At Last Bush's Restrictions on Presidential Records Are Lifted





Ms. Nelson is Distinguished Historian in Residence at American University in Washington, D.C. In 2007 she testified before Congress about the necessity of overturning President's Bush's executive order restricting access to presidential records.

For more than seven years, the research community has worked to defeat Executive Order (E.O.) 13233 which President George W. Bush imposed a year after he took office. Then, with the stroke of a pen, President Obama nullified that E.O. on the first day of his presidency.

The Bush E.O. basically over turned some of the most important provisions of the Presidential Records Act (PRA). After 1978, and the passage of the Act, the records of presidents following Jimmy Carter became government property. The goal of the PRA was not only to ensure that presidential records would not be destroyed but that they would be released to the public in a timely manner. The Act provided the president with an interval of 12 years before releasing his records to the public. More important, the PRA removed decisions of access to the records from the president’s heirs or executors of his estate.

Bush decided that presidential papers needed added protection before becoming public. His E.O. allowed past presidents continued control of their papers by allowing them to refuse public access, basically giving past presidents a kind of retroactive executive privilege. While past presidents had 90 days to decide if access would be granted, the incumbent president could take months or a year if he so desired, frustrating one of the chief goals of the PRA. Also directly refuting the provisions of the PRA, the president’s heirs or executors were again responsible for decisions on access after his death. Every researcher who worked in a presidential library has seen first hand the effect of protective families. Bush had turned the PRA on its head.

Bush claimed he was clarifying provisions of the PRA but suspicious historians wondered if he was not ensuring the protection of his father’s papers as well as his own. Not forgotten was the possible involvement of Vice-President George H.W. Bush in Iran-Contra.

That this issue was regarded as part of the transparency that Obama promised the American people was no accident. Lee White of the National Coalition for History had walked the halls of congress, educated the staff of important members and called in other historians when necessary. Testimony in open hearings caught the attention of editors of major newspapers. Political scientists and journalists joined with historians to publicize this distortion of the PRA and urge its repeal. Led by the efforts of the National Coalition for History, the research community illustrated the effectiveness of  pro-active action when the basic sources of American history are threatened.

Although a victory for the cause of history, there is some disappointment that President Obama did not give more authority to the Archivist of the U.S. instead of vesting many decisions in the Attorney General and Office of Legal Counsel. Finally, if there are some terms of access in the PRA that need modifying, it should be done by statute. If one president can restore the Act to its original purpose, the next one can once again nullify it.

Meanwhile, let’s celebrate this victory for history.


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Maarja Krusten - 1/27/2009

Typo, obviously, it is the January 26 edition of the CHE, not the January 16. For HNN readers who cannot access it, please note that among other things the article addresses the staffing problems I alluded to over the weekend in my comments on HNN. The CHE article states that

“'The processing is slow, no matter what institution you look at,' said Mr. Montgomery. 'They’re just absolutely overwhelmed with tens of millions of pages. They have a staff of five to eight people, maybe 10. It’s very difficult to go through that kind of material very quickly.'”

According to the article, NARA's officials say that "as of May 2008, only 19 percent of the records at Ronald Reagan's library, 18 percent of the records at George H.W. Bush's library, and 2 percent of the records at Bill Clinton's library had been processed and opened."

By way of comparison, on January 31, 1977, the Washington Star newspaper quoted the National Archives' Assistant Archivist for Presidential Libraries, Daniel J. Reed, as saying of the old donor-restricted libraries that "Most recent presidents . . . have made public some of their papers within 5 to seven years after leaving office." According to the Star, Dr. Reed said that "'Frequently, within 10 years, 80 percent of the material is open--but not the best. That usually comes after 15 to 20 years.'" The Star said tht Gerald Ford specified a *maximum* of 13 years for keeping his documents from public scrutiny.

I read in an op ed in the Washington Post in 2006 that Ford later said that "I firmly believe that after X period of time, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public, and the sooner the better." That fits with what the Star wrote nearly 30 years prior to that.


Maarja Krusten - 1/27/2009

The January 16, 2009 digital edition of the Chronicle of Higher Education has an article, "Scholars Hail Obama's New Rule on Records, But It's Still 'Not Nirvana.'" Nothing there about the chilling effect (it's difficult to get historians to focus on the fear factor in Presidential record keeping). However, there are some useful observations from Frank Boles, President of the Society of American Archivists, and from Bruce Montgomery, director of archives and the University of Colorado (Boulder).

Bruce has studied the PRA in depth. Glenn's article notes that "The Presidential Records Act of 1978, Mr. Montgomery said, 'has really been a tortured instrument. Every president, in one way or another, has tried to diminish the law. This is the first time that a president has stood by the integrity of the statute. That’s why Obama’s executive order really stands out.'” Bruce also offers some observations on how believes the position of U.S. Archivist might be protected from politicization. CHE subscribers can read the article at
http://chronicle.com/daily/2009/01/10122n.htm


Maarja Krusten - 1/27/2009

Former President Bush himself has referred to Clinton. On the other hand, Barton Gellman said in a WaPo Q&A recently that E.O. 13233 was drafted by David Addington, who worked on the Vice President's staff, rather than by Alberto Gonzalez and his staff. However, I'm not sure we'll ever know all the thinking that lay behind the order and why it contained the provision allowing heirs to continue claiming privilege.

As to Clinton, Dr. Nelson may not be aware of what former President Bush said earlier in January about the executive order in an interview published in the Dallas Morning News. http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/DN-bush_11edi.State.Edition1.2971ec6.html
or
http://shrinkster.com/13oz

In that interview, George Bush reacted to previous efforts to overturn E.O. 13233 on Presidential records and offered an explanation of why he issued it. I would wave readers off of the mention of security classified information, however. NARA has been handling such information in Presidential records for decades and needed no action by a former President. And, of course, Presidential representatives only end up screening for potential application of privilege information information that is unclassified or has been declassified under E.O. 12958, as amended. Even if they had the security clearances to enable them to see such information, I can’t picture the descendants of a President having a better sense of what should remain classified than do the governmental equity holders. So the security argument doesn't make sense.

Here is the passage in the interview about Clinton:

"Gillman: You're not planning on withholding a ton of documents.
Bush: Not at all. And I enacted this, by the way, to exert executive privilege on behalf of President Clinton's papers."

Perhaps historians will take a fresh look at E.O. 13233 down the road, as more information about motives and actions becomes available. At this point, there is no access yet to records (if any) that may have captured the thinking behind E.O. 13233. All I've seen, other than the former President's own comment, has been speculative.


Peter August Kurilecz - 1/26/2009

"suspicious historians wondered if he was not ensuring the protection of his father’s papers as well as his own. "

or protecting his immediate predecessor Bill Clinton?


Maarja Krusten - 1/26/2009

I would guess that Anna Nelson's well-crafted essay probably summarizes the views of many academic historians who have been following this issue. Dr. Nelson refers at the end to "terms of access" in the PRA which may require modification in the future. For a discussion of some of the unresolved issues that surround the release of Presidential records, see the comments under David Emig's "A Victory for Future Historians" at
http://thenewnixon.org/2009/01/23/a-victory-for-future-historians/

Maarja


Maarja Krusten - 1/25/2009

Just to clarify one point, for readers who may get the impression that President Bush was the first to permit former Presidents to claim communications privilege over materials the National Archives proposed to open.

President Reagan issued an earlier executive order on the PRA on January 16, 1989, right before leaving office. The Reagan E.O. called for the U.S. Archivist to accept a former President's claim of privilege *if* the incumbent President agreed that the material should be withheld from access.

The Bush order changed this. It called for the U.S. Archivist to withhold the material over which a former President claimed privilege even if the incumbent President thought it should be released. E.O. 13233 put the final word in the hands of private citizens (a former President, a former Vice President, their heirs) rather than in the hands of government officials. It did this despite failed efforts within the government in the mid-1980s to force the Archives to accept (without discretion) Richard Nixon's claims of privilege. (Nixon's records, like those of Presidents starting with Reagan, are considered government property. However, they fall under the somewhat different PRMPA of 1974 rather than the PRA of 1978.) At that time, the courts determined that the final decisions must be made by executive branch officials. (See Public Citizen v. Burke, (843 F.2d 1473 (D.C. Cir. 1988)) No judge ever handed down a decision on all the provisions in Bush's E.O., although part of it was litigated over several years.

The pertinent portion of the decision in Burke read "The Supreme Court recognized that an incumbent President–as opposed to a former President–is in the “best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” 433 U.S. at 449, 97 S.Ct. at 2793. Indeed, former Presidents’ “expectations of the confidentiality of executive communications” is understood to erode over time. Id. at 451, 97 S.Ct. at 2794; Freeman, 670 F.2d at 356. That suggests, therefore, that an incumbent President, aided perhaps by his close subordinates, must exercise some discrimination and judgment with respect to a former President’s assertion of executive privilege if he wishes to support it."

The Burke litigation was triggered by a memorandum issued by the Office of Legal Counsel (OLC) in the Reagan Department of Justice. It was the OLC memo which instructed NARA to accept Nixon's closures of material. The courts saw it otherwise and told NARA to exercise discretion in considering Nixon's claims.

Here, in part, is what Seymour Hersh wrote about the case in an article published in the New Yorker on December 14, 1992:

"Frank Burke and Gary L. Brooks, who was the acting director of the Archives legal staff, stunned the committee members by testifying that they considered the Justice Department's memorandum to be binding upon the administration of the Nixon tape recordings and other materials. On October 3, 1986, the House Committee on Government Operations issued a scathing report, which accused the senior officials of the Archives of failing to respond to the Reagan Administration's challenge to its 'statutory and regulatory authority' and went on to say, 'That the Archives would abdicate its legislated responsibility to promulgate regulations and, in the process, misinform the public is troublesome in and of itself. When this abandonment is viewed in the context of past litigation. . . and the likelihood of future disputes concerning public availability, the decision. . . takes on even greater importance.'

The committee members were not surprised to learn that the Archives leadership had been placed under intense political pressure by Meese's Justice Department, one congressional aide noted in a recent interview, but they could not understand why no one on the inside had reached out to Congress or any other group for help. 'These guys didn't let their supporters on Capitol Hill or in the archival and historical community know what Justice was doing' the aide said. 'We had to find out on our own. The leadership did not raise the red flag when it should have.'"

Interestingly, although NARA had informed the public previously about instance wheres Nixon disagreed with its processing, it never did that again after 1987. Whatever disagreements arose between NARA and Nixon after 1987 occurred behind closed doors.

John Taylor, executive director of the Nixon Foundation, which works with the NARA-administered Nixon Presidential Library, recently told me that Nixon's estate largely has allowed material to be released without objection. (I've gotten to know and understand Taylor much better over at his site, The New Nixon.) That appears to be true for recent years. NARA has released from Nixon's tapes largely what I would have marked for release during my 14 years as a Nixon Project archivist.

In terms of contemplating historical disclosures, I think the scariest times for former Presidents and their supporters are the years right after an administration leaves office. That's when things can be most difficult for NARA. But I don't have time to get into that question (largely ignored by historians) in this post, which already has gone on for a while.