Congressional Record: March 14, 2007 (House)
Page H2496-H2500
PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2007
Mr. CLAY. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 1255) to amend chapter 22 of title
[[Page H2497]]
44, United States Code, popularly known as the Presidential Records
Act, to establish procedures for the consideration of claims of
constitutionally based privilege against disclosure of Presidential
records, as amended.
The Clerk read as follows:
H.R. 1255
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Presidential Records Act
Amendments of 2007''.
SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF
CONSTITUTIONALLY BASED PRIVILEGE AGAINST
DISCLOSURE.
(a) In General.--Chapter 22 of title 44, United States
Code, is amended by adding at the end the following:
``Sec. 2208. Claims of constitutionally based privilege
against disclosure
``(a)(1) When the Archivist determines under this chapter
to make available to the public any Presidential record that
has not previously been made available to the public, the
Archivist shall--
``(A) promptly provide notice of such determination to--
``(i) the former President during whose term of office the
record was created; and
``(ii) the incumbent President; and
``(B) make the notice available to the public.
``(2) The notice under paragraph (1)--
``(A) shall be in writing; and
``(B) shall include such information as may be prescribed
in regulations issued by the Archivist.
``(3)(A) Upon the expiration of the 20-day period
(excepting Saturdays, Sundays, and legal public holidays)
beginning on the date the Archivist provides notice under
paragraph (1)(A), the Archivist shall make available to the
public the record covered by the notice, except any record
(or reasonably segregable part of a record) with respect to
which the Archivist receives from a former President or the
incumbent President notification of a claim of
constitutionally based privilege against disclosure under
subsection (b).
``(B) A former President or the incumbent President may
extend the period under subparagraph (A) once for not more
than 20 additional days (excepting Saturdays, Sundays, and
legal public holidays) by filing with the Archivist a
statement that such an extension is necessary to allow an
adequate review of the record.
``(C) Notwithstanding subparagraphs (A) and (B), if the
period under subparagraph (A), or any extension of that
period under subparagraph (B), would otherwise expire after
January 19 and before July 20 of the year in which the
incumbent President first takes office, then such period or
extension, respectively, shall expire on July 20 of that
year.
``(b)(1) For purposes of this section, any claim of
constitutionally based privilege against disclosure must be
asserted personally by a former President or the incumbent
President, as applicable.
``(2) A former President or the incumbent President shall
notify the Archivist, the Committee on Oversight and
Government Reform of the House of Representatives, and the
Committee on Homeland Security and Governmental Affairs of
the Senate of a privilege claim under paragraph (1) on the
same day that the claim is asserted under paragraph (1).
``(c)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim
asserted by a former President until the expiration of the
20-day period (excluding Saturdays, Sundays, and legal public
holidays) beginning on the date the Archivist is notified of
the claim.
``(2) Upon the expiration of such period the Archivist
shall make the record publicly available unless otherwise
directed by a court order in an action initiated by the
former President under section 2204(e).
``(d)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim
asserted by the incumbent President unless--
``(A) the incumbent President withdraws the privilege
claim; or
``(B) the Archivist is otherwise directed by a final court
order that is not subject to appeal.
``(2) This subsection shall not apply with respect to any
Presidential record required to be made available under
section 2205(2)(A) or (C).
``(e) The Archivist shall adjust any otherwise applicable
time period under this section as necessary to comply with
the return date of any congressional subpoena, judicial
subpoena, or judicial process.''.
(b) Restrictions.--Section 2204 of title 44, United States
Code (relating to restrictions on access to presidential
records) is amended by adding at the end the following new
subsection:
``(f) The Archivist shall not make available any original
presidential records to any individual claiming access to any
presidential record as a designated representative under
section 2205(3) if that individual has been convicted of a
crime relating to the review, retention, removal, or
destruction of records of the Archives.''.
(c) Conforming Amendments.--(1) Section 2204(d) of title
44, United States Code, is amended by inserting ``, except
section 2208,'' after ``chapter''.
(2) Section 2207 of title 44, United States Code, is
amended in the second sentence by inserting ``, except
section 2208,'' after ``chapter''.
(d) Clerical Amendment.--The table of sections at the
beginning of chapter 22 of title 44, United States Code, is
amended by adding at the end the following:
``2208. Claims of constitutionally based privilege against
disclosure.''.
SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001.
Executive Order number 13233, dated November 1, 2001 (66
Fed. Reg. 56025), shall have no force or effect.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Missouri (Mr. Clay) and the gentleman from Ohio (Mr. Turner) each will
control 20 minutes.
The Chair recognizes the gentleman from Missouri.
General Leave
Mr. CLAY. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Missouri?
There was no objection.
Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
As chairman of the Oversight Subcommittee on Information Policy,
Census, and National Archives and an original cosponsor of the
Presidential Records Act Amendments of 2007, I strongly support H.R.
1255 and urge its passage by the House. It is appropriate that the
House should consider H.R. 1255 during Sunshine Week, when we can call
attention to the importance of transparency and open government.
Introduced by Representative Waxman, this bipartisan bill is intended
to promote the timely release of Presidential records under the
Presidential Records Act of 1978, by rescinding Executive Order 13233.
Issued by President Bush in November 2001, the executive order granted
new authority to Presidents, former Presidents, their heirs and
designees and Vice Presidents, allowing them to withhold information
from public view unilaterally and indefinitely.
Mr. Speaker, I reserve the balance of my time.
Mr. TURNER. Mr. Speaker, I yield myself such time as I may consume.
When it comes to the records of a President, we need to ensure that
the public's interest remains paramount. As I noted in the
subcommittee, it is important that we distinguish the Nation's interest
from that of a former President's interest. We need to achieve that
critical balance between the President's constitutional privilege and
the public's right to know.
The bill is one step toward preserving and protecting the
constitutional prerogatives of Presidents while preserving public
access to important and historic Presidential records. The legislation
before us established a process whereby incumbent and former Presidents
could, within specified time limits, review records prior to their
release and determine whether to assert constitutional privilege claims
against release of the records.
This legislation is identical to H.R. 4187, introduced in the 107th
Congress and approved by the committee under the leadership of the
gentleman from Indiana (Mr. Burton). I want to commend him for his work
in this area.
In addition, I want to highlight an amendment which was approved by
the full committee. This provision will close a loophole in the
Presidential Records Act which would have allowed individuals
previously convicted of a crime relating to the mishandling of Archives
records to continue to have special access to Presidential records. The
amendment to the bill states that the Archivist shall not make
available any Presidential records to any individual claiming access as
a designated representative under section 2205(3) of title 44 if that
individual has been convicted of a crime relating to the review,
retention, removal or destruction of Archives records.
If you are convicted of mishandling Archives records, you should not
have special access to original Presidential records. You are a proven
risk, and we are obligated to mitigate this type of risk. Given the
critical importance of Presidential records to the public, to
researchers and to the press, we must ensure no one is able to tamper
with history. This bill today includes this important amendment.
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I also want to commend the Chair of our subcommittee, Mr. Clay, for
his leadership on the subcommittee, and his thoughtful hearings held by
the subcommittee in support of this bill.
Mr. Speaker, I reserve the balance of my time.
Mr. CLAY. Mr. Speaker, at this time I now yield 3 minutes to the
distinguished Chair of the full Committee on Oversight and Government
Reform, the gentleman from California (Mr. Waxman).
Mr. WAXMAN. I thank the chairman of the subcommittee for yielding to
me and the fine work he and his subcommittee have done with this
legislation. I also want to commend the gentleman from Ohio, the
ranking member of that subcommittee.
Mr. Speaker, this bill also builds on a bipartisan proposal that came
to light in the last Congress, and I think it fits well within the
theme of many of the bills that we are pursuing this week, openness in
government.
The bill has a straightforward goal. It ensures that future
historians have access to Presidential records as the Presidential
Records Act intended.
This law was adopted after the Watergate scandals to underscore the
fact that Presidential records belong to the American people, not to
the President, not to his family, but to the American people. It has
been a bipartisan proposal from the very beginning. In fact, this bill
had bipartisan support not only from Mr. Clay and others, but Mr.
Platts and Mr. Burton.
The act said that these records would be available to researchers and
the general public in a timely manner. This was the rule for over two
decades, but in 2001, President George W. Bush issued an executive
order that turned the Presidential Records Act on its head and gave
Presidents the authority to keep their records out of the public eye.
The Bush order gives both current and former Presidents nearly
unlimited authority to withhold Presidential records from public view
or to delay their release indefinitely. It allows a designee of former
Presidents to assert executive privilege after the President's death,
and for the first time, it gives former Vice Presidents the authority
to assert privilege over their own documents. In short, this gives
former Presidents and their heirs the ability to control their legacy
and determine what information will be available to history.
That undermines the entire purpose of the Presidential Records Act.
Historians and scholars need access to Presidential records so that
there is an accurate record of a President's term in office and not an
alleged version based on what the President chooses to share.
During Sunshine Week this bill fits in so well, because it would make
sure that information about government and government activities is
open to public scrutiny. It is an essential component of this open
government agenda.
I urge my colleagues to support this legislation, protect historical
research, and vote for this bill.
Mr. TURNER. Mr. Speaker, I reserve the balance of my time.
Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, during subcommittee hearings last week, the Archivist of
the United States, Allen Weinstein, testified that Executive Order
13233 has ``added to the endemic problem of delay that NARA faces from
the PRA in the processing of Presidential records.''
Tom Blanton of the National Security Archive testified that the order
already has added 5 years to the response time for records from the
Reagan library and violates the letter and spirit of the PRA.
Presidential historian Robert Dallek urged Congress to rescind the
order, stating, ``President Bush's order carries the potential for an
incomplete and distorted understanding of past Presidential decisions,
especially about controversial actions with significant consequences.''
``It is understandable,'' said Dr. Dallek, ``that every President and
his heirs wants to put the best possible face on his administration,
but an uncritical or limited reconstruction of our Nation's history
does nothing to serve its long-term national interest.''
Mr. Speaker, the long-term national interest demands that the
American people know how and why important decisions are made at the
highest level of our government. This straightforward and bipartisan
legislation would ensure that this will be the case by requiring that
Presidential records will be treated as the property of the American
people.
Mr. Speaker, I urge all of my colleagues to support the bill as
reported by the Committee on Oversight and Government Reform.
Mr. Speaker, I reserve the balance of my time.
Mr. TURNER. Mr. Speaker, I reserve the balance of my time.
Mr. CLAY. Mr. Speaker, I yield such time as the gentleman from
California (Mr. Waxman) may consume.
Mr. WAXMAN. Thank you very much for yielding to me.
Mr. Speaker, history is important because it informs us of events of
the past, so we can learn from those events, not to make the same
mistakes or to follow good examples that turned out to be successful.
History always is an ongoing process. It is a process of looking at
facts and reinterpreting those facts, often in light of current events
and matters that are before the researchers at the present time.
But there are those who would like to rewrite history for their own
purposes, and to the extent that we can keep that from happening, I
think this bill goes a long way. It would allow the records, the raw
information, to be available, let those who want to interpret those
events do so as they see fit; and in doing so, by making these records
available to scholars and the public, we can find out the information
that we didn't know at the time the events were taking place: what
motivated certain decisions, what other factors were being considered,
what was going on that led to certain conclusions.
There are books now being written about the present day, how we got
into Iraq, what we had hoped to do, what we still hope we can
accomplish, what the thinking was of those who led us into the
adventure. Many of the books have been praiseworthy, and most of them
have been quite critical. But it won't be until the judgment of history
that we will be able to fill in many of the gaps that remain.
So, at some point, Presidential records help scholars fill in those
gaps. That is why I think it is so worthwhile to have this information
available, at least at a time when there is some historical
perspective. Many times it is after the President has passed on, but
certainly long after the President's administration.
During the Nixon period, President Nixon thought that the records
belonged to him, and he sought, as I recall, a tax break for donating
his records to a nonprofit organization. He felt he could control those
records.
Well, I think the American people looked at that and said, wait a
minute, some things are his, the President's, to do with as he sees
fit, but some things don't really belong to him.
{time} 1115
They belong to the American people. They belong to scholars. They
belong to history. And the Presidential Records Act was adopted because
of that concern. It has worked well for several decades, and it is only
when we saw the executive order presented by President George W. Bush
that some of the concerns have been raised because that Presidential
order overturned the one that was put into effect by President Reagan
implementing the post-Watergate legislation.
So I wanted to use this additional time to give some historical
background to this matter. We heard from many scholars, as the chairman
of the subcommittee indicated, who set out the reasons why they thought
it was important to be able to get this information, the Archivist, Mr.
Weinstein, Presidential scholars like Mr. Dallek and Mr. Reeves,
particularly, who have written about recent Presidents, urged us to
adopt this legislation. And I am pleased that now we are considering
it. And it is important, it is a good government bill, and we are doing
it in the appropriate way, in a bipartisan spirit where we vote
together on the committee. And I commend all those involved. And I know
now, because I have just been informed, that the next bill is ready for
consideration of the House.
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Mr. CLAY. Mr. Speaker, I want to thank the chairman of our committee
for those anecdotes and his knowledge of history.
I also want to thank the ranking member from Ohio for his cooperative
spirit of allowing the sunshine in on this bill and the other bills
that we have been discussing today.
And I just want to close by urging all of my colleagues to vote in
support of H.R. 1255, the Presidential Records Act Amendments of 2007.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in strong support
of H.R. 1255, the ``Presidential Records Act Amendments of 2007,''
which vitiates an Executive order issued in 2001 by President Bush that
unreasonably and severely restricts public access to Presidential
records. By negating that Executive order, we win a great victory for
open government.
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. Shortly after taking office in 2001,
President Bush issued Executive Order 13233, which overturned President
Reagan's Executive order and gave current and former Presidents and
Vice Presidents broad authority to withhold Presidential records or
delay their release indefinitely. H.R. 1255 will nullify the Bush
Executive order and establish procedures to ensure the timely release
of Presidential records.
Under the Bush Executive order, the Archivist of the United States
must wait for both the current and former President to approve the
release of Presidential records, a review process that can 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.
Mr. Speaker, another salutary feature of H.R. 1255 is that it limits
the authority of former Presidents to withhold Presidential records. To
prevent the release of his records under the regime established by
President Reagan's Executive order, a former President was required to
request the incumbent President to assert the claim of executive
privilege. If the incumbent President decided not to assert executive
privilege, however, the records would be released unless the former
President succeeded in obtaining a court order upholding the assertion
of privilege and enjoining disclosure.
The regime established by President Bush's Executive order turned
this process on its head. It requires 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. H.R. 1255 restores the Reagan approach, giving the
incumbent President the discretion to reject ill-founded assertions of
executive privilege by former Presidents.
Mr. Speaker, under President Bush's Executive order regime, claims of
executive privilege could be asserted to defeat disclosure even after
the death of a former President by his heirs, assigns, and descendants.
The practical effect of eliminating the requirement that the former
President had to assert the privilege personally is to extend the time
in which Presidential records may be withheld in perpetuity. H.R. 1255
makes clear that the right to claim executive privilege is personal to
current and former Presidents and does not survive the death of the
former President.
Mr. Speaker, perhaps the most egregious aspect of President Bush's
Executive order is that it authorized former Vice Presidents to assert
executive privilege claims over Vice Presidential records. If the
authority to assert such a claim is left undisturbed, the public will
never learn what really went on behind the closed doors of Vice
President Cheney's secret energy task force or the White House Iraq
Group's marketing campaign to sell the Iraq War to the Congress and the
American people. That is why I support the provision in H.R. 1255
limiting the right to assert executive privilege over Presidential
records only to Presidents and former Presidents.
Mr. Speaker, I strongly support H.R. 1255 and urge all my colleagues
to join me in supporting this legislation amending the Presidential
Records Act to nullify the Bush Executive order and establish
procedures to ensure the timely public release of Presidential records.
Mr. UDALL of Colorado. Mr. Speaker, as a proud cosponsor of this
bill--and of similar legislation since shortly after I was first
elected to Congress--I strongly support its approval by the House.
The bill amends the Presidential Records Act of 1978 to establish a
clear and equitable process enabling incumbent and former Presidents to
review records prior to their public release under the act and
determine whether to assert constitutional privilege claims against
release of the records.
Importantly, it would revoke an Executive order issued by President
George W. Bush in 2001 that overturned rules set by President Ronald
Reagan. By that order, President Bush has sought to give himself and
Vice President Cheney--as well as former Presidents and Vice
Presidents--broad authority to withhold Presidential records or delay
their release indefinitely. I do not think that order should be allowed
to stand.
The Presidential Records Act was enacted in 1978 after the Watergate
scandal and the subsequent resignation of President Nixon. It makes
clear that Presidential records belong to the American people, not to
the President, and required the Archivist of the United States--who was
given custody of the records--to make the records available to the
public as rapidly and completely as possible consistent with the
provisions of the law.
The act first applied to the records of former President Ronald
Reagan. In 1989, he issued an Executive order requiring the Archivist
to give the incumbent and former Presidents 30 days notice before
releasing Presidential records, with the records to be released after
that unless the incumbent or former President claimed executive
privilege, or unless the incumbent President instructed the Archivist
to extend the period indefinitely. If the incumbent President decided
to invoke executive privilege, the Archivist would withhold the records
unless directed to release them by a final court order. If the
incumbent President decided not to support a former President's claim
of privilege, the Archivist would decide whether or not to honor the
claim.
Before he left office, President Reagan used his authority under the
act to restrict access to some of his records for 12 years, a period
that expired in January 2001.
In February 2001, the Archivist provided the required 30-day notice
of his intent to release about 68,000 pages of former President
Reagan's records. In March, June, and August of 2001, the counsel to
President Bush instructed the Archivist to extend the time for claiming
executive privilege. And then, in November 2001, President Bush issued
a new Executive order extending the review period for former Presidents
to 90 days and allowing a former President to extend it indefinitely.
In addition, that order allows an unlimited review period for the
current President and requires the Archives to honor the assertions of
executive privilege made by either the incumbent or a former
President--even if an incumbent President disagrees with the former
President's claim. And, while the Reagan order said records were to be
released on a schedule unless action occurred, the Bush Executive order
says records will be released only after actions by the former and
current Presidents have occurred--so, secrecy, not disclosure, is the
rule. Also, the Bush Executive order allows designees of a former
President to assert privilege claims after that President's death and
authorizes former vice Presidents to assert executive privilege claims
over their records.
Mr. Speaker, when we think what difference the release of the
Kennedy, Johnson, and Nixon tapes has made in our understanding of the
decision-making on Vietnam we can see how much could be lost if
representatives of the Reagan, Clinton, and current Bush
administrations in the future can hold back any and all documents
related to Iran-contra, the first gulf war, the way the Clinton
administration responded to intelligence about a potential Al Qaeda
attack, or the current administration's decisions about Iraq.
It is understandable that every President and his or her heirs wants
to put the best possible face on his administration, but an edited and
airbrushed version of history is not something that will serve our
long-term national interest.
H.R. 1255 would nullify Executive Order 13233 and establish
procedures to ensure the timely release of Presidential records.
It requires the Archivist to give advance notice to former and
incumbent Presidents before records are released so they can review the
records and decide whether to claim privilege and provides for
withholding of material for which the incumbent President claims
privilege. The bill also clarifies that the incumbent and former
Presidents must make privilege claims personally and that a right to
claim executive privilege cannot be bequeathed to assistants,
relatives, or descendants. And the bill eliminates executive privilege
claims for vice Presidents, restoring the long-standing doctrine that
the right to executive privilege over Presidential records is held only
by Presidents.
Mr. Speaker, this is a fair, balanced, and essential bill. I strongly
urge its approval.
Mr. CLAY. Mr. Speaker, I yield back the balance of my time.
Mr. TURNER. Mr. Speaker, I urge all Members to vote in support of
passage of H.R. 1255, and I yield back the balance of my time.
[[Page H2500]]
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Missouri (Mr. Clay) that the House suspend the rules and
pass the bill, H.R. 1255, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. CLAY. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.
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