By Michael R. Lemov* & Nate Jones**
This article originally appeared in the Southwestern Journal of International Law, Volume 24.
INTRODUCTION
John Moss was an obscure Congressman from a newly created district in northern California when he arrived in Washington D.C. in 1953.1 He had survived a razor-thin general election victory (by about 700 votes), which included unfounded charges of being a communist, or a communist sympathizer.2 Those charges became an important force behind Moss’s long battle to enact the Freedom of Information Act.
Except for an 18th century Swedish law and a similar information law in Finland in 1951, the U.S. Freedom of Information Act (“FOIA”) was the first open government law in the world.3 During the twelve years it took John Moss to win enough Congressional votes to pass the bill, he endured intense political opposition, faced a veto threat from a president of his own party, and overcame fierce opposition from executive branch agencies.4
When President Lyndon Johnson signed the Freedom of Information Act into law on July 4, 1966, Moss did not receive a pen from the president, nor was there any signing ceremony.5
Since 1966, more than 117 nations have passed government information laws.6 Congress has amended and refined significant sections of the U.S. law several times, generally improving access in areas where Moss had to compromise in order to win its original passage.
I. MOSS AND THE CONGRESS
When Moss first arrived in Washington, D.C. there was a poisonous political atmosphere in the city.7 Senator Joseph McCarthy was riding anti-communist fears that he helped arouse and that propelled him to great influence in the U.S. Senate and in the nation.8 The House Un-American Activities Committee was making headlines, with its endless investigations of security risks, Russian spies, and alleged disloyalty in dozens of government agencies and American industries.9
President Harry Truman issued an Executive Order establishing an administration Loyalty Program.10 It directed Truman’s attorney general to compile a list of communist organizations and “front” organizations and to investigate the loyalty of federal government employees.11 Based on the results of these investigations, the targets could be fired from their government jobs, prosecuted, and made virtually unemployable.12 They faced public condemnation and personal humiliation in the process. People investigated under the Loyalty Program were not allowed to confront their accusers or see the charges against them, often based on hearsay evidence that was held in secret files compiled by the Federal Bureau of Investigation.13
United States Court of Appeals Judge Henry Edgerton wrote an opinion concerning the firing of one such government employee: “Without trial by jury, without evidence, and without even being allowed to confront her accusers or to know their identity, a citizen of the United States has been found disloyal to the government of the United States.”14 Edgerton found the discharge proceedings to have been unconstitutional.15 “Whatever her actual thoughts may have been,” he wrote, “to oust her as disloyal without trial is to pay too much for protection against any harm that could possibly be done.”116
Edgerton was the lone dissenter on the federal Court of Appeals. The court affirmed the employee’s firing from government service.17 The United States Supreme Court divided evenly in reviewing the case, four to four, thus upholding the legality of the Truman Loyalty Program and its attendant government secrecy.18
Moss knew about the McCarthy approach, having been a target of similar charges in his California campaigns for both the state assembly in 1949 and, in 1953, for Congress.19 He survived the attacks. He did not forget them. His long campaign to secure freedom of information was grounded, in part, on his anger at being faced with such potentially devastating charges based on unsubstantiated claims against him.
Moss’s information battle was also based, coincidentally, on his assignment to a very obscure congressional committee that had legislative responsibility only for federal civil service and post office employees.20
When he took his seat in Congress in January 1953 representing California’s new Third Congressional District, there was no evidence that limiting government secrecy and providing the public and the press with access to government records would be causes he would champion for twelve long years—and in fact, for the rest of his life.21 Perhaps because of Moss’s independent views on several such issues, he later said, “By all that was holy, I was destined to be a onetermer.”22
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