Stanley Kutler: Bush’s 11th-Hour Bid for Secrecy





[Stanley Kutler wrote “The Wars of Watergate,” and he liberated the Nixon tapes. ]

The times are unprecedented. Not since 1861 have we watched the last gasps of an outgoing administration with such anxiety. Then the nation was concerned with drift and inertia; now we watch for further ideological mischief.

Republicans were aghast in 2001 to discover that President Bill Clinton’s staff allegedly had dropped the “W” from White House computer keyboards. Frat house stuff. George W. Bush has left a legacy significantly more troubling, measured by the breakdown of normal government processes, as well as of constitutional guarantees and practices. We watch last-minute rushes to implement new administrative rules, to transform and burrow political appointees into tenured civil servants, to further weaken environmental safeguards, to shift public funds to a desired end, and to lay down policy declarations to leave the current administration’s successors bound or embarrassed until they are undone.

Think, for example, about the fate of official records. Will they be removed or shredded to further obscure this administration’s doings? Nourished on secrecy from its inception, and carefully concealing many of its activities through the years, the Bush administration may be determined to make one last play for secrecy by taking its records and storing them in a Dallas warehouse, pending a Bush library. In these waning weeks, a group of us is locked in legal combat with Vice President Dick Cheney and his corps of unseen advisers, seeking an injunction to prevent them from leaving office with their e-mail records. [Citizens for Responsibility and Ethics in Washington, et al., v. Richard B. Cheney, et al, Civil Action No. 08-1548, U.S. District Court, District of Columbia]. Cheney and his team are resisting at every turn, following a strategy of running out the clock and thereby implicitly admitting their intention to destroy or take their records.

If Barack Obama as president would withdraw Bush’s infamous Executive Order 13233, which effectively repealed the Presidential Records Act of 1978, Bush and Cheney still can expect to seal their papers for at least 12 years. If Richard Nixon is their model, count on at least 20.

The president-elect’s Web site promises he will reverse Executive Order 13233 nullifying the timely, lawful release of presidential records. John Podesta, who heads the transition team, acknowledged that, as president, Obama will, “when appropriate,” reverse that order. Some will remember John F. Kennedy’s famous “stroke of the pen” promise for a federal fair housing ordinance in 1960—unfortunately, Kennedy’s pen paralysis resulted in an 18-month delay.

Bush’s order subverts the 1978 law’s provisions for public access to presidential records. It requires the Archivist of the United States to withhold materials if a former president asserts executive privilege, even if the incumbent president disagrees. Put another way, any assertions of privilege for the papers of Bush and his father must be honored by the incumbent president. Maybe now this is clearer.

Bush’s order also stands the right of access on its head. Now, the burden is on the researcher to show a “demonstrable, specific need.” In short, researchers retain a very expensive right to litigate. In 1988, the Circuit Court for the District of Columbia emphatically rejected President Ronald Reagan’s order directing the Archives to accept any claims advanced by former President Nixon to block release of his presidential materials, repudiating Reagan’s contention that the Archivist might legally and independently support a former president. The Bush order is no different, for it requires the Archivist to honor the former president’s claims even when the incumbent disagrees with them. Such a course constitutes nothing less than the incumbent’s abdication of his obligation of fidelity to the law.

Bush’s action provides no end to the mutual back-scratching for that fellowship of ex-presidents. If the incumbent and former president agree to block release, the president and his Department of Justice must defend the assertion of privilege, thus saving his predecessor potentially significant legal fees. Richard Nixon wrote endless volumes of memoirs to support his lawyer habit.

Make no mistake: the Bush order broke new ground. Allowing a former president’s family or personal representative to assert privilege is novel, if not bizarre. It delegates and brazenly enlarges an ever-more luxuriant executive privilege upon former presidents—something the Bush administration has been very adept at doing for itself. The shadowy doctrine of executive privilege has been elevated to a personal right, extending a lifetime, and even beyond. You can take it with you, if Bush has his way.

The order is beyond audacious. Incumbent presidents decide and judge the nature of national security, not former presidents. If the incumbent sees no national security issue at stake, why should a former president, ever anxious to preserve and enhance his reputation, make that determination?

Bush’s order already has freed his father from scholarly scrutiny, now some four years overdue. Only the timely and gracious intervention of Nancy Reagan prevented President Bush from sealing the Reagan papers. Those documents might tell us more about George H. W. Bush’s role in the Iran-Contra affair, other than having to go to the bathroom, or something like that, when the sordid business was discussed in the National Security Council’s proceedings.

Repudiating Executive Order 13233 is essential. This is not a partisan matter; even the Republican-controlled Congress favored repeal in 2004, but Tom DeLay effectively buried it for Bush, and Sen. Mitch McConnell, R-Ky., similarly blocked action in the Senate last year. Rep. Dan Burton, R-Ind.—of all people—led the move to repeal; apparently he believed this was the only way he could get at the Clinton papers.

The prospects of George W. Bush and Dick Cheney proclaiming executive privilege long after they fade from their official duties is staggering. Their penchant for secrecy undoubtedly would insure significant gaps in any attempts to fathom the history of their deeds and actions. President-elect Obama has given us a promise. It must be delivered.


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Jeffrey E. Calvert - 12/4/2008

And so it begins. President-elect Obama will want to hear and publish the Bush papers, while at the same time covering up the Clinton's disasters that led us to 911. With so many Clinton staffers now becoming Obama cabinet members, it would behoove him to protect them as much as possible.


Maarja Krusten - 12/3/2008

This is just for the record, in case some scholar interested in Nixon's records stumbles across this article some time. Some of what I describe is somewhat arcane. And I recognize that historians seem to have little interest in who decides what is withheld from them, whether it is employees of the National Archives or a former President. Interesting to observe the level of passivity on such matters, but there it is, for better or worse.

I've previously written here on HNN about how NARA once used a transparent process for informing researchers what its archivists had restricted and what President Nixon had claimed as private, personal, or privileged. This was a unique process under 36 CFR 1275 which applied only to Nixon's materials. It has not been used since the late 1980s. Researchers no longer know if or whether representatives of Nixon's family disagreed with NARA's designation of tape segments or documents are releasable. Such matters are handled behind the scenes by NARA and representatives of Nixon's estate, in accordance with the settlement agreement worked out in 1996 by Dr. Kutler, Public Citizen and NARA.

Here are two of the many news stories about the release by the NARA-administered Nixon Presidential Library of some tape segments and documents yesterday.

(1) See "Nixon archives shed light on his campaign to investigate enemies," at

http://www.latimes.com/news/nationworld/nation/la-na-nixon3-2008dec03,0,3011353.story

and

(2) "Window Into Nixon White House Opens Wider" at

http://www.cbsnews.com/stories/2008/12/02/national/main4642111.shtml?source=RSSattr=U.S._4642111
which includes part of Nixon's taped telephone call to then newly-elected Sen. Joe Biden in 1972 after the death of Biden's wife.

Regarding the first article, it mentions a newly released item from Nixon Chief of Staff H. R. Haldeman's White House Special Files colleciton. NARA released most of Haldeman's White House Special Files records in 1987. It's unclear to me why the June 23, 1971 note from Haldeman mentioned in the LAT was not released by NARA with other items from his collection in 1987. (I then still was an employee of NARA's Nixon Presidential Materials Project).

The LAT Times states that

"Among the documents is a handwritten note from Nixon's top aide, H.R. Haldeman, on June 23, 1971, which may shed light on the origins of Nixon's infamous 'enemies list.' In the note, Haldeman records Nixon's order to bring the weight of the IRS down on attorney and former Secretary of Defense Clark Clifford, who had been critical of Nixon's Vietnam policy, and on the antiwar movement.

'Pull Clark Clifford & top supporters of doves,' Haldeman writes. 'Full list . . . full field audit.'

In the next paragraph, Haldeman reminds himself to take action against 'TK,' believed to be Sen. Ted Kennedy. Haldeman writes: 'Get him -- compromising situation . . . Get evidence -- use another Dem as front.'"

Given the references to the IRS, I would have thought this fell into the category of releasable documents back in 1987. This sounds as if it is one of Haldeman's meeting notes. On that premise, I checked the list of Nixon contested items that I had photocopied for me by the Nixon Project in the early 1990s and from what I can see, nothing from Haldeman's notes for 6/23/71 was contested by Nixon's agents while the former President still was alive. Nor was the document personal and returnable to Nixon.

There must have been something else in it that NARA flagged as restrictable for the purposes of the 1987 Special Files opening but now feels it can disclose for research. The document is not included in the Mandatory Review finding aid released yesterday by the Library so the reason for the initial withholding must not have been related to “possible B” restriction (the designation in the public withdrawal sheets for potentially classified information).

Sometime, if I get a chance, I’ll have to look at the old University Publications microfilm of Haldeman’s WHSF H Notes that Joan Hoff and Paul Kesaris prepared in the late 1980s and look at the NARA withdrawal sheets to see if NARA applied a D (privacy) or some other restriction.

I haven't found a place where the full document is posted so I can't assess at this point what initially led it to be withheld since the 1980s when the collection was processed.

I did go back and re-read Haldeman's published diary entry for June 23, 1971. (Unlike the "H notes," the diaries were Haldeman's property and he himself arranged for them to be published.) The diary entry covers a number of subjects covered that day, including Nixon's meeting with Senate Majority Leader Mike Mansfield, the "Pentagon Papers," brief contacts with Henry Kissinger, discussion with the President of the releases of records and how to trigger them ("we want to have the Tribune start demanding papers"), a declassification effort for older archival records ("he's determined to do everything we can to our advantage") and finally the use of the IRS to audit Clifford and "all the top supporters of the doves."


Maarja Krusten - 12/2/2008

Just to "make it perfectly clear," a few more words about the last point I made yesterday morning before I share some additional observations.

While the former President's assertion of communications privilege under the PRA and E.O. 13233 does not result in classification or re-classification, it does result in the information being withheld from the public. However, the premise that undergirds the withholding is not related to national security as he or his representatives only are reviewing for claims material that is unclassified or declassified in these instances. Rather, the closure is based in the former President's right to protect from disclosure internal deliberations in which he once engaged. (Hence the term, communicaitons privilege.)

As Stanley knows, the Supreme Court has held that executive privilege is subject to “erosion over time”
after a president leaves office ( Nixon v. Administrator of General Services, 433 U.S. 425
(1977). But neither the courts nor government officials have examined realistically all the reasons why an official would want to shield some of his communications during his lifetime and how to make disclosure work better for all the stakeholders.

I rarely hear anyone discuss the enormous gulf that might exist between historians ("I want your stuff") and the creators of records ("I'm scared of what you'll do with my paper trail") and how to bridge that gulf. That's too bad, especially since I once was one of the archivists who tried to work between the two.

Stanley's 1992 lawsuit did liberate the Nixon tapes to the extent that some disclosures began to be made after Nixon died in 1994. But most historians seemingly have remained indifferent to the question of why that did not occur without a lawsuit and what are the broader implications for records statutes of the Nixon case.

In 1992, when I testified in Stanley's Nixon tapes lawsuit, I thought historians would be interested in the efforts of some National Archives' employees to differentiate between what archivists withheld and what former President Nixon wanted deleted from Watergate tapes. I saw the decisions we made within NARA during the late 1980s as having implications for how things would work out going forward. I've come to understand, however, that most historians don't seem to care whether something is withheld because a federal archivist made an objective assessment that it could not be disclosed. Or whether a former President or his agent suggested to people within the government that it should be deleted.

In 1992, Seymour Hersh wrote in an article in The New Yorker that in a sworn deposition, Maarja Krusten quoted an Archives official "as saying that 'he did not understand why we were so concerned' about how the deletions were recorded 'because the end result would be that [the tape] would be withdrawn from researcher use.' At that point, she testified, that [one of her NARA colleagues] responded that he did not 'feel comfortable lying to researchers' and that he 'objected to being asked to do something that was unethical, improper, and possibly illegal.'"

Historians' indifference to how withholdings are made suggests that they view things as the Archives official did, not as my former colleague did. That is useful to know.

Anthony Clark recently has posted on his new blog (Prezlibs) about his ongoing efforts to obtain information through the Freedom of Information Act from the National Archives about the operations of its Office of Presidential Libraries. (See
http://www.anthony-clark.com/ for the latest.) Such questions interest archivists but I doubt many historians care about why the National Archives acts as it does. When it comes to archival matters, it seems they mostly are interested in outcomes. That's interesting for me to observe in a community which says it prides itself on understanding not just what, but how and why.







Maarja Krusten - 12/1/2008

I don’t know if Stanley knows that Rick Shenkman has picked up his essay from another site to post here on HNN. Just in case he does look this way, I’ll start out by saying hello, Stanley, I hope you’re doing well. I’ve been following the lawsuit over the Vice President’s records by looking in on CREW’s website (I believe the last development posted there was on November 21: http://www.citizensforethics.org/node/35601 )

I found your essay interesting but feel it needs clarification in a couple of areas.

(1) You say “the Bush administration may be determined to make one last play for secrecy by taking its records and storing them in a Dallas warehouse, pending a Bush library.” That the records are headed to a warehouse in Texas is not alarming in and of itself. In recent times, the National Archives typically has rented such temporary space to house the Presidential records under its control, prior to the opening of a as-yet-to-be-constructed library building. In January 1981, I myself helped pick up from the White House and load onto tractor trailers many pallets of records boxes from the outgoing Carter administration. (I even was pictured then in the New York Times doing such work.) As news reports recounted, the records were shipped to temporary space in Georgia, where federal archivists began their preliminary work with the materials prior to the opening of the Carter library.

(2) The pleadings in the CREW lawsuit suggest, however, that there are unresolved issues regarding the handling of some email and other records created in the Office of Vice President. I don’t know whether some of that relates to the Senate email accounts that Sharon Fawcett mentioned in a recent National Journal article (“Sending the Bush Era Packing) – see
http://www.nationaljournal.com/njmagazine/ad_20081122_9662.php

(3) Historians such as the late Hugh Davis Graham indeed have raised questions about E.O. 13233 (see his article at http://hnn.us/articles/386.html ).

That the former President can ask NARA to apply certain restrictions to his records for 12 years is codified in the 1978 records statute, of course. You use Nixon as an example for possible 20 year restriction. However, as you know from the lawsuit you filed (in which your lawyers called me as a witness), Nixon’s efforts to limit disclosure ended with his death in 1994, not with his giving up the fight and saying, “ok, open it up.”

(4) Finally, you err in casting the privilege issue this way: “Incumbent presidents decide and judge the nature of national security, not former presidents. If the incumbent sees no national security issue at stake, why should a former president, ever anxious to preserve and enhance his reputation, make that determination?” The former President or his representative only gets to assert communications privilege over material that has been deemed releasable or, if it once was classified, has been declassified by National Archives officials, working with the governmental equity holders. In other words, he only gets to screen for possible privilege what current federal employees, including the archivists, have marked as disclosable. So what he asks to be closed is not a reclassification – the material remains unclassified under E.O. 12958, as amended, no matter what he does -- but an exertion of his constitutional communications privilege.

That’s all I have time for now, more later.