Associated PressWASHINGTON (AP) - One historian calls it a "disaster for history," but the White House insists a new executive order issued by President Bush balances the public's right to see the records of past presidents with a need to protect national security.
November 2, 2001
Critics Blast Bush Order on PapersBy DEB RIECHMANN, Associated Press Writer
Advocates for the release of government documents say the executive order violates the spirit of the 1978 Presidential Records Act and will usher in a new era of secrecy for papers left behind by America's chief executives.
The White House says the order simply sets up a procedure for implementing the act and gives former presidents more authority to claim executive privilege to withhold certain papers. Absent "compelling" circumstances, the incumbent president will agree with a former president's decision to disclose or withhold documents, the White House says.
Bruce Craig, director of the National Coordinating Committee for the Promotion of History, claims the order is "blatantly unlawful top to bottom." He predicted a quick legal challenge to the order, which probably will come up at a hearing Tuesday by a House Government Reform subcommittee. The hearing was scheduled for last month but was canceled in the aftermath of the Sept. 11 terror attacks.
Craig said that under the order, if a former president says certain papers are privileged, they will remain secret even if the sitting president disagrees. Conversely, if a sitting president says certain papers from a past administration are privileged, they will remain under wraps even if the former president disagrees.
"In the interest of keeping historical papers closed, the incumbent president can trump the wishes of a former president," says Craig, who claims the order is "a disaster for history."
In a letter, Bruce Lindsey, lawyer for the William J. Clinton Foundation, said the former president objects to Bush's executive order because laws already exist to restrict disclosure of sensitive documents, The Washington Post reported Friday.
The act affects the presidential papers of Clinton, Bush's father, George H.W. Bush, and Ronald Reagan. It also applies to vice presidential papers, including those of former President Bush.
Reagan's papers are the first governed by the Presidential Records Act, which followed Watergate and Richard Nixon's attempts to hold on to his papers and tape recordings. The act made presidential records the property of government, not ex-presidents.
Some 68,000 pages of Reagan's White House records, including vice presidential papers from the elder Bush, were supposed to have been opened under the law in January, 12 years after Reagan left office. The White House delayed the release three times to review constitutional and legal questions, and Thursday's executive order resulted.
White House counsel Alberto Gonzales defended Bush's executive order but did not say when the Reagan papers would be opened to the public.
White House spokesman Ari Fleischer said the order provides a "safety valve" for a current administration. A former president, out of office for 12 years, might not recognize national security implications of releasing certain documents, he said.
Fleischer emphasized that "except in very compelling cases, if a former president were to say `That (document) should go out,' this administration would say, "It should go out."
Moreover, any claims of executive privilege, including those involving military, diplomatic or national security secrets, legal work or advice, presidential communications or the deliberative processes of the president and his advisers, can be appealed in court, Gonzales said.
"It will not be driven by politics or what looks good. It will driven by what is allowed under the Constitution," Gonzales said.
Steven Aftergood, director of the Federation of American Scientists' government secrecy project, thinks the order will make it harder for the public to gain access to historically valuable presidential papers because both the former president and the incumbent must consent to disclosure.
A private citizen will have little luck trying to persuade a court to overturn a claim of executive privilege, he said. "When Joe Blow goes into court to overturn it, he's probably going to lose," Aftergood said.
Some historians, including American University historian Anna Nelson, have suspected the Bush White House is worried about what the Reagan papers might reveal about officials now working for President Bush who also worked for Reagan. Among them are Secretary of State Colin Powell, Budget Director Mitch Daniels Jr. and White House Chief of Staff Andrew Card.
Gonzales says that is not the reason.
"There may in fact be embarrassing documents," he said, but that would not be considered a legitimate reason to withhold something.
Other historians suggest the White House is taking advantage of heightened public interest in national security after the terror attacks on New York and Washington. Craig speculated that the Bush White House might be worried the war on terrorism may generate documents it would rather not see exposed down the road.
"Everybody is in agreement that materials that can be used by terrorists to threaten national security should be closed up," Craig said. "There already are existing laws and exemptions that keep that kind of stuff closed up.
"This is about confidential information - communication between a president and top people - that they would simply prefer not to be released to the public."
Copyright 2001 Associated Press