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--- Begin Message --- Subject: The President's Papers Are the People's Business
http://www.washingtonpost.com/wp-dyn/articles/A46716-2001Dec14.html
The President's Papers Are the People's Business
By Steven L. Hensen
Sunday, December 16, 2001; Page B01
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 presidentin the future, as well as every ex-president, and, even
further, the family members and heirs of former presidents, apparently
withoutlimit.
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
Bill Clement 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 Clement records, though not technically in the archives, are
still administeredaccording 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 toFreedom 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 usno 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.
© 2001 The Washington Post Company
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