Bush Clamping Down On Presidential Papers
Incumbent Could Lock Up Predecessor's Records
By George Lardner Jr.
Washington Post Staff Writer
Thursday, November 1, 2001; Page A33
The Bush White House has drafted an executive order that would usher in a new era of secrecy for presidential records and allow an incumbent president
to withhold a former president's papers even if the former president wanted to make them public.
The five-page draft would also require members of the public seeking particular documents to show "at least a 'demonstrated, specific need' " for
them before they would be considered for release.
Historians and others who have seen the proposed order called it unprecedented and said it would turn the 1978 Presidential Records Act on its head by
allowing such materials to be kept secret "in perpetuity."
Under the order, incumbent and former presidents "could keep their records locked up for as long as they want," said Bruce Craig, executive director
of the National Coordinating Committee for the Promotion of History. "It reverses the very premise of the Presidential Records Act, which provides
for a systematic release of presidential records after 12 years."
Other critics voiced concern about the impact of the order "in the post-September 11 world," with its wartime atmosphere.
"The executive branch is moving heavily into the nether world of dirty tricks, very likely including directed assassinations overseas and other
violations of American norms and the U.N. charter," said Vanderbilt University historian Hugh Graham. "There is going to be so much to hide."
Bush is expected to sign the order shortly. A White House aide said the Supreme Court held in 1977 that former presidents can continue to assert
various privileges for their records and the order will simply establish "a procedure by which they can protect their rights." The aide said "great
deference" will be paid to their wishes.
"The majority of former presidents have released virtually all of their records," the aide added. "This executive order does nothing to change
The proposed order, dated Oct. 29, grew out of a decision by the Bush administration early this year to block the release of 68,000 pages of
confidential communications between President Ronald Reagan and his advisers that officials at the National Archives, including the Reagan library,
had wanted to make public.
Relying on an obscure executive order that Reagan issued just before leaving office, White House counsel Alberto R. Gonzales prescribed a series of
delays so that Bush could decide whether to invoke "a constitutionally based privilege or take other appropriate action."
The papers in question, some dealing with Reagan-era officials who now have high posts in the Bush administration, were to have been disclosed last
January under the 1978 law, which said that the documents could be restricted at the most for 12 years after Reagan left office.
The new executive order would replace the 1989 Reagan decree and cover not only confidential communications between a president and his advisers but,
as Graham put it, "almost anything in the White House files."
For 12-year-old documents that are not covered by "constitutionally based privileges" but are subject to requests under the Freedom of Information
Act, the order states that the archivist "must withhold" them if possible.
For records that might be privileged as state secrets, confidential communications, attorney-client communications, or "deliberative process"
materials, a requester must establish "specific need" for them "as a threshold matter."
A former president would then review them and tell the archivist whether they should be withheld or made public. The incumbent president or a designee
would then look at them to see if he or she agrees with the ex-president's decision. Unless both agree they should be made public, the records will
remain secret unless "a final court order" should require disclosure.
"Absent compelling circumstances," the incumbent president will concur in the former president's privilege decision, the draft order states. But if
the incumbent president does not agree on a former president's decision to grant access, "the incumbent president may independently order the
archivist to withhold privileged records."
The order would work "like a one-way ratchet," said Scott Nelson, an attorney for the Public Citizen Litigation Group. "If the former president
says the records are privileged, they will remain secret even if the sitting president disagrees. If the sitting president says they should be
privileged, they remain secret even if the former president disagrees."