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.