Call to Action on Executive Order 13233

A Message from President Steve Hensen

On behalf of the Council and Executive Committee of the Society of American Archivists, I want to urge all archivists, whether SAA members or not, to communicate to their representatives in the House and Senate, their concern over the implications of Executive Order 13233, entitled "Further Implementation of the Presidential Records Act." This order, far from being a "further implementation," is more like a complete abnegation of the original 1978 Presidential Records Act. Links to the text of the orders and background information are provided below.

The archival and public information implications aspects of this order are profound, being contrary to established archival principles and standards, being inconsistent with existing statutory law, and, most important, being at odds with the principles of open access to information upon which our country is founded.

Meanwhile, letters to your representatives should be sent as soon as possible (I would suggest faxing them as the mails are understandably slow and unreliable these days). I would also urge you to copy Rep. Stephen Horn, who chairs the House Subcommittee on Government Efficiency, which held hearings on this matter last Friday. His fax number is 202-225-2373. In addition, a fax to Judge Alberto Gonzales (White House Council) at: 202-456-6279 wouldn't hurt either. While all of these letters will be important in building awareness in Congress and the White House, letters received by tomorrow will go into the Subcommittee's files to be consulted as part of the next step in the hearings process. Thank you for your efforts in this important matter.

Posted on Archives and Archivists, 15 November 2001.


Background Information

The following links provide context and background to better understand this complex issue.

Presidential Records Act (USC, Title 44, Section 2201).

From the Cornell Law School Web site.

The term ''Presidential records'' means documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President . . . .

The term ''personal records'' means all documentary materials, or any reasonably segregable portion therof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President . . . . .

Executive Order 13233 rescinding EO 12667, 1 November 2001.

From Federation of American Scientists' Web page, Secrecy and Security News, which contains related articles on the suppression of other public information.

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures implementing section 2204 of title 44 of the United States Code with respect to constitutionally based privileges, including those that apply to Presidential records reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisors, and to do so in a manner consistent with the Supreme Court's decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases, it is hereby ordered . . . .

National Coordinating Committee for the Promotion of History. NCC Washington Update, Vol. 7, #45, November 1, 2001.

As distributed on the Archives and Archivists Listserv.

In recent months, this publication has carried numerous updates on the Bush White House's actions that have served to delay the release of some 68,000 pages of White House papers dating back to the Reagan Administration which ought to be released under provisions of the Presidential Records Act of 1978 (PRA; for the most recent posting, see NCC WASHINGTON UPDATE, Vol. 7, #38, September 20, 2001). On several occasions, the White House has stated that the delays were required, "to review the many constitutional and legal questions raised by potential release of sensitive and confidential Presidential records and to decide upon the proper legal framework and process to employ in reviewing such records on an ongoing basis"  . . . .

The proposed EO is characterized by Vanderbilt University historian Hugh Graham as "a real monster. . . far worse than the 1989 Executive Order it would replace." According to the consensus opinion of historians and FOIA experts who have reviewed the document for the NCC, the new EO violates the spirit if not the legislative language embodied in the Presidential Records Act and will usher in a new era of secrecy for presidential records.

Ari Fleischer's Press Conference. 1 November 2001.

From the Whitehouse's Web page for November press releases.

Q Ari, is there any change in the administration's position since this morning with this executive order on the presidential records? And also, what do you plan to do, if anything, to counter what seems to be, if you listen to talk radio, anyway, a relatively quick response from some folks who seem to think that you have something to hide by doing this?

MR. FLEISCHER: The President will soon be issuing an executive order, which is a recognition of a new law that has just gone into effect this year for the first time, that changes the way presidential papers are provided to the public and to historians, to academicians, and of course to the press.

Under the existing procedures, existing law, a former President has the right to withhold anything for any reason, if they don't want to make it public. So if a historian were to ask somebody at a presidential library to provide a certain document, they could if they wanted to; they didn't have to if they didn't want to . . . .

New White House Order on Secrecy of Historical Presidential Records Is Unlawful : Bush Administration Officials Should Be Made to Explain Actions to Congress, Public Citizen Says. 5 November 2001

From Public Citizen's Web page of press releases.

When Bush administration officials testify before lawmakers tomorrow, they should be made to explain how an executive order issued last week extending the secrecy of presidential documents is legal, Public Citizen said today. Public Citizen contends that the order is not legal.

In a letter sent to Rep. Stephen Horn (R-Calif.), Public Citizen cited judicial decisions apparently ignored by the White House when it promulgated the order. The order will be the subject of oversight hearings to be held Tuesday by the House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, which Horn chairs.

Issued last week by the Bush White House, the executive order violates applicable provisions of federal law by extending the secrecy of presidential documents from past administrations. The order applies to records of presidents from Ronald Reagan forward, which are governed by the Presidential Records Act, a 1978 law passed in the wake of Watergate to assure public control over and access to presidential documents. The executive order attempts to give both the sitting president and former presidents the power to prevent the National Archives from releasing documents that the act requires to be made public . . . .

Letter from Scott Nelson of the Public Citizen Litigation Group to Rep. Stephen Horn. 5 November 2001.

From Public Citizen's Web page on FOIA and Government Secrecy.

Dear Representative Horn:

I understand that the Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations of the House Committee on Government Reform intends to hold oversight hearings on the Presidential Records Act this coming Tuesday, November 6, 2001. On behalf of Public Citizen, a public advocacy group with a longstanding interest in openness of presidential historical records, I urge you to press any administration officials who appear at that hearing to provide an explanation of how the recent Executive Order on presidential records conforms to the Act and to governing principles of constitutional law.

The new Executive Order, signed by President Bush on November 1, 2001, provides that in the absence of "compelling circumstances," the incumbent president will concur in any assertion of executive privilege by a former president who seeks to block public access to presidential materials. In addition, the Order provides that even if the sitting president finds that "compelling circumstances" require him to disagree with a former presidentÆs assertion of executive privilege, the Archivist still may not release materials to the public without the former presidentÆs agreement unless required to do so by a final court order . . . .

President Steve Hensen's Letter of Concern to Rep. Stephen Horn, Chairman of the Subcommittee on Government Efficiency. 6 November 2001.

From SAA's Web site.

I write to express the grave concern of the Society of American Archivists with respect to the PresidentÆs recent Executive Order 13233 on Presidential Papers. Founded in 1936, the Society of American Archivists (SAA) is North America's oldest and largest national archival professional association. SAA's mission is to serve the educational and informational needs of more than 3,400 individual and institutional members and to provide leadership to ensure the identification, preservation, and use of records of historical value.

Our apprehension over this Executive Order is on several levels. First, it violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44 U.S.C. 2201-2207. This law establishes the principle that presidential records are the property of the United States government and that the management and custody of, as well as access to, such records should be governed by the Archivist of the United States and established archival principles all within the statutory framework of the act itself. The Executive Order puts the responsibility for these decisions with the President, and indeed with any sitting President into the future. Access to the vital historical records of this nation should not be governed by executive decree; this is why the existing law was created . . . .

Los Angeles Times Editorial: A Dark Oval Office. 6 November 2001.

From the Los Angeles Times' Web site.

A five-page executive order signed by President Bush on Thursday would nudge the nation's highest office back toward democracy's dark ages, when history could effectively be kept from the public. The decree permits an incumbent president to veto the release of a former president's papers even if the former president has agreed to make them public. It rolls back historians' and journalists' timely access to historical documents, giving even members of a former president's family veto power over the release of material . . . .

Letter from Rep. Henry A. Waxman of the Committee on Government Reform and Janice D. Schakowsky of the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations to President Bush. 6 November 2001.

From the Federation of American Scientists' Web page on Secrecy and Security News.

Dear Mr. President:

We were dismayed to learn that you changed the Executive Order governing the release of Presidential records in a manner that will decrease public access to these records. We urge you to rescind that order. If your Administration believes that the Presidential Records Act needs clarification, we urge you to consult with Congress and the public before taking such action.

The new Executive Order contains provisions that could drastically restrict public access to important records. It allows the sitting President to withhold the records of a former President, even if that President wants those records released. In addition, the order requires the public to show a specific need for a document before it is released.

These provisions clearly violate the intent of the law. The Presidential Records Act was passed by Congress to assure full public access to Presidential records after a reasonable interval of time. The goal of the law is the orderly and systematic release of records - not the indefinite suppression of these historically important documents . . . .

National Coordinating Committee for the Promotion of History. NCC Washington Update, Vol. 7, #46, 9 November 2001.

As distributed on the Archives and Archivists Listserv. Provides a length discussion of the topic.

On November 1, 2001 President Bush issued Executive Order 13233 entitled, "Further Implementation of the Presidential Records Act." The order replaces President Reagan's Executive Order 12667 (issued January 18, 1989) and reinterprets the Presidential Records Act of 1978 (PRA) . . . .

The order, which closely resembles the draft version secured by the NCC last week (see NCC WASHINGTON UPDATE, Vol. 7, #45, November 1, 2001), allows a sitting president to keep secret the papers of a previous president, even if that previous president desires to have his papers made public. In essence, the order provides for the release of certain types of presidential papers only when the former and sitting president both agree to release the papers. The order reverses the very premise of public access built into PRA which provides for the systematic release of presidential records after 12 years or by way of a Freedom of Information (FOIA) request; the new E.O. requires that the materials can be released only when a FOIA request shows a "demonstrable, specific need" . . . .

On November 6, 2001 the House Committee on Government Reform, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations conducted a hearing on the Presidential Records Act (PRA). Scheduled several weeks ago, the hearing was postponed several times due to anthrax threats on Capitol Hill. Originally, Congressional interest focused on the White House's delay in releasing some 68,000 pages of presidential papers from the Reagan Presidential Library, but with the issuance of Executive Order 13223 on November 1 by President Bush (see related story above), Representative Stephen Horn (R-CA) quickly rescheduled the hearing and announced that his subcommittee would examine the totality of the Presidential Records Act of 1978 . . . .

Bruce Shapiro, "Information Lockdown". 29 October 2001.

From Useful for understanding the climate of secrecy in which this executive order was issued.

Viewers of the old spy spoof Get Smart will remember the Cone of Silence -- that giant plastic hair-salon dryer that descended over Maxwell Smart and Control when they held a sensitive conversation. Today, a Cone of Silence has descended over all of Washington: From four-star generals to lowly webmasters, the town is in information lockdown. Never in the nation's history has the flow of information from government to press and public been shut off so comprehensively and quickly as in the weeks following September 11. Much of the shutdown seems to have little to do with preventing future terrorism and everything to do with the Administration's laying down a new across-the-board standard for centralized control of the public's right to know . . . .