The suit focused on 68,000 Reagan documents that were requested by historians but were held up by the Bush administration since their January 2001 release date. All but 150 pages were finally released by the NARA on March 15, 2002, after being cleared under the new executive order, but the suit is still going forward to overturn Bush's order from affecting future presidential records.

Congress passed the PRA because until the 1970s a president's papers were considered his own property. This led to abuses of stewardship and the destruction of historical records. The most notorious case involved Warren G. Harding, whose wife destroyed up to half of her late husband's presidential papers -- especially those relating to the Teapot Dome scandal, which led to the first imprisonment of a former Cabinet minister -- claiming that she was protecting her husband's memory.

But this was by no means a solitary episode -- an amicus brief filed by the Association of American Publishers and other groups on behalf of the plaintiffs in the E.O. 13233 lawsuit states that many of the papers from Presidents Van Buren, Harrison, Grant, Harding, Coolidge and others were also destroyed. Theodore Roosevelt was the first president to donate his presidential papers to the public. With the establishment of the Presidential Libraries Act in 1955, presidents from Hoover to George Bush Sr. bequeathed their papers to their individual libraries, which are run by professional archivists, though such donations were still considered to be done on a voluntary basis.

Under the PRA, the papers of an outgoing administration are transferred to the NARA, a nonpartisan federal agency whose archivists act as custodians for the papers. Presidential papers, which are not subject to Freedom of Information Act (FOIA) requests during a president's term, are additionally withheld for another five years after the president leaves office while the archivists prepare their release. At the end of that five-year period, the papers are then public information, unless the former president declares certain information to belong to specific categories, such as national security information and confidential communications for advice between the president and his advisors. In that case, the papers are delayed for release for 12 years, after which time they are also public information.

The Bush order, though, added a number of new stipulations and procedures. Archivists must now notify both former and incumbent presidents when they receive any requests to examine the records, and both are allowed to scrutinize the order and decide whether to claim executive privilege. Also, the requester must show a "designated, specific need" in order to overcome presidential privilege. Not only that, the archivist has to abide by the decision, whether or not it has any legal or constitutional merit. In addition, upon the death or disability of a former president, a designated family member or representative is allowed to make such decisions. The order also extends executive privilege to the papers of vice presidents, which was never in the PRA.

Critics denounce the Bush move as another example of the administration's obsession with secrecy, following other attempts to curtail records such as an Oct. 12, 2001, memorandum by Attorney General John Ashcroft urging government agencies to legally resist FOIA requests whenever possible. Not only that, but President Bush is already embroiled in another case involving his own papers from when he was governor of Texas; after his term he deposited those papers in his father's presidential library, where under federal law they will be harder to access than if they were deposited in a state-run institution. The Texas attorney general is currently working on an opinion of the matter.

The Bush order was also attacked as an act of political expediency, to protect the former writing of current administration officials who served in the Reagan administration, including Bush's own father, Reagan's former vice president. The papers contain memos and writings by current administration officials who served under Reagan, such as Secretary of State Colin Powell, chief of staff Andrew Card, Secretary of Defense Donald Rumsfeld and a host of others.

Recent Stories