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New White House Order on Secrecy of Historical Presidential Records Is Unlawful

Nov. 5, 2001

New White House Order on Secrecy of Historical Presidential Records Is Unlawful

Bush Administration Officials Should Be Made to Explain Actions to Congress,Public Citizen Says

WASHINGTON, D.C. ? When Bush administration officials testify before lawmakers tomorrow, they should be made to explain how an executive order issued last week extending the secrecy of presidential documents is legal, Public Citizen said today. Public Citizen contends that the order is not legal.

In a letter sent to Rep. Stephen Horn (R-Calif.), Public Citizen cited judicial decisions apparently ignored by the White House when it promulgated the order. The order will be the subject of oversight hearings to be held Tuesday by the House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, which Horn chairs.

Issued last week by the Bush White House, the executive order violates applicable provisions of federal law by extending the secrecy of presidential documents from past administrations. The order applies to records of presidents from Ronald Reagan forward, which are governed by the Presidential Records Act, a 1978 law passed in the wake of Watergate to assure public control over and access to presidential documents. The executive order attempts to give both the sitting president and former presidents the power to prevent the National Archives from releasing documents that the act requires to be made public.

Fifteen years ago, the Reagan Justice Department issued a virtually identical order that required the Archivist to abide by assertions of executive privilege by former President Nixon. Public Citizen sued in federal court to block implementation of that order and prevailed.

That lawsuit, Public Citizen v. Burke, required nearly two years of effort but ultimately resulted in a 1988 opinion by the U.S. Court of Appeals for the D.C. Circuit repudiating the Reagan administration’s position. The opinion, written by Judge Laurence Silberman, a conservative appointed by President Reagan, held that the Archivist of the United States, who runs the National Archives, could not be required to defer to a former president’s claim of executive privilege.

“Public Citizen fought this very same battle before and won,” said Scott Nelson, attorney with the Public Citizen Litigation Group. “We?re fully prepared to fight it and win it again.”

Under the Presidential Records Act, an outgoing president can impose a 12-year restriction on public access to documents that involve confidential communications between the president and his advisers ? communications subject to the so-called “executive privilege.” After the 12 years are up, the law provides that such documents be made available to members of the public upon request.

The 12-year restriction on Reagan presidential documents housed at the National Archives? Reagan Presidential Library expired earlier this year. When the Archives informed the White House that it intended to release the documents to the public, the White House first directed the Archives to wait eight months while it studied the issue, and then promulgated the new executive order.

Under the new executive order, both a former president and the incumbent president have an unlimited amount of time to review any documents the Archives proposes to release after the 12-year restriction period expires. If the former president objects to the release of any materials, the executive order provides that the incumbent president will concur with the former president?s wishes unless there are “compelling circumstances” that favor disclosure. But even if the sitting president finds that there are “compelling circumstances” and disagrees with the former president, the order requires that the Archives abide by the direction of the former president and keep the documents secret.

At the same time, the order provides that even if the former president agrees that materials can be released, they will be kept secret if the sitting president wants them to remain under wraps. Before the Archivist can release any documents, both the former president and the incumbent must agree.

The order turns the Presidential Records Act?s presumption that materials are to be released after 12 years on its head. By requiring the Archivist to bow to the direction of a former president that documents not be released, the order also violates the fundamental principle that executive branch officials must follow the law, not the personal wishes of former officeholders.

According to Nelson, assertions by the Bush White House that the new executive order is necessary for reasons of national security are only attempts to confuse the issue. Other provisions of the Presidential Records Act already forbid the release of any classified information that would damage national security. This order applies to documents that are subject to release under the Act because they do not involve national security. The order would permit a former president (or the incumbent) to bar disclosure of communications with presidential advisers simply because their release would be embarrassing.

“This order has nothing to do with national security,” Nelson said. “It reflects the current administration?s desire to have secrecy merely to avoid embarrassment ? and that desire is contrary to federal law. We are confident that this order can?t withstand judicial scrutiny.”