The President's Papers Are the People's Business
By Steven L. Hensen
Sunday, December 16, 2001; Page B01
The Washington Post
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 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 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 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 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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