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The Nixon Papers Deal--An Archivist's Perspective

Historians reacted with surprise when the Nixon Library and Birthplace Foundation recently cancelled a scholarly conference on President Richard Nixon and Vietnam. In calling off the conference, the Reverend John H. Taylor, executive director of the Library, pointed to low registration figures. But scholars wondered if the Foundation simply got cold feet.

Alarmed by the cancellation, the 16 experts who were supposed to speak at the conference signed a petition. They sought suspension of a proposed transfer to the Library of the Nixon tapes and documents now held by the National Archives and Records Administration (NARA) in the Washington, D.C. area. The Archives and Mr. Taylor subsequently sought to reassure the historians through an exchange of letters. These essentially said that the Archives would continue processing Nixon’s records under existing statutes and regulations.

I once was a government archivist who screened for public access Nixon's tapes and documents at NARA. I understand why historians are leery. Aggressive tactics that previously served Mr. Nixon well as he sought to intimidate government officials and delay historical disclosures now haunt the Foundation.

The Orange County Register reported in March 2005 that “Taylor said the library supports free and total access to the documents, which federal archivists would manage. ‘The Nixon Foundation will have absolutely no say in what historians see and when they see it,’ he said.”

Archivists know better. Although NARA staffs the Presidential Libraries, Foundations often call the shots. And Mr. Nixon’s representatives have a troubling track record.

Mr. Nixon’s lawyers went to the Department of Justice in 1985, seeking a veto over archivists’ decisions to open historical records. A Congressional hearing revealed in 1986 that the Nixon lawyers discussed how John F. Kennedy's Library supposedly was releasing only the "most favorable" items.

The Reagan Justice Department granted the veto only to have it overturned later in court. The archival and historian communities are abuzz with speculation that with the forced removal of U.S. Archivist John W. Carlin by the Bush administration in February 2005, the veto may have been re-instated quietly.

Consider how differently the Archives has treated Nixon’s requests for deletions over the years. When NARA tried to open some of Nixon’s White House files in 1987, the former president blocked 150,000 pages from being released to scholars.

During the tenure of NARA Presidential Libraries chief James O’Neill (1980-1987), archivists took a transparent approach to their work. They informed the public of the extent to which Nixon disagreed with them. Public notices showed that although archivists tried to release all but 10 pages in a 270-page file, Nixon's representatives blocked the release of all 270 pages. Nixon's lawyer then argued in a publicly released letter that the government's regulations too narrowly defined "privacy." He also went on a public relations offensive, telling the press, “I can raise your hair on end with what the Archives thinks does not infringe privacy and should be released."

Later disclosures showed that among the blocked historical documents were ones dealing with the Watergate cover-up and the Vietnam War. John Taylor argued in a letter in the Chronicle of Higher Education in 1996 that the blocked items "were of the sort that are routinely withheld at other Presidents' libraries." Perhaps not, as the Archives later opened most of the contested items -- but only after Mr. Nixon died in 1994.

In 1991, historian Stanley I. Kutler wrote to NARA, asking when it planned to open the Watergate tapes. Presidential Libraries chief John T. Fawcett (1987-1994) replied that archivists had released all “integral file segments” relating to governmental abuses of power.

Dr. Kutler filed a lawsuit against the Archives in 1992. The Nixon records act called on NARA to disclose at the earliest reasonable date “the full truth about governmental abuses of power” known generally as Watergate. Testimony by working level archivists revealed that 200 hours of Watergate related conversations still remained undisclosed to the public.

Mr. Taylor sneered at us in 1998 for being “Hardy Boys,” writing of the Watergate tapes that “the archivists have done their worst.” The court case revealed that although NARA in 1989 received a list of 70 deletions to Watergate tapes from Nixon’s agent, it did not reveal to the public that it made cuts to the tapes at Nixon’s behest. Archivists (I among them) pleaded unsuccessfully with managers in 1989 to follow the same procedures as their predecessors had followed with Nixon’s objections to release of his files.

Had Dr. Kutler not filed his lawsuit, the public might never have known that Nixon’s agent compiled and gave us a list of deletions. In fact, the New York Times had reported reassuringly on June 5, 1991 that

“Mr. Nixon did not contest the release of the latest transcripts, [the Archives’ spokeswoman said]. Mr. Nixon's lawyer has previously said his client would not contest the release of transcripts relating to the Watergate affair.” Perhaps those assertions explain why NARA did not initially admit to the court in 1992 that it received from Nixon a list of deletions to the Watergate tapes. Nixon himself later admitted to the court during Dr. Kutler’s litigation that his agent had submitted a list of deletions to Watergate tapes.

It was not the only error in the news story published in 1991. The Archives’ spokeswoman also asserted in 1991 that “National Archives experts are cataloging and transcribing thousands of hours of remaining conversations, which will be released over time, but years will pass before all become public.” But the Archives had decided in the late 1970s not to transcribe the tapes, a decision borne out by its later releases of tape subject logs rather than transcripts. (If you look now at the National Archives website, you will search in vain for transcripts systematically produced by NARA’s archivists.)

The handling of Dr. Kutler’s litigation for access to Watergate cover-up tapes raised a number of troubling questions. Court documents filed by the Department of Justice (DOJ) claimed that, as implied in the 1991 news story, it would be years before the tapes would be ready for release. DOJ said that screening done by NARA during 1979-1987 represented merely a first archival go-around with the tapes and that a second review was forthcoming before Nixon's agents got a crack at them. But subpoenaed internal documents, such as a NARA Annual Work Plan, told a different story. They referred to completion of "final" review of the tapes in 1987. Documents from the late 1980s also showed plans by NARA for chronological releases of the tapes in phases, starting in 1991 with tapes recorded in 1971.

Ironically, Watergate figures H. R. Haldeman and John D. Ehrlichman had told the story which the government later could or would not in court. They wrote in separate articles during the late 1980s that the National Archives' processing of the Nixon tapes was "virtually complete," implying that a public opening was near. At the same time, historians Stephen Ambrose and Joan Hoff both noted in separate publications that NARA was ready to start opening Nixon's tapes ("four thousand hours of White House tapes . . .processed by the Archives. . . which is ready to release them"). Compare that to what the Archives’ spokeswoman had said in 1991, before Dr. Kutler filed his lawsuit.

I was called as a witness in Dr. Kutler’s lawsuit and testified about the internal turmoil at the Archives during the late 1980s and early 1990s. I described how after leaving NARA employ in January 1990, I later attended a farewell party at the Nixon Project in 1992, during which I spoke to a former colleague. I said under oath that "She told me that review procedures were now so conservative that she felt she was being asked to review documents to see if there is any reason at all which would compel their release rather than reviewing them to see if there was any reason to restrict them. That was her personal opinion of how she was being asked to work." (Krusten deposition, Civ. A. 92-0662-NHJ, 152)

How would any researcher be able to discern a change in review procedures as drastic as that which reportedly took place after I left NARA employ? You simply would have no idea that any changes had occurred. You cannot ask to look at what is being withheld from you. NARA simply would tell you that it had screened materials, applied applicable regulations, and released the disclosable portions. End of story. So, much depends on who is in charge and what staff archivists are told to do.

The internal turmoil stopped after John W. Carlin became U.S. Archivist in 1995. Dr. Kutler and Gov. Carlin worked out a settlement, and NARA began releasing segments of Nixon’s tapes, a process that still is ongoing. But Gov. Carlin reportedly faced pressure from Bush operatives to halt a planned release of segments of Nixon’s tapes in November 2000. Gov. Carlin was forced out of his job prematurely, resigning in February 2005. Mr. Fawcett retired from government service in 1994 and now acts as a consultant, advising on presidential libraries’ issues.

Despite Mr. Taylor’s disclaimers, it is unlikely Nixon's estate will never object to any historical disclosures. NARA uses letter codes “a” through “h” to explain what is being restricted in tapes and documents. As Nixon's records are released in the future, look to see if any material was withheld under the code "c." The Archives openly used this code for a "pending or approved claim" in 1987 to inform the public that Mr. Nixon blocked the release of 150,000 pages. When NARA released most of the items, it clearly identified them as previously "contested."

Will NARA in the future follow the 1987 model of transparency, a process which, although potentially embarrassing to the Nixon estate, I believe best serves all the stakeholders? When I worked for Dr. O’Neill, we did not hesitate to inform the public that Nixon disagreed with our screening of his materials. The path that NARA chooses in the future may tell you whether the Nixon Foundation has a veto over historical disclosures. If you never see a “c” code, that is not necessarily a good sign.