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The President's Papers Are the People's Business
by Steven L. Hensen
The following editorial was published in the Washington Post on Sunday,
December 16, 2001.
How can a democratic people have confidence in elected officials who hide the
records of their actions from public view?
On Nov. 1, with no announcement, President Bush signed Executive Order 13233,
overriding the 1978 Presidential Records Act, which provides that a president's
papers will be made available to the public 12 years after he leaves office.
Bush's new order gives the White House, as well as former presidents, the right
to veto this release of documents, thereby taking the responsibility for administering
presidential papers away from the archivist of the United States. By forcing
citizens to go to court to obtain the right to view an administration's records,the
order effectively blocks access to information that enables Americans to hold
our presidents accountable for their actions.
Almost immediately after Bush signed the order, a remarkably bipartisan group
of Republicans and Democrats, liberals and conservatives, expressed everything
from dismay to outrage. In addition, a group including historians, journalists
and civic activists filed suit to block implementation of this order.
In the middle of the fray are professional archivists. Those of us who labor
in the nation's archives are entrusted with ensuring that citizens and scholars
have access to the records of human society and culture,as well as to the important
records of our government. The guarantee of such access is a cornerstone of
the Constitution and of democracy in general. As the current president of North
America's largest archival professional society, I speak for many of my colleagues
when I say that the White House is on the wrong side of this battle.
Bush's executive order is titled "Further Implementation of the Presidential
Records Act." But rather than "implementing" that law, the order
abrogates the core principles of the act and violates both its spirit and letter.
The Presidential Records Act was created out of the legal morass surrounding
the Watergate scandals and legitimate congressional fears that former president
Nixon would never allow public access to the records of his administration.
The legislation established once and for all -- or so we thought -- the principle
that presidential papers represent the official records of activity by the
highest office in our government of, by, and for the people -- and that they
therefore belong to the U.S. government and, by extension, its citizens. The
act further mandates that management of, custody of and access to such records
should be governed on behalf of the nation by the archivist of the United States.
Some of the bases for this law can be found in earlier discussions by scholars
and archivists. Julian Boyd, editor of "The Papers of Thomas Jefferson," had
made the point as early as 1960 that "the records of the office of the
President belong to the people who created that office. They cannot be given
away by one who happens to be its incumbent." He also rejected the notion
that "the privilege of the President follows a man into retirement as
a personal right to be exercised by himself for the duration of his natural
life and then to be descendable to his executors and heirs."
In his authoritative 1969 book, "Records of a Nation," the distinguished
archivist H.G. Jones noted that, among modern presidents, Franklin D. Roosevelt
had clearly established the peoples' claim to ownership of their chief executives'
files and had stated that "the prerogative assumed by his predecessors
in asserting private title was in fact only a lingering vestige of the attributes
of monarchy, not an appropriate or compatible concept of archival policy for
the head of a democratic state to adopt."
Executive Order 13233 directly subverts the intent of the Presidential Records
Act by placing ultimate responsibility for decisions regarding access to presidential
papers not only with President Bush, but with any sitting president in the
future, as well as every ex-president, and, even further, the family members
and heirs of former presidents, apparently without limit
Administration officials have acknowledged that the new order is intended
to prevent the release of records from the Reagan administration, which the
White House has been delaying by various means since January. This has led
to speculation that the administration is trying to shield members of Bush's
own administration, as well as his father, from a variety of uncomfortable
revelations, including possible connections to the Iran-contra scandal. But
it should be noted that this executive order also fits a pattern suggesting
that the Bush administration may be hostile to the basic ideals that the public
has a right to know what its elected officials are doing, and that the records
of government are in fact owned by the people.
Last January,Bush, as outgoing governor of Texas, shipped his official records
to his father's presidential library at Texas A&M University. By doing
so, he succeeded in removing his gubernatorial papers not only from the custody
of the Texas State Library and Archives, but also, possibly, from the ownership,
oversight and right of access of the people of Texas. The Texas archives law
does permit the designation of "an institution of higher learning or alternate
archival institution" as the repository for gubernatorial records (the
records of former governor John Connally, for instance, are at the Lyndon B.
Johnson presidential library, and those of William P. Clements, Jr., are at
Texas A&M). But the bill requires that any governor seeking to place his
records elsewhere consult fully with the Texas State Library and Archives Commission
to develop clear policies regarding processing of and access to the records.
While there was some preliminary consultation over Bush's papers, no final
agreement was reached. The records were simply packed up and shipped off --
to the great surprise of many, including officials at the Bush presidential
library.
Under no circumstance does the Texas bill permit the transfer of the records' "ownership" from
the people of Texas to any other entity. The Connally and Clements records,
though not technically in the archives, are still administered according to
Texas records law. But the confusion likely to reign over the question of who "owns" the
Bush gubernatorial records may be sufficient to keep them out of public sight
until well after the conclusion of George W.'s presidency. In the meantime,
requests from journalists, historians or others to view the documents could
be delayed indefinitely, denying the public potentially valuable insight into
how Bush's policies as Texas governor on matters from energy to the death penalty
may be informing current decisions.
And there's more. On Oct. 16, Attorney General John Ashcroft issued a memorandum
telling federal agencies that when they decide to withhold records in response
to Freedom of Information (FOIA) requests, they can "be assured" that
the Department of Justice will defend their decisions. The memorandum supersedes
a 1993 directive by then-Attorney General Janet Reno, directing federal agencies
to resolve ambiguous situations in favor of openness. Though Ashcroft's memo
suggested that the present reversal on FOIA requests was necessary for protecting "national
security, enhancing the effectiveness of our law enforcement agencies, protecting
sensitive business information and, not least, preserving personal privacy," the
fact is that these categories of information are already exempted from release
under our freedom of information laws. Like Bush's executive order, Ashcroft's
FOIA memorandum has the effect of limiting our ability as citizens to know
what our government is doing, and why.
There is lingering uncertainty over the extent to which an executive order
can trump or override statutory law. This is a matter Congress will have to
decide. So far, Congress has held only one inconclusive hearing on Executive
Order 13233. It needs to do far more. Access to the vital historical records
of this nation should not be governed by executive will; this is exactly the
situation that the existing law was created to prevent. Furthermore, for such
access to be curtailed or nullified by an executive process not subject to
public or legislative review or scrutiny violates the principles upon which
our nation was founded.
Engaged as we currently are in a struggle against terrorism and totalitarianism,
it does us no credit to adopt policies that reflect the principles of our enemies
more than they do our own democratic traditions. Bush should demonstrate the
values and openness of our government and of his administration by canceling
this order and directing the attorney general to revoke his memorandum. It
shouldn't have to take legal proceedings, congressional action or public pressure
for Bush to come to the understanding that the president's papers are not in
fact the president's papers, but rather the records of the people's presidency.
Steven Hensen, director of planning and project development at Duke University's
Rare Book, Manuscripts and Special Collections Library, is president of
the Society of American Archivists.
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