On November 1, 2001, President Bush issued Executive Order (EO) 13233 entitled “Further Implementation of the Presidential Records Act.” The order replaces President Reagan’s Executive Order 12667 (issued January 18, 1989) and reinterprets the Presidential Records Act of 1978 (PRA).
The order allows a sitting president to keep secret the papers of a previous president, even if that previous president desires to have the papers made public. In essence, the new order provides for the release of certain types of presidential papers only when both the former and sitting president agree to release the papers. The order reverses the very premise of public access built into the PRA, which provides for the systematic release of presidential records after 12 years or by way of a Freedom of Information Act (FOIA) request. The new EO requires that the materials can be released only when a FOIA request shows a “demonstrable, specific need.”
Administration officials stated that the new EO was merely designed to provide an “orderly process” for the release of presidential papers. During a testy press briefing on November 1, White House spokesperson Ari Fleischer stated that the order was designed to provide a “safety valve” for a current administration because a former president, out of office for 12 years, may not recognize the national security implications of releasing certain documents. During a brief question-and-answer session in the Rose Garden the next day, President Bush stated, “It’s a process that I think will enable historians to do their jobs” and at the same time help protect state secrets.
Historians familiar with the provisions of the Presidential Records Act disagreed and strongly criticized the Administration. Vanderbilt University historian Hugh Graham, who has studied the Reagan presidency and is a coeditor of The Carter Presidency: Policy Choices in the Post-New Deal Era, said the claims of the White House spokespersons “are absurd” because national security records are already protected from release. Graham characterized the order as “draconian … merely the latest effort by the Bush White House to clamp down on the flow of information to the public. … [C]learly it will make it harder for the public to gain access to historically valuable presidential materials.” American University historian Anna Nelson, who has studied the secret diplomacy of President James Polk and edited a volume on federal papers, said that President Bush appears to be trying to set a precedent that would give him full control over his own papers 12 years after he leaves office. “This order sets up a minefield in front of what was a straightforward piece of legislation,” said Nelson.
Not only historians were upset over the order, but similar concerns were also voiced by an aide to former President Bill Clinton who reportedly opposed the language of the order. A letter written to the Bush White House by Bruce Lindsey, Clinton’s deputy White House counsel and now a lawyer for the William J. Clinton Foundation, stated, “a government’s legitimacy is based on trust of its people When decisions are made on behalf of the American people, citizens eventually have to be able to see the process of how those decisions came to be.”
Congressional Hearing
On November 6, 2001, shortly after the EO was issued, a congressional inquiry into the EO and related issues (principally focusing on the delays in the release of the Reagan presidential papers by the White House) was held by Rep. Stephen Horn (R-Calif.), chair of the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations of the House Committee on Government Reform.
A hearing had been scheduled weeks earlier but was postponed several times due to anthrax threats on Capitol Hill. Originally, congressional interest focused on the White House’s delay in releasing some 68,000 pages of presidential papers from the Reagan Presidential Library, but with the issuance of EO 13223, Rep. Horn quickly rescheduled the hearing and announced that the subcommittee would examine the totality of the Presidential Records Act of 1978.
Witnesses included John W. Carlin, archivist of the United States; M. Edward Whelan III of the Department of Justice; Attorney Scott L. Nelson, attorney for the Public Citizen Litigation Group; and several university-based expert witnesses, including Mark J. Rozell of Catholic University of America, Peter M. Shane of the University of Pittsburgh and Carnegie Mellon University, and Anna Nelson of American University. Professor Nelson delivered testimony on behalf of the American Historical Association, the Organization of American Historians, and the Society of American Archivists. In addition, the Society of American Archivists issued its own response to the order by sending a letter to Rep. Horn expressing “grave concern” with the EO.
No Democrats attended the two-hour hearing, although the ranking minority member, Rep. Henry Waxman (D-Calif.) and committee member Rep. Janice Schakowsky (D-Ill.) issued a joint statement calling for Bush to rescind the order. Two members of the House (including Horn), representing the Republican majority, did attend. Horn fell short of calling for the order to be rescinded, but urged the Bush Administration to “revisit” it in order to remove the hurdles to public access that it creates. A fellow California Republican, Rep. Doug Ose (R-Calif.), who has his own interest in seeing the Clinton presidential documents released, pressed administration witnesses hard for answers to specific issues and concerns during questioning. Representing the White House was Acting Assistant Attorney General M. Edward Whelan III. Whelan stated the administration’s position—that the order simply sets up a “procedure” whereby presidents can invoke “constitutionally based privileges” to withhold documents that otherwise might be disclosed after a 12-year waiting period. Rep. Ose grilled Whelan and asserted that the new order “appears to violate not only the spirit but also the letter of the Presidential Records Act. It undercuts the public’s right to be fully informed about how its government operated in the past.”
Ose demonstrated that the order imposes new requirements not envisioned in the PRA including the addition of two new broad categories of documents that can be withheld: “communications” between the president and his advisers, and records containing “legal advice or legal work.” Ose noted that the 1978 law only protects “confidential communications” between the president and his advisers and makes no mention of the attorney-client privilege. Ose was particularly galled that the Bush order drops the word “confidential” from “confidential communications.” He argued that this policy change (along with several others discussed during the hearing) amounted to an illegal expansion of authority. Whelan replied, “There is no expansion. Therefore, there is no policy basis for an expansion.”
Legal scholars who testified pointed out that the order steps beyond the current law as well as legal precedent by asserting executive privilege for vice presidential records, which, one witness argued, has no basis in law. With the exception of Whelan, all the panelists expressed concern that the order tries to rewrite the PRA by requiring individuals to show a “demonstrated, specific need” through an FOIA request rather than rely on the process provided in the PRA that mandates systematic release of records through an established archival procedure.
Archivist of the United States John W. Carlin testified that the order would apply retroactively to all presidential records requests waiting to be processed, including the 68,000 documents from the Reagan presidency (the Reagan papers are the first to be covered by the 1978 PRA; their release has already been delayed three times).
During questioning, Anna Nelson said that undoubtedly the new order “will hamper the ability of the public to gain timely access to records.” When asked about the Reagan records, she stated that it is not unusual for past presidents and their staffs “to worry about the content of papers they no longer remember,” but one should note that “secrecy breeds conspiracy theories.” Consequently, she urged that the Reagan papers be opened as quickly as possible.
It was clear by the time the hearing ended that in addition to legal challenges that are being contemplated by several national organizations with interests in seeing historical records opened consistent with the provisions of the PRA, Rep. Horn intends to continue a dialog with administration officials in an effort to remove hurdles to public access. Horn’s staff informed the NCC that he would not hesitate to consider legislation to supplant the controversial decree if necessary. The NCC and other organizations have agreed to work with Horn and his staff in seeking some reasonable solution.
Suit Filed by Public Citizen
On November 28 Public Citizen (a Washington, D.C.-based nonprofit consumer advocacy organization) filed suit in a federal court in Washington, D.C., on behalf of the American Historical Association, the Organization of American Historians, the National Security Archive, the Reporters Committee for Freedom of the Press, Public Citizen, and eminent presidential historians Hugh Graham and Stanley Kutler (professor emeritus of history and law at the University of Wisconsin at Madison and editor of Abuse of Power: The New Nixon Tapes), to overturn EO 13233. The plaintiffs contend in the suit that the executive order violates the Presidential Records Act. Filing of the suit followed on the heels of a strategy meeting organized by the NCC on November 9 in which interested parties decided that legal action was necessary.
The suit seeks to compel the National Archives to abide by the terms of the 1978 PRA and to release to the public some 68,000 pages of records of former President Ronald Reagan that should have been released last January, 12 years after President Reagan left office.
The plaintiffs contend that the Bush executive order jeopardizes access those records and those of other former presidents by allowing a former president to assert a claim of “executive privilege” at any time, thereby preventing the National Archives from opening records to the public even if the claim of privilege is legally invalid.
“Bush’s executive order violates not only the spirit but the letter of the law,” said Public Citizen President Joan Claybrook. “We will not stand by while the administration tramples on the peo ple’s right to find out about their own government. The president should not have the ability to arbitrarily withhold public information to hide wrongdoing or avoid embarrassment.”
Media Reaction
Reactions to the Bush decree in the press continue to be uniformly critical. Because of the controversial nature of the EO, press coverage has been extensive. CNN’s National Journal, the nationally syndicated Diane Rehm show, Pacifica Radio, and National Public Radio have all produced programs about the order. Editorials from or newspapers have castigated the president for signing the order. Editorials of particular interest include those in the Los Angeles Times of November 6, 2001; the San Francisco Chronicle of November 11, 2001; the Christian Science Monitor of November 14, 2001; the New York Times of November 15, 2001; and the Op-Ed by historian Richard Reeves in the New York Times of November 16, 2001.
More Executive Order Revisions in the Works
According to Secrecy News, a newsletter of the Federation of American Scientists (FAS) project on government secrecy, the Bush Administration has created an interagency group to prepare changes to the Clinton Administration’s 1995 Executive Order 12958 which governs national security classification and declassification policy. Clinton’s order provides that most classified records be automatically declassified when they become 25 years old.
The text of the FAS news item first appeared in the Department of Energy newsletter Communique. According to that report, a drafting subcommittee held its first meeting on August 9. “There is a general recognition that there need to be some changes made,” said Laura L. S. Kimberly, associate director for policy at the Information Security Oversight Office and chair of the new EO drafting subcommittee. Kimberly noted that the subcommittee was in the very beginning stages of the anticipated rewrite. She also indicated that there would be an opportunity for public comment on any substantial changes that are ultimately proposed. Others knowledgeable about the subcommittee’s first meeting reported that there are fewer changes proposed than might be anticipated and that the changes were more in the nature of refinements.
