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The ACLU has experienced lengthy delays in the handling of some of its FOIA requests. For example, in October 2003, the ACLU filed a FOIA request for information about detainees held overseas by the United States, and then we filed a lawsuit in June of 2004 asking that the government comply with the terms of FOIA. In August of last year, a Federal court ordered the govern- ment to disclose documents responsive to that request. As a result of those disclosures, the public has learned about executive branch policy decisions about detainees, individuals kept from inspection by the Red Cross, as well as information about the treatment of those detainees.

The underlying disclosures raise very troubling issues, but that is not the purpose of my testimony today. The fact of disclosure, even as a result of court order, demonstrates the continuing vitality of the democratic principles of an open society and the central im- portance of FOIA in our country.

The OPEN Government Act takes important steps toward keep- ing the promises made by FOIA. S. 294 improves FOIA and govern- ment openness not by necessarily making more records subject to disclosure or by eliminating FOIA exemptions, but by helping en- sure that agencies follow the law and disclose information that the Freedom of Information Act requires them to disclose. It is a very good beginning.

Finally, I would like to note that in the wake of 9/11, there has been an epidemic of over-classification. However, this over-classi- fication is not something new, as Terry Anderson’s case in the Clin- ton administration and so many others have shown. Senator Cornyn, you recently commented on the problem of over-classifica- tion in your article in the LBJ Journal of Public Affairs. You noted that the Honorable Thomas Kean, the Chair of the 9/11 Commis- sion, had stated that in reviewing the documents, the important documents that the Commission reviewed for its report, three- fourths of what he saw was classified and shouldn’t have been.

Government secrecy can be an enemy of an open society and de- mocracy, but, of course, this does not mean that every piece of in- formation the government has can or should be made open to the public. There are limits, many of which the ACLU supports, to pro- tect other important national and individual interests. But we as a people must continue to resist the culture of secrecy when it un- necessarily permeates our government, no matter which party is in power. When it comes to information about how the government is using its vast powers, ignorance is definitely not bliss.

The ACLU supports S. 394 because this much-needed bill will help buck the growing trend of hiding government action from pub- lic scrutiny. We commend you, Senator Cornyn and Senator Leahy, for introducing the OPEN Government Act and we urge members to join you in support of this good government measure which will strengthen our nation’s democracy. Thank you.

Senator CORNYN. Thank you very much. [The prepared statement of Ms. Graves appears as a submission for the record.]

Senator CORNYN. Ms. Fuchs, we are glad to hear from you.

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