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Federal Court Strikes Down Bush Executive Order on Presidential Records

Oct. 1, 2007

Federal Court Strikes Down Bush Executive Order on Presidential Records

Court Finds Bush Order Impedes Access, Violates Presidential Records Act

WASHINGTON, D.C. – A federal district court today struck down part of an executive order issued by President Bush in 2001 to limit public access to the records of past presidents. The ruling by Judge Colleen Kollar-Kotelly in American Historical Association v. National Archives and Records Administration (No. 01-2447) holds that the Bush order violates a requirement of the Presidential Records Act (PRA) that historical materials of former presidents be released to the public “as rapidly and completely as possible.”

The lawsuit was brought by Public Citizen in 2001 on behalf of itself, the American Historical Association, the National Security Archive, the Organization of American Historians, the Reporters Committee for Freedom of the Press, the American Political Science Association and noted historian Stanley Kutler.

The case was prompted by Bush’s issuance of Executive Order 13,233 in November 2001. The order granted former presidents, their representatives and former vice presidents the authority to veto releases of their papers by claiming “executive privilege” and gave them an unlimited time in which to review materials the National Archives proposed to release. The lawsuit challenging the order claimed that these provisions violated the Presidential Records Act, which gives the Archives control over records of former presidents and vice presidents and requires it to make them public (with some exceptions) 12 years after a president or vice president leaves office.

Since the order was issued, historians and other researchers have faced significant delays in obtaining the records of former Presidents Reagan and Bush (and their respective vice presidents), thanks to the unlimited time the order allows for “privilege reviews” by the former officeholders and their representatives. Judge Kollar-Kotelly found that these lengthy reviews injured the plaintiffs and violated the PRA’s public access requirement, and were not, as the government argued, required by the Constitution.

The court did not reach challenges to other aspects of the executive order, holding them “unripe” because no former officeholder has yet exercised the unilateral veto power granted by the order.

“We’re delighted by the court’s recognition that the executive order unlawfully impedes access to presidential records,” said Public Citizen attorney Scott Nelson, who brought the case. “Although its failure to strike down the order in its entirety is disappointing, the court’s rejection of the government’s unfounded constitutional theories of executive privilege sends a warning shot suggesting that the other provisions of the order are unlawful as well.”

“The executive order was one of the first indications of this president’s obsession with secrecy,” said Public Citizen President Joan Claybrook. “Finally, the court has begun the process of dismantling the edifice of concealment that President Bush has been trying to build over the past six years.”

READ the ruling and learn more.