Public Citizen Urges Congress to Curb Executive Branch Secrecy

March 1, 2007

Public Citizen Urges Congress to Curb Executive Branch Secrecy

Testimony Details Illegality of Bush Administration’s Attempts to Restrict Public Access to Presidential Records

WASHINGTON, D.C. – The Bush administration’s executive order to restrict access to presidential records violates the letter and spirit of the law and should be overridden by Congress, according to testimony today by Public Citizen before a U.S. House of Representatives subcommittee.

Scott Nelson, an attorney for Public Citizen, testified about the impact of President Bush’s Executive Order 13233 on the Presidential Records Act (PRA) before the Subcommittee on Information Policy, Census and National Archives of the U.S. House Committee on Oversight and Government.

Nelson detailed how Executive Order 13233, issued by President Bush on Nov. 1, 2001, violates the PRA and exceeds the bounds of legitimate protection of executive privilege. The PRA was enacted in 1978 to ensure permanent governmental control over presidential records and to broaden public access to them. It allows a former president the right to keep secret for up to 12 years limited types of documents, such as those involving national security, an individual’s right to privacy and trade secrets.

The PRA provides protection to properly classified information dealing with national security even after the expiration of the 12-year restriction period. But the act allows the release after 12 years of presidential communications with senior advisers – potentially falling under executive privilege – as long as they are not covered by national security restrictions.

 

“The PRA is premised on the notion that the public is entitled to access to historical presidential materials, subject only to defined exceptions,” said Nelson. “The Bush order reflects another model entirely. It is an attempt to resurrect the pre-PRA regime in which access to presidential materials was controlled by the former presidents … It is bad policy and bad law.”

Nelson identified several aspects of Bush’s order that are unsupportable by law. The principal concern is that it requires the National Archivist to withhold materials from the public whenever a former president has asserted a claim of privilege, however unfounded that claim may be and even if the incumbent president disagrees with that claim. The order’s provision that constitutional executive privilege may be asserted by a deceased or disabled former president’s family or personal representative violates the intent of PRA. Bush’s order also creates a de facto vice presidential privilege, a previously unknown legal concept.

 

The order imposes huge burdens on the process of releasing documents under the PRA by creating lengthy delays that frustrate the legitimate needs of the public for timely access. It leaves the burden on those who desire public access to challenge claims against executive privilege in court. It also requires the public to show some specific, demonstrable need for access to overcome privilege even after the act’s 12-year restriction period has expired, a restriction not applied to Freedom of Information Act (FOIA) requests.

“It is a bad idea to give former presidents carte blanche authority to direct the Archivist to withhold materials from the public,” said Nelson in his testimony. “Experience teaches time and again that, given the chance, officials often err on the side of over-withholding materials.”

In December 2001, Public Citizen and a number of other organizations and individuals filed suit against the National Archives and Records Administration in the U.S. District Court for the District of Columbia, seeking to prevent the Archivist from carrying out the executive order. The lawsuit, American Historical Association v. National Archives & Records Administration, No. 01-2447, remains pending and is awaiting decision by the district court.

To read Nelson’s full testimony, click here.

To view the hearing, click here.

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