The Bush Administration has consistently shown itself partial to official secrecy — especially since Sept. 11. Some actions might be justified on emergency grounds. But not all.
In some cases, President Bush clearly has acted in behalf of other matters on his agenda, using the needs of the present situation as an excuse.
On Nov. 1, he issued Executive Order 13233 that effectively undermines the Presidential Records Act of 1978, and he did so in the name of “national security.”
If his action stands, Bush will have substantially shut down historical research of recent presidents. With this order, we would have no studies of recent events such as we have for the Vietnam War, using Lyndon Johnson’s and Richard Nixon’s records to reveal their own doubts about the war, including its origins and attempts to make peace. We would not have insight into Nixon’s thinking and the role of his advisers in discussing and promoting various Supreme Court candidacies. We would have understood little of the origins and changes in Nixon’s monetary policies or his manipulation of environmental legislation.
Our history would be poorer; and certainly, present and future leaders would be less aware of past mistakes and errors. The executive order constitutes nothing less than a wholesale emasculation of the Presidential Records Acts of 1978.
That law was passed in the wake of Watergate and Richard Nixon’s audacious attempt to retain, seal and then destroy his presidential records. Later revelations of his archives confirmed the widespread suspicions of his criminal behavior and abuses of power.
Congress properly recognized that a free nation would benefit and profit from a frank and full disclosure of its historical records. The 1978 law marked a conscious departure from traditional practice, which allowed presidents to leave office and retain their records.
In 1974, Assistant Attorney General Antonin Scalia prepared a memo for President Gerald Ford, arguing that the practice represented established “law” when, in fact, it was only custom. The new 1978 act provided that the National Archives house and maintain control over a former president’s papers.
Still, the law allowed those presidents a 12-year period of exclusive access to the papers, giving them a window for a personal bonanza. Writing memoirs has provided gainful employment for ex-presidents since Herbert Hoover. Bill Clinton’s $9 million contract is good for his pocket; rest easy, the publisher will not be hurt one penny.
The Presidential Records Act established an orderly release of papers 12 years after a president left office. Ronald Reagan, the first president for whom the law applies, had a first installment of nearly 68,000 pages of his records ready for release in January 2001. The National Archives had sorted, filed and vetted those papers for “national security” considerations.
Reagan’s papers, not incidentally, contain Vice President George H.W. Bush’s records, whose own presidential papers are scheduled for opening in January 2005. Maybe.
High on priority list
Executive Order 13233 began to take shape as soon as the Bush II Administration took power. The archives had published its intention to release the Reagan materials, as required by law. But Alberto Gonzalez, the White House legal counsel, immediately requested a postponement to review “constitutional and legal questions.” He received a 90-day delay and two subsequent ones from John Carlin, the Director of the National Archives, who was anxious to ensure “everyone’s comfort level” — and retain his position.
Since 1978, through 12 years of Republican administrations and 11 years of Democratic ones, these presumably important and pressing “constitutional and legal” questions had never surfaced. Strange indeed that the executive order should emerge when the nation was on a war footing, readily justifying the familiar and ever-dubious blanket of “national security.”
Sept. 11 made it safe to circumvent standing law and close presidential records. We know Reagan is in a position to neither object nor agree; the decision apparently is George W. Bush’s alone. Whatever “secrets” Reagan may have had are safe; more important, perhaps, Reagan’s vice president can rest easy.
Let us be perfectly clear: Bush’s action has nothing whatsoever to do with protecting the nation. It has everything to with protecting our exclusive club of ex- and future ex-presidents. Most immediately, he is also covering for Reagan’s vice president, as his order, incredibly, extends executive privilege to that office as well.
Who knows? Perhaps we might learn something about that vice president’s role in Iran-Contra, a role for which he famously denied any knowledge.
President Bush, of course, will ultimately become a member of the club and undoubtedly is anxious to make certain that his record will be sanitized. In any event, extending executive privilege for one who was not the chief executive (at least in that period) is quite a leap.
The Los Angeles Times had it right, calling the order a “secrecy fetish.” Executive Order 13233 provides that presidential papers may be released only if the former and sitting president agree. This amounts to a concurrent veto.
A complete retreat
White House Press Secretary Ari Fleischer insisted the new order was innocuous and merely “implemented” existing law. The details, of course, showed otherwise, but when pressed, he retreated, leaving the “matter for the lawyers.” He contended that the order provided a “safety valve” for a current administration because former presidents, out of office for 12 years, might not realize the national security implications.
Acting assistant attorney general M. Edward Whelan III deadpanned that the executive order was “not designed [to] and it does not in any respect override any provisions” of the 1978 law. He, too, insisted that it merely provided procedures and filled gaps to implement the Presidential Records Act. The next day, President Bush, now in line with his cue cards, noted that his order provided “a process that I think will enable historians to do their jobs.”
The 1978 act specifically mandated the release of a president’s “confidential and private communications” with his advisers. Presumably, a legal counsel is an adviser, and the law did not provide for withholding “attorney-client” or “attorney work product” materials. But the new executive order simply sets aside the act’s provisions. The 1978 law recognized various exemptions contained in the 1965 Freedom of Information Act. Now, these have been expanded by executive fiat and we have a state secrets privilege; communications with advisers’ privilege; attorney-client privilege; and attorney work product privilege.
We are back to 1973 when one of Nixon’s lawyers arrogantly said: “It is for the president alone to say what is covered by executive privilege.”
Brett M. Kavanaugh, a Gonzalez staffer who apparently drafted the order, said that a 1987 Reagan executive order, which attempted a bit less of a curb, offered “no defense whatsoever to the opinions of a former president.”
Settling a score
Bush’s order, of course, now gives former presidents, their families and former vice presidents a right to prevent the release of papers. Once again, a Watergate score has been settled.
A few years ago, Kavanaugh worked with Kenneth Starr, and eagerly argued that President Clinton had no right to retain documents, no executive privilege, and must yield to every demand made by the Office of Independent Counsel.
Bush’s action drips with irony. The House Subcommittee on Government Efficiency and Intergovernmental Affairs of the House Committee on Government Reform held a brief hearing on the executive order on Nov. 6. Somewhat gingerly, Chairman Stephen Horn (R-Calif.) thought that “the new order appears to create a more elaborate process” for releasing documents. “It also gives the former and incumbent presidents veto power over the release of the records.”
Scott L. Nelson, a member of the Public Citizen Litigation Group, offered the most significant testimony. Nelson has a special familiarity with presidential records. He spent 15 years in private practice representing Nixon, and later his executors, on matters relating to access to Nixon’s materials. He represented Nixon against Public Citizen and myself in our successful suit to liberate the Nixon tapes. Now, Nelson has defected and eloquently argues for public access.
Nelson testified that the executive order “is fundamentally flawed, both constitutionally, and as a matter of policy.” He flatly stated that the new directive imposed substantive standards “that displace and subvert” the 1978 law’s provisions for public access.
Nelson noted that the Bush order requires the archivist to withhold materials if a former president asserts executive privilege, and even if the incumbent president disagrees. In Nixon v. Administrator of General Services (1977), the Supreme Court held that former presidents retained a limited right to executive privilege, but the court certainly did not imply that incumbent executive branch officials must honor such claims.
Burden on researcher
The 1978 law assumed and provided a right of access; Bush’s order stands that right on its head. The burden now is on the researcher who must show a “demonstrable, specific need.” In short, researchers maintain a very expensive right to litigate.
Speaking of lawsuits, Bush’s order provides no end to back-scratching for that fellowship of ex-presidents. His order provides that if the incumbent and former president agree to block release, the president and his Department of Justice will defend the assertion of privilege, thus saving the former president potentially significant legal fees.
Make no mistake: The Bush order breaks much new ground. Allowing a former president’s family or personal representative to assert privilege is novel and bizarre. This involves the delegation of some personal right and brazenly enlarges the constitutional privilege. That privilege is asserted on behalf of the office, now no longer his. The shadowy doctrine of executive privilege has been elevated to a personal right, extending a lifetime, and even beyond.
The order bestows a luxuriant privilege upon former presidents. Incumbents decide and judge the nature of national security, not former presidents. If the incumbent sees no national security issue at stake, why allow a former president, ever anxious to preserve and enhance his reputation, to make that determination?
This matter is not closed. Slowly, congressmen are beginning to understand the stakes. Dan Burton (R-Ind.) reportedly is “exercised” by the Bush order and he is preparing for a more elaborate hearing by the full House Committee on Government Reform, which he chairs. He apparently understands that this is not a partisan issue.
Surely, he must be tolling the days of the 12 years remaining before Clinton’s papers are scheduled for release. That prospect must tantalize Burton.
No time limit
White House Counsel Gonzalez thus far has refused to say when or whether Reagan’s papers would be released. There is no time limit on how long a former or incumbent president can seal his papers.
This is not about process; it is very much about substantive results. We know the following: The papers have been cleared for national security and personal exemptions; President Reagan unfortunately cannot deal with these matters, and there is no indication that Nancy Reagan cares; it follows, then, that this administration will establish new precedents and proscribe any releases. Heads we win; tails you lose.
Early in the game, and long before Sept. 11, a Gonzalez aide thought that “maybe 12 years is too short a time.” Congress might act boldly and promptly to override this order and assert its legislative prerogatives. Or it might change the existing law.
But what is the proper amount of time? Twenty years? Thirty? One hundred? Or is any too many?
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Stanley Kutler, author of “The Wars of Watergate” and “The New Nixon Tapes: Abuse of Power,” is a University of Wisconsin historian and constitutional law specialist. With the advocacy group Public Citizen, he sued in 1992 to force the National Archives to begin releasing the Nixon White House tapes beyond the 60 hours then publicly available. As a result, the National Archives has so far released an additional 1,225 hours since 1996.
