Presidency: Release the Reagan Documents

The Bush White House has served to delay the release of some 68,000 pages of presidential papers dating back to the Reagan Administration which ought to be released under provisions of the Presidential Records Act of 1978. On several occasions, the White House has stated that the delays were required,"to review the many constitutional and legal questions raised by potential release of sensitive and confidential Presidential records and to decide upon the proper legal framework and process to employ in reviewing such records on an ongoing basis."

Apparently, the White House has now had sufficient time to study these records with an eye toward" constitutional and legal questions" as the Bush Administration has drafted a new Executive Order that is now circulating for internal agency review entitled,"Further Implementation of the Presidential Records Act." The National Coordinating Committee for the Promotion of History managed to secure a copy of the draft order. Through an arrangement with the Federation of American Scientists, Project on Government Secrecy, the draft is posted at: http://www.fas.org/sgp/news/2001/11/eopra.html

The proposed order is characterized by Vanderbilt University historian Hugh Graham as"a real monster. . . far worse than the 1989 Executive Order it would replace." According to the consensus opinion of historians and experts who have reviewed the document, the new order violates the spirit if not the legislative language embodied in the Presidential Records Act and will usher in a new era of secrecy for presidential records.

Historian Graham, who has long had an interest in the release of the Reagan Presidential papers stated,"I am surprised by such broad overreaching by the Bush White House. They would reverse an act of Congress with an Executive Order...[and] would 'implement' the Presidential Records Act by gutting it through an executive decree." A spokesperson for the Public Citizen Litigation Group characterized the draft order as"blatantly unlawful top to bottom." Steven Aftergood of the Federal of American Scientists, Project on Government Secrecy states,"We are not talking about protecting national security information of properly classified documents that otherwise are exempt. . . this is a whole other claim and creates suspicion that once National Security, privacy, and other statutory restrictions are lifted, all that is left to protect is potential embarrassment." American University historian Anna Nelson agrees that"this Executive Order seeks to protect a wide variety of mere 'confidential communications' that a sitting President would not like to see released to the public."

In a nutshell, the draft order reverses the very premise of public access of the existing law which provides for the systematic release of presidential records after 12 years through a Freedom of Information (FOIA) request. It replaces a January 18, 1989 Reagan decree with a requirement that a FOIA request must be justified by some"demonstrable, specific need." In processing the request, the new order requires that the Archivist of the United States win agreement by both the former President and incumbent President (both of whom are given virtually unlimited time to ponder the request), and then, if the former President says the records are privileged, they will remain secret even if the sitting President disagrees. If the sitting President says they should be privileged, they remain secret even if the former President disagrees. In essence, in the interest of keeping historical papers closed, the incumbent President can trump the wishes of a former President. Informed sources report that the families of several former Presidents are not pleased with the language of the proposed order.

The basis of the restrictive language of the order rests on constitutional claims drawn from what one legal scholar characterized as"a selective reading" of the 1977 case, Nixon v. Administrator of General Services. By contrast, Congress passed the records act in order to provide for specified exemption categories for exemption from the norm of public access. Undoubtedly, should the Executive Order be adopted without revision (which at present appears to be the case), the Executive Order will be challenged in court.