for more than I. It offends me when I see the flag burned or treated disrespectfully. But, as offensive and painful as this is, I still believe that those dissenting voices need to be heard."
"This country is unique and special because the minority, the unpopular, the dissident also have a voice," adds May. "The freedom of expression, even when it hurts the most, is the truest test of our dedication to the principles that our flag represents."
Hopefully, as the fall campaign season gears up, voters will listen, as well, to the veterans who recall what they were really fighting for.