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Wednesday, Nov 25, 2009
Scholars, authors and publishers go to court to fight the Bush administration's efforts to keep key presidential papers under lock and key.
Apr 10, 2002 | One legacy of Richard Nixon's troubled presidency is the restriction of the power of the executive branch, and perhaps no power was restricted more than a former president's claim to his papers -- what he has the right to keep secret vs. what the public has a right to know. After Nixon left office and tried to maintain control of his papers -- along with his infamous tapes -- Congress eventually set limits to executive privilege by passing the Presidential Records Act (PRA) in 1978, which legally established that the papers of an outgoing president were public property. Instead of presidents deciding what should be released, the PRA set specific release guidelines and entrusted the papers to federal archivists, assuring that historians and researchers have access to source materials without the vanity and prejudices of the former president impeding the process.
It was supposed to be the final word on the subject, but an executive order by President George W. Bush that modifies the PRA has brought forth a lawsuit and the anger of the historians and writers who use the documents for their work.
E. O. 13233 has also drawn the ire of Congress, where both Democrats and Republicans resent this re-expansion of executive power. In fact, Representative Stephen Horn (R-CA) plans to unveil a new bill that would nullify E. O. 13233 at an April 11 hearing of the House Committee on Government Reform. The bill is supported by members from both sides of the isle, including Henry Waxman (D-CA), Dan Burton (R-IN), and Barney Frank (D-MA).
On Jan. 20, 2001, former President Ronald Reagan's papers were to be the first complete set of publicly available documents about the workings of a presidential administration released under the PRA. But shortly after taking office, the newly elected Bush administration delayed the release in order to "review" the issue. The release was delayed two additional times over a number of months and then on Nov. 1, 2001, Bush signed Executive Order 13233, which effectively takes control of the papers away from archivists and returns it to the incumbent and former presidents. It also allows for the family or designated representatives of a former president to restrict the release of his records and extends the same executive privilege to vice presidents to control their own records.
"It's appalling and clearly destructive to writing history responsibly," said Stanley Katz, professor of public and international affairs at the Woodrow Wilson School at Princeton and former president of the American Council of Learned Societies. "You simply can't write an accurate picture of what happened without all the information. It's a deliberate attempt to reverse and restore the conditions of secrecy. They don't have the right to rethink what Congress thought."
A deluge of writers, historians, researchers and journalists have spoken out about E.O. 13233, claiming that the consequences of the order would ultimately retard the public's access to information and prevent the free flow of information that is the cornerstone of a functioning democracy. Even former President Bill Clinton has said that Bush's executive order is not needed, stating that there are already enough safeguards in the PRA to protect the executive privilege of outgoing presidents.
"The PRA established once and for all that the records of the people's government belong to the people," said Steven Hensen, director of planning and project development at Duke University's Rare Book, Manuscript and Special Collections Library and president of the Society of American Archivists (SAA). "Giving control of the release to the president or family designated heirs is simply outrageous. It suggests that the information about the people's government is being controlled by others who have every interest except the people's best interest."
After passing E.O. 13233, the White House explained that they were merely establishing "policies and procedures," as the title of the order, "Further Implementation of the Presidential Records Act," attests. At a White House briefing, President Bush said, "There are some documents that are privileged and protected, and this is just to make sure those documents remain protected and privileged," further adding that "it is a process that I think will enable historians to do their job, and at the same time protect state secrets."
It was a sentiment that few historians agreed with.
"The Bush order is a serious threat to access to presidential records, it will clearly impede the writing of future presidential history," said Scott Nelson. Nelson has studied the issue of presidential papers for years, having spent the first part of his law career as a partner at a Washington firm that worked for former President Richard Nixon, trying to help him protect the information on his Oval Office tapes.
Now Nelson works for the other side, as an attorney for the legal unit of Public Citizen, a public interest watchdog group that along with the American Historical Association, the National Security Archive, the Organization of American Historians and a number of prominent historians is suing the National Archives and Records Administration (NARA) to follow the PRA regardless of Bush's order.
