Bush's Presidential-Papers Power Grab

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On
November 1, 2001, President Bush issued an executive order entitled
“Further Implementation of the Presidential Records Act.”
His order effectively overturned an act of Congress and a Supreme
Court decision and could make it far more difficult for Americans
to learn of government abuses. Jonathan Turley, a George Washington
University law professor, declared that the executive order “effectively
rewrote the Presidential Records Act, converting it from a measure
guaranteeing public access to one that blocks it.”

In 1978, Congress passed the Presidential Records Act, declaring,
“The United States shall reserve and retain complete ownership,
possession, and control of Presidential records.” The act was
a response to the titanic clashes between Congress, the Supreme
Court, and the Nixon administration over who owned Nixon’s
records (especially those pesky tape recordings). The act requires
that the unclassified papers of a president be routinely released
12 years after the president’s term ends. There are provisions
in the act to justify non-disclosure of information that could threaten
national security.

Two months after taking office, Bush’s White House counsel,
Alberto Gonzales, issued an order delaying the release of 68,000
pages of records from Ronald Reagan’s administration that archivists
at the Reagan library had already confirmed did not threaten national
security or violate personal privacy. The release of records (including
those pertaining to the Iran-Contra scandal) from the Reagan administration
could have proven a profound embarrassment to many officials in
George W. Bush’s administration as well as to his father (who
was vice president under Reagan).

The White House completely misrepresented both the 1978 law and
the new executive order. On the day after his surprise order, Bush
commented, “We responded to a new law written by Congress that
lays out a procedure that I think is fair for past presidents.”
(Most 23-year-old laws are no longer considered new.) At a press
briefing on the day Bush’s order was announced, White House
press secretary Ari Fleischer said, “As a result of the new
law that is now going into effect, and thanks to the executive order
that the president will soon issue, more information will be forthcoming.”
Fleischer insisted that Bush’s order was a triumph in open
government because “under the existing procedures, existing
law, a former president has the right to withhold anything for any
reason, if they don’t want to make it public.”

That was ludicrous, since a post-Watergate Congress would not have
passed a law to make presidents czars in perpetuity over the records
of their actions in office.

Fleischer insisted that there “will be a 90-day time limit”
on presidents’ right to review requests. Bush’s executive
order mentioned 90 days, but a former president will be entitled
to dally as long as he pleases.

After a journalist asked Fleischer about the new requirement for
“people having to demonstrate their need for the information”
about a former president’s actions, Fleischer snipped, “So
you’re making guesses and judgments, all of which would indicate
malfeasance or withholding of information by this administration.
And I just can’t accept that; that’s not the case.”

The journalist responded, “So you are saying, trust us, it’ll
all be fine?”

Fleischer snapped, “You are saying, we don’t trust you.”

Trust was the issue – regardless of whether Bush’s order
was legal or constitutional and regardless of how much information
could be hidden in perpetuity because of the new restrictions.

Suppression
and secrecy

The White
House Weekly summarized the changes in Bush’s order:

  • It prohibits
    the release of records until both the former and incumbent presidents
    affirmatively consent to their release.
  • It imposes
    no firm time limit on record reviews and assertions of privilege
    claims. It allows the former or incumbent president to extend
    the review period unilaterally and indefinitely.
  • It requires
    the archivist to withhold records in response to any privilege
    claim by a former president, regardless of its merit. It thereby
    places the burden on the requester to sue to contest the privilege
    claim.
  • It may be
    read to permit a former vice president to claim executive privilege.
  • It asserts
    a very expansive view of the scope of executive privilege. It
    suggests that a requester under the Presidential Records Act must
    establish “a demonstrated, specific need” for
    records in order to overcome a privilege claim.

The people’s “right to know” has been replaced by
former presidents’ right to suppress. Bush’s edict reversed
the burden of proof in the law – as if a former president is
presumptively entitled to have embarrassing facts and documents
hidden forever.

Bush also sought to create a hereditary privilege not only for former
presidents but for their wives and children and others to assert
“state secrets privilege.” Turley notes that, under the
order,

a former president can transfer the right to invoke executive
privilege to anyone of his choosing. The order would also extend
the privilege beyond the death of a former president, allowing
the privilege to be passed on to anyone of his choosing: a half-wit
nephew or a drinking buddy.

Bush created a document-review process custom-made to create massive
bottlenecks. National Journal noted,

Bush’s own order commits the White House to a task –
reviewing millions of documents – that it is probably physically
unable to perform in a timely way. And why this Administration
has concluded that the archivist has no more expertise, independence,
or standing than, say, a White House deputy chief of staff, is
also perplexing to scholars and members of Congress alike.

Adverse
reactions

Bush’s
order infuriated many historians. An American University historian,
Anna Nelson, said that the order “sets up a minefield in
front of what was a straightforward piece of legislation.”
A Vanderbilt University history professor, Hugh Graham, observed,
“Unless this executive order of his is overturned, it will
be a victory for secrecy in government so total that it would
make Nixon jealous in his grave.”

Bush’s order will make it easier for former presidents to perpetuate
their cons on the American people. Presidents don’t suppress
news of their good deeds and successes. Steven Hensen, president
of the Society of American Archivists, commented, “The order
effectively blocks access to information that enables Americans
to hold our presidents accountable for their actions.”

In issuing this order, Bush sounded as if he had discovered a new
constitutional right by which the president is entitled to be protected
against the truth. Or perhaps it is merely a constitutional right
entitling former presidents to a better reputation than they deserve.

Congress began consideration of a bill to overturn the executive
order. Assistant Attorney General Daniel J. Bryant criticized one
bill as “unnecessary and inappropriate and, more importantly,
unconstitutional.” The Bush administration sought to settle
the dispute by releasing most of the 68,000 pages of requested Reagan
records, thereby proving that no legislative remedy was needed.
Bryant wrote that “Congress lacks the authority to regulate
by legislation the procedures for exercising” executive privilege.
But Bush’s privilege is not the highest law of the land. (The
bill stalled out.)

In contrast to Bush’s behavior, former President Clinton announced
in early 2003 that he was waiving his rights to a 12-year delay
in release of the vast majority of the confidential advice he received
during his presidency (excluding arcane matters such as the Paula
Jones, Monica Lewinsky, and Whitewater cases). Clinton declared,

The more information we can make available to scholars, historians,
and the general public, the better informed people will be about
the formulation of public policy and the decision-making process
at the White House.

Reversal
of Clinton’s doctrine

However,
under the new executive order, Bush can veto the release of Clinton’s
papers.

President Clinton issued an executive order in 1995 decreeing that
most government documents will be automatically declassified after
25 years. His order contained an exemption for material that continued
to be sensitive for national security. On March 25, 2003, Bush issued
an executive order that delayed for years public access to millions
of pages of documents that were scheduled for release in the following
weeks. He claimed that “sensitive information” needed
to be reviewed prior to the release – though the feds had had
years to get ready for this deadline. The Bush order reversed the
Clinton order’s presumption in favor of disclosure. Bush’s
order also awarded the vice president the prerogative to block disclosures.
And, in a triumph of revisionism, Bush empowered federal agencies
to reclassify documents that had already been publicly released.

In April 2004, historians around the country became alarmed after
the Bush administration nominated Allen Weinstein to be archivist
of the United States. Many historians believe that the Bush administration
may have nudged the current archivist, John Carlin, into retiring
early so that Bush could put his own man in the slot – and
thereby perhaps make it more difficult to get access both to his
records and to the records of his father’s administration (which
were scheduled to be released in January 2005). Historians were
concerned about Weinstein’s close ties to Republican politicians
and about former Secretary of State Henry Kissinger’s place
on the board of Weinstein’s Center for Democracy. Timothy Slavin,
president of the Council of State Historical Records Coordinators,
complained, “It’s the equivalent of the administration’s
thumbing its nose at the nation’s history. It seems to me that
they were trying to bum-rush an appointment.” Anna Nelson observed
of the administration’s process, “This is pretty sneaky.
There is only one motive here, and that is they [the White House]
had to be worried that Bush was going to be defeated” in the
2004 election.

The national archivist will also have sway over how quickly the
records of the National Commission on Terrorist Attacks on the United
States are released. There may be more surprises in the commission’s
files than in its final report. The commission strained to appear
bipartisan in its final report – but there was no such muzzle
upon its digging and the information it acquired. Pointlessly restricting
access to 9/11 materials could delay for decades Americans’
understanding of the role of government failures on that day.

Has
the people’s “right to know” been replaced by presidents’
right to suppress?

Congress should reject Bush’s nominee for national archivist
and should pass a law razing Bush’s Iron Curtain around presidential
records. The more secrecy the government is permitted, the more
lies the public will suffer.

April
16, 2005

James
Bovard [send him mail] is the
author of The
Bush Betrayal
and Terrorism
& Tyranny: Trampling Freedom, Justice, and Peace to Rid the
World of Evil
serves as a policy advisor for The
Future of Freedom Foundation.

James
Bovard Archives

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