[Congressional Record: July 29, 2008 (Senate)]
[Page S7595-S7619]                       



 
    FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED--Resumed

  Mr. REID. Mr. President, I now move to proceed to S. 2035, which is 
the media shield bill.
  The PRESIDING OFFICER. The motion is now pending.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I thank the distinguished Presiding 
Officer. I want the distinguished Presiding Officer to know the weather 
in our home State is much nicer today than it is here.
  I support the Free Flow of Information Act, S. 2035, which the 
distinguished majority leader has moved to. I hope the minority will 
allow us to consider this important legislation.
  I thank the majority leader for his willingness to bring this 
legislation before the Senate. I have worked with him on this matter to 
find an opportunity for Senate action since the Judiciary Committee 
reported this bill last October. I appreciate the support of the 
majority leader. He has offered a generous response to the bipartisan 
request Senator Specter and I made to him and the Republican leader 
earlier this year to proceed to this bill. In a bipartisan letter, we 
asked if he would proceed to the bill. He has done that. I applaud him 
for it.
  Our bill has 20 Senate cosponsors, Members of both parties. I hope 
the Republican cosponsors will join us in moving to the bill and will 
bring along the seven or eight Republicans we will need to overcome yet 
another filibuster and make progress.
  I have also supported and urged the Senate to proceed to the strong 
House-passed version of the Free Flow of Information Act, H.R. 2102. 
That bill passed the House of Representatives by a vote of 398 to 21--
so it obviously has overwhelming bipartisan support. The House bill has 
more than 70 cosponsors--both Republicans and Democrats alike.
  Years ago, my mother and father owned a small daily newspaper in 
Waterbury, VT, the Waterbury Record. As a child, I grew up hearing, at 
the kitchen table, that a free and vibrant press is essential to a free 
society. That has been demonstrated again and again over the last eight 
years. That is why I cosponsored the Senate version of this bill and I 
have worked hard to enact a meaningful reporters' shield law this year.
  That is why I made sure that for the first time ever--for the first 
time ever--the Senate Judiciary Committee reported a media shield law 
to protect the public's right to know. The Judiciary Committee reported 
a bill sponsored by Senators Lugar, Dodd, Specter, Schumer, Graham, and 
myself with a strong bipartisan 15-to-4 vote.
  I wish to commend the leadership of Senator Lugar and Senator Dodd in 
connection with this matter. They began this quest for fairness when it 
seemed an impossibility several years ago. They have worked diligently 
to bring us to where we are today--at the cusp of achieving a Federal 
shield law--if only the Senate gets the support of a handful of 
Republican Senators to proceed to the bill.
  All of us--whether Republican, Democratic or Independent--have an 
interest in enacting a balanced and meaningful shield bill to ensure a 
free flow of information to the American people. Forty-nine States and 
the District of Columbia currently have codified or common law 
protections for confidential source information. But even with these 
State law protections, the press remains the first stop, rather than 
the stop of last resort, for our Government and private litigants when 
it comes to seeking information. Time and time again--especially during 
the years when this Congress refused to do real oversight of the 
current administration--when there was waste in Government, when there 
were serious mistakes in Government, even when Government was breaking 
the law, we found out about it first and foremost because of the press 
in America.
  Earlier this year, Toni Locy, a professor of journalism at West 
Virginia University, also a former USA TODAY reporter, was held in 
contempt of court for refusing to divulge her confidential sources. 
There are scores of other reporters who have been questioned by Federal 
prosecutors about their sources, notes, and reports in recent years. 
This is a dangerous trend that can have a chilling effect on the press, 
but even more so, on the public's right to know. If you don't have a 
free press,

[[Page S7596]]

then you don't have a free society. If you don't have a way for 
Americans to know what their Government is doing, then we will all 
hurt. To paraphrase Mark Twain, you should support your country all the 
time but question your government when it deserves it. We need a press 
willing and able to do that.
  Enacting the Free Flow of Information Act--which carefully balances 
the need to protect confidential source information with the need to 
protect law enforcement and national security interests--would help to 
reverse this troubling trend and benefit all Americans. The bill 
creates a qualified privilege to protect journalists from being forced 
to reveal their confidential sources. The bill contains exceptions to 
the privilege for criminal conduct or national security. The 
legislation also requires that Federal courts weigh the need for the 
information with the public's interest in the free flow of information, 
before compelling reporters to disclose their confidential sources.
  Although I strongly support the enactment of a Federal shield law, I 
have some reservations about possible revisions to the bill we passed 
out of Committee. I am pleased that language has been drafted to 
address my concerns about making sure that legitimate bloggers and 
freelance journalists are included in the definition of the persons 
covered by this bill.
  However, I hope that any amendments to this legislation will include 
stronger protections for journalists and their sources with regard to 
matters of national security and classified information. No one would 
quibble with the notion that there are circumstances when the 
Government can and should have the right to compel information in order 
to keep us safe. But many newsworthy stories concerning national 
security, such as the exceptional reporting on the CIA's secret prisons 
and the warrantless--and many feel illegal--wiretapping by the National 
Security Agency were published with the help of confidential sources, 
to the great benefit of the general public and the accountability that 
ordinary Americans deserve from their Government.
  I fear that proposals from some in this body do not go far enough to 
protect against Government abuse in this area or to protect the 
public's interest in the dissemination of newsworthy information.
  Not all reporters will be as lucky as Bill Gertz of the Washington 
Times was when a judge recently upheld his claim in a case in a 
California Federal court. Even with this victory, however, the 
Government has responded by broadening its inquiries. To prevent 
further intrusions on our fundamental first amendment rights, we need 
some uniform standards. We need procedures to evaluate claims of 
privilege and protect the public's right to know. To do that, of 
course, the Congress must act.
  In a much touted speech to the American Enterprise Institute last 
week, current Attorney General Mukasey, who still opposes a Federal 
shield law, articulated principles that argue for enacting one. 
Attorney General Mukasey endorsed congressional legislative action when 
there exists a ``serious risk of inconsistent rulings and considerable 
uncertainty.'' He noted that congressional action to provide procedures 
in national security cases is ``well within the historic role and 
competence of Congress.'' Although he was proposing action in another 
setting, the Attorney General's remarks likewise support congressional 
action to standardize and clarify the procedures governing a Federal 
statutory press shield law. In view of the disparate rulings and 
outcomes that have developed in the courts since the Supreme Court's 
Branzburg decision 36 years ago, it is now time for Congress to 
establish a framework for the courts to resolve press privilege 
assertions fairly and consistently, and we can do this while preserving 
our national security.
  When he testified before the Senate Judiciary Committee in favor of 
the Federal shield law in 2005, William Safire told us that the essence 
of news gathering is this: If you do not have sources you trust and who 
trust you, then you don't have a solid story--and the public suffers 
for it. Well, Bill Safire is exactly right. We simply have no idea how 
many newsworthy stories have gone unwritten and unreported out of fear 
that a reporter would be forced to reveal a source or face jail time. 
We also do not know how many potential whistleblowers, or other 
confidential sources, have chosen to remain silent out of fear that 
journalists could be compelled to disclose their identity.
  Just recently, investigative journalism and confidential sources have 
helped to uncover significant Government failures in Iraq, in New 
Orleans, as well as Government neglect at the Walter Reed Medical 
Center. We wouldn't have found out how poorly the returning soldiers 
were being treated--people who have lost limbs or have been paralyzed 
or blinded in the war in Iraq--by the Veterans' Administration and the 
problems and events at our Government facilities. We would not have 
found out about that if a confidential source hadn't told a reporter.
  We have seen just in the past few days news articles about 
politicization at the Department of Justice. A lot of the spotlight on 
how politicized this administration's Justice Department has become 
came out of hearings we held in the Judiciary Committee. But much of 
what we found out about what was going on at the Justice Department 
came out of press reports based on confidential sources.
  We learned from the press that the White House, afraid that they 
might find out the truth, avoided implementing the Environmental 
Protection Agency's recommendations on global warming by not opening 
the agency's e-mails. Again, we find out about that from confidential 
sources.
  As a former prosecutor, I understand the importance of making sure 
that the Government can effectively investigate criminal wrongdoing, 
combat terrorism, and preserve national security. The Federal shield 
legislation we are seeking to bring before the Senate strikes a balance 
among these important objectives. The bill addresses the legitimate 
need for law enforcement to obtain information from reporters to 
prevent a crime or a national security threat.
  In addition, by providing a qualified and not an absolute privilege 
to withhold the identity of confidential sources, the bill also 
advances other important law enforcement objectives, such as 
encouraging whistleblowers to disclose fraud, waste, and abuse that 
might otherwise go unreported.
  The opposition to this carefully crafted bill by the Department of 
Justice and Office of the Director of National Intelligence, ODNI, is 
simply misplaced. Although 49 States, the District of Columbia, and 
several Federal courts have recognized a reporter's privilege either by 
statute or common law for years, the Department of Justice and ODNI 
have not cited a single circumstance where the privilege caused any 
harm to national security or to law enforcement. In fact, the 
legitimate concerns about the need to effectively combat crime and 
protect national security have been satisfied by the bill and by 
amendments to this bill offered in a bipartisan fashion by Senators 
Feinstein, Brownback, and Kyl.
  A free press in our country is what sets us apart from so many other 
nations in the world. The distinguished Presiding Officer, in his years 
in the House and in the Senate, can certainly point to examples where 
we have found out things that have been kept hidden from the Congress 
only because the press uncovered them. Certainly, that has been my 
experience in my years here in the Senate.
  I also know that there is a temptation--when any administration has 
made a serious mistake or is trying to hide wrongdoing by their 
administration, the first thing they want to do is to make sure nobody 
in the press or the Congress or the public finds out what they have 
done. For every administration, it is easy to have all of their press 
people go out and tout the things they want us to know, the things they 
consider a success. None want us to hear about the embarrassments or 
the mistakes or, more recently, out-and-out wrongdoing. That is where 
you need a press willing to go in and uncover Government wrongdoing and 
protect the sources who help them to do so.
  Do you think even with all of the hearings I and others have held we 
would have found out how law enforcement was manipulated and thwarted 
by this administration in the selection and manipulation of U.S. 
attorneys?

[[Page S7597]]

We found out about it first and foremost by the press, and then through 
witness testimony in hearings, and now by the Justice Department's 
Inspector General who had the willingness to stand up and point to the 
wrongdoing of this administration. And then there was Abu Ghraib--how 
did we find out about that? We learned about it in the press, not 
because the administration was willing to say: Look at this terrible 
thing we have done.
  So after months and months of delaying tactics and opposition by the 
Bush administration, the time has come to pass a Federal shield law. I 
thank and commend the more than 60 news media and journalism 
organizations including ABC News, the Associated Press, CNN, the 
National Newspaper Association, the Society of Professional 
Journalists, and the Vermont Press Association, that worked so hard to 
get us to this point.
  I ask unanimous consent to have a copy of a support letter from the 
Media Coalition Supporting the Free Flow of Information Act printed in 
the Record following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Mr. President, I will just leave with this: Let's make 
sure the Congress--especially this Senate--takes steps, as the other 
body did, to make it easier for the public to know not all the things 
the Government wants them to know but the times when our Government has 
made mistakes, the times when our Government has not followed the law, 
the times when our Government has tried to give disinformation. We are 
a stronger nation if we know the truth. We are a weaker nation if our 
laws allow the truth to be shielded from the American people. I trust 
the American people. I trust the American people to question our 
Government. I trust the American people to be able to handle the 
information. I do not trust those who would try to use every barrier to 
keep that information from the American people.
  Mr. President, I yield the floor.

      Media Coalition Supporting the Free Flow of Information Act

                                                    July 21, 2008.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, Russell Bldg., U.S. 
         Senate, Washington, DC.
     Re: S. 2035--The Free Flow of Information Act.

       Dear Chairman Leahy: On behalf of the men and women across 
     the country who work to bring the American people vital news 
     and information, we, the undersigned media companies and 
     organizations, thank you for your support and co-sponsorship 
     of S. 2035, the Free Flow of Information Act. Your leadership 
     in support of this bill has been invaluable in fighting to 
     ensure that the American public has access to news and 
     information about their government and the institutions that 
     affect their daily lives. Protecting confidential sources 
     through federal legislation has broad support on both sides 
     of the aisle, in both chambers of Congress, and from state 
     attorneys general across the nation.
       The legislation is vitally important to the national 
     interest, an informed citizenry, and a free and vibrant 
     press. As you know last October, S. 2035 was favorably 
     reported out of the Senate Judiciary Committee on a strong 
     15-4 bipartisan vote and is supported by the presumptive 
     Republican and Democrat presidential nominees, Sens. John 
     McCain and Barack Obama. A similar shield bill (H.R. 2102) 
     passed by an overwhelming 398-21 vote.
       Chairman Leahy, we appreciate your leadership and 
     respectfully request that you do whatever you can to make 
     sure that S. 2035 is approved by the Senate, without any 
     further amendments that would weaken the well-reasoned 
     protections in the bill.
           Very truly yours,
       ABC News, ABC Owned Television Stations, Advance 
     Publications, Inc., A. H. Belo Corporation, Allbritton 
     Communications Company, American Business Media, American 
     Society of Magazine Editors, American Society of Newspaper 
     Editors, The Associated Press, The Associated Press Managing 
     Editors Association.
       Association of Alternative Newsweeklies, Association of 
     American Publishers, Association of Capitol Reporters and 
     Editors, Belo Corp., Bloomberg News, CBS Corporation, Clear 
     Channel, CNN, Coalition of Journalists for Open Government, 
     The Copley Press, Inc.
       Cox Television, Cox Newspapers, Cox Enterprises, Inc., 
     Daily News, L.P., First Amendment Coalition of Arizona, Inc., 
     Freedom Communications, Inc., Gannett Co., Inc., Gray 
     Television, Hachette Filipacchi Media U.S., Inc., Hearst 
     Corporation.
       Lee Enterprises, Inc., Magazine Publishers of America, The 
     McClatchy Company, The McGraw-Hili Companies, Media Law 
     Resource Center, National Association of Broadcasters, 
     National Conference of Editorial Writers, National Federation 
     of Press Women, The National Geographic Society, National 
     Newspaper Association.
       National Press Photographers Association, National Public 
     Radio, NBC Universal, News Corporation, Newspaper Association 
     of America, The Newspaper Guild-CWA, Newsweek, The New York 
     Times Company, North Jersey Media Group Inc., Online News 
     Association.
       Pennsylvania Newspaper Association, Radio-Television News 
     Directors Association, Raycom Media, Inc., The Reporters 
     Committee for Freedom of the Press, Reuters America LLC, E. 
     W. Scripps, Society of Professional Journalists, Stephens 
     Media LLC, Time Inc.
       Time Warner, Tribune Company, truTV, The Walt Disney 
     Company, The Washington Post, U.S. News & World Report, White 
     House News Photographers Associations.

[...]


  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from New York.
  Mr. SCHUMER. Madam President, I will be brief. I know Senator 
Grassley has been waiting as well. I will not speak for very long.
  I rise to speak about S. 2035, the Free Flow of Information Act, a 
bill that Senator Specter and I have spent a lot of time on, worked on, 
and is cosponsored by many in the House and notably Senators Dodd and 
Lugar who had a previous bill, as well as, of course, Senator Leahy who 
led the charge on so many different issues and has been very helpful in 
us moving this legislation forward.
  I am going to speak tomorrow when we address the bill, but I wanted 
to let my colleagues know of a substitute amendment that Senator 
Specter, I, and others will offer because it will modify the bill and 
meet some of the objections.
  First let me say the bill is very much needed. We have to find the 
right balance between the free flow of information and the ability of 
reporters to get that information from those in Government and, at the 
same time, not be so far in that direction that we allow people to 
either break the law or harm the security of the United States.
  This has been much more difficult than it appears to achieve, but we 
are very close. The bill codifies and standardizes existing tests used 
by Federal courts so that journalists, say, in Illinois are not subject 
to different treatment than journalists in California.
  It certainly allows whistleblowers to be protected when they tell 
somebody about something untoward. We certainly don't want, if a test 
is being fixed in the FDA because a drug company wants it, to prevent 
some public servant in the Government from letting a reporter know to 
prevent harm. But at the same time, there is no absolute privilege and 
there are exceptions in terms of harming national security, acts of 
terrorism, and other matters, such as kidnaping or murder.
  Again, I will talk about this bill at some length tomorrow. But I do 
want to go over some of the changes we have made so my colleagues are 
aware of them before we vote.
  As I said, Senator Specter and I have put together a substitute which 
if we adopt the motion to proceed--and I hope we will--we will 
immediately offer, and that will be the base bill we will discuss. Let 
me talk about the changes made.
  First, the intelligence community had concern that it would be too 
difficult to prosecute leaks of classified information. The new bill 
moves consideration of leaks of classified information from section 2 
of the bill to section 5, and that removes two major hurdles for 
Federal prosecutors.
  Under the new law, prosecutors will not have to prove any longer that 
they have exhausted all options for finding the information or that the 
information is essential to their investigation. These hurdles still 
remain in the Department of Justice internal guidelines, but the bill 
is not as strict in that regard.
  The bill also no longer requires that the person who leaked the 
information was authorized to have it.
  This substitute clarifies that the act will have zero impact on 
intelligence gathering under the Foreign Intelligence Surveillance Act. 
This bill does not affect FISA.

[[Page S7600]]

  Third, the substitute explicitly provides that sensitive Government 
information will not be disclosed in open court. There was worry that 
under a whistleblower law, that might happen. We make it clear that 
security has to come first, but there also has to be balance in the 
test.
  Four, the definition of a covered person--and this has been one of 
two areas of some controversy--has been narrowed to ensure that it 
protects only legitimate journalists, first used in the Second Circuit 
case of von Bulow v. von Bulow to determine who qualifies as a covered 
person. Someone who blogs occasionally is not going to get the 
protection here. Of course, someone on a blog who is a regular 
journalist but happens to use the blog as a medium will be protected. 
And that is how it ought to be.
  Five, the substitute creates an expedited appeals process ensuring 
that litigation regarding whether the protection applies will be 
resolved as quickly as possible. In section 8, we expedite the appeals 
process.
  These are the changes made. They make the bill better. The bill has 
the support of the journalistic community. It has the support of 41 
sitting States attorneys general, both Democrats and Republicans. It is 
one of those rare bipartisan moments. It has the support of Senator 
Obama and Senator McCain and, of course, passed out of the Judiciary 
Committee 15 to 4. A similar bill passed out of the House by 398 to 21 
and, obviously, it has been endorsed by 100 newspapers. That is easy to 
say, but in this town both the Washington Post, a more liberal paper, 
and the Washington Times, a more conservative paper, have endorsed it.
  This bill has taken lots of time and lots of work to achieve a 
careful balance. This is a rare moment, praise God, a broad consensus, 
and I hope we can move this bill forward tomorrow.
  Madam President, I will speak at greater length tomorrow when we are 
on the bill, but I wanted to let my colleagues know the substitute 
changes which we will publish in the Record this evening so people will 
have a chance to look at it.
  I yield the floor so that my colleague from Iowa can speak.
  The PRESIDING OFFICER. The Senator from Iowa.

[...]

                  EPA Administrator Stephen L. Johnson

  Mr. WHITEHOUSE. Madam President, I rise to speak about a matter that 
I very much regret being here to discuss, but events have driven me to 
this point and, with me, the chairman of the Environment and Public 
Works Committee, Mrs. Boxer, Senator Klobuchar, and others as well.
  For most of its nearly four-decade history, Americans could look to 
the Environmental Protection Agency for independent leadership, 
grounded in science and the rule of law. It was an agency whose clear 
mission was to protect our environment and health.
  At its very founding, EPA's first Administrator, William Ruckelshaus, 
stated unequivocally:

       EPA is an independent agency. It has no obligation to 
     promote agriculture or commerce; only the critical obligation 
     to protect and enhance the environment.

  During the tenure of Administrator Stephen Johnson, we have seen that 
clear mission darkened by the shadowy handiwork of the Bush White 
House, trampling on science, ignoring the facts, flouting the law, 
defying Congress and the courts, while kneeling before industry 
polluters, and all for rank and venal purposes. Under Administrator 
Johnson, EPA is an agency in distress, in dishonor, and in bad hands.
  Events last week have shed new light on the extent of the damage done 
to this great agency, but the evidence of Mr. Johnson's dismal record 
has been growing for many months. The charges are serious and fall in 
three separate categories: his repeated decisions putting the interests 
of corporate polluters before science and the law, even when it puts at 
risk our environment and the health of American people; his deliberate 
actions to degrade the procedures and institutional safeguards that 
sustain the agency; and his apparent dishonesty to us in testimony 
before Congress.
  The particulars are these. Count 1: On pollution from ozone, the EPA, 
under Administrator Johnson, departed from the consistent 
recommendations of agency scientists, public health officials, and the 
agency's own scientific advisory committees and instead set an ozone 
standard that favored polluters. The standard he set was inadequate to 
protect the public, especially children and the elderly, from the 
harmful effects of ozone pollution, from asthma and lung disease.
  Indeed, it was so inadequate that EPA's own Clean Air Scientific 
Advisory Committee took the unique step of writing to the Administrator 
to state that they ``do not endorse the new primary ozone standard as 
being sufficiently protective of the public health'' and that the EPA's 
decision ``fail[ed] to satisfy the explicit stipulations of the Clean 
Air Act that you ensure an adequate margin of safety for all 
individuals, including sensitive populations.''
  Setting this inadequate ozone standard against the evidence was a 
dereliction of Administrator Johnson's duty to the Agency he leads and 
of EPA's duty to protect the health of the American people.
  Count 2: On pollution from lead, Administrator Johnson has proposed a 
standard that fails to sufficiently strengthen the regulation aimed at 
limiting exposure to lead pollution.
  Lead has poisoned tens of thousands of children in Rhode Island and 
many more all over the country. Both an independent scientific review 
panel and EPA's own scientific staff recommended a lead standard of no 
greater than 0.2 micrograms per cubic meter. Yet Administrator Johnson 
proposed a range of 0.1 up to .05 micrograms--2\1/2\ times.
  Mr. Johnson further diluted even that lax standard by using what 
public health advocates have labeled ``statistical trickery''--
statistical trickery--allowing polluters a longer period of time over 
which to average the amount of lead they discharge into the air.
  Again, by not adequately protecting children from lead, Administrator 
Johnson was derelict in his duty to his Agency.
  Count 3: On pollution from soot, technically called ``particulate 
matter,'' Administrator Johnson bowed to pressure from industry and 
failed to strengthen a decade-old standard limiting particulate matter 
pollution from smokestacks.
  Again, the Agency's own scientific advisory committees had called for 
a tougher standard to protect public health. Again, Administrator 
Johnson yielded to polluters. Again, Administrator Johnson failed in 
his duty to the Agency he leads.
  Count 4: On vehicle tailpipe emissions, Administrator Johnson denied 
a waiver that would have allowed the State of California, my State of 
Rhode Island, and many other States to enact strict restrictions on 
global warming pollution from automobiles.
  EPA staff indicated in briefing materials that ``we don't believe 
there are any good arguments against granting the waiver.'' EPA lawyers 
cautioned the Administrator that all of the arguments against granting 
the waiver were ``likely to lose in court.'' Yet Administrator Johnson 
issued an unprecedented denial of that waiver.
  I will separately discuss my grave concerns about the Administrator's 
testimony on this matter. I believe he has lied to us. But for this 
purpose now, looking only at the substantive outcome, in ignoring the 
law, the dictates of science, the recommendations of his regulatory and 
legal staff, the role of Congress, the wishes of the States, and the 
welfare of the American people, Administrator Johnson failed again in 
his duty to the Agency he leads.
  Count 5: On global warming pollution, in defiance of the Supreme 
Court's decision in Massachusetts v. EPA, Administrator Johnson has 
failed to take action after the Court's ruling that EPA has the 
authority, under the Clean Air Act, to regulate greenhouse gas 
emissions that pollute our air and warm our planet.
  It is now nearly 18 months since the Court's decision, and the EPA 
has shown no indication it will act before President Bush leaves 
office. In ignoring a ruling of this Nation's highest Court empowering 
him to act on a matter important to the public health of Americans, 
Administrator Johnson again failed in his duty to the Agency he leads.
  But it was not enough for Administrator Johnson to rule for the 
polluters on pollutant after pollutant.
  Administrator Johnson has also systematically dismantled 
institutional safeguards and processes that protect his Agency's 
integrity and guide its mission.
  Jonathan Cannon served at EPA during the Reagan, George H.W. Bush, 
and Clinton administrations. He warns of ``extreme friction within the 
agency and institutional damage . . . demoralizing the legal staff, and 
. . . further separating staff from the political leadership at the 
agency.'' We saw similar sabotage of institutional safeguards in the 
Gonzales Department of Justice, and this institutional damage raises 
four further charges, taking us to count six.
  On the question of the Agency's legal integrity, under Administrator 
Johnson, the EPA offered legal arguments for its insufficient pollutant 
standards so shallow they provoked ridicule by the courts that heard 
them. When EPA tried to defend its weak mercury cap-and-trade system, 
the DC Circuit Court of Appeals--which, as we know, is hardly a liberal 
bench--accused the Agency

[[Page S7606]]

of employing the ``logic of the Queen of Hearts'' in attempting to 
evade the intent of Congress and the clear meaning of the Clean Air 
Act.
  The same court said EPA's argument under the Clean Air Act allowing 
power companies to avoid upgrading their pollution control technologies 
made sense only in ``a Humpty Dumpty world.'' In adopting 
``Wonderland'' legal analysis that contravenes the clear will of 
Congress and embarrasses his Agency before the courts, Administrator 
Johnson failed again in his duty to uphold the mission of the Agency he 
leads.
  Count 7: On the integrity of EPA's scientific advisory boards, 
Administrator Johnson did not just ignore these boards' 
recommendations, he willingly allowed those panels to be infiltrated by 
the very industries they are meant to regulate and control.
  For example, an employee of ExxonMobil served on the panel to assess 
the carcinogenicity of ethyl oxide--a chemical manufactured by 
ExxonMobil.
  Another scientist received research support from Dow Agro and served 
on that panel, even though ethyl oxide is also manufactured by Dow 
Agro.
  A scientist whose research was funded by American Cyanamid and CYTEC 
sits on the EPA panel on acrylamide, which is manufactured by American 
Cyanamid and marketed by CYTEC. EPA did not see any conflict of 
interest.
  But at the beck and call of the American Chemistry Council, an 
industry lobby group, Administrator Johnson removed Dr. Deborah Rice, a 
prominent toxicologist, from a scientific review board investigating 
chemicals used in common plastic goods.
  The industry argued that she had a conflict of interest. Incredibly, 
the conflict of interest was that, at a public hearing in the State of 
Maine, as a representative of the State's Government, Dr. Rice had 
stated her professional opinion regarding the dangers associated with 
these chemicals. The industry did not like her professional opinion. 
Not only was Dr. Rice removed from the panel, but in a particularly 
Orwellian maneuver, the fact that she had ever been on the panel was 
stricken from the advisory committee's records.

  In packing EPA's scientific panels to please industry polluters, 
Administrator Johnson is guilty of a particularly chilling dereliction 
of his duty to the Agency he leads.
  Count 8: A report issued on April 23 by the Union of Concerned 
Scientists, entitled ``Interference at the EPA,'' uncovered widespread 
political influence in EPA decisions. The report found that 60 percent 
of EPA career scientists surveyed had personally experienced at least 
one incident of political interference during the past 5 years--60 
percent of the career scientists. It is a plague over there.
  The report documented, among other things, that many EPA scientists 
have been directed to inappropriately exclude or alter information from 
EPA science documents, or have had their work edited in a manner that 
resulted in changes to their scientific findings.
  The survey also revealed that EPA scientists have often objected to 
or resigned or removed themselves from EPA projects because of that 
pressure to change scientific findings.
  Allowing this corrosive political influence to persist among the 
career scientists at EPA is yet another dereliction of Administrator 
Johnson's duty to the Agency he leads.
  Count 9: Administrator Johnson has twisted the very administrative 
procedures of the Environmental Protection Agency to allow the White 
House Office of Management and Budget secret influence over Agency 
decisionmaking.
  For example, the IRIS process for determining the toxicity of 
chemicals that all of us are exposed to allows OMB three separate 
chances to exert its dark influence: at the beginning, in the middle, 
and again at the end of the Agency's process. In the words of the GAO, 
this process is ``inconsistent with the principle of sound science that 
relies on, among other things, transparency.''
  This is not just a potential concern. The current chair of EPA's 
Clean Air Scientific Advisory Panel has testified that the ozone 
standard was ``[set] . . . by fiat behind closed doors,'' has testified 
that the entire Agency's scientific process was ``for naught,'' and 
testified that ``the OMB and the White House set the standard, even 
though theoretically it was set by the EPA Administrator.'' She 
testified that as a result, ``willful ignorance triumphed over sound 
science.'' That is her testimony.
  In manipulating his Agency's processes to let willful ignorance 
triumph over sound science, Administrator Johnson has again been 
derelict in his duties to this once proud Agency.
  The third and final category of charges relates to Johnson's 
relationship to Congress. In defiance of his charge under the 
Constitution of the United States, Administrator Johnson has personally 
repeatedly refused to cooperate with Congress in our efforts to conduct 
proper oversight over the executive branch.
  The Senate Environment and Public Works Committee has repeatedly 
requested documents in connection with EPA's denial of the California 
waiver and its failure to adequately regulate ozone pollution in our 
efforts to determine whether the White House improperly influenced 
these decisions.
  Administrator Johnson has rebuffed these proper requests. He has 
repeatedly declined to appear before the EPW Committee to explain his 
Agency's policies. And when he has appeared, he has resorted to canned, 
stock, evasive answers in response to legitimate questions about 
political influence infiltrating his Agency.
  Just last week, he refused to appear before the Judiciary Committee 
on which I also serve for a hearing to look further into his failure to 
cooperate with Congress and provide documents and other information we 
have sought.
  In what is perhaps the gravest matter of all, I believe the 
Administrator deliberately and repeatedly lied to Congress, creating a 
false picture of the process that led to EPA's denial of the California 
waiver, in order to obscure the role of the White House in influencing 
his decision.
  Today, Senator Boxer and I have sent a letter to Attorney General 
Mukasey--along with Senator Klobuchar--asking him to investigate 
whether Administrator Johnson gave false and misleading statements, 
whether he committed perjury, and whether he obstructed Congress's 
investigation into the process that led to the denial of the California 
waiver request.
  I ask unanimous consent that the letter and its attached recitations 
be printed in the Record as an exhibit to these remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. WHITEHOUSE. There is more. These are not isolated counts but 
signs of an agency corrupted in every place the shadowy influence of 
the Bush White House can reach.
  Administrator Johnson forced the resignation of EPA's Regional 
Administrator for the Midwest, Mary Gade, who was locked in a struggle 
with corporate polluter Dow Chemical Company. The circumstances are 
highly suspicious. Administrator Johnson has replaced Ms. Gade with a 
former attorney for the automobile industry, whose record on behalf of 
the environment has been described as ``horrible.''
  The EPA, under Administrator Johnson, has reduced the reporting 
burdens on industries that release toxic chemicals into our land, sea, 
and air. It has weakened enforcement and monitoring by opening fewer 
criminal investigations, filing fewer lawsuits, and levying fewer fines 
against corporate polluters.
  It has failed to protect agency employees who pointed out problems or 
reported legal violations or attempted to correct factual 
misrepresentations made by their superiors and created an atmosphere 
where employees fear reprisals.
  In the face of widespread criticism that his agency is in crisis and 
that he is a pawn of the White House and its allies in polluting 
industries, Administrator Johnson's response was to label all those 
concerned, many of whom are dedicated career employees of his agency, 
as ``yammering critics,'' clearly a man after Spiro Agnew's own heart.
  The EPA has a vital mission. When this great agency is weakened and 
its work subverted by political interference, there is a great cost to 
this country. When EPA scientists and career employees become 
discouraged as their voices go unheard, there is a great cost to this 
country. When the

[[Page S7607]]

people of America lose faith that the Environmental Protection Agency 
actually lives up to its name, there is a great cost to this country. 
When those who were chosen to serve this country instead serve 
themselves, their political allies, and their patrons, there is a great 
and lasting cost to this country. It is a failure of integrity, and 
that is a failure we can no longer afford.
  We demand integrity--democracy demands integrity--of our public 
officials, not just because integrity is an abstract moral good but 
because democracy fails without it.
  Integrity sustains our democracy in such important ways. The first is 
integrity to the truth. In Government, when the facts are clear enough 
for responsible people to act, it is a failure of integrity to fail to 
confront those facts. As the late Senator from New York, Daniel Patrick 
Moynihan, famously said: ``You are entitled to your own opinion; you 
are not entitled to your own facts.''
  America has traditionally been characterized by candid and practical 
assessment of the facts, a can-do attitude about responding to those 
facts, and bold decisionmaking to find our way through those facts. 
Practical, can-do, optimistic, realistic--that is the American way. 
When Government doesn't face the truth about the facts, it will almost 
certainly fail to meet the demands of the moment and fail to serve the 
interests of our people. That is what is happening at EPA. They simply 
will not face facts plain to any responsible person.
  However, facts are stubborn things. They do not yield to ideology or 
influence. They do not care about your politics. Unanswered they stand, 
getting worse, and eventually the piper must be paid. If facts aren't 
candidly, realistically, and responsibly faced, not only will the 
problem get worse but the very capacity of the Government to address 
problems candidly, realistically, and responsibly, that capacity will 
itself degrade when not put to use. So there are ugly, lasting 
consequences when Government officials fail at their obligation to meet 
the truth head on.
  Another integrity is to honesty. As failures of truth have a harsh 
cost in Government, so do failures in honesty. I have sworn in new 
assistant U.S. attorneys. I have sworn in new State assistant attorneys 
general. I have presided at nomination hearings. Every time I have seen 
the same thing: a little spark of fire, a moral fire sparked when 
someone makes a choice to earn less money than they would otherwise, to 
work a lot harder than they would otherwise, to dare greater challenges 
than they might otherwise, all in order to serve the larger purpose, to 
serve an ideal, to serve America.
  This spark of fire inspires young men and women to tackle problems 
that may seem unmanageable. This spark of fire keeps people at their 
desks late into the night when others have gone home to their families. 
This spark of fire brings idealism and principle to decisions and 
illuminates a moral path through the complexities of Government.
  The value in Government of that spark of fire burning in the hearts 
of a thousand men and women--our real thousand points of light--is 
immeasurable. EPA is sustained by that spark of fire.
  But this spark of fire is quenched in the toxic atmosphere of 
dishonesty whose guiding principles are help your friends, please your 
patron, dodge your responsibilities, and fudge the truth. Dishonesty 
and idealisms do not cohabit.
  The third integrity is competence, a vital integrity. If we are to 
address the present and looming problems a new administration will have 
to face--a war without end in Iraq, an economy on a sickening slide, a 
broken health care system, a country divided into two increasingly 
separate Americas, a public education system that is failing, the 
dangerous weight of an alarming national debt, foreign policies that 
have unhinged us from responsible world opinion, bickering and 
irresolution on problems such as immigration and global warming--we 
must see competence as a core integrity. We must demand competence of 
Government officials as a bare minimum, a core necessity.
  Unfortunately, as one discouraged official has complained: ``In the 
Bush administration, loyalty is the new competence.''
  Administrator Stephen Johnson is a failure in all these dimensions. 
From everything we have seen, Administrator Johnson has done the 
bidding of the Bush administration and its political allies without 
hesitation or question and in violation of his clear duty. He has tried 
to cover up his dereliction of duty with evasive and discreditable 
testimony. He has acted without regard for the law or the 
determinations of the courts. He has damaged the mission, the morale, 
and the integrity of his great institution--the Environmental 
Protection Agency--and he has betrayed his solemn duty to Americans who 
depend on him to protect their health, particularly our very youngest 
and our very oldest whose vulnerability is greatest.
  Administrator Johnson suggests a man who has every intention of 
driving his agency onto the rocks, of undermining and despoiling it, of 
leaving America's environment and America's people without an honest 
advocate in their Federal Government. This behavior not only degrades 
his once great agency, it drives the dagger of dishonesty deep into the 
very vitals of American democracy. The American people cannot accept 
such a person in a position of great responsibility.
  I am truly sorry it has come to this, but that is why this afternoon 
I called on Administrator Johnson to resign his position. I encourage 
my colleagues to look closely at these concerns. Look at the reasons. 
Look at what I have prepared. Whatever decision colleagues may come to, 
I hope all understand I come to this decision sincerely and after much 
review and reflection and with no pleasure.
  I thank the President, and I yield the floor.

                               Exhibit 1

         U.S. Senate, Committee on Environment and Public Works,
                                    Washington, DC, July 29, 2008.
     Hon. Michael Mukasey,
     Attorney General, U.S. Department of Justice,
     Washington, DC.
       Dear Attorney General Mukasey: As members of the Senate 
     Committee on Environment and Public Works (EPW), we are 
     writing to ask that you open an investigation into whether 
     the Administrator of the U.S. Environmental Protection Agency 
     (EPA), Stephen L. Johnson, has made false or misleading 
     statements before the EPW Committee.
       We do not make this request lightly. However, we believe 
     that there is significant evidence to suggest that Mr. 
     Johnson has provided statements that are inconsistent with 
     sworn testimony and documents provided in connection with an 
     investigation conducted by this Committee. These false, 
     misleading, or intentionally incomplete statements relate to 
     the decision announced by EPA on December 19, 2007, to deny 
     the request by California for a waiver under Section 209 of 
     the Clean Air Act. After Mr. Johnson's testimony, a former 
     senior aide to Mr. Johnson at EPA, Jason Burnett, provided 
     sworn testimony before the EPW Committee on July 22, 2008, 
     that appears to contradict Mr. Johnson's testimony on key 
     factual matters.
       For example, Mr. Johnson stated under oath before the EPW 
     Committee on January 24, 2008 that he based his denial of the 
     California waiver request on California's failure to meet the 
     ``compelling and extraordinary'' circumstances criterion 
     under Section 209, and that he reached this decision 
     independently. However, Mr. Burnett testified that Mr. 
     Johnson had in fact determined that California met this 
     criterion and the other Clean Air Act criteria necessary for 
     approval of the waiver, and that the Administration's 
     decision to deny the waiver was based on the President's 
     policy preferences, rather than the lack of compelling and 
     extraordinary circumstances.
       In addition, Mr. Johnson testified before the EPW Committee 
     that the decision to deny that waiver was solely his 
     decision. However, Mr. Burnett testified that Mr. Johnson had 
     a plan to grant the waiver and had concluded that the 
     statutory criteria for granting it were met, until it was 
     ``clearly articulated'' by the White House that the 
     President's ``policy preference'' was to deny the waiver.
       We also are concerned about Mr. Johnson's testimony that 
     the energy legislation enacted by Congress and signed by the 
     President on December 19, 2007, was not substantively related 
     to his decision announced on the same day to deny the 
     California waiver, which he asserted was based upon his 
     finding that the waiver did not meet the Clean Air Act 
     statutory criteria. Mr. Burnett testified, however, that Mr. 
     Johnson had required extensive analysis of the impact of this 
     energy bill in evaluating whether to grant the waiver, and 
     that it was the President's policy preference that led to the 
     denial of California's waiver request, because granting the 
     waiver or a partial grant of the waiver would have led to two 
     standards, not one, as the President desired. The energy bill 
     established a single standard for vehicle fuel efficiency, as 
     the President desired.

[[Page S7608]]

       It appears that Mr. Johnson's account of the California 
     waiver decision is factually inaccurate or misleading. We 
     take the inconsistency between Mr. Johnson's testimony and 
     other evidence very seriously. False testimony by any witness 
     is serious and undermines our ability to fulfill our 
     constitutional duties on behalf of the American people. Our 
     concern is heightened because this decision by the EPA 
     Administrator affects the health and wellbeing of the 
     American people. For these reasons, we have no choice but to 
     refer the matter to you for appropriate investigation and 
     prosecutorial action.
       We look forward to your prompt response on this matter.
           Sincerely,
     Barbara Boxer,
       Chairman.
     Sheldon Whitehouse,
       U.S. Senator.
     Amy Klobuchar,
       U.S. Senator.
     Frank R. Lautenberg,
     U.S. Senator.
                                  ____


EPA Administrator Johnson's Testimony Before Congress on the California 
                            Waiver Decision

       Specifically, the concerns we have regarding Administrator 
     Johnson's testimony arise out of conflicts between his 
     testimony before the EPW Committee, and that of Jason 
     Burnett, a former EPA official who worked closely with 
     Administrator Johnson on the California waiver issue.
       It appears from Mr. Burnett's testimony that Administrator 
     Johnson's testimony was at best misleading and at worst 
     untruthful in many specific ways.
       Administrator Johnson repeatedly claimed that the decision 
     to deny the California waiver was ``mine and mine alone.'' He 
     said this repeatedly, over and over:
       I was not directed by anyone, I was not directed by anyone 
     to make the decision. This was solely my decision based upon 
     the law, based upon the facts that were presented to me. It 
     was my decision. (1/24/08 EPW Committee Oversight hearing 
     (``1/24/08 hearing''), unofficial transcript at p. 29).
       I made the decision. It was my decision and my decision 
     alone. (2/27/08 EPW Committee hearing on EPA FY2009 Budget 
     (``2/27/08 hearing''), unofficial transcript at p. 58)
       The decision was mine and mine alone. I made the decision. 
     (2/27/08 hearing, unofficial transcript at p. 59).
       Certainly the California waiver was my decision under the 
     Clean Air Act and mine alone. I made the decision, I made it 
     independently, I carefully considered all the comments and I 
     made that decision. (Id. at p. 30)
       Mr. Burnett's testimony, however, indicates that these 
     statements were not true in any meaningful sense. First, in 
     point of fact, the decision Administrator Johnson made was to 
     grant a partial waiver:
       There was an effort that we were engaged in and that I was 
     engaged in to make the case that it would be appropriate to 
     issue at least a partial grant of the waiver. (Testimony of 
     Jason Burnett at EPW Committee hearing, 7/22/08, unofficial 
     transcript at p.31)
       The Administrator had a plan to partially grant the waiver 
     provided that the Clean Air Act was not enacted [sic] by 
     Congress. (Id. at p. 42).
       Second, Mr. Burnett's testimony makes clear that this 
     decision to grant the partial waiver was vetted thoroughly 
     within EPA and reflected the Agency's consensus view that at 
     least a partial waiver was appropriate:
       We did our best to ensure that all policy officials 
     involved in this decision were apprised and informed of the 
     law and EPA's assessment that all three criteria were, that 
     the, clearly the most supportable case under the law is that 
     all three criteria had been met. (Id. at p.43)
       My advice, my recommendation, as well as the advice and 
     recommendation of all other advisors within EPA that I am 
     aware of was for Administrator Johnson to grant the waiver or 
     at least grant the first few years of the waiver. (Id. at p. 
     21)
       Third, Mr. Burnett testified that Administrator Johnson's 
     decision to partially grant the waiver was then taken to the 
     White House:
       But we went forward with our plan, told the White House 
     about our plan to have a partial grant of the waiver. . . . 
     (Id. at p. 32)
       Fourth, Mr. Burnett was clear that when the White House was 
     informed of the plan, the Administrator was told of the 
     President's ``policy preference'' and reversed his decision 
     to support the partial waiver.
       But we went forward with our plan, told the White House 
     about our plan to have a partial grant of the waiver, and in 
     response, we were reminded of the President's policy 
     preference. (Id. at p. 32)
       Mr. Burnett: I believe that we continued throughout the 
     early December to explain the case for a partial grant. I 
     believe that it was early December when the Administrator 
     made his plan known. Of course, that plan ultimately was not 
     followed.
       Senator Whitehouse: And in between that, the White House 
     response came back that the President desired there to be the 
     single standard?
       Burnett: yes. (Id. at p. 38)
       The repeated, false emphasis by the Administrator that the 
     decision to deny the waiver was ``mine and mine alone,'' when 
     in fact the Administration effectively reversed Administrator 
     Johnson's decision to grant the waiver, was part of a larger 
     plan to mislead the EPW Committee about the decision-making 
     process regarding the waiver.
       A second part of this plan was Administrator Johnson's 
     suggestion that there was staff debate on the California 
     waiver, during which a wide range of options were presented 
     by staff, and after which, based on this debate, the 
     Administrator made the decision to deny the waiver:
       Again, a great team of people, the lawyers and scientists 
     and policy staff. They presented me with a wide range of 
     options [on the waiver]. Those options ranged from approval 
     to denial. I listened to them carefully, I weighed the 
     information and I made an independent judgment. I concluded 
     that California does not meet the standard under Section 209. 
     (1/24/08 hearing unofficial transcript, at p. 45).
       Again, as I have stated and will state again, the decision 
     was mine, solely mine. I heard a wide range of comments from 
     inside the agency, outside the agency, I was presented with a 
     range of options. I made the decision. It was my decision and 
     my decision alone (2/27/08 hearing unofficial transcript at 
     p. 58).
       During the briefing process, I encouraged my staff to take 
     part in an open discussion of issues, and due to their value 
     [sic?] options and opinions, I was able to make a 
     determination. As you know, the Clean Air Act requires the 
     EPA Administrator to determine whether or not the criteria 
     for a waiver have been met. It was only after a thorough 
     review of the arguments and material that I announced my 
     direction to staff to prepare a decision document for my 
     signature. (1/24/08 hearing unofficial transcript at p. 16)
       Senator Whitehouse: The last time we spoke about this, you 
     said that sometimes the EPA staff gave you a single 
     consolidated recommendation, Mr. Administrator, this is what 
     we think you should do, and sometimes they give you an array 
     of options, Mr. Administrator, we think these are your 
     options. You have testified that in this case, they gave you 
     an array of options, not a single, consolidated opinion, 
     correct?
       Administrator Johnson: That is what I remember, yes. (2/27/
     08 hearing unofficial transcript at p. 61)
       In fact, however, Mr. Burnett was clear that there was 
     staff agreement on the issue, as manifested in the plan 
     agreed to by the Administrator, and presented to the White 
     House, to grant a partial waiver:
       My advice, my recommendation, as well as the advice and 
     recommendation of all other advisors within EPA that I am 
     aware of was for Administrator Johnson to grant the waiver or 
     at least grant the first few years of the waiver. (7/22/08 
     hearing, unofficial transcript at p. 21).
       Mr. Burnett made clear, however, that the Administrator 
     went to the White House armed with a plan to partially grant 
     the waiver but, after being informed of the Bush ``policy 
     preference'' that the waiver not be granted, reversed course 
     and denied the waiver:
       We went forward with our plan, told the White House about 
     our plan to have a partial grant of the waiver, and in 
     response, we were reminded of the President's policy 
     preference. (7/22/08 hearing unofficial transcript at p. 32)
       Senator Whitehouse: In the Clean Air Act waiver, after the 
     White House was notified of the proposed decision that you 
     put together, did the White House respond to that notice that 
     you intended to partially grant the waiver?
       Burnett: The response was clearly articulating that the 
     President had a policy preference for a single standard that 
     would be inconsistent with granting the waiver. (Id.)
       Burnett: I believe that we continued throughout the early 
     December to explain the case for a partial grant. I believe 
     that it was early December when the Administrator made his 
     plan known. Of course, that plan was ultimately not followed.
       SW: And in between that, the White House response came back 
     that the President desired there to be the single standard?
       Burnett: Yes. (Id. at p. 38)
       Administrator Johnson deliberately and repeatedly left 
     these steps out of his discussion of the process that led to 
     denial of the waiver.
       Moreover, when questions regarding White House contact were 
     raised, he said things that were not true, if words are given 
     their meanings in common usage.
       For example, Administrator Johnson testified repeatedly 
     that his contacts with the White House regarding the waiver 
     were limited to ``routine discussions'' that were nothing 
     more than status updates for the White House on the waiver 
     issue and were part of meetings involving multiple issues:
       Senator Boxer: Did you contact [the White House about the 
     California waiver]?
       Administrator Johnson: As part of good government, I tell 
     them what is the status of major actions that are before the 
     Agency to give them an update. That is what I do on 
     petitions, on regulations, and----
       Senator Boxer: Did you discuss this waiver with members of 
     the Administration in the White House, the Vice President's 
     Office, or the OMB? Did you discuss this?
       Administrator Johnson: I have routine discussions. (EPW 7/
     26/07 Hearing on Status of California Waiver unofficial 
     transcript at pp. 15-16 )
       Senator Whitehouse: Was there or was there not contact from 
     the White House regarding the waiver decision?
       Administrator Johnson: As I said, I have routine contacts 
     with members of the Administration, including the White 
     House.

[[Page S7609]]

       Senator Whitehouse: And did that routine contact include 
     contact regarding the waiver decision?
       Administrator Johnson: Again, I have routine conversation 
     on a wide range of topics that I believe is good government 
     and indeed, it included what our status was on the issue of 
     the California waiver. (2/27/08 EPW hearing unofficial 
     transcript at p. 58)
       In fact, Mr. Burnett's testimony makes clear that there 
     were specific White House meetings dedicated to the waiver:
       Senator Whitehouse: Were the meetings . . . related to the 
     California waiver . . . specific to that? Or were they part 
     of a routine schedule that the Administrator had, going to 
     the White House on a regular basis and this would be on the 
     agenda, this particular time? Or were these meetings that 
     were scheduled specifically to address this and not part of a 
     routine, ongoing scheduled meeting process?
       Mr. Burnett: Both. There were some meetings that were 
     specifically scheduled to talk about the California waiver, 
     and other meetings to talk about a range of issues relating 
     particularly to climate policy, including the response to the 
     Supreme Court and the California waiver.
       Senator Whitehouse: And were there meetings specific to the 
     California waiver, that you would not characterize as routine 
     that were specifically scheduled for that purpose?
       Mr. Burnett: Well, there were meetings specifically 
     scheduled for that purpose, as I said.
       Senator Whitehouse: Not just dropped in as an agenda point 
     on a regularly-scheduled meeting?
       Mr. Burnett: Yes, meetings that were specific to talk about 
     the California waiver. But I'm not sure if that means they 
     were routine or not. It certainly was the case that this 
     issue of the California waiver received a great deal of 
     attention from a number of people throughout the 
     Administration. (7/22/08 hearing unofficial transcript at p. 
     31.)
       Mr. Burnett also testified that the waiver decision was a 
     very important matter to EPA and the Administration:
       It certainly was the case that this issue of the California 
     waiver received a great deal of attention from a number of 
     people throughout the Administration. (Id.)
       This issue is one of the most important issues that was 
     facing EPA. It received very high level attention, many 
     meetings with the Administrator and many meetings with senior 
     officials at the White House (Id. at p. 43)
       Thus, the meetings clearly were more than ``routine,'' both 
     in terms of their timing (Webster's II New Riverside 
     University Dictionary, at p. 1022--``A set of customary and 
     often mechanically performed procedures;'' ``prescribed and 
     detailed course of action to be followed regularly'' and 
     substance (``not special,'' ``ordinary'').
       Moreover, Administrator Johnson's testimony that the 
     meetings were merely to provide the White House with status 
     updates was also directly contradicted by Mr. Burnett, who 
     testified that at least some meetings were held at the White 
     House to present the Administration with EPA's plan to grant 
     a partial waiver.
       We went forward with our plan, told the White House about 
     our plan to have partial grant of the waiver, and in 
     response, we were reminded of the President's policy 
     preference. (Id. at p. 32)
       Senator Whitehouse: Would it be accurate to say that in 
     those meetings Administrator Johnson's contribution was 
     limited to an update on the status of the waiver action?
       Mr. Burnett: There was an effort that we were engaged in 
     and that I was engaged in to make the case that it would be 
     appropriate to issue at least a partial grant of the waiver. 
     (Id. at p. 31)
       Administrator Johnson was also misleading and not credible 
     regarding the staff process on the waiver decision. He 
     testified that he had been presented a range of options from 
     denial to outright grant, but that he could not remember any 
     of the options beyond the extremes of a full grant or 
     outright denial of the waiver:
       Senator Whitehouse: What would you list? You said a wide 
     range of options? Can you specify what those options were?
       Administrator Johnson: As I have said, a range from 
     approving the waiver to denying the waiver.
       Senator Whitehouse: That is not a range, that is two.
       Administrator Johnson: Well, there were options in between 
     and--
       Senator Whitehouse: Such as?
       Administrator Johnson: I was trying to recall. I don't 
     recall the specific options in between but that certainly is 
     a matter of record.
       Senator Whitehouse: Do you recall any of the specific 
     options in between?
       Administrator Johnson: As I said, the options ranged from 
     approval to denial and included other options in between. I 
     don't recall how they were entitled or the specifics.
       Senator Whitehouse: Without their title, their fundamental 
     nature, do you recall?
       Administrator Johnson: Again, there was a range of options 
     and I don't recall the specifics of the intermediate ones. 
     (2/27/08 hearing unofficial transcript at p. 63)
       In fact, however, Mr. Burnett's testimony makes clear that 
     there was a unanimous staff recommendation for a partial 
     waiver so fully developed that he agreed to it and took it to 
     the White House after extensive briefing:
       My advice, my recommendation, as well as the advice and 
     recommendation of all other advisors within EPA that I am 
     aware of was for Administrator Johnson to grant the waiver or 
     at least grant the first few years of the waiver. (7/22/08 
     hearing unofficial transcript at p. 21)
       The Administrator had a plan to partially grant the waiver, 
     provided that the Clean Air Act was not enacted [sic] by 
     Congress. (Id. at p. 42)
       There was an effort that we were engaged in and that I was 
     engaged in to make the case that it would be appropriate to 
     issue at least a partial grant of the waiver. (Id. at p. 31)
       I believe that we continued throughout early December to 
     explain the case for a partial grant. I believe that it was 
     early December when the Administrator made his plan known. Of 
     course, that plan ultimately was not followed. (Id. at p. 38)
       We went forward with our plan, told the White House about 
     our plan to have a partial grant of the waiver, and in 
     response, we were reminded of the President's policy 
     preference. (Id. at p. 32)
       It is simply unimaginable that Administrator Johnson could 
     forget that a partial waiver plan had been recommended to and 
     developed for him, that it had been adopted as the Agency 
     plan on this critical matter, and that he had presented it to 
     the White House.
       Administrator Johnson said there was no White House 
     reaction to his update, or that he could not recall any White 
     House response or reaction:
       Senator Boxer: Did you discuss the California waiver with 
     someone from the President's office, the Vice President's 
     office, OMB?
       Administrator Johnson: I routinely have conversations with 
     members of the White House.
       Senator Boxer: The answer is yes, then. What did they say? 
     What was their reaction? How did they feel about the waiver?
       Administrator Johnson: I don't recall their reaction 
     because I was giving them an update of the status of this 
     action and a lot of other actions before the Agency. (7/26/07 
     hearing unofficial transcript at 16).
       Senator Boxer: Is this a fair analysis of what you have 
     told us? That no one ever contacted you to give an opinion on 
     the waiver, or to tell you to slow it up or anything; no one 
     from the President's, Vice-President's, OMB; no one from the 
     DOT. But you did contact them just to fill them in on what 
     was happening, and the waiver was one of the issues, but you 
     don't recall anything that they said. You just briefed them, 
     but they never made any opinion. Yes or no?
       Administrator Johnson: If you would add ``to the best of my 
     recollection,'' then I would say, ``yes.'' (Id. at p. 17)
       Given Mr. Burnett's testimony, it is simply unimaginable 
     that Administrator Johnson cannot recall getting a response 
     from the White House suggesting that he reverse his plan to 
     grant a partial waiver:
       Senator Whitehouse: In the Clean Air Act waiver, after the 
     White House was notified of the proposed decision that you 
     put together, did the White House respond to that notice that 
     you intended to partially grant the waiver?
       Mr. Burnett: The response was clearly articulating that the 
     President had a policy preference for a single standard that 
     would be inconsistent with granting the waiver. (7/22/08 
     hearing unofficial transcript at p. 32)
       Mr. Burnett: . . . the Administrator certainly knew the 
     President's policy preference for a single standard. (Id.).
       Mr. Burnett: [W]e went forward with our plan, told the 
     White House about our plan to have a partial grant of the 
     waiver, and in response, we were reminded of the President's 
     policy preference. (Id.)
       Mr. Burnett: I believe that we continued throughout the 
     early December to explain the case for a partial grant. I 
     believe that it was early December when the Administrator 
     made his plan known. Of course, that plan ultimately was not 
     followed.
       Senator Whitehouse: And in between that, the White House 
     response came back that the President desired there to be the 
     single standard?
       Mr. Burnett: Yes. (Id. at p. 38)
       It is unimaginable that the head of a major government 
     agency could take a plan on a vital public issue to the White 
     House, fully vetted and briefed, to make the case for the 
     plan, come back to the agency with a completely different 
     plan as a result of the White House meeting, and then not 
     remember that this event had taken place. It can only be a 
     lie.
       Administrator Johnson claimed that his decision to deny the 
     waiver was based on criterion two of the waiver test under 
     the Clean Air Act: that is, whether California demonstrated 
     compelling and extraordinary conditions in support of its 
     request:
       I came to the conclusion that of the criteria that I am 
     required to evaluate, it was the second criteria, that the 
     State does not have compelling, extraordinary conditions. So 
     that is the basis of my decision. (1/24/08 hearing unofficial 
     transcript, p. 22)
       I made my decision for the California waiver under Section 
     209 of the Clean Air Act. And I found that California does 
     not meet the compelling and extraordinary conditions. (Id. at 
     p. 55)
       In fact, as noted above, Mr. Burnett's testimony makes 
     clear that Administrator Johnson was prepared to grant a 
     partial waiver, based on the compelling and extraordinary 
     factor and other factors having been met:

[[Page S7610]]

       As part of the plan to grant a partial waiver, certainly it 
     was the case that all three criteria in the Clean Air Act 
     would be met, including the criteria that California has 
     compelling and extraordinary circumstances. (7/22/08 hearing 
     unofficial transcript at p. 19)
       We did our best to ensure that all policy officials 
     involved in this decision were apprised and informed of the 
     law and EPA's assessment that all three criteria were, that 
     the, clearly, the most supportable case under the law is that 
     all three criteria had been met. (Id. at p. 43)
       Indeed, it was only after President Bush's ``policy 
     preference'' was explained to Administrator Johnson at a 
     White House meeting that he decided to deny the waiver. The 
     rationale that California did not meet was evidently an 
     after-the-fact embellishment designed to cover up the initial 
     plan to grant the waiver, the White House meeting at which 
     President's Bush's ``policy preference'' was explained, and 
     Administrator Johnson's reversal of course, and to create a 
     post hoc legal explanation for the decision.
       The following summary of Administrator Johnson's testimony 
     by Chairman Boxer was admitted by Johnson to be accurate ``to 
     the best of [his] recollection.''
       Senator Boxer: So just to wrap this up, and then I will 
     turn to Senator Inhofe. So just to wrap this up, no one ever 
     contacted you. You contacted them, meaning the White House, 
     the Vice President's office, the OMB, the DOT. You contacted 
     them just to give them an update on this issue, but no one 
     ever contacted you and you don't recall anybody in the White 
     House giving you their opinion on the waiver.
       Administrator Johnson: I don't recall anyone contacting me. 
     I do recall making contacts to others because as I said, I 
     have routine conversations with----
       Senator Boxer: You keep repeating this. I am just trying to 
     see, and tell me if I am saying this in a fair way and a just 
     way.
       Mr. Johnson: Okay.
       Senator Boxer: All right. Nobody ever contacted you from 
     the White House, the Vice President's office, the OMB, or the 
     DOT? You contacted them just to update them and you don't 
     recall anything they said to you about the waiver?
       Mr. Johnson: To the best of my recollection, again, I have 
     a lot of conversations with members of the White House, a lot 
     of conversations. I said I do recall me making contact 
     because----
       Senator Boxer: I just said that. So did I say it in a fair 
     way? I will repeat it the last time and then I will stop, 
     because I would like a yes or no. Is this a fair analysis of 
     what you have told us? That no one ever contacted you to give 
     an opinion on the waiver, or to tell you to slow it up or 
     anything; no one from the President's, Vice President's, OMB; 
     no one from the DOT. But you did contact them just to fill 
     them in on what was happening, and the waiver was one of the 
     issues, but you don't recall anything that they said. You 
     just briefed them, but they never made any opinion. Yes or 
     no?
       Mr. Johnson: If you would add ``to the best of my 
     recollection,'' then I would say ``yes.'' (7/26/07 hearing 
     unofficial transcript at p. 17).
       Again, in light of the Burnett testimony, Administrator 
     Johnson's failure to recollect the Administration's reaction 
     to his proposal is simply incredible.
       Finally, it is worth noting President Bush's ``policy 
     preference'' for a single standard does not bear in any way 
     on the existence vel non of compelling and extraordinary 
     conditions, and is known by Administrator Johnson not to be 
     one of the statutory criteria for decision:
       Administrator Johnson: . . . I tried to make it clear in 
     the letter to Governor Schwarzenegger [announcing denial of 
     the waiver] that the bases of my decision were on the three 
     criteria under Section 209 [of the Clean Air Act] and 
     compelling and extraordinary was the issue that the criteria, 
     that was not met. I pointed out in the letter that that 
     certainly isn't a context of what is the policy of both what 
     is happening as a Nation, and that is the policy, again my 
     words, policy context. But that was not the decision 
     criteria. The decision criteria are very clear in Section 209 
     on whether or not----
       Senator Klobuchar: That is fine. When I come back, I will 
     talk about it. But you have said before that this could 
     create a confusing patchwork of State rules.
       Administrator Johnson: And again, that is not one of the 
     criteria for the decision. (1/24/08 hearing unofficial 
     transcript at p. 36)


[...]

  Mr. KYL. [...]

                              Media Shield

  Something we haven't taken up yet is this so-called media shield 
bill. I am not going to go through all the arguments about it, but 
simply to point out the history of it and describe what it does and why 
it is so problematic.
  This basically says that reporters don't have to disclose their 
sources if they don't want to. You can imagine a lot of bad things will 
happen as a result of that. People break the law for disclosing very 
highly classified information. The reporter says: I am not going to 
tell you, Mr. FBI Agent, who did that. Yes, I know who did it--it is 
against the law--but I am not going to tell you. And this bill would 
provide the protection for that.
  The first problem is it doesn't even define media in a way with which 
everyone can agree. We don't know whether a blogger, who is trying to 
put material out on the blogs, is in the media, whether a reporter for 
some kind of terrorist newsletter is a member of the media or what. 
They have tried and tried to get a good definition. It is very 
difficult to do.
  When the bill was in the Judiciary Committee, on which I sit, it was 
not a perfect bill. Back then people said: Yes, we need to pass this; 
we need to not change a comma in it. I think there were 10 or 12 
amendments adopted that day. Clearly, it needed work. Most of those 
amendments had strong bipartisan, if not unanimous, support, and we 
agreed at the end of the process that it needed more work. Since then, 
there have been a lot of meetings held to try to refine the bill.
  I take my hat off to Senator Arlen Specter who has tried very hard to 
find a way to resolve some of the problems that have been raised. At 
the end of the day, the Attorney General of the United States, Attorney 
General Mukasey, the intelligence community, and the White House have 
all raised very serious doubts and problems about the bill.
  Let me refer to some of the things that have been said about it. The 
Secretary of Defense, Secretary Gates, wrote at the end of March this 
year that ``the Department of Defense is concerned that this bill will 
undermine our ability to protect national security information and 
intelligence sources and methods, and could seriously impede 
investigations of unauthorized disclosures.''
  The problem I just identified. Because of that, of course, President 
Bush is expected to veto the bill.
  Very recently--I think yesterday--the Director of National 
Intelligence, Mike McConnell, published in USA Today an op-ed in which 
he described some of the problems he has with the bill, one of many 
commentaries. Here is what he said:

       I have joined the attorney general, the Secretaries of 
     Defense, Energy, Homeland Security, and Treasury, and every 
     senior intelligence community leader in expressing the 
     belief, based on decades of experience, that this bill will 
     gravely damage our ability to protect national security 
     information. Unauthorized disclosure of classified 
     information disrupts our efforts to track terrorists, 
     jeopardizes the lives of intelligence and military personnel 
     and inhibits international cooperation critical to detecting 
     and preventing threats.

  It is not just our intelligence community and Government sources. 
Last week, the U.S. Chamber of Commerce and the National Association of 
Manufacturers circulated a letter expressing ``deep reservations with 
the way the current version of the media shield bill, S. 2035, applies 
to the private sector. As drafted, it would have significantly adverse 
ramifications on the ability of Americans to legitimately protect 
personal and proprietary information and we must oppose the bill in its 
current form.''

  It is interesting, despite all of these issues that have been raised 
by a variety of private groups and all of the national defense and 
intelligence community of our Government, there has not been a single 
hearing during the 110th Congress on this legislation, let alone a 
hearing on the general need for the media shield legislation. It is 
obviously not ready for prime time.
  Let me mention one problem--and I will speak more on this tomorrow--
to illustrate some of the other problems the bill has, one illustration 
of what additional work needs to be done. This is one that could easily 
be resolved, and I don't understand why the sponsors of the legislation 
would not be willing to deal with it.
  The bill fails to provide an exception to the privilege for 
information necessary to investigate a terrorist attack. Let me repeat 
that. You could not investigate a terrorist attack under the exclusion 
that is provided in the bill. The committee-reported bill would only 
provide an exception in section 5 for ``protected information that a 
Federal court has found . . . would assist in preventing an act of 
terrorism,'' or ``other significant and articulable harm to national 
security.''

[[Page S7614]]

  I raised this question in a hearing. The exception makes no mention 
of information that would assist in investigating a terrorist attack or 
other significant event. It only talks about preventing. This is the 
kind of thing that could be fixed, and I don't understand why the 
authors of the bill wouldn't be willing to fix it.
  Under the form in which it would be brought forward, obviously the 
majority leader would fill the parliamentary tree, there would be no 
opportunity for amendments, and we would be stuck on a take-it-or-
leave-it basis with a piece of legislation that is highly flawed, 
totally criticized by the intelligence community and many in the 
private sector, as well.
  The point, of course, is that the Democratic leader is simply 
throwing legislation out on the floor with the hope that somehow or 
another we will be able to divert attention from the subject of energy, 
the bill we are currently on. We should neither vote for cloture for 
the media shield bill nor the tax extenders bill nor any other piece of 
legislation, as I said, until we complete our work on energy. We could 
do that in a matter of 2 or 3 days. We can clearly do it before we 
leave here in August. But under no circumstances should we leave the 
important Energy bill to go off onto a piece of legislation such as 
this media shield bill.
  I hope when we have the cloture vote tomorrow, my colleagues will 
join me in voting no on cloture on this legislation so we can deal with 
the No. 1 priority of the American people, and that is our energy 
crisis in America.

[...]



[Congressional Record: July 29, 2008 (Senate)]
[Page S7704-S7708]                        



 
                      FREE FLOW OF INFORMATION ACT

  Mr. SPECTER. Mr. President, I have sought recognition to speak on the

[[Page S7705]]

Free Flow of Information Act, which is the reporters' privilege 
legislation. At the outset, I thank the cosponsors, Senators Schumer, 
Lugar, Dodd, and Graham. I especially thank Senator Lugar for his 
contribution to this legislation, because he was the first to take a 
stand for this issue some time ago.
  This legislation is very important to maintain the flow of 
information to the American people from the newspapers and radio and 
television stations. It is necessary because we have seen in recent 
times a flurry of subpoenas being issued to reporters to disclose their 
confidential sources. A reporter's source of information depends upon 
their being able to fulfill a commitment of confidentiality. It is 
unnecessary to recite the long history of the investigative reporting 
which has provided so much good to the American people or, for that 
matter, the people of the world. We have had reporters ferret out 
corruption in government, misfeasance, and wrongdoing. Senators turn 
the first part of every day to the newspapers to see what is occurring 
in the world. Frequently in the mix of the news, there are 
investigative reports which tell Senators more than even our staffs 
know. I believe Thomas Jefferson put it best in the founding days of 
the Republic, when he said that if he had to choose newspapers without 
government or government without newspapers, he would choose newspapers 
without government.
  This legislation passed the Senate Judiciary Committee by the 
decisive vote of 15 to 4. A version passed the House of Representatives 
by an overwhelming margin of 398 to 21. It is worth noting that both of 
the presumptive candidates for President are supportive of this 
legislation. Senator Obama is a cosponsor, and Senator McCain has 
publicly confirmed that he would vote for this legislation. A group of 
some 40 sitting State attorneys general, including both Democrats and 
Republicans, have written in support of this legislation. More than 100 
newspapers from all parts of the country have endorsed this 
legislation, including the Washington Post, the Washington Times, the 
New York Times, and the Philadelphia Inquirer. I will make a part of 
the Record a full list of those newspapers and public media operations 
in support of this legislation.
  There have been some 72 subpoenas issued since 2006. The chilling 
effect has been overwhelming, in part because of the issuance of 
subpoenas and contempt citations. For example, the case of Judith 
Miller of the New York Times has received extensive publicity. She was 
jailed for around 85 days for failing to disclose the source of 
information she had in the case involving the outing of CIA agent 
Valerie Plame. It has always been a mystery to me why Judith Miller was 
held in contempt, when it was known that Deputy Secretary of State 
Armitage was the source of the information. But a special prosecutor 
subpoenaed numerous witnesses and conducted a very high profile 
publicity investigation. Ultimately, Judith Miller spent 85 days in 
jail under very unpleasant circumstances. I can personally attest to 
the conditions because Michael O'Neal, my chief counsel when I chaired 
the Judiciary Committee, and I visited her in the Virginia prison where 
she was detained. The legislation which we are proposing is necessary 
to maintain the flow of information.
  I think it is vital to emphasize that this legislation benefits the 
American people, allowing them access to the news and information that 
results from investigative reporting. Investigative reporting has done 
so much for the public welfare in disclosing fraud, corruption, 
misfeasance, and wrongdoing at all levels of the Government, as well as 
at all levels of private, corporate, and public life.
  This issue and the vote which is imminent pose a problem for this 
Senator because of the practice which has evolved to preclude 
amendments from being offered. We are only facing tomorrow the motion 
for cloture on the motion to proceed. I do think we ought to proceed to 
this bill. It is my hope that the majority leader will not act to 
preclude other Senators from offering amendments. This is a subject I 
have addressed at considerable length on the global warming bill. I 
have talked about it on the FAA bill. I have discussed it with the oil 
speculators bill. It is a matter of great concern as to what has 
happened to the operation of the Senate.

  When I came to this world's greatest deliberative body some 28 years 
ago, the tradition of the Senate had been maintained that any Senator 
could offer virtually any amendment on any bill at any time. That was 
the great unique quality of the Senate and the ability of any Senator 
to offer an amendment to call public attention to an important issue, 
to have the floor of the Senate to publicize the issue and to move for 
the enactment of legislation. But what has happened, surprisingly only 
in the last 15 years--and it has happened by majority leaders of both 
parties--is that a procedure has been adopted on what is called filling 
the tree. That is an arcane expression, known only inside the Beltway. 
But let me explain it.
  When a bill is on the agenda, it is the prerogative of the majority 
leader to call for action of the Senate. Then the majority leader, 
under Senate practice and custom, has the right of first recognition. 
So that the rule that the first Senator to ask for recognition gets the 
recognition is true, unless the majority leader has sought recognition. 
On cases of a tie, it is the majority leader. As a matter of practice, 
nobody challenges the majority leader's right to first recognition. So 
after the bill is before the Senate, the majority leader then offers an 
amendment. Then he offers another amendment. Without going into all of 
the details, a procedure is adopted where no other Senator can offer an 
amendment.
  What has happened on global warming, for example, where I came to the 
floor and outlined four amendments which I intended to offer on a very 
important bill, I was precluded from offering them, because the Senate 
majority leader had taken action to put this procedure in effect on so-
called filling the tree. The FAA bill came up, which had funding for a 
new satellite system for air safety. I had amendments to offer, very 
important for my State, on overflights from the Philadelphia 
International Airport and for scheduling issues, where the airport was 
overscheduled, leading to long delays; people, myself included, sitting 
on the tarmac waiting to take off.
  The tearing that I undertake is a result, for those who see me wiping 
my eyes, not for any sorrow about what I am doing but a consequence of 
having Hodgkin's. It makes a fellow pale and thin. Tough but tolerable, 
as I put it, and I have been able to stay on the job. But if anybody is 
watching on C-SPAN 2, which is highly doubtful, they may wonder why I 
am tearing. I am not crying. I am tearing because of the impact of all 
of the chemicals from the treatment of Hodgkin's.
  At any rate, I was commenting about the Philadelphia airport. This 
affects the State of New Jersey. The Presiding Officer is a Senator 
from the State of New Jersey. You sit on the tarmac at the Philadelphia 
airport for a long time because they are overbooked. It is like a 
restaurant that has 100 seats and they put in 150 patrons. Well, you 
can't get your table on a reservation. You have a flight leaving at 7 
a.m. You wait until many other planes have left. Or when you land, the 
airport is overbooked, and it is not a very pleasant sensation to 
circle the city of Philadelphia for a long period of time in the fog 
and in the rain, wondering how good those air controllers are. They are 
pretty good, but it is something you wonder about in any event.
  We weren't able to offer amendments on the FAA bill. We haven't been 
able to offer amendments on the oil speculators bill. The headlines in 
the newspapers over the weekend were: Republicans block oil speculators 
bill. They recited the Senators from the Philadelphia region, and they 
noted that the distinguished Senator who is presiding now, Senator 
Menendez, voted in favor of advancing the bill, as did Senator 
Lautenberg, as did Senator Casey, as did Senator Carper, as did Senator 
Biden. Only Arlen Specter voted not to advance the bill. You don't get 
the picture in a short story. You don't get the picture in the 
recitation of the vote that I voted against cloture because neither I 
nor any other Senator had the opportunity to offer amendments. So that 
if we get to that point, I am conflicted as to what to do. But I don't 
think we will face that tomorrow with the motion to proceed. I am 
hopeful we will pass that by a very substantial majority.

[[Page S7706]]

  There have been opponents who have come to the floor to debate this 
bill. It is important to note that as a result of the hearings which 
were held when I was chairman, Senator Kyl stated there have been no 
hearings on this bill in the 110th Congress. Well, when I chaired the 
Judiciary Committee in the 109th Congress in 2005 and 2006, we had 
three hearings on the subject and went into the issue in some detail. 
Senator Kyl said the Government could not get information to 
investigate an act of terrorism. That is not so. The bill states 
specifically that it is reasonably likely to stop, prevent, or mitigate 
any, or identify the perpetrator of an act of international terrorism 
or domestic terrorism, there will be no shield.
  Those who have raised objections to the bill have been taken into 
account. The bill has been substantially improved.
  For example, the bill now explicitly states that sensitive 
governmental information will not be disclosed in open court. The 
provisions have always been subjected to the Classified Information 
Protection Act. It had always been available to prosecutors. But when 
the concern was raised, we put in the specific provision that a 
``Federal court may receive and consider submissions from the parties 
in camera or under seal, and where the court determines appropriate, ex 
parte'' in order to protect sensitive information.
  The bill further provides that the definition of a covered person has 
been narrowed to ensure it protects only legitimate journalists. The 
definition of the Second Circuit has been adopted. That definition has 
worked very well. It requires that the individual have the intent to 
distribute the information to the public and that he or she had such 
intent at the time that he or she gathered the information.
  The provision also provides that even if terrorists pose as 
journalists, they do not qualify for the act's protections. The 
modifications create an expedited appeals process, ensuring that 
litigation regarding whether the privilege applies will be quickly 
resolved.
  This is motivated by the case involving USA Today reporter, Tony 
Loci, who was held in contempt of court and fined $5,000 a day. The 
judge entered an order that her employer or friends and relatives could 
not pay it. Fortunately for Tony Loci, that case was settled so the 
contempt citation did not stand.
  Numerous journalists across the country have seen what happened to 
Tony Loci and Judith Miller. It has had a very chilling effect on their 
activities. People who might give sensitive information under the 
promises of confidentiality are reluctant to share that information.
  Also, under the revisions, prosecutors will not have to prove they 
have exhausted all other options for finding the information or the 
information is essential to their investigation.
  So what we have, in essence, is very important legislation. It is 
very important to the functioning of the democracy that there be a free 
press to report to the American people what has happened, especially on 
investigative reporting. You cannot have a free press if a reporter 
cannot obtain information from a confidential source, promise 
confidentiality, and then deliver. And you cannot have a free press if 
people such as Tony Loci and Judith Miller are subjected to contempt 
citations--large fines with Tony Loci, actual imprisonment with Judith 
Miller of some 85 days.
  So this bill is long past due. I am glad to see it brought to the 
floor. I am hopeful the majority leader will not pursue a course of 
filling the tree to preclude amendments. I am hopeful we can return to 
the day when the Senate regains its luster as the world's greatest 
deliberative body, which means that any 1 of the other 99 Senators can 
offer amendments, and that it is not just the one Senator, the senior 
Senator from Nevada, who has the position of majority leader, who can, 
in effect, dictate what happens in the Senate.
  Yesterday, we had a heated exchange on the floor. When we finished 
voting on the cloture motion, the majority leader refused to allow a 
quorum call to be taken off. If anyone may be watching on C-SPAN, a 
quorum call is when there is the absence of a quorum. There are 
frequent quorum calls when no one seeks recognition. But it is a 
relatively infrequent occurrence that there is quorum. A quorum means 
51 or more Senators. Right now, we are 50 Senators short of a quorum. 
Most of the time, you only have a few Senators on the floor who may be 
speaking--three or four. When there are votes, there are many Senators 
on the floor.
  But it is a relatively rare occurrence that a quorum is present. So 
if someone suggests there is an absence of a quorum, there is a quorum 
call. And a quorum call cannot be taken off except by unanimous consent 
or to have a live quorum or to have a motion for the attendance of 
absent Senators.
  But, invariably, when there is a quorum call and someone asks 
unanimous consent--or virtually invariably--it is granted unless 
somebody wants to hold up an action on something that is pending. But I 
have not seen, in my tenure in the Senate, a denial of an application 
to eliminate the quorum call so speeches can be made.
  I and other Senators were waiting for more than an hour. And in 
conjunction with what the majority leader has done on filling the tree 
in denying 99 other Senators--mostly minority Senators--the right to 
offer amendments and refusing to allow the quorum to be lifted, I used 
the word ``tyrannical,'' and I stand by that.
  This body is a great body and has earned great prestige worldwide and 
I think has earned the stature of the world's greatest deliberative 
body because of the ability of Senators to offer amendments and the 
ability of Senators to speak. To be on this floor in a quorum call and 
to be denied an opportunity to speak is not quite a denial of my first-
amendment rights. I can go to the Radio and TV Gallery and call a news 
conference or walk out and talk to reporters or go on the steps. But 
having been elected to the Senate, and having a commission to serve 
here, when no one is on the floor speaking, and there is no reason why 
I ought to be denied an opportunity to speak except for the 
technicality of a quorum call, I take umbrage at it. It is just one 
indication of how we have to go back to the--well, you might call them 
the old days. Maybe they were good old days, where the Senate 
functioned with every Senator being able to offer amendments.
  A critical part of the functioning of our Government, I suggest, is 
the ability of the free press to function and reporters to get 
confidential information, to be able to promise confidentiality and to 
be able to deliver without being fearful of being held in contempt of 
court and being put in jail.
  Mr. President, before yielding the floor, I ask unanimous consent 
that the full text of a substitute be printed in the Record, which 
contains the modifications referred to in the course of my oral 
statement.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Free Flow of Information Act 
     of 2008''.

     SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.

       (a) Conditions for Compelled Disclosure.--In any proceeding 
     or in connection with any issue arising under Federal law, a 
     Federal entity may not compel a covered person to comply with 
     a subpoena, court order, or other compulsory legal process 
     seeking to compel the production of protected information, 
     unless a Federal court in the jurisdiction in which the 
     subpoena, court order, or other compulsory legal process has 
     been or would be issued determines, by a preponderance of the 
     evidence, after providing notice and an opportunity to be 
     heard to such covered person--
       (1) that the party seeking to compel production of such 
     protected information has exhausted all reasonably known 
     alternative sources of the protected information; and
       (2) that--
       (A) in a criminal investigation or prosecution--
       (i) there are reasonable grounds to believe, based on 
     information obtained from a source other than the covered 
     person, that a crime has occurred;
       (ii) there are reasonable grounds to believe, based on 
     information obtained from a source other than the covered 
     person, that the protected information sought is essential to 
     the investigation or prosecution or to the defense against 
     the prosecution; and
       (iii) nondisclosure of the information would be contrary to 
     the public interest, taking into account both the interest in 
     compelling disclosure (including the extent of any harm to 
     national security) and the public interest in gathering and 
     disseminating the information or news conveyed and 
     maintaining the free flow of information; or
       (B) in a matter other than a criminal investigation or 
     prosecution--

[[Page S7707]]

       (i) based on information obtained from a source other than 
     the covered person, the protected information sought is 
     essential to the resolution of the matter; and
       (ii) the interest in disclosure clearly outweighs the 
     public interest in gathering and disseminating the 
     information or news conveyed and maintaining the free flow of 
     information.
       (b) Limitations on Demand for Protected Information.--A 
     subpoena, court order, or other compulsory legal process 
     seeking protected information that is compelled under 
     subsection (a) shall, to the extent possible be narrowly 
     tailored in purpose, subject matter, and period of time 
     covered so as to avoid compelling production of peripheral, 
     nonessential, or speculative information.

     SEC. 3. EXCEPTION RELATING TO EYEWITNESS OBSERVATION OR 
                   CRIMINAL OR TORTIOUS CONDUCT BY THE COVERED 
                   PERSON.

       (a) In General.--Section 2 shall not apply to any protected 
     information obtained as the result of the eyewitness 
     observations by a covered person of alleged criminal conduct 
     or the commission of alleged criminal or tortious conduct by 
     the covered person, including any physical evidence or visual 
     or audio recording of the observed conduct.
       (b) Exceptions.--
       (1) In general.--This section shall not apply, and section 
     2 shall apply, if the alleged criminal or tortious conduct is 
     the act of communicating information to a covered person.
       (2) Classified information.--Notwithstanding paragraph (1), 
     this section shall not apply, and section 5 shall apply, if 
     the alleged criminal or tortious conduct is an unauthorized 
     release of properly classified information.

     SEC. 4. EXCEPTION TO PREVENT AN ACT OF TERRORISM, DEATH, 
                   KIDNAPPING, SEXUAL ABUSE OF A MINOR, OR 
                   SUBSTANTIAL BODILY INJURY.

       (a) In General.--Section 2 shall not apply to any protected 
     information that a Federal court finds is reasonably likely 
     to stop, prevent, or mitigate, or identify the perpetrator 
     of, an act of international terrorism or domestic terrorism, 
     as those terms are defined in section 2331 of title 18, 
     United States Code.
       (b) Other Activities.--Section 2 shall not apply to any 
     protected information that a Federal court finds is 
     reasonably likely to stop, prevent, or mitigate a specific 
     case of--
       (1) death;
       (2) kidnapping;
       (3) substantial bodily harm;
       (4) conduct that would violate section 2251 or section 2252 
     of title 18, United States Code (relating to the sexual 
     exploitation of children and child pornography); or
       (5) incapacitation or destruction of critical 
     infrastructure (as defined in section 1016(e) of the USA 
     PATRIOT Act (42 U.S.C. 5195c(e))).

     SEC. 5. EXCEPTION TO PREVENT HARM TO THE NATIONAL SECURITY.

       Section 2 shall not apply to any protected information, and 
     a Federal court shall compel the disclosure of such protected 
     information, if the court--
       (1) finds that the protected information--
       (A) would assist in stopping or preventing significant and 
     articulable harm to national security; or
       (B) relates to an unauthorized release of properly 
     classified information that has caused or will cause 
     significant and articulable harm to the national security; 
     and
       (2) takes into account the balancing of the harm described 
     in paragraph (1) against the public interest in gathering and 
     disseminating the information or news conveyed.

     SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE 
                   PROVIDERS.

       (a) Conditions for Compelled Disclosure.--If any document 
     or other information from the account of a person who is 
     known to be, or reasonably likely to be, a covered person is 
     sought from a communications service provider, sections 2 
     through 5 shall apply in the same manner that such sections 
     apply to any document or information sought from a covered 
     person.
       (b) Notice and Opportunity Provided to Covered Persons.--A 
     Federal court may compel the disclosure of a document or 
     other information described in subsection (a) only after the 
     covered person from whose account such document or other 
     information is sought has been given--
       (1) notice of the subpoena, court order, or other 
     compulsory legal process for such document or other 
     information from the communications service provider not 
     later than the time at which such subpoena, court order, or 
     other compulsory legal process is issued to the 
     communications service provider; and
       (2) an opportunity to be heard by the court.
       (c) Exception to Notice Requirement.--Upon motion by a 
     Federal entity, notice and opportunity to be heard under 
     subsection (b) may be delayed for not more than 45 days if 
     the court determines that there is substantial basis for 
     believing that such notice would pose a substantial threat to 
     the integrity of a criminal or national security 
     investigation or intelligence gathering, or that exigent 
     circumstances exist. This period may be extended by the court 
     for an additional period of not more than 45 days each time 
     the court makes such a determination.

     SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE OR 
                   AGREEMENT OF CONFIDENTIALITY.

       Nothing in this Act shall supersede, dilute, or preempt any 
     law or court decision regarding a subpoena, court order, or 
     other compulsory legal process relating to disclosure by a 
     covered person or communications service provider of--
       (1) information identifying a source who provided 
     information without a promise or agreement of confidentiality 
     made by the covered person; or
       (2) records or other information, or contents of a 
     communication obtained without a promise or agreement that 
     such records, other information, or contents of a 
     communication would be confidential.

     SEC. 8. PROCEDURES FOR REVIEW AND APPEAL.

       (a) Conditions for Ex Parte Review or Submissions Under 
     Seal.--With regard to any determination made by a Federal 
     court under this Act, upon a showing of good cause, that 
     Federal court may receive and consider submissions from the 
     parties in camera or under seal, and if the court determines 
     it is necessary, ex parte.
       (b) Contempt of Court.--With regard to any determination 
     made by a Federal court under this Act, a Federal court may 
     find a covered person to be in civil or criminal contempt if 
     the covered person fails to comply with an order of a Federal 
     court compelling disclosure of protected information.
       (c) To Provide for Timely Determination.--With regard to 
     any determination to be made by a Federal court under this 
     Act, that Federal court, to the extent practicable, shall 
     make that determination not later than 30 days after the date 
     of receiving a motion requesting the court make that 
     determination.
       (d) Expedited Appeal Process.--
       (1) In general.--The courts of appeal shall have 
     jurisdiction--
       (A) of appeals by a Federal entity or covered person of an 
     interlocutory order of a Federal court under this Act; and
       (B) in an appeal of a final decision of a Federal court by 
     a Federal entity or covered person, to review any 
     determination of a Federal court under this Act.
       (2) Expedition of appeals.--It shall be the duty of a 
     Federal court to which an appeal is made under this 
     subsection to advance on the docket and to expedite to the 
     greatest possible extent the disposition of that appeal.

     SEC. 9. RULE OF CONSTRUCTION.

       Nothing in this Act may be construed to--
       (1) preempt any State law relating to defamation, slander, 
     or libel;
       (2) modify the requirements of section 552a of title 5, 
     United States Code, or Federal laws or rules relating to 
     grand jury secrecy (except that this Act shall apply in any 
     proceeding and in connection with any issue arising under 
     that section or the Federal laws or rules relating to grand 
     jury secrecy);
       (3) preclude a plaintiff from asserting a claim of 
     defamation against a covered person, regardless of whether 
     the claim is raised in a State or Federal court; or
       (4) create new obligations, or affect or modify the 
     authorities or obligations of a Federal entity with respect 
     to the acquisition or dissemination of information pursuant 
     to the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.).

     SEC. 10. DEFINITIONS.

       In this Act:
       (1) Communications service provider.--The term 
     ``communications service provider''--
       (A) means a person that transmits information of the 
     customer's choosing by electronic means; and
       (B) includes a telecommunications carrier, an information 
     service provider, an interactive computer service provider, 
     and an information content provider (as such terms are 
     defined in sections 3 or 230 of the Communications Act of 
     1934 (47 U.S.C. 153 and 230)).
       (2) Covered person.--The term ``covered person''--
       (A) means a person who--
       (i) with the primary intent to investigate events and 
     procure material in order to disseminate to the public news 
     or information concerning local, national, or international 
     events or other matters of public interest, regularly 
     gathers, prepares, collects, photographs, records, writes, 
     edits, reports, or publishes on such matters by--

       (I) conducting interviews;
       (II) making direct observation of events; or
       (III) collecting reviewing or analyzing original writings, 
     statements, communications, reports, memoranda, records, 
     transcripts, documents, photographs, recordings, tapes, 
     materials, data or other information whether in paper, 
     electronic or other form; and

       (ii) has such intent at the inception of the newsgathering 
     process;
       (B) includes a supervisor, employer, parent company, 
     subsidiary, or affiliate of such person; and
       (C) does not include any person--
       (i) who is a foreign power or an agent of a foreign power, 
     or as to whom there is probable cause to believe that the 
     person is a foreign power or an agent of a foreign power, as 
     those terms are defined in section 101 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);
       (ii) who is a foreign terrorist organization designated 
     under section 219(a) of the Immigration and Nationality Act 
     (8 U.S.C. 1189(a));
       (iii) who is designated as a Specially Designated Global 
     Terrorist by the Department of the Treasury under Executive 
     Order Number 13224 (50 U.S.C. 1701 note);

[[Page S7708]]

       (iv) who is a specially designated terrorist, as that term 
     is defined in section 595.311 of title 31, Code of Federal 
     Regulations (or any successor thereto); or
       (v) who is a terrorist organization, as that term is 
     defined in section 212(a)(3)(B)(vi)(II) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).
       (3) Document.--The term ``document'' means writings, 
     recordings, and photographs, as those terms are defined by 
     rule 1001 of the Federal Rules of Evidence (28 U.S.C. App.).
       (4) Federal entity.--The term ``Federal entity'' means an 
     entity or employee of the judicial or executive branch or an 
     administrative agency of the Federal Government with the 
     power to issue a subpoena, court order, or issue other 
     compulsory legal process.
       (5) Properly classified information.--The term ``properly 
     classified information'' means information or documents that 
     have been classified in accordance with Executive Orders, 
     statutes, applicable procedures, and regulations regarding 
     classification of information or documents.
       (6) Protected information.--The term ``protected 
     information'' means--
       (A) information identifying a source who provided 
     information under a promise or agreement of confidentiality 
     made by a covered person; or
       (B) any records, contents of a communication, documents, or 
     information that a covered person obtained or created upon a 
     promise or agreement that such records, contents of a 
     communication, documents, or information would be 
     confidential.
         Amend the title so as to read: ``A bill to maintain the 
     free flow of information to the public by prescribing 
     conditions under which Federal entities may compel disclosure 
     of confidential information from journalists.''.

  Mr. SPECTER. I thank the Chair and yield the floor.

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