The end may finally be in sight to the seven-year battle historians and archivists have waged to overturn President Bush’s Executive Order 13233 of November 2001 that restricted access to presidential records. On January 7, 2009, the House of Representatives approved H.R. 35, the “Presidential Records Act Amendments of 2009,” by an overwhelmingly bi-partisan vote of 359-58. H.R. 35 was chosen by the House leadership as the first piece of substantive legislation passed in 2009 as a symbol of government transparency.

President-elect Obama has already committed himself to revoking EO 13233. However, the hope is that the Senate will move swiftly to pass the bill in time for the new president to sign it soon after his inauguration.

An identical bill (H.R. 1255) to overturn Executive Order 13233 overwhelmingly passed the House in March 2007. At the time the legislation was considered in the House, the Bush administration issued a veto threat.

Similar legislation cleared the Senate Homeland Security and Government Affairs Committee by voice vote in the summer of 2007. Senator Joseph I. Lieberman (ID-CT), chairman of the Senate Homeland Security and Governmental Affairs Committee, worked tirelessly to get the bill through the Senate the last two years. However, a series of Republican senators put consecutive holds on the bill and it never came to the Senate floor for a vote.

Senator Lieberman’s task may be easier this year. First, with President Bush no longer in office, Republican senators like Jim Bunning (R-KY) and Jeff Sessions (R-AL) will likely not want to be seen as holding up passage of a pro-transparency bill. It was widely assumed that the Republican senators who put the holds on the bill did so at the behest of the White House. In addition, with their new larger majority the Democratic leadership will likely have the 60 votes they need to overcome any possible Republican efforts to keep the bill off the floor.

As passed by the House, H.R. 35 would require the following:

• Overturn Bush Executive Order 13233: Under the Presidential Records Act, presidential records are supposed to be released to historians and the public 12 years after the end of a presidential administration. In November 2001, President George W. Bush issued Executive Order 13233, which overturned an executive order issued by President Reagan, and gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The “Presidential Records Act Amendments of 2009″ would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.
• Establish a Deadline for Review of Records: Under the Bush executive order, the Archivist of the United States must wait for both the current and the relevant former president to approve the release of presidential records, meaning that the review process could continue indefinitely. Under the bill, the current and former president would have a set time period of no longer than 40 business days to raise objections to the release of these records by the archivist.
• Limit the Authority of Former Presidents to Withhold Presidential Records: Under the Reagan executive order, a former president could request that the incumbent president assert a claim of executive privilege and thereby stop the release of the records. If the incumbent president decided not to assert executive privilege, however, the records would be released unless the former president could persuade a court to uphold the former president’s assertion of the privilege. The Bush executive order reversed this process and required the incumbent president to sustain the executive privilege claim of the former president unless a person seeking access could persuade a court to reject the claim. In effect, the Bush order gave former presidents virtually unlimited authority to withhold presidential records through assertions of executive privilege. The legislation would restore the Reagan approach, giving the incumbent president the discretion to reject ill-founded assertions of executive privilege by former presidents.
• Require the President to Make Privilege Claims Personally: Under the Bush executive order, even designees of a former president could assert privilege claims after the death of the president, in effect making the right to assert executive privilege an asset of the former president’s estate. The bill would make clear that the right to claim executive privilege is personal to current and former presidents and cannot be bequeathed to designees, relatives, or descendants.
• Eliminate Executive Privilege Claims for Vice Presidents: In an unprecedented step, the Bush executive order authorized former vice presidents to assert executive privilege claims over vice presidential records. The bill restores the long-standing understanding that the right to assert executive privilege over presidential records is held only by presidents.

The bill would also require the Archivist of the United States to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal, or destruction of records of the archives. The bill language was inspired by the well-publicized theft of documents from the National Archives by President Clinton’s former National Security Advisor Samuel R. (Sandy) Berger. On April 1, 2005, Berger pleaded guilty to one misdemeanor count of unauthorized removal and retention of classified documents.

Maarja Krusten - 1/12/2009

Since failure to proofread has been the subject of debate elsewhere on HNN recently, I apologize for not doing so. I often post in the morning as I am multi-task and get ready to go to work. Since I'm in such a hurry, I don't proofread carefully. My apologies for the typo in my rendering of Blackberry, as sometimes happens, I got ahead of myself and typed in an extra "er" at the wrong place.

Maarja Krusten - 1/12/2009

(1) See the link below for an explanation in the New York Times about why President-elect Obama is getting pushback on his stated desire to hold on to his Blackerberry.
http://www.nytimes.com/2009/01/12/technology/internet/12blackberry.html?_r=1&;emc=eta1

Maarja's observation: When the Wall Street Journal published an article on the value of corporate history in 1987, it quoted a Harvard business history professor who warned, “Lawyers are the enemies of history.” ("In the Wake of Cost Cuts, Many Firms Sweep Their History Out the Door,” Wall Street Journal, December 21, 1987. Historians largely seem oblivious to the role lawyers can play in advocating against creation of a paper trail.

I increasingly find myself wondering whether it would be better to have longer periods of restriction -- making the public wait longer than 5 years before they are able to FOIA Presidential records and perhaps allowing certain restrictions to be applied for longer than 12 years. This stems largely from the lawyer-articulated fear factor that has come to surround and, it seems, diminish, Presidential record keeping. If the lawyers are so risk-averse about letting clients in the White House create records, then it might be a good idea to look at how to mitigate the risks. As historian John Earl Haynes once pointed out, you can never have access to records that never were created in the first place.

(2) See
http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/DN-bush_11edi.State.Edition1.2971ec6.html
or
http://shrinkster.com/13oz

for an interview in which President Bush reacts to recent efforts to overturn E.O. 13233 on Presidential records and offers an explanation of why he issued it. I would wave readers off of one assertion, however. NARA does not release classified information. Rather, NARA works with equity holders to determine whether such information can or cannot be disclosed. Presidential representatives only end up screening for potential application of privilege information information that is unclassified or has been declassified. 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.

It is unclear what is behind this passage in the interview as the reporter does not ask a follow up question seeking clarification:

"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."

(3) See this op ed from the NYT -- "Who Owns White House History?" – at http://www.nytimes.com/2009/01/10/opinion/10sat3.html?emc=eta1

(4) See http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/011009dnmetlibrary.3af247b.html
for an article on a recent decision to place the government-run (NARA administered) George W. Bush Presidential Library and the private-sector Bush Institute in the same building. It appears there will be two separate, distinct wings to the single building.

M D - 1/11/2009

An echoed "Hooray" -- albeit cautious -- from this corner too...have been posting and blogging about this for a couple of years now...

Sigh.

Maarja Krusten - 1/11/2009

Interesting observations, thanks for responding, Jonathan.

I don't belive it is mentioned in the legislative history of the Presidential Records Act (1978), but I suspect the reason compliance is voluntary (and the act mentions no sanctions) is because such records previously were considered the President's private property. Moving from a private property concept to governmental custody and control of White House was an enormous change. My guess would be that it was decided sanctions would be "over the top" or, more likely, there was insufficient consideration of the potential problems with records management and archival preservation.

I don't know whether the members of the public documents commission (which recommended PRA legislation) considered in 1975 just how resistant future Presidents might be to the idea that people whom they could not control entirely would take custody and control of their records.

I've watched with interest as Presidential advisors such as Steve Hadley and Josh Bolton recently told reporters at the Washington Post that the public impression of GWB differs from the one they have. Depending on what is captured in them, records have the ability to reveal not just what decisions were made and what went into making them, but the dynamics of inter-personal relationships within a work environment. But you cannot take the cherry picking approach -- captured in the discussion Richard Nixon's lawyers had with Reagan administration DOJ officials -- that the Kennedy Presidential Library was releasing "only" the "most favorable" information. You have to be willing to allow objective archivists to apply standards uniformly and open material based on whether or not national security or privacy restrictions apply to it. How good or bad it makes someone look should not be a consideration.

The courts actually recognized this in decisions on Nixon's materials.

In the 1970s, Mr. Nixon's lawyers argued in court that the mere review of his records by government archivists would "chill expression because he [Mr. Nixon] will be 'saddled' with prior positions communicated in private, leaving him unable to take inconsistent positions in the future." They objected to public access screening by the National Archives because their client's "most private thoughts and communications, both written and spoken, will be exposed to and reviewed by a host of persons whom he does not know and did not select, and in whom he has no reason to place his confidence. This group will decide what is personal . . . and what is historical, to be opened for public review."

A three-judge panel noted in an opinion issued in 1976 that "Congress had ample reason to mandate screening by government archivists rather than control by Mr. Nixon, who lacks their expertise and disinterestedness."

The Supreme Court noted in 1977 that Mr. Nixon's "view of what constitutes official as distinguished from personal and private materials might differ from the view of Congress, the Executive Branch or a reviewing court."

Regardless of how well or poorly any particular President has governed, there is the potential for a huge culture shock when it comes to considering recordkeeping and archival issues. Even now, unfortunately, we keep hearing reports that lawyers are telling President-elect Obama not to use a Blackberry because email creates a paper trail. Astonishing as it may seem, no President up to now has had a computer in his office, or has used email. Yet it is the primary method of communication in the private and public sector, having replaced the exchange of internal memoranda and notes that once were written on paper.

The political world depends *so* much on managing information, crafting images, and, at its worst, shifting blame, using straw man arguments to distract from problems, or, at its worst, intimidating into silence those who ask questions about the principal. None of that builds an acceptance of accountability for one's actions. So how do you go from that to acceptance of historical accountability, when it comes to your records?

Jonathan Dresner - 1/10/2009

Unlike with the Federal Records Act (which applies to Cabinet departments and executive agencies), the PRA has no sanctions for non-compliance or destruction of records.

That, my friend, is the essence of the problem, isn't it? It should be considered prima facie evidence of obstruction of justice.

if you had an opportunity to sit down with President Bush to make a case for creating and preserving records for use by future historians, what would you tell him? Although I asked that in several forums, I never was able to get a single historian to respond.

There is no good argument. Either he feels the responsibility to history, or he doesn't. Either he is covering up something or he isn't.

"Leave us enough rope so we can hang you" isn't going to convince anyone. "Leave a legacy so future historians can prove your greatness" isn't going to fly either, since he seems to think that events themselves will vindicate him.

"Hand over the documents or go to jail" on the other hand, has a real resonance....

Maarja Krusten - 1/10/2009

Hi, Jonathan, Happy New Year!

The provision to which you are referring was triggered by Samuel R. "Sandy" Berger's theft of highly classified Clinton-era documents from the National Archives. It only applies to actions taken with records that are in the physical custody and under the intellectual control of the National Archives. With Presidential records, that does not occur until he leaves office. While an administration is in office, under the Presidential Records Act, the President or his designees within the White House are reponsible for records management.

Unlike with the Federal Records Act (which applies to Cabinet departments and executive agencies), the PRA has no sanctions for non-compliance or destruction of records. It depends on voluntary compliance and an honor system. It requires that certain records be preserved but does not compel such action. Consequently, incentives, risk management and risk mitigation are important considerations.

It is for that reason that I started asking historians around 2002 -- in various forums -- if you had an opportunity to sit down with President Bush to make a case for creating and preserving records for use by future historians, what would you tell him? Although I asked that in several forums, I never was able to get a single historian to respond.

As you know, I once was employed by the National Archives. So I have spent a lot of time thinking about the fear factor in record keeping and why the National Archives struggled so to release Richard Nixon's records while he was alive.

When he visited the National Archives in 2002 and 2003, Sandy Berger was a designated representative for President Clinton. I think the intent of the provision in the bill described above is to ensure that once someone pleads guilty to or is convicted of a crime, he or she cannot act as a former President's representative for purposes of reviewing records at NARA for application of communications privilege or for other purposes.

Jonathan Dresner - 1/8/2009

That last bit about restricting representatives convicted of Crimes against History is interesting: given the Bush administration's stonewalling on records, that could affect a lot of people, if the Justice department took PRA archival requirements seriously.