THE WHITE HOUSE[...]
Office of the Press Secretary
PRESS BRIEFING BY ARI FLEISCHER
November 1, 2001
Q: Ari, is there any change in the administration's position since this morning with this executive order on the presidential records? And also, what do you plan to do, if anything, to counter what seems to be, if you listen to talk radio, anyway, a relatively quick response from some folks who seem to think that you have something to hide by doing this?
MR. FLEISCHER: The President will soon be issuing an executive order, which is a recognition of a new law that has just gone into effect this year for the first time, that changes the way presidential papers are provided to the public and to historians, to academicians, and of course to the press.
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. So if a historian were to ask somebody at a presidential library to provide a certain document, they could if they wanted to; they didn't have to if they didn't want to.
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. And it will be available through a much more orderly process. The executive order will lay out the terms of that process, and it will help people to get information.
There will be a 90-day time line put on it, so that academicians or whoever can get that information on request to the Archivist of the United States. The Archivist will then get in touch with the former President, with this administration. And unless an objection to releasing the information is raised, on the basis of those objections that are allowable under the law, the information will then become released.
Q: Is there any provision, or will there be a provision, for conflicts of interest? I mean, it's pretty easy to imagine that a current administration might have some employees from a former administration now on board. And is there anything to deal with records involving those people who are now in this administration?
MR. FLEISCHER: Well, there's actually a lengthy body of law that governs what can be subject to a restriction on release. And the law that Congress passed that is now coming into effect for the first time, while it provides for release of more information than the previous system, is explicitly clear. In fact, if you go to the law itself, not to the executive order, but the law itself, the law has a section, 2204, that's entitled restrictions on access to presidential records. So those who passed the law have clearly created an allowance for instances in which it would be necessary for papers not to be released.
So the criteria you raise would not likely match what the law prescribes. And anybody taking that case to a court would likely lose. What the law does allow for are exceptions on the basis of such things as a national security concern. But the purpose of this is to provide for an orderly process, so that information can be shared, releasing the records of former presidents to historians, to the public, and to the press.
Q: So is the administration then going to continue to block the release of about 70,000 pages of conversations between President Reagan and his top advisors under this executive order?
MR. FLEISCHER: Once the executive order is signed, it will immediately go into effect. And as a result, it will allow for, in accordance with the executive order, release of any information. So it really is just the opposite. It begins the process under the executive order of releasing information, as requested, so long as it comes into the terms of the executive order and the law.
Q: So this White House is not objecting, if the Reagan Library, National Archives wants that information to be released?
MR. FLEISCHER: What I said is, the process would then immediately go into effect. And as I just walked you through, the process would be, if you wanted to request, for example, a Reagan paper, you would make a request to the National Archives. The National Archives would then inform the Reagan Library and this White House, that Kelly Wallace of CNN has made a request. Unless an objection was raised by either the Reagan Library or this White House, on the grounds already provided in the law, and the grounds already protected in the Constitution, the information would be released. If there are no cause -- if there are no grounds for it to be withheld, it would logically be provided.
So I think what you're going to see is an orderly process that results in the release of the information, except in those rare instances in which there is an already recognized exception in the law.
Q: Ari, if I could follow up on that. You've mentioned the national security reasons as being a reason to withhold the information. I don't think anybody would dispute that in a bona fide case. However, some of the other exceptions include such things as deliberative process. Isn't the whole purpose of a presidential library to release information about the deliberative process? And if that's going to be a category to withhold information, isn't that a loophole so large that virtually everything could be withheld?
MR. FLEISCHER: I would draw your attention to the law. You've cited the law of the land. And the law of the land, separate and apart from the executive order, contains a class of activities which, by definition, as passed into law, can legitimately be withheld. And there is a series of those. But that is the case whether there is or is not an executive order. That wouldn't matter whether this executive order was or was not issued.
Q: You're not broadening that at all? You're broadening those categories in any way? And if I could also just follow up.
MR. FLEISCHER: No. Those are granted under the Constitution and under the law, and cannot be changed by an executive order.
Q: And also, there's a discussion in here about people having to demonstrate their need for the information. Do you foresee a system where someone going to a presidential library would need to tell the archivist why they need that information? Because that's not currently the way things are done.
MR. FLEISCHER: What you, I think, are referring to, is that in the event that somebody requested a document, and either the former president or the incumbent administration -- and when I say incumbent, that means any incumbent administration. This executive order of course would apply to all future administrations, unless they put a different procedure in place.
So if the administration or a previous President said that is a matter of security, for example, and should not be shared, and you were to take that person to court, and say I disagree, give me that document, as I understand the law, the government would have to compel -- show a compelling need to not release it, as defined in the law. But that's a matter for the lawyers.
And again, those criteria are clearly written, not as part of the executive order, but as existing law of the land. So it doesn't matter if there is or is not an executive order; the former President, for example, could exert his rights under the law not to withhold.
Q: Ari, this executive order, in the draft, creates another impediment to the getting of information from past presidents by setting up this President, or any incumbent president, as another gatekeeper -- not envisioned in the original executive order, which this one would rescind. That certainly creates the perception, it seems to me, that you are trying to withhold rather than release. And it gives you an out to screen information which could be embarrassing or otherwise simply unpleasant.
MR. FLEISCHER: I think you are making judgments about events that you have not yet seen. And I think you will see a flow of information to the public in accordance with the spirit of the law that was passed. And that law also does include, as we have discussed, exceptions and exemptions.
I will give you a for-example on why there is a system now for a previous president and the incumbent, and the national security need is a classic case in point. There very will may be a decision by an administration that has been out of office for 12 years to release certain documents. Those documents could still have national security implications. A previous administration that is not currently in power would not be as aware as a current administration of ongoing national security issues. So that provides for an ability of a current administration to review it.
But as Judge Gonzales has made very clear, except in very compelling cases, if a former president were to say that should go out, this administration would say it should go out. 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.
Q: So you are saying, trust us, it'll all be fine?
MR. FLEISCHER: You are saying, we don't trust you.