Judicial Watch Goes to Congress
By JW
"The Obama administration's casual law-breaking when
it comes to FOIA is a national disgrace and shows contempt for the American
people's right to know what their government is
doing."
Wouldn't you love to tell top members of Congress that
truth! Well, your Judicial Watch just did that for you. On Tuesday, June 2, I
joined a distinguished group of leading journalists and activists in the Rayburn
House Office Building to testify before the House Committee on Oversight and
Government Reform on the D.C. transparency crisis that has reached an apex under
the secretive Barack Obama. It was an honor to testify on behalf of Judicial
Watch and its hundreds of thousands of active supporters. Congress must be told
the truth, not only about Obama administration's illegal secrecy, but also about
Congress' failures and hypocrisy when it comes to
transparency.
I was impressed that the concerns about the lack of
transparency seemed, with a few petty and silly exceptions, bipartisan. Frankly,
I couldn't tell most of the Democrats and Republicans apart during the hearing -
in a good way! When confronted with an example of improper secrecy by a
Republican administration, Committee Chairman Jason Chaffetz, R-Utah, was moved to exclaim,
"I don't care who's in
the White House, it's wrong, it's wrong, it's wrong!"
The hearing, entitled "Ensuring Transparency
Through the Freedom of Information Act," explored the barriers
erected to block access public documents under FOIA, including delays,
administration backlogs and excessive redactions. Here
are links to the
FOIA hearings, which made headlines (especially after an
IRS FOIA official testified that the whole FOIA process at that key agency
had been subverted by the Obama IRS leadership). I encourage you to review the
hearing videos and transcripts. In the
meantime, I provide for you below my full statement to the
committee:
Good morning, I am Tom Fitton, president of Judicial Watch. Judicial Watch is a
conservative, non-partisan educational foundation dedicated to promoting
transparency, accountability and integrity in government, politics and the law.
We are the nation's largest and most effective government watchdog
group.
Judicial Watch is, without a doubt, the most active
Freedom of Information Act (FOIA) requestor and litigator operating today. Thank
you, Chairman Chaffetz and Congressman Cummings for
allowing me to testify on this important topic. Judicial Watch used the open
records laws to root out corruption in the Clinton administration and to take on
the Bush administration's penchant for improper secrecy. Founded in 1994,
Judicial Watch has over 21years' experience using FOIA to advance the public
interest.
Our government is bigger than ever, and also the most
secretive in recent memory. President Obama promised the most transparent
administration in history, but federal agencies are often black holes in terms
of disclosure. I've previously testified about this president's remarkable
assertions of secrecy over White House visitor logs, Fannie Mae and Freddie Mac
documents, and even the photos of the dead Osama bin Laden. (The administration
asserted secrecy over the photos so as to not upset al
Qaeda!)
We have filed nearly 3,000 FOIA requests with the
Obama administration, and our staff attorneys have been forced to file nearly
225 FOIA lawsuits in federal court against this administration. Most of these
lawsuits are filed just to get a "yes or no" answer from the administration.
Administratively, agencies have built additional hurdles and stonewalled even
the most basic FOIA requests. The Obama administration's casual law-breaking when it comes to FOIA is a national disgrace and
shows contempt for the American people's right to know what their government is
doing.
Both the left and right agree that, on major
transparency issues, the Obama administration has come down on the side of
secrecy.
The Founding Fathers took transparency
seriously.
James Madison wrote, "A popular government without
popular information, or the means of acquiring it, is but a prologue to a Farce
or a Tragedy, or perhaps both." Unfortunately, DC is both a tragedy and a
farce today - but as Thomas Jefferson said, "If we are to guard against
ignorance and remain free, it is the responsibility of every American to be
informed."
Transparency is about self-government. If we don't
know what the government is doing, how is that self-government? Frankly, how is
that even a republic?
Congressional oversight is sorely lacking - lacking on
all fronts. Congress is like a fire department that shows up after your house
burns down and shouts "fire." Even President Obama, flailing for an excuse over
his IRS' massive oppression of his political opponents, suggested that the
government was too big and he had no way of effectively monitoring his own
agencies.
And, too often, the fourth estate acts as PR rep for
big government and fails to do the hard work of keeping watch on government
waste, fraud and abuse. And even under FOIA law, the courts have deferred to the
whims of the executive branch and have applied FOIA in a way that makes it more
difficult for the American people to find out how their tax dollars are being
used or misused.
Now, this has all led to the transparency crisis here
in D.C.
Never in our history has so much money been spent with
so little accountability. Frankly, all of Congress should focus on "government
reform and oversight," instead of assigning it to one or two
committees.
Americans are rightly worried they are losing their
country. We have the forms of democracy - elections, campaigns, votes, political
fundraising, etc. - but when Congress authorizes $1.5 trillion in spending after
just three days of debate, and when the executive branch won't tell you much
unless you're willing to make a federal court case out of an issue, that isn't
democracy, and it isn't self-government.
But there is a way forward out of the DC transparency
and corruption crisis. Judicial Watch shows that one citizen group, using the
Freedom of Information Act and independent oversight, can help the American
people bring their government back down to earth and under
control.
Judicial Watch has succeeded in uncovering documents
that had been denied to Congress.
On Benghazi, it has been a little over a year since
Judicial Watch uncovered a newly declassified
email showing then-White House Deputy Strategic
Communications Adviser Ben Rhodes and other Obama administration public
relations officials, not "intelligence officials," putting out the lie that the
Benghazi attack was "rooted in an Internet video, and not a failure of
policy." These documents had been withheld from Congress and a half-dozen or so congressional committees had been made to
look foolish. As a direct result of this disclosure, Speaker Boehner reversed
his opposition to a Select Committee on Benghazi.
The Select Committee, now run by Rep. Trey Gowdy (R-SC), doesn't seem to be succeeding, to put it
charitably, in getting answers or accountability. And Judicial Watch continues
to be the go-to source on Benghazi facts as we continue to uncover revelation
after revelation about the Benghazi terrorist attack. These revelations have not
come easily and have only occurred through multiple federal lawsuits and court
orders requiring the administration to comply with FOIA. Our document
disclosures have led to questions about criminal violations of obstruction and
perjury laws by top officials of this administration.
With respect to the IRS scandal, Judicial Watch
litigation forced the agency to admit that Lois Lerner emails were supposedly
lost. And it was Judicial Watch FOIA litigation that forced the IRS to admit
that her emails were not actually necessarily lost. Only Judicial Watch
uncovered the troubling revelation that the Obama IRS and Justice Department
were collaborating on prosecuting the same groups that the IRS had lawlessly
suppressed. Again, Congress has seemed to have
lost interest in the IRS scandal, but JW continues to do the job of
oversight and remains the key vehicle for revelations about the continuing abuse
of the IRS.
And then we have perhaps one of the most egregious
violations of federal transparency law since FOIA was passed nearly 50 years
ago.
On March 2, 2015, The New
York Times reported
then-Secretary Clinton used at least one non-"state.gov" email
account to conduct official government business during her
entire tenure as the secretary of state.
There are at least 18 lawsuits, 10 of which are active
in federal court, and about 160 Judicial Watch Freedom of Information Act (FOIA)
requests that could be affected by Mrs. Clinton and her staff's use of secret
email accounts to conduct official government business. I can tell you that we
dismissed several lawsuits based on lies by the State Department that it
searched all of Hillary Clinton's emails and couldn't find anything relevant to
our requests. In Judicial Watch's various FOIA lawsuits, our lawyers have
informed attorneys for the Obama administration that Hillary Clinton's and any
other secret accounts used by State employees should be secured, recovered and
searched. Judicial Watch's litigation against the State Department has already
exposed key documents about both the Benghazi (as discussed
above) and Clinton
cash scandals.
Indeed, as with Lois Lerner's emails, our litigation
forced the State Department to publicly disclose Hillary Clinton's secret email
accounts. In a recent federal court filing we point
out:
On November 12, 2014, the State Department released
its production of responsive, non-exempt, records that Judicial Watch understood
to be complete. In its letter, the Department stated that it located four (4)
documents as a result of its search of the Office of the Secretary...On December
5, 2014, the State Department produced its draft Vaughn index pursuant to
the Court's September 15, 2014, Order...In both instances, the State Department
omitted that its search did not include Secretary Clinton's emails in the Office
of the Secretary. More egregiously, the State Department omitted that Secretary
Clinton had apparently just turned over 55,000 pages of her agency emails that
had not been searched or included in the Department's draft Vaughn index
...These omissions are material and were apparently made in the process of
settlement discussions to induce dismissal.
A supplemental search and document production is due
April 2, 2015, solely because Judicial Watch requested search affidavits,
surprised that that the State Department located only four responsive records -
none of which are Secretary Clinton's emails and all of which were previously
produced in another litigation ... Judicial Watch has no reason to believe that
the State Department would have ever disclosed that its search was compromised
had Judicial Watch not asked for search affidavits when it reviewed the
draftVaughn index and limited production.
A statement by the State Department in a February 2,
2015, status report was the first notice to the public and the court that other
records had not been searched: "[The State Department] has discovered that
additional searches for documents potentially responsive to the FOIA must be
conducted."
The State Department's early response to the scandal
has not been encouraging. While new records will be searched in response to
future FOIA requests, there are no
plans to go back and review the accuracy of what has
already been produced in response to FOIA, MarieHarf,
a State Department spokeswoman has said.
The State Department is obligated to secure the
accounts as soon as possible to protect classified materials, retrieve any lost
data, protect other federal records, and search records as required by court
orders in our various FOIA lawsuits, and in response to congressional subpoenas,
etc.
Rather than allowing Hillary Clinton's campaign
advisers to review email and release material to the government, the agency
should assert its ownership, secure the material and prohibit private parties
from illicitly reviewing potentially classified and other sensitive
material.
This is the basis for a new federal lawsuit, filed
last week, against Secretary of State John Kerry. Kerry's predecessor at the
State Department, former-Secretary Clinton, conducted official government
business using a secret, unsecured email server and email accounts. Her top
aides and advisors also used non-"state.gov" email accounts to conduct official
business.
In 2014, Clinton "unilaterally determined which of her
emails were official government records and, in December 2014, returned at least
a portion of these public records - as many as 55,000 pages of records - to the
State Department."
In the lawsuit, Judicial Watch argues the
following:
The Clinton emails are agency records subject to the
[Federal Records Act (FRA)] and the State Department's failure to retain,
manage, and search these agency records has compromised the Department's
retention of records that concern or relate to Secretary Clinton and other high
level State Department officials who used non-"state.gov" email
addresses.
The Federal Records Act
stipulates:
Agencies may only dispose of records on terms approved
by the Archivist of the United States, who is head of the National Archives and
Records Administration ("NARA"). ... This process is the exclusive procedure by
which all federal records may be disposed of or destroyed.
...
The FRA imposes a direct responsibility on an agency
head to take steps to recover any records unlawfully
removed.
On April 30, 2015, Judicial Watch
sent a
letter to Kerry "notifying him of the unlawful removal of
the Clinton emails and requesting that he initiate enforcement action pursuant
to the FRA," including working through the attorney general to recover the
emails.
Patrick Kennedy, under secretary of State for
management, responded on Secretary Kerry's
behalf on May 14. The letter ignored Judicial Watch's demands that the
secretary comply with the FRA.
Kerry's actions represent "an abuse of discretion"
that has led to the continued withholding of official government records from
the American people.
To be clear, Mrs. Clinton's actions, and maybe the
actions of other administration officials, require a serious and independent
criminal investigation.
The courts are taking notice. Last month, a federal
court judge did something we had never seen before - U.S. District Court Judge
Reggie B. Walton reopened a Judicial Watch
Freedom of Information Act (FOIA) lawsuit because of the "new"
evidence of Hillary Clinton's hidden emails.
In the meantime, Judicial Watch filed eight lawsuits
(including six on one day) against the Obama administration to get answers on
the Hillary Clinton email scandal.
Many, including members of both parties in Congress,
ask how is it that Judicial Watch gets documents that Congress can't get even
under subpoena.
The easy answer is that FOIA is a straightforward tool
that quickly gives JW, other media, and citizens' access to the federal courts
in order to ensure compliance with lawful records
requests.
Congressional investigations, even with subpoenas, are
political by nature and require, under the current practice, effective
enforcement in court with the cooperation of a politicized Justice
Department.
The Fast and Furious scandal is a perfect example.
Eric Holder was charged with contempt of Congress, and President Obama made a
remarkable assertion of executive privilege to protect his attorney general and
thwart Congress. Rather than enforce the contempt charge, the Justice
Department ignored it. Only after Judicial Watch secured key court victories
separately against the Justice Department did Congress, after two years of
getting nowhere, get many of the documents it had been
seeking.
Of course, if the administration were transparent -
all of this wouldn't matter. Truth fears no inquiry. Crafty, corrupt politicians
realize that transparency and accountability go hand-in-hand. If the Obama
administration truly had nothing to hide, it would not go to such extraordinary
lengths to keep information from the public.
A commitment to transparency must cut across partisan
lines.
We are pleased to see renewed congressional interest
in reforming FOIA. We only ask that such reforms be significant and provide more
access to information to the American people. And speaking of FOIA reform,
Congress should apply the freedom of information concept to itself and the
courts, the two branches of the federal government exempt from the transparency
laws that presidents must follow.
Founding Father John Adams was keenly aware of the
relationship between secrecy and corruption - and the preservation of
liberty:
Liberty cannot be preserved without a general
knowledge among the people, who have a right, from the frame of their nature, to
knowledge, as their great Creator, who does nothing in vain, has given them
understandings, and a desire to know; but besides this, they have a right, an
indisputable, unalienable, indefeasible, divine right to that most dreaded and
envied kind of knowledge; I mean, of the characters and conduct of their
rulers.
Thank you.
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