Historians/History

At Last Bush's Restrictions on Presidential Records Are Lifted

by Anna K. Nelson

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.