Congressional Record: March 27, 2003 (Extensions)
Page E597-E598
REVOCATION OF EXECUTIVE ORDER LIMITING ACCESS TO PRESIDENTIAL RECORDS
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HON. DOUG OSE
of california
in the house of representatives
Thursday, March 27, 2003
Mr. OSE. Mr. Speaker, today, I rise to introduce a simple bill to
revoke Executive Order 13233, "Further Implementation of the
Presidential Records Act," which President Bush issued on November 1,
2001. My bill would replace this Order with President Reagan's 1989
implementing Executive Order 12667. During the 107th Congress, on April
11, 2002, Representative Steve Horn introduced the "Presidential
Records Act Amendments of 2002" (H.R. 4187). I co-sponsored this bi-
partisan bill. The Government Reform Committee held hearings on the
Bush Order and then, after introduction, on Mr. Horn's bill. On October
9th, the House Government Reform Committee reported out an amended
version of this bill. On
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November 22nd, an accompanying House Report (Report 107-790) was
published. Unfortunately, the full House never considered this bill.
In the 1978 Presidential Records Act, Congress clearly intended to
make Presidential records available for Congressional investigations
and then for the public after a 12-year period. The Act authorized the
National Archives and Records Administration (NARA) to issue
implementing regulations. President Reagan's Order expanded on NARA's
implementing regulations. The Reagan Order clarified some areas not
specifically addressed in the regulations. Most importantly, the Order
identified only three areas where access to Presidential records could
be limited--if disclosure might impair national security, law
enforcement, or the deliberative processes of the executive branch.
President Bush's Order changed these access limitations. In a
nutshell, law enforcement was dropped and two areas were added:
"communications of the President or his advisors (the presidential
communications privilege); [and] legal advice or legal work (the
attorney-client or attorney work product privileges)." This broadening
could severely limit Congressional access to key documents in its
investigations of a former Administration.
Besides broadening the grounds for executive privilege claims, the
Order is inconsistent both with the Presidential Records Act itself and
with NARA's codified implementing regulations. NARA's rules were
promulgated after the public had notice and an opportunity to comment,
as required by the Administrative Procedure Act.
In November 2001, a week after issuance of the Order, I raised
concerns in a Subcommittee hearing on the Order. I questioned the
Administration witness about the legal and substantive justification
for the policy changes. After the hearing and further discussions with
White House officials, I had hoped that the Administration would amend
or revoke its Order. Unfortunately, it has not done so. As a
consequence, I believe that legislation is needed to void the Order. My
bill would do just that.
The Order violates not only the spirit but also the letter of the
Presidential Records Act. It undercuts the public's rights to be fully
informed about how its government operated in the past. My bill would
restore the public's right to know and its confidence in our
government.
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