NCC Advocacy Update

NCC Advocacy Update, March 1993

Page Putnam Miller, March 1993

Controversy Continues over Status of National Security Council Electronic Records

Editors Note: The February 1993 NCC Advocacy Update provides a full discussion of the January 6, 1993, opinion of Judge Charles R. Richey in the case of Armstrong v. Executive Office of the President, in which the American Historical Association is a co-plaintiff.

In the final weeks of the Bush administration, the White House made several unsuccessful attempts to destroy computer records (frequently called PROFS after IBM's Professional Office System) of the electronic mail system used by the National Security Council. Despite a ruling on January 6 by Federal District Judge Charles R. Richey in the case of Armstrong v. Executive Office of the President requiring the preservation of National Security Council and Executive Office of the President electronic records, the administration asserted in documents attached to the January 11 appeal of the case that it planned, prior to President Clinton's inauguration, to destroy some of the backup data of Bush administration records stored at each of the National Security Council's computer work stations. Lawyers for the Justice Department argued that Richey's order to preserve all electronic records could result in a breakdown within days of the White House computer system, making it difficult for the Clinton administration to begin its work. Judge Richey rejected the Justice Department's arguments. On January 14 Judge Richey issued a second opinion in this case in which he stated that "one does not have to know much about computers to know that saving this information is not going to bring the government to its knees."

In addition to appealing the merits of the case, the Justice Department sought an immediate emergency stay of Judge Richey's order, arguing that the government would suffer "irreparable" harm in complying with the order. On January 15 Chief Judge Abner J. Mikva, Judge Stephen F. Williams, and Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit reaffirmed Judge Richey's opinion, asserting that the government had to preserve all of the National Security Council and Executive Office of the President computer records. While the appeals court did allow the Bush administration to clear the computers for the incoming Clinton administration, the courts required that all the material was to be copied in unaltered form on computer backup tapes. Appellate review of the district court's ruling and a final decision in the case is not expected for some months.

The case of Armstrong v. Executive Office of President is complicated not only by the considerable complexities of handling computer records of historical significance but also by the fact that National Security Council records include both "presidential records" and "federal records." Although both presidential and federal records are under the custody of the National Archives, separate laws govern the handling of these two different categories of records. But according to many historians, the current distinction between presidential and federal records is rather muddy. The Presidential Records Act states that presidential records are materials "created or received by the president, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the president, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the president." The courts have interpreted this definition to include only those staff "whose sole function" is to advise and assist the president. The legal definition of federal records is "documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the informational value of data in them." Although archivists and records managers at the National Security Council feel that they have clear guidance for determining whether records are presidential or federal, most computer entries for the past four years did not include tags to enable the material to be easily segregated.

On January 20, the morning of Clinton's inauguration, President George Bush and U.S. Archivist Don Wilson signed a Memorandum of Agreement concerning the custody and control of the computer backup tapes that were the subject of the court order in Armstrong v. Executive Office of the President. The plaintiffs in the case, including Scott Armstrong and other individual researchers, the American Historical Association, the American Library Association, the National Security Archive, and the Center for National Security Studies, were never informed that this agreement was pending prior to January 20 and knew of it only a week later as part of Justice Department court filings in the case.

The Archivist agreed in the memorandum that the National Archives would take physical custody of the approximately 5,000 backup tapes of the Reagan and Bush administrations and that the National Archives staff would take the initial steps in segregating the presidential and federal information. The memorandum states that no third parties, except those with lawful subpoenas, will be allowed access to this information until the material is segregated. Some aspects of the agreement seem to violate provisions of the Presidential Records Act concerning access to presidential records by Congress and the incumbent administration. Also troubling is the fact that the agreement contains no time tables or standards for review. Many historians fear that access to these records could be delayed for years and could follow the same tortuous course as much of the Nixon material, which is still being withheld after eighteen years of unresolved legal battles over the appropriate identification of federal records.

Equally disturbing to historians is the introduction in the memorandum of a new, and potentially slippery paradigm, for identifying presidential information. Instead of using the term "presidential records," the agreement states that "George Bush shall retain exclusive legal control of all presidential information, and all derivative information in whatever form, contained on the materials." Since the term "derivative information" is not used in the legal definitions of federal and presidential records, it appears that President Bush desires in this agreement to exert greater control over the computer tapes. The agreement explicitly underscores the right of the president to dispute that any of these materials are federal records and states that any actions by the National Archives to determine whether material on the tapes is federal or presidential is subject to prior review by President Bush or his designee.

At stake for researchers is the preservation of and future access to records documenting the formulation of U.S. foreign policy. For most of U.S. history the federal records of the State Department have documented U.S. foreign relations. In recent decades, however, other agencies have played a key role in the development of U.S. foreign policy with the National Security Council frequently taking the lead. How National Security Council records are preserved and how researchers gain access to this material are of utmost concern to historians. Both federal and presidential records are subject to the criteria for classification in Executive Order 12356, issued by President Reagan in 1982. However, only federal records, and not presidential records, are subject to the Freedom of Information Act. The National Archives provides access to presidential records through the presidential libraries where all but the most sensitive material is to be available to the public twelve years after a president leaves office. But presidents retain claims of privilege, and they and their families exert considerable control over access to presidential records. Furthermore, sitting presidents can exert claims of executive privilege upon access to documents of previous presidents.

The agreement signed by President George Bush and Archivist Don Wilson on January 20 includes no provisions for reviewing the president's claims and control over the computer backup tapes. Since the appeals court ruled in January 1991 in Armstrong v. Executive Office of the President against allowing judicial review of recordkeeping practices under the Presidential Records Act, it appears that the stage has been set for new legislation to strengthen the authority of the U.S. Archivist, to clarify the definition of "federal record," and to ensure judicial review of recordkeeping practices of the Executive Office of the President.