Since the beginning of the year, the Bush Administration has been hard at work crafting several new executive orders (EOs) that will have an impact on history and archives. One is in place already—the “Preserve America” order (E.O. 13287) that provides a philosophical umbrella for federal agency historic preservation efforts, while another, the successor to E.O. 12958 that President Clinton signed in the mid-1990s, and which focuses on national security classification and declassification policy, is expected to be reissued in a modified form in mid-April. First though, we have an update on EO 13233—the president’s order relating to presidential records.
Executive Order 13233: An Update
It has been some months since we last reported on the judicial and legislative efforts to overturn President Bush’s Executive Order 13233 (EO) that establishes policies and procedures governing the assertion of constitutionally based privileges in the release of presidential records of prior administrations by the National Archives and Records Administration (NARA). Since the EO’s issuance in November 2001, a coalition of history, archival, and media groups have challenged its legality in court and have been working with various members of Congress to enact legislation to nullify the order. Both of those efforts continue.
Shortly after the EO was issued, opponents filed suit in federal court seeking to overturn the order. Briefs were filed last year by both the opponents of the order and the government; the suit is still pending. Court insiders do not expect that the federal judge assigned the case will hear arguments until the other major issue before that judge—legality of the federal campaign finance law—has been addressed.
On the congressional front, during the 107th Congress, Rep. Steve Horn (R-Calif.) led a bipartisan effort to overturn the EO by introducing the “Presidential Records Act Amendments of 2002” (H.R. 4187). Horn’s legislation was designed to address the more constitutionally questionable provisions in the Bush order. Late in the session, the bill was favorably reported out of the House Government Reform Committee, but because of other pressing business the measure was never considered by the full House. Congressman Horn has since retired and Rep. Dan Burton (R-Ind.), who chaired the House Government Reform Committee in the 107th Congress and is also a solid supporter of the Horn measure, relinquished the chair to Rep. Tom Davis (R-Va.) because of term limitations. Recently though, Davis publicly announced his interest in the bill and Hill insiders report that another House member who squarely behind the Horn measure— Rep. Doug Ose (R-Calif.)—may well become the new champion of the legislation in the House. In the Senate, at least three key senators have been approached and are considering introducing a Senate version.
In the meantime, on 30 January 2003, former President Bill Clinton announced his intention to waive nearly all his rights to withhold presidential records reflecting “confidential advice” (the so-called P-5 exemption) thus clearing the way for an expedited review of his records. According to Clinton, “I believe that the more information we can make available to scholars, historians, and the general public, the better informed people will be about the formulation of public policy and the decision-making process at the White House.”
In his announcement, Clinton stated that only those records where an attorney-client privilege exists (such as Whitewater and the Monica Lewinsky–Paula Jones investigations) would remain sealed.
Clinton would like all his presidential records to be accessible before his presidential library opens next year, but under provisions of the Bush EO, as the sitting president, George W. Bush has the right to review and, if deemed appropriate, block the release of his predecessor’s P-5 records. According to Nancy Kegan Smith, director of the presidential materials staff for the National Archives and Records Administration, should Bush not object, it appears that former President Clinton’s records reflecting the confidential advice given him will be open earlier than any other modern president. As this issue develops, we will keep readers posted.
President Issues “Preserve America” Order
On 3 March 2003, President Bush signed an Executive Order (EO) entitled “Preserve America,” stating that “It is the policy of the federal government to provide leadership in preserving America’s heritage by actively advancing the protection, enhancement, and contemporary use of the historic properties owned by the federal government, and by promoting intergovernmental cooperation and partnerships for the preservation and use of historic properties.” That same day the president’s wife, Laura Bush, formally announced the new “Preserve America” program in a speech before some 1,700 representatives of the National Association of Counties during their annual legislative conference in Washington D.C.
Executive Order 13287 was crafted with a number of objectives in mind. First, it provides a philosophical umbrella for federal agency historic preservation efforts. It sends a clear statement from the White House to all agency heads of their ongoing historic preservation responsibilities under Sections 110 and 111 of the National Historic Preservation Act (NHPA) and other federal preservation laws. To that end, the EO requires all federal agencies to examine their policies and procedures and to ensure that their actions “encourage, support, and foster public-private initiatives and investment in the use, reuse, and rehabilitation of historic properties to the extent that such sup port is not inconsistent with other provisions of law.”
Rather than delegate historic preservation responsibilities to lower ranking officials in the federal bureaucracy, agency heads are directed to “designate a senior policy level official,” who will have oversight responsibility for agency historic preservation programs. According to the EO, “This senior official shall be an assistant, deputy assistant secretary, or the equivalent.” To assist agencies in meeting the other requirements of the EO, the National Park Service, working in consultation with the Advisory Council for Historic Preservation (ACHP), is to develop and to make available to agency heads education, training, and historic property awareness materials.
Second, the EO lays out the Bush administration’s framework for improving stewardship, planning, and account ability in federal agency historic preservation programs. A central thrust of the EO mandates an assessment of the current use of all federal historic proper ties. When appropriate, the EO directs agencies to consider making such properties available to non-federal entities to advance local community and economic objectives, provided they are “consistent with agency missions.” To this end, by September 2004, all federal agencies must have inventoried their historic properties and evaluated their potential for “community economic development,” including such uses as heritage tourism and public-private partner ships. Agency findings are to be made to the secretary of the interior and to the advisory council. In these assessments, agencies must examine opportunities for enhanced “public benefit from, and access to Federally owned historic properties.”
Third, the EO also seeks to promote historic preservation through heritage tourism. ACHP observers report that the current chair of the advisory council, John Nau III, considers heritage tourism to be a central component of any successful long-term effort to preserve sur plus federal historic buildings. Thus, the EO directs agencies to work with the advisory council, state governments, Native American tribes, and local communities to promote the use of historic properties for heritage tourism purposes, thus ensuring long-term “productive use” of such properties.
Historic preservationists have been expecting this EO for some time. An initial draft of the EO was developed late in the Clinton administration as part of the Democratic president’s “stewardship” initiative. With the election of President Bush, however, the EO was reevaluated by the ACHP, modified, and then sent to the Office of Management and Budget (OMB) for internal review. Discussions between the advisory council and OMB officials extended over a period of months. Insiders report the ACHP draft EO was crafted in close coordination with the Department of Commerce, the National Park Service, and other federal agencies. Drafts were submitted to a broader group of federal agencies twice for review and comment.
Because the EO is so new, and its ramifications have not entirely been fleshed out by preservationists, it has yet to attract much praise or criticism within the nonfederal preservation community. Privately, some preservationists express the opinion that the EO has “great potential” for state and local preservation interests, and there is a general recognition of new “partnership opportunities” in the future. Some express reservations, fearing that the “devil may be in the details.” For example, given the tremendous controversy generated several decades ago over the National Park Service’s modest and not entirely successful foray into the historic leasing program, preservationists will be watching with keen eyes to see whether federal agency missions are affected by what is expected to be a broad push toward privatization and more “productive use” of federal historic properties.
A second concern is funding and administrative infrastructure. While Veterans Administration (VA), for example, may be able to compile a huge catalog of historic properties under its jurisdiction with relative ease thus meeting the technical requirements of the EO’s inventory mandate, whether the VA will have sufficient staff and funding to manage other new responsibilities required by the EO is debatable. Most federal agencies are strapped for funds now, and this EO is perceived by some agency insiders as yet another “unfunded federal mandate.” In this vein, some preservationists view the EO as a useful philosophical framework but see little infrastructure for carrying out the program. Some also fear that after seeing last year’s dramatic cuts to the National Park Service’s National Register Programs ($765,000) and cuts to the state historic preservation programs ($6 million), the administration may attempt to “raid the Historic Preservation Fund to help pay for the program.”
In her comments to the National Association of Counties, Laura Bush spoke of her pride in serving as honorary chair of the “Save America’s Treasures” initiative which, along with several natural resource initiatives, ultimately may be repackaged as part of the “new” initiative. Though details are sketchy as to what exactly is to be part of the broader “Preserve America” Initiative above and beyond the issuance of the EO (preservation insiders expect an awards program and possibly some small amounts of grant money to assist in implementing the initiative), accord ing to Mrs. Bush, in its broadest sense, “Preserve America will promote historic and cultural preservation and encourage greater public appreciation of our national treasures.”
New Executive Order to Replace the Clinton EO 12958
A draft executive order, which is expected to replace President Clinton’s E.O. 12958 that focuses on national security classification and declassification policy, was circulated agency comment in mid-March. Though no public hearings (as were held during the Clinton Administration) are scheduled to take place, NARA officials did meet informally with various interested parties in an effort to explain the Bush Administration’s thinking behind the proposed revision.
EO 12958 dramatically accelerated the declassification process and has yielded close to a billion pages of historically valuable declassified documents. But according to Steven Aftergood, editor of the Federation of American Scientists newsletter Secrecy News, “In recent decades, whenever the presidency shifted from one party to another, the new president would issue an executive order on secrecy policy to serve as the foundation of the classification system. Typically, and at least rhetorically, the orders issued by Democratic presidents (e.g., Clinton’s EO 12958) have emphasized disclosure, while those of Republican presidents (e.g., Reagan’s EO 12356) have stressed secrecy.”
For months now, administration officials have stated that the new EO would be more of a “refinement” than a wholesale trashing of the Clinton order. Officials continue to state that the new draft order “amounts to amendments, rather than an entirely new Bush order.” Officials also claim that though a number of changes have been made, they are “quite modest, quite supportable.” An early assessment of the proposed EO offered anonymously by an agency official who favors public access to government information, is that the proposed EO “could be a lot worse.” Other declassification insiders who have access to the EO report that they are pleasantly surprised “how little is changed,” adding that the EO is “not so much a rewrite as an edit of the existing order.” Insiders are especially pleased to see that the notion of automatic declassification of documents is preserved.
The Bush Administration initiative to craft a new executive order began in August 2001. Since then, it has been a source of anxiety for those who feared that the administration’s current predilection for official secrecy would lead to dramatic changes in classification policy. Insiders believe the new order will probably be officially issued prior to April 17, 2003—the 25-year anniversary date on which classified files containing intelligence information or multi-agency “equities” are due to be automatically declassified, pursuant to the Clinton E.O.13142. If signed by the President by that date, the new Bush EO would defer that April 17 deadline.
The National Coalition for History managed to secure a copy of the new draft executive order copies of which are now circulating informally. In the interests of giving the public an opportunity to comment on the draft EO, the NCH has contacted administration officials and urged them to devise some appropriate mechanism for formal broader public input and comment prior to finalization.
