H.R. 1255, THE PRESIDENTIAL RECORDS ACT OF 1978: A REVIEW OF EXECUTIVE
BRANCH IMPLEMENTATION AND COMPLIANCE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INFORMATION POLICY,
CENSUS, AND NATIONAL ARCHIVES
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
H.R. 1255
TO AMEND CHAPTER 22 OF TITLE 44, UNITED STATES CODE, POPULARLY KNOWN AS
THE PRESIDENTIAL RECORDS ACT, TO ESTABLISH PROCEDURES FOR THE
CONSIDERATION OF CLAIMS OF CONSTITUTIONALLY BASED PRIVILEGE AGAINST
DISCLOSURE OF PRESIDENTIAL RECORDS
__________
MARCH 1, 2007
__________
Serial No. 110-3
__________
Printed for the use of the Committee on Oversight and Government Reform
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______
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COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts CHRIS CANNON, Utah
WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts DARRELL E. ISSA, California
BRIAN HIGGINS, New York KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of VIRGINIA FOXX, North Carolina
Columbia BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota BILL SALI, Idaho
JIM COOPER, Tennessee ------ ------
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
David Marin, Minority Staff Director
Subcommittee on Information Policy, Census, and National Archives
WM. LACY CLAY, Missouri, Chairman
PAUL E. KANJORSKI, Pennsylvania MICHAEL R. TURNER, Ohio
CAROLYN B. MALONEY, New York CHRIS CANNON, Utah
JOHN A. YARMUTH, Kentucky BILL SALI, Idaho
PAUL W. HODES, New Hampshire
Tony Haywood, Staff Director
C O N T E N T S
----------
Page
Hearing held on March 1, 2007.................................... 1
Text of H.R. 1255................................................ 3
Statement of:
Blanton, Thomas, director, National Security Archive, George
Washington University; Robert Dallek, author/historian;
Scott Nelson, senior attorney, Litigation Group, Public
Citizen; Anna K. Nelson, distinguished historian in
residence, the American University; and Steven L. Hensen,
director of technical services, Rare Book, Manuscript, and
Special Collections Library, Duke University............... 40
Blanton, Thomas.......................................... 40
Dallek, Robert........................................... 55
Hensen, Steven L......................................... 97
Nelson, Anna K........................................... 88
Nelson, Scott............................................ 61
Weinstein, Allen, Archivist of the United States, National
Archives and Records Administration; Harold Relyea,
Specialist in American National Government, Congressional
Records Service; and Sharon Fawcett, Assistant Archivist
for Presidential Libraries................................. 10
Fawcett, Sharon.......................................... 35
Relyea, Harold........................................... 21
Weinstein, Allen......................................... 10
Letters, statements, etc., submitted for the record by:
Blanton, Thomas, director, National Security Archive, George
Washington University, prepared statement of............... 43
Dallek, Robert, author/historian; Scott Nelson, senior
attorney, Litigation Group, Public Citizen, prepared
statement of............................................... 57
Hensen, Steven L., director of technical services, Rare Book,
Manuscript, and Special Collections Library, Duke
University, prepared statement of.......................... 99
Nelson, Anna K., distinguished historian in residence, the
American University, prepared statement of................. 90
Nelson, Scott, senior attorney, Litigation Group, Public
Citizen, prepared statement of............................. 62
Relyea, Harold, Specialist in American National Government,
Congressional Records Service, prepared statement of....... 24
Weinstein, Allen, Archivist of the United States, National
Archives and Records Administration........................ 13
H.R. 1255, THE PRESIDENTIAL RECORDS ACT OF 1978: A REVIEW OF EXECUTIVE
BRANCH IMPLEMENTATION AND COMPLIANCE
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THURSDAY, MARCH 1, 2007
House of Representatives,
Subcommittee on Information Policy, Census, and
National Archives,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m. in room
2154, Rayburn House Office Building, Hon. Wm. Lacy Clay
(chairman of the subcommittee) presiding.
Present: Representatives Clay, Waxman, Yarmuth, Turner, and
Sali.
Staff present: Tony Haywood, staff director; Alissa Bonner,
Adam C. Bordes, and Anna Laitin, professional staff members;
Jean Gosa, clerk; Nidia Salazar, staff assistant; Leneal Scott,
information systems manager; Molly Gulland, assistant
communications director; Steve Castor and Charles Phillips,
minority counsels; Allyson Blandford, minority professional
staff member; John Cuaderes, minority senior investigator and
policy advisor; Patrick Lyden, minority parliamentarian and
member services coordinator; and Brian McNicoll, minority
communications director.
Mr. Clay. The Subcommittee on Information Policy, Census,
and National Archives of the Committee on Oversight and
Government Reform will now come to order. Today's hearing will
examine issues relating to the Presidential Records Act of
1978, the role of the National Archives in administering the
act, and the effect of Executive Order 13233, an order issued
by President Bush to give former Presidents greater control
over the disposition of their White House records.
Without objection, the Chair and ranking minority member
will have 5 minutes to make opening statements, followed by
opening statements not to exceed 3 minutes by any other Member
who seeks recognition.
Without objection, Members and witnesses may have 5
legislative days to submit a written statement or extraneous
materials for the record.
Let me welcome all of you here today on the Presidential
Records Act of 1978 and issues relating to its implementation.
Presidential records serve as a vital resource for the
researchers and historians who document our Nation's history.
These documents provide insight into how and why critical
decisions are made at the highest level of our democratic
government.
Access to Presidential records ensures greater government
transparency and accountability. In addition, access to
Presidential records allows historians to develop a complete
chronology of the events and circumstances that shape and
define a Presidency. With the perspective these documents
provide, policymakers and the public can learn important
lessons from past successes and mistakes as we confront new
challenges facing our great Nation.
Congress has recognized the importance of Presidential
records by establishing a federally supported system of
Presidential libraries, which serve as a depository for a
former Presidents' records and correspondence. Following the
Watergate scandal, the need to establish stronger controls and
transparency over Presidential records became clear, and the
Presidential Records Act of 1978 was enacted. The PRA gave
definition to the term ``Presidential records'' and officially
made these records Federal property once the incumbent
President leaves office. The act also established appropriate
protections to ensure that sensitive or classified information
would not be released to the public.
In 2001, President Bush issued Executive Order 13233, which
established new restrictions on access to Presidential records.
Specifically, the order granted former Presidents and their
appointees veto authority over the release of records
containing confidential advice and deliberations among
advisers. Such restrictions provide former Presidents
indefinite control over many records that addressed important
strategic and planning decisions. As such, they directly
undermine the purpose of disclosure that animates the PRA.
I am proud to say that I am an original cosponsor of
legislation introduced today by full Committee Chairman Henry
Waxman, who has joined us today, that would rescind Executive
Order 13233. I am happy that Chairman Waxman is participating
with us today as ex officio member of the subcommittee. I thank
him for his leadership on this important issue.
The Presidential Records Act Amendments of 2007 has
bipartisan support with Representatives Duncan and Platts,
joining us as original cosponsors. I look forward to working
with my colleagues on both sides of the aisle to move this
legislation forward in the coming weeks, and I sincerely hope
that we will have a meaningful and constructive dialog with the
Bush administration along the way.
I think that today's hearing will make it clear that
rescinding Executive Order 13233 is clearly in the public
interest.
We will have two panels today. I want to thank all of the
witnesses for appearing today and for your testimony.
I will yield to my colleague from Ohio, Mr. Turner.
[The text of H.R. 1255 follows:]
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Mr. Turner. Thank you, Mr. Chairman. I appreciate you
holding this hearing today.
The Presidential Records Act, originally passed in 1978,
sets forth policies for Presidential records and how those
records should be made available to the public. The act gave
custody of a former President's records to the Archivist of the
United States. It imposed upon the Archivist the duty to make
sure records available to the public are available as quickly
and completely as possible under the law.
More importantly, however, it established that the official
records of a former President belong to the American people.
The act built in safeguards over the disclosure of Presidential
records, allowing former Presidents to restrict disclosure of
certain confidential records for a period of time after they
leave office. The act also permanently shielded from public
release records containing military and diplomatic secrets or
other categories of information whose disclosure would not be
in the national interest.
It is important that we distinguish the Nation's interest
from a former President's interest, as we do not want to expand
the scope of Executive privilege to mean a President can simply
withhold approval for release and public disclosure of records
indefinitely. As the chairman has noted clearly, educators,
researchers, historians and the public should have access to
these documents under the direction and care of the Archivist.
These records are a tremendous resource for all of those who
have access to them.
As we have seen, however, gaining this access can take
years after a Presidency has ended. According to some
commentators, Executive Order 13233 shifted the burdens and
responsibilities established by the act. We need to determine
whether the balance between a President's constitutional
privilege and the public's right to know has been tipped beyond
Congress's intent. I hope today's hearing will draw on and
buildupon the work this committee has previously done,
specifically the efforts of our colleague, Mr. Burton, in the
107th Congress. I am confident that we can find a way to
preserve and protect the constitutional prerogatives of
Presidents, while preserving the act's intent of publicly
disclosing Presidential records as promptly and completely as
possible.
I want to thank our witnesses and I look forward to hearing
their testimony.
Mr. Clay. I thank the gentleman from Ohio for his opening
statement.
I now yield to the gentleman from California, the
distinguished chairman of the full committee on Oversight and
Government Reform, Mr. Waxman.
Chairman Waxman. Thank you very much, Chairman Clay, for
holding today's hearing and for your strong leadership in
trying to make sure that we have an open government.
Today, we are considering one of the Nation's most
important open government laws, the Presidential Records Act.
This vital law is supposed to make Presidential records
available to historians and the public 12 years after the end
of a Presidential administration. Unfortunately, President Bush
issued an Executive order in 2001 that carved enormous
loopholes in the Presidential Records Act.
The Executive order gave unprecedented authority to former
Presidents and their heirs to withhold documents from the
public. It allowed current and former Presidents to
indefinitely delay the release of any records. And for the
first time, it gave former Vice Presidents authority to assert
Executive privilege. Taken together, the changes turned the
Presidential Records Act into the ``Presidential Secrecy Act.''
Today, I am introducing legislation with you, Chairman Clay
and Representatives Platts and Burton, to nullify this
misguided Executive order. The Presidential Records Act
Amendments of 2007 restore many of the procedures established
under the old Executive order issued by President Reagan. It
would make clear that Executive privilege is personal to
Presidents and former Presidents, and it would set firm
deadlines for current and former Presidents to review records
before they are released to the public.
This legislation not only has bipartisan sponsors, but it
has bipartisan roots. In 2002, Representative Steve Horn
introduced a similar bill that had widespread support.
History is not partisan. Historians and scholars need
access to our Nation's history as it happened, not as a former
President wished that it had happened. President Gerald Ford
once said, ``I firmly believe that Presidential papers, except
for the most highly sensitive documents involving our national
security, should be made available to the public,'' and that is
exactly the sentiment that motivates the legislation we will be
considering today.
I look forward to hearing the testimony of today's
witnesses, and again I thank you for calling this hearing.
Mr. Clay. Thank you so much, Chairman Waxman, for that
opening statement.
I now yield to the gentleman from Kentucky, Mr. Yarmuth.
Mr. Yarmuth. Thank you, Mr. Chairman. I want to
congratulate the bipartisan leadership of the committee in
organizing these hearings. It is a very important topic. As a
former journalist, it is one that I am particularly interested
in.
I will say that this is the type of issue that motivated me
in seeking membership on this committee and this subcommittee,
along with the integrity and courage and charm of the chairman.
I look forward to hearing the testimony and doing some
important work on behalf of transparency in government for the
American people.
I yield my time.
Mr. Clay. Thank you so much for that opening statement, Mr.
Yarmuth.
If there are no additional opening statements, the
subcommittee will now receive testimony from the witnesses
before us today. I want to start by introducing our first
panel. Dr. Allen Weinstein, Archivist of the United States,
leads the National Archives and Records Administration.
Welcome. And Dr. Harold Relyea is a specialist in American
National Government with the Congressional Research Service of
the Library of Congress. Also we have Ms. Sharon Fawcett, who
is here with us, and we want to welcome you, too. We thank all
three of you all for appearing today.
It is the policy of the Committee on Oversight and
Government Reform to swear in all witnesses before they
testify. Please rise and raise your right hands.
[Witnesses sworn.]
Mr. Clay. Let the record reflect that the witnesses
answered in the affirmative. Thank you.
I ask that each of the witnesses now give a brief summary
of their testimony and to keep the summary under 5 minutes in
duration. Bear in mind your complete written statement will be
introduced in the hearing record. Also bear in mind that we
expect to be interrupted very shortly by votes on the House
floor.
So Dr. Weinstein, please, let's begin.
STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE UNITED STATES,
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; HAROLD RELYEA,
SPECIALIST IN AMERICAN NATIONAL GOVERNMENT, CONGRESSIONAL
RECORDS SERVICE; AND SHARON FAWCETT, ASSISTANT ARCHIVIST FOR
PRESIDENTIAL LIBRARIES
STATEMENT OF ALLEN WEINSTEIN
Mr. Weinstein. Thank you, Chairman Clay, Congressman
Turner, members of the subcommittee and subcommittee staff. I
am Allen Weinstein, Archivist of the United States. I want to
thank all of you for the opportunity to testify this afternoon
on the implementation of the Presidential Records Act of 1978,
PRA, under Executive Order 13233.
I particularly want to thank you all for your continued
interest in the programs and responsibilities of the National
Archives and Records Administration, which we call NARA. Five
years ago, shortly after Executive Order 13233 was promulgated,
my predecessor, John Carlin, appeared before this subcommittee
as then comprised to provide historical background on the PRA
and how NARA had worked to implement public access to
Presidential records. Since that time, NARA has had extensive
experience under the Executive order, and there has also been
much public discussion about it.
Today, Mr. Chairman, I would like to update the
subcommittee on NARA's experience in working with the PRA and
Executive Order 13233. I have submitted for the record a more
extensive written paper.
Since the enactment of PRA, NARA has taken legal custody of
the Presidential records of Presidents Ronald Reagan, George
H.W. Bush, and William J. Clinton. The PRA also applies to all
of the Vice Presidential records in the same manner as
Presidential records, and affords the former Vice Presidents
the same authority as the former Presidents.
The PRA established government control over Presidential
records that Presidents have donated to the National Archives,
dating back to President Hoover. The PRA mandates, ``that the
Archivist shall have an affirmative duty to make such records
available to the public as rapidly and completely as possible,
consistent with the provisions of this act.'' As noted during
floor debate in 1978, among other things, the PRA represents an
effort to legislate, as one member put it, ``a careful balance
between the public's right to know, with its vast implications
to historians and other academic interests, and the rights of
privacy and confidentiality of certain sensitive records
generated by the President and his staff during the course of
their White House activities.''
Prior to the PRA, and with the exception of the materials
of former President Richard M. Nixon, Presidential papers and
materials maintained under NARA's oversight at the Presidential
libraries of former Presidents Hoover, Roosevelt, Truman,
Eisenhower, Kennedy, Johnson, Ford, and Carter had been
controlled by the terms of the deeds of gifts, by which the
former Presidents donated their records to the National
Archives. Each of these deeds has provisions outlining
categories of records that may be withheld from public access
for some period of time. NARA processed and opened Presidential
materials based on the deeds and professional archival
considerations.
Moreover, because the materials at these libraries were
donated to the United States, they are not subject to requests
under the Freedom of Information Act [FOIA], or any other
public access statute. In contrast, because the PRA subjects
all Presidential records to public access through FOIA 5 years
after the end of an administration, PRA libraries practice open
records almost exclusively in response to FOIA requests and
mandatory declassification review requests under Executive
Order 12958 on classified national security information, and
have less opportunity to conduct systematic processing of
records.
President Bush issued Executive Order 13233 in November
2001. As the subcommittee is aware, Executive Order 13233
replaced Executive Order 12667, which was issued by President
Reagan and under which NARA operated for the first 12 years
that we processed and opened Presidential records under the
PRA. Some researchers have raised concerns that Executive Order
13233 would fundamentally alter the process for requesting and
opening Presidential records and would result in a significant
withholding of records.
The most important measure in evaluating Executive Order
13233 is, of course, whether Presidential records are being
made available to the public. In that regard, I can report to
you that since Executive Order 13233 went into effect in
November 2001, NARA has opened over 2.1 million pages of
Presidential records. During that time, there has been only one
occasion when Presidential records were kept closed from the
public by an assertion of Executive privilege under the order,
which occurred in 2004, for a total of 64 pages of records from
the Reagan Library, out of which 30 were duplicate copies.
There should be no question that to date Executive Order
13233 has not been used by former Presidents or the incumbent
to prevent opening records to the public, which does not mean,
Mr. Chairman, that I do not think there are legitimate concerns
over the Executive order, and I look forward to listening to my
friends and colleagues as they discuss their views on this
later this afternoon.
Just a few more comments, and I will be through, Mr.
Chairman.
Executive Order 13233 also has added to the endemic problem
of delay that NARA faces from the PRA and the processing of
Presidential records. At the three Presidential libraries that
operate under the PRA--Reagan, George H.W. Bush, and Clinton--
NARA has FOIA backlogs that extend up to 5 years. These queues
are the direct result of the Archivist at each library
contending with an ever-increasing volume and demand for
Presidential records, but not an expansion of the number of
Archivists.
Once NARA completes the search and review of a FOIA
request, we then must provide notice to the representatives of
the former and incumbent Presidents under Executive Order 13233
for their review. The average combined time for the
representatives to complete the reviews is currently
approximately 210 days.
Finally, Mr. Chairman, a personal word, to encourage dialog
on these issues between you and your colleagues in the Congress
and the administration--a discussion of whatever changes one
would care to make in the Executive order, it seems to me that
this is a moment for dialog and perhaps a moment for returning
to the original concerns and values of the founders of the
Presidential Library System.
So I will end with a quote, which was Franklin Roosevelt's
comment on the dedication of the first Presidential library on
June 30, 1941, in which he said the following: ``The dedication
of a Presidential library,'' said President Roosevelt, ``is
itself an act of faith. To bring together the records of the
past and house them in buildings where they will be preserved
for the use of men and women living in the future, a nation
must believe in three things. It must believe in the past. It
must believe in the present. But most of all, it must believe
in the capacity of its people so to learn from the past that
they can gain in judgment for the creation of the future.''
Thank you, Mr. Chairman. Thank you, members of the
committee. I am happy to answer any questions.
[The prepared statement of Mr. Weinstein follows:]
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Mr. Yarmuth [presiding]. Thank you for your statement, Mr.
Weinstein.
Dr. Relyea, welcome.
STATEMENT OF HAROLD RELYEA
Mr. Relyea. Mr. Chairman and members of the subcommittee,
thank you for your invitation to appear here today. I am Harold
Relyea, a Specialist in American National Government----
Mr. Yarmuth. Can you turn your mic on, Doctor?
Mr. Relyea. It is.
I am Harold Relyea, a Specialist in American National
Government with the Congressional Research Service of the
Library of Congress.
During the initial years of the Federal Government,
departing Presidents had little choice with regard to the
disposition of their records. There was no national archive to
receive such papers, and for reasons of etiquette or politics
or both, there was a reluctance to leave them behind. Thus, the
early chief executives carried away their documents of office,
entrusting them to their families, estate executors, and often
to fate.
President Franklin Roosevelt sought to return Presidential
papers to the public realm through a new type of institution,
the federally maintained Presidential library, the first of
which was constructed with private funds on the grounds of his
family home in Hyde Park, NY. Chartering legislation for the
Roosevelt Presidential Library was enacted in 1939, and the
completed facility was accepted for Federal maintenance on July
4, 1940. With the later enactment of the Presidential Libraries
Act of 1955, basic policy was set for the creation of
subsequent federally maintained Presidential libraries.
About two decades later, as a consequence of the so-called
Watergate incident and related matters, the official papers and
records of President Richard M. Nixon were placed under Federal
custody by the Presidential Recordings and Materials
Preservation Act of 1974, to assure their availability to
Federal prosecutors. Following the enactment of this statute,
Congress developed the law we are talking about today, the
Presidential Records Act of 1978, which defined Presidential
records and, for all such materials created on or after January
20, 1981, effectively made them Federal property that was to
remain under the custody and control of the Archivist when each
President left the White House.
Prior to the conclusion of his term of office, the
departing President was authorized to specify durations not to
exceed 12 years for which access to certain specified
categories of information would be restricted. After the
expiration of these periods of restriction, the records of the
former President would be protected by exemptions to the rules
of disclosure specified in the Freedom of Information Act.
A former President was to be notified by the Archivist when
records were about to be disclosed, particularly, in the words
of the statute, ``when the disclosure of particular documents
may adversely affect any rights and privileges which the former
President may have.''
The statute also stated, ``Nothing in this act may be
construed to confirm, limit or expand any constitutionally
based privilege which may be available to an incumbent or
former President.'' This provision addressed the so-called
Executive privilege, or the exercise of a claim of
constitutionally based privilege by the Executive against the
disclosure of Presidential records.
Jimmy Carter was the last occupant of the Oval Office who
could truly take away his records and papers. His successor,
Ronald Reagan, in the closing days of his second term as
President, issued an Executive order of January 18, 1989,
requiring the Archivist to notify the incumbent President and
former Presidents whose papers were involved, of his intent to
disclose publicly Presidential records which were not otherwise
subject to protection under the terms of the Presidential
Records Act. The Archivist was to identify any specific
materials in the records to be disclosed which may raise a
substantial question of Executive privilege. As defined in the
order, a substantial question of Executive privilege existed if
the disclosure of Presidential records might impair the
national security, law enforcement, or the deliberative
processes of the executive branch.
The first incumbent President to exercise this authority
was George W. Bush. The Reagan order, as we heard, was
subsequently revoked by Executive Order 13233 of November 1,
2001, which many regarded as providing a more expansive basis
for the exercise of Executive privilege. Opposition to
Executive Order 13233 was expressed by historians, political
scientists, journalists, and lawyers, among others. On November
15, 2001, for example, the New York Times editorially commented
that the order, ``essentially ditches the law's presumption of
public access in favor of a process that grants either an
incumbent President or a former President the right to withhold
the former President's papers from the public,'' and concluded
that ``if a remedy for the situation was to be realized,
Congress must pass a law doing so.''
A bill, H.R. 4187, to overturn the order, was introduced in
the House on April 11, 2002, by Representative Steven Horn for
himself and 22 bipartisan cosponsors. It also amended the
Presidential Records Act to provide for the exercise of
Executive privilege in terms more limited than those of
Executive Order 13233.
A subcommittee under the chairmanship of Representative
Horn held hearings on the Executive order and H.R. 4187, and
the Committee on Government Reform held a hearing on the impact
of the Executive order on the public availability of
Presidential records. Summarizing these proceedings, the
subsequent report accompanying H.R. 4187 stated, ``Witnesses at
these three hearings included historians, lawyers, and other
experts who testified that Executive Order 13233 violated the
Presidential Records Act and greatly inhibited the release of
Presidential records as envisioned by the act.''
The measure, with an amendment, was favorably reported from
the committee on November 22, 2002, but did not receive a floor
vote prior to the adjournment of the 107th Congress.
Representative Horn did not stand for reelection to the next
Congress, and no successor legislation was subsequently
introduced in either House during the 108th or 109th
Congresses.
Today, in the course of examining executive branch
implementation of and compliance with the Presidential Records
Act, this subcommittee has before it the question of the need
for such legislation.
Thank you for your attention. I welcome your questions.
[The prepared statement of Mr. Relyea follows:]
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Mr. Yarmuth. Thank you both for your testimony.
Dr. Relyea, as you are aware, some have suggested that
because Executive Order 13233 grants a former President the
power to assert privilege over the release of records, that it
may violate the intent of the Presidential Records Act, to
ensure that Presidential records are treated as Federal
property and not personal property. Do you agree with that
assessment, or do you take a different view?
Mr. Relyea. I agree that the Executive order distorts the
original intent of the Presidential Records Act. It, in effect,
turns the situation of the Presidential Records Act on its
head. The President, in asserting Executive privilege, directs
the Archivist not to disclose papers, and the Archivist is
expected to abide by that. Whereas, I think the original intent
of the Presidential Records Act is to have the Archivist
exercise a discretion when a former President asserts Executive
privilege. If he disagrees with a former President, then it is
up to the former President to seek judicial enforcement of his
position.
Mr. Yarmuth. Thank you.
Dr. Weinstein, could you describe for us in general terms
the major challenges that NARA faces in archiving and releasing
Presidential records?
Mr. Weinstein. Certainly, Mr. Chairman. We begin with the
shortage of trained, adequate staff for the purpose of doing
this. I will not go into detail because I do not have to, but
as I think you know, this has been a dilemma for the last
several years.
Second, we do have a situation now in which I think it
would be interesting to see what action, if any, will be taken
by the Congress in this regard. It would be unseemly of us to
suggest anything because we are here to implement. We are
trying to implement in a very serious way what is possible
under the law. It would be nice to have the authority again to
have a bit more authority that we had in terms of being able to
administer, as Dr. Relyea was saying, the act, but that
authority may come back. We will see.
In general terms, I think it is fair to say that trying to
administer fairly a statute in which there is not necessarily
universal agreement as to its validity, an Executive order
presents its own problems.
Mr. Yarmuth. Thank you. I am informed I mispronounced your
name. I apologize for that.
Mr. Weinstein. I don't think you have. It depends on which
side of the Grand Concourse you are from, Weinstein on this
side and Weinstein on the other. [Laughter.]
Mr. Yarmuth. Good. Well, I get mine mispronounced 20
different ways, so that is fine.
How much money from NARA is dedicated annually to
activities surrounding the release of Presidential records? And
how does the President's fiscal year 2008 budget match up with
that expense? And how much additional money and resources would
be required to do an adequate job, in your opinion?
Mr. Weinstein. I appreciate the questions, especially since
I am going to turn to my colleague, Sharon Fawcett, who runs
the Presidential Library System, for the first answer to that.
Mr. Yarmuth. Thank you. Welcome.
STATEMENT OF SHARON FAWCETT
Ms. Fawcett. Thank you, Mr. Chairman.
The annual appropriation for Presidential libraries this
year is just short of $58 million. We have dedicated to
processing Presidential records about 42 percent to 45 percent
of the staff in the individual Presidential libraries. At the
Reagan Library, we have 45 percent of the staff that are
Archivists or archive specialists charged with reviewing the
records. At the Clinton and Bush libraries, it is 42 percent of
the appropriated staff.
That does not translate into very many Archivists. It is 10
Archivists at Reagan and, let's see, it is 8 Archivists at Bush
and 10 Archivists at Clinton. So it is not a substantial amount
that would average about $1.7 million.
Mr. Yarmuth. And that is what you think we would need to
add to the President's budget request to bring it up to an
adequate number?
Ms. Fawcett. For our request for the Bush Library, we have
begun planning for a library a couple of years out. This year,
we will be hiring four Archivists for future work in the Bush
Library so that we can train them on the FOIA process and the
review of Presidential records. We hope to hire up to 20
Archivists for the Bush Library. So we plan on doubling the
staff.
I am not sure that even that is sufficient to adequately
manage the workload. Just to give you an example of how the
workload has grown, the number of FOIAs filed the first year
that the Reagan Library opened for FOIA was 103 requests.
Likewise for Bush, 91 requests. For Clinton, in the first year,
we had 336 FOIA requests for a backlog of over 9 million pages.
Mr. Weinstein. Congressman, I would add to that only the
fact that the exact figure one would want would depend, to some
extent, on how quickly one wanted to end the backlog in this
process, the 3 or 4 or 5 year delay sometimes in processing
material, but we can get you those figures and we will.
Mr. Yarmuth. Thank you very much. My time has expired.
Mr. Turner.
Mr. Turner. I noted in the testimony that millions of pages
of records have been released, and you confirmed that again
with respect to the requests. Can you tell us what percentage,
or the number of records that are withheld?
Ms. Fawcett. Of the 2.1 million pages that have been opened
for research so far, the number of pages closed in all
restriction categories, I am sorry, I can't tell you the number
for the past 2 years under the Executive order. I have the
total number since we started opening PRA records in the
library, but I can get you the other figure.
Mr. Turner. The total number is fine, at least.
Ms. Fawcett. OK. About 391,000 pages have been closed at
Reagan; over 8 million pages have been opened. At Bush, 538,000
pages have been closed; over 5 million pages have been opened;
at Clinton, 1.220 million pages have been opened; 27,000 pages
closed.
Mr. Turner. OK. We have had testimony concerning open
records before the subcommittee in other areas. One of the
questions that other agencies have acknowledged as relevant
post-9/11 is the review of documents as they might pertain to
national security or issues where we would not want them to be
released.
Does 9/11 give us a context where that review might be at a
different standard than it was pre-9/11?
Mr. Weinstein. Well, I don't think I would say so. I say we
have been fairly consistent in that regard. Although, once
again, there would be areas in which obviously comments on 9/11
would be pivotal because that would be the subject matter. But
if you are talking about the process itself, we have----
Mr. Turner. I am talking about subject matter. Does it give
you additional pause in subject matter areas where you had no
pause before?
Mr. Weinstein. Oh, of course. It absolutely has. Sure.
Mr. Turner. Great. I think your affirmative response to
that is very important, because that is something that other
agencies have acknowledged, and it certainly provides some
context to the Executive order of a greater concern, not of
secrecy, but one of national concern, and in giving us some
additional time to reflect on the subject matter as we see that
the world is changing.
Mr. Weinstein, one of the things that obviously we are
concerned about in Presidential records and their release is
eliminating a context of partisanship. That relates both to the
fact they are being released or they are not being released.
Wouldn't you agree that is one of the concerns that people have
about how records are handled, both for present issues of
partisan flavor and/or for interpretation of past issues?
Mr. Weinstein. Well, it is certainly a concern that one
might have, should have perhaps generally, but I can tell you
as a matter of fact that I have led a very bipartisan life in
Washington, if you know something about my background. I ran
the Center for Democracy for 16 years. Basically, there is
nothing more important to me than maintaining the integrity of
the documents and of the Archives against partisanship.
Mr. Turner. Mr. Weinstein, before my time is up, obviously
the Sandy Berger incident is one that has caused pause in the
manner in which the Archivist handles records such as this.
Paul Brachfeld, the Inspector General, had some concerns as to
the manner in which he was treated, and the matter was treated.
There was just recently a Washington Post article where it was
indicated that he had received an e-mail from the Archivist's
lawyer saying, ``I don't think it comes as a great surprise if
I were to venture the opinion that senior management of this
agency have serious problems with the manner in which your
office conducted itself during the Berger investigation.''
Obviously, the concern that we have in the Berger
investigation is that we want to err on the side of making
certain we know the facts, because it could impact the
availability of information or what information has been
available to some, and perhaps to others.
Could you please comment on that matter and how it might
reflect on the Archivist's handling of these records?
Mr. Weinstein. I am delighted to. I am happy to comment on
it.
First of all, Sandy Berger was arrested years before I got
to the Archives. This was 2003, as I recall, and I didn't
become Archivist until 2005. So I can't speak to that
particular element in the process.
But second, that letter you quoted from an Archives
attorney received from me a very harsh note about sending
letters of that kind. The Inspector General received from me,
quoted in the same Washington Post article, a letter in which I
indicated, and he knew this as well, the Inspector General,
that the letter did not reflect my concerns and did not reflect
my perspectives or the perspectives of the majority of his
colleagues at the National Archives.
The IG has his job to do. I have my job to do. I think we
have a great deal of mutual respect, and that is the way I will
continue to behave toward the thing.
Mr. Turner. Thank you, Mr. Chairman.
Mr. Clay [presiding]. Thank you very much, Mr. Turner.
Mr. Weinstein, the Executive Order 13233, Further
Implementation of the Presidential Records Act, was issued by
President Bush in November 2001, replacing the previous
implementing order issued by President Reagan. Among other
changes, the Bush Executive order extended the period for
notification and review from 30 days to 90 days. Can you
explain this change and its impact, if any? Specifically, have
you observed a significant increase in the amount of time used
in the notification and review process?
Mr. Weinstein. We very much have, Mr. Chairman, but that is
in part because of a greater caseload, a greater number of
people who want to make use of the Reagan Library for research
purposes and raise Freedom of Information requests. The issue
of resources is never far from the center of the matter, Mr.
Chairman. I would be grateful for the subcommittee's concern
about that.
Sharon, do you have anything to add?
Mr. Clay. Ms. Fawcett.
Ms. Fawcett. Yes. As we said earlier in our testimony, the
backlog is quite significant. While the notification process
adds time to it, when you consider that the backlog is 5 years
in the first place, it is not a significant amount of time as
we have in the backlog.
Mr. Clay. Mr. Relyea, have you noticed any impact with the
new Executive order?
Mr. Relyea. I am not really in the position to assess that,
as folks at the Archives are. My research is such that I would
have to rely upon other management studies, which I am not
aware of, and they would certainly be coming from the Archives
in that regard.
Mr. Weinstein. Mr. Chairman, can I add a word in response
to Mr. Turner's original question?
Mr. Clay. Sure.
Mr. Weinstein. It is a very serious point. It would be nice
if we lived in a country in which the National Security Adviser
to the President of the United States could be matter of factly
trusted to engage in no shenanigans and no lawbreaking
enterprises, and we could all have confidence in that without
putting into effect the security measures that test that.
Unfortunately, although I had been under the impression
before reading all of this, since I was not Archivist yet, that
was the kind of country we live in. Obviously, this did not
turn out to be the case with the gentleman in question.
So what we have done at the Archives is to strengthen in
measurable ways our security mechanisms to avoid any such
process from happening in the future. I didn't want to leave
Mr. Turner's question unanswered.
Mr. Clay. Thank you for that response.
Before I dismiss the panel, because we are about to go do
some votes, Doctor, your testimony states that because PRA
records are subject to FOIA and declassification requirements,
NARA staff has less time to conduct the systematic processing
of records. I have two questions regarding this.
Is FOIA the problem, or is the real problem staff shortages
and resource limits?
Mr. Weinstein. That is a significant part of it, Mr.
Chairman, a very significant part of it. And also one keeps in
mind the sheer volume, just in terms of the volume of documents
system-wide. We allegedly have 9 billion. I have not counted
them all, so I can't say, but 9 billion documents. That
requires a lot of processing. So finally, that is an issue.
Ms. Fawcett. Could I add to that?
Mr. Clay. Yes, Ms. Fawcett.
Ms. Fawcett. I think the PRA envisioned that during the
first 5 years before the records were opened to FOIA, the
Archives would be able to systematically process a good deal of
those materials. In fact, during the Reagan and first Bush
post-Presidential periods, we did process upwards of 4.5
million pages.
However, the number of special access requests by the
Congress, by the courts, and by those with statutory rights to
view the records, has increased considerably, and that takes
most of the staff time. So there has been little time for the
systematic processing.
One of the things that we are trying to do to speed up our
processing efforts and to be more efficient is to take the FOIA
requests we get and kind of clump them together, as these are
all requests that kind of relate to this subject area. We will
process that as an entire file more systematically, and then
notify each one of the researchers that we have processed some
major files that they would be interested in. It has helped to
speed up the processing a little at Reagan. We are going to try
it at some of our other libraries, but we still have
significant backlogs even with that effort.
Mr. Clay. Thank you for that response.
Mr. Turner, any further questions?
If there are no further questions for this panel, I want to
thank the panel for your time and your testimony today.
I will now call the committee into recess until
approximately 3:15 p.m., and then we will take testimony from
the second panel.
Thank you all so much for your testimony.
[Recess.]
Mr. Clay. The Subcommittee on Information Policy, Census,
and the National Archives will resume.
We are fortunate to have an outstanding group of witnesses
on our second panel.
Mr. Thomas Blanton serves as Director of the National
Security Archive at George Washington University in Washington,
DC. He is a noted expert on government information policy. He
is a past recipient of the American Library Association's James
Madison Award Citation for defending the public's right to
know. He has co-authored several books, and his articles have
appeared in numerous publications, including the International
Herald Tribune, the New York Times, the Washington Post, and
the Wall Street Journal. Welcome, Mr. Blanton.
Mr. Scott Nelson is an attorney at the Public Citizen
Litigation Group in Washington, DC, where he has practiced
since 2001. Previously, Mr. Nelson's work focused on a variety
of constitutional and administrative law issues, including the
disposition of the Presidential papers of former President
Richard Nixon. Welcome, Mr. Nelson.
Mr. Steven L. Hensen is director of Technical Services in
the Rare Book, Manuscript, and Special Collections Library at
Duke University. He is recognized both nationally and
internationally as an authority on archival description and
access, and he has taught more than 50 workshops and consulted
extensively on a variety of archives matters. He is a past
President of the Society of American Archivists, from 2001 to
2002, a former member of its Governing Council, and a fellow at
that organization. You are also welcome, and thank you for
being here.
Dr. Robert Dallek is a noted Presidential biographer whose
published works have covered the life and times of Presidents
Franklin Delano Roosevelt, Kennedy, Johnson, and Reagan. He has
also served as a faculty member at Columbia University, UCLA,
and most recently at Boston University. In addition, Dr. Dallek
has served as a consultant to many films and documentaries, and
is often quoted in national publications and newspapers on
Presidential history and politics. Thank you for being here.
And finally, Dr. Anna K. Nelson currently serves as
Distinguished Historian in Residence at the American
University. She has previously served as a member of the State
Department Historical Advisory Committee, and received a
Presidential appointment to the John F. Kennedy Records Review
Board. Her past articles and essays have appeared in the
Journal of American History, Diplomatic History, Journal of
Military History, Human Studies, and Political Science
Quarterly. Welcome to the committee.
It is the policy of the Committee on Oversight and
Government Reform to swear in all witnesses before they
testify. Please rise and raise your right hands.
[Witnesses sworn.]
Mr. Clay. Thank you. Let the record reflect that all
witnesses answered in the affirmative.
As with panel one, I ask that each witness give an oral
summary of his or her testimony and keep the summary under 5
minutes in duration. Bear in mind, your complete written
statement will be included in the hearing record.
Mr. Blanton, let's begin with you.
STATEMENTS OF THOMAS BLANTON, DIRECTOR, NATIONAL SECURITY
ARCHIVE, GEORGE WASHINGTON UNIVERSITY; ROBERT DALLEK, AUTHOR/
HISTORIAN; SCOTT NELSON, SENIOR ATTORNEY, LITIGATION GROUP,
PUBLIC CITIZEN; ANNA K. NELSON, DISTINGUISHED HISTORIAN IN
RESIDENCE, THE AMERICAN UNIVERSITY; AND STEVEN L. HENSEN,
DIRECTOR OF TECHNICAL SERVICES, RARE BOOK, MANUSCRIPT, AND
SPECIAL COLLECTIONS LIBRARY, DUKE UNIVERSITY
STATEMENT OF THOMAS BLANTON
Mr. Blanton. Thank you very much, Mr. Chairman.
I have just have three points to make today. You have my
written statement, which gives it in detail. The three points:
one is, is the Presidential Records Act System working? No, it
is in crisis, and I will back that up. Second, is it the fault
of the Executive order? Yes, in part, but not completely. And I
will back that up. And third, what do we do about that?
On the Presidential Records Act, we got a little bit of
good news from the first panel, when Archivist Weinstein said
that we have released 2.1 million pages of records under the
Presidential Records Act since this Executive order came in. He
announced that like we were supposed to applaud. Mr. Chairman,
that is less than half as many records out of the entire
Presidential Library System than the Reagan Library alone
produced in the previous 5 years.
On the front page of my written testimony today I have
given you a little chart. What happens when you write the
Presidential library if you are a citizen, and you ask for one
of President Reagan's records? Before this Executive order,
they wrote you back a letter that said it will take about 18
months. And that is not unreasonable in my experience, and we
have hundreds of requests currently pending with Reagan and all
the libraries from Eisenhower through Clinton. It is highly
classified. It is high level material. There are sensitivities
there. Eighteen months is not unreasonable for the government
to take to review it.
Today, you will get a letter back that says it is 78
months. In other words, 6 years have elapsed since the White
House intervened in the Presidential records process to stop
the release of Reagan records, back in early 2001. After those
6 years, 5 are pure delay, pure delay, and you see the sequence
of events.
Now, it is a crisis, because the system is not working the
way the Congress intended, or I would argue our constitutional
framers intended, because we did not intend our Presidents to
be kings or to be allowed to act like kings. Their records
belong to us.
So is it the fault of the Executive order? I would say yes,
in part, and you had Archivist Weinstein admit that. He said
that, oh, it used to only add about 90 days, then it added
about 170, days, and now it is adding an average of back to 110
days. That was his testimony. My experience is it is well over
a year, and that is just the direct delay. In my testimony I
have direct quotes from the professional Archivist at the Bush
Library, who over the phone to me said, well, it was cleared
for release in November 2005. Now, these are documents that
Gorbachev has already published in Russian. I am just asking
for the American versions of them. Right? It makes us look
pretty bad if we can't produce the transcript of the Malta
Summit.
Well, the Bush Library says, well, we sent it off to the
White House in November 2005, and there is no limit, as you
know, there is no deadline, so we have no idea when it will
come back. Under the old system, under President Reagan's
Executive order, I would have had that material in December
2005. OK?
But it is not all Executive order, because there are huge
resource problems at the National Archives, and it doesn't help
when their basement floods, and they have to use up their
contingency funds. They have hiring freezes, staff problems,
vacancies. You heard from Ms. Fawcett about how they are even
having problems staffing up now. You have a totally broken
declassification system, so you have hundreds of millions of
pages that are ready for the public to see, that they don't
have the staff to put on the shelves.
Then you have agencies like the CIA and the Air Force going
back in to the public stuff and taking it back, sticking the
toothpaste in the tube. That is what was exposed last year,
thousands and thousands of pages. You have an endless daisy
chain of agencies that all insist on having their piece of that
document. If my cabinet secretary was at the National Security
Council meeting, by gosh, I get a chance to review that
document. I have an equity in that document. This is insane. It
is no way to run a system.
So what do we do to fix it? One, take out those worst parts
of the Executive order, that lack of a deadline, the expansion
of privilege for the Vice President, the provision that gives
Julie Nixon Eisenhower and her kids the right to assert
Executive privilege. I didn't see that in my copy of the
Constitution, Mr. Chairman.
You can do that, and that would send a signal to the rest
of the agencies that you have to respond. You have to process
this stuff. The Freedom of Information Act says 20 working
days, 20 working days, or 78 months. So the legislation being
introduced today is a great first step. It will have a
psychological impact on the bureaucracy.
What you also have to do is make sure the National Archives
has the resources to deal with that huge backlog, and to staff
up so they can take this on.
Third, they have to get ahead of the curve on the
electronic records. They have a backlog of paper stuff, and
they have tens and hundreds of millions of e-mail coming into
the system. Some of that is my fault. My organization brought
the lawsuit that saved the White House e-mail. I plead guilty,
Mr. Chairman, but I think that is important for accountability
and for history, that their e-mail gets preserved.
What else can we do about it? We can clean up the
classification system. There are some bills to stop the
agencies from stamping these sensitive but unclassified marks
all over the place, with no limits, not even counting how many
times that has happened. They have to stop that.
We have to set up a declassification center out at National
Archives to cutoff this daisy chain, so the agencies don't just
send those files around and around and around and around. Like,
what was that Charlie who gets on the MTA and will never
return? No, he never returns; his fate is still unknown. That
is what happens today.
So, Mr. Chairman, this hearing and the legislation being
introduced today is a great first step. I commend you for your
attention to this problem, because it is a crisis. History is
the worse for it. Accountability is the worst for it. Our
constitutional framework is the worse for it. I really applaud
your attention to this crisis.
Thank you.
[The prepared statement of Mr. Blanton follows:]
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Mr. Clay. Thank you so much, Mr. Blanton, for your
testimony and your enthusiasm for this subject. It is somewhat
comic relief. [Laughter.]
Let me go out of order here. I want to recognize Dr.
Dallek. I understand you are under a pretty tight schedule, so
we will come back to Mr. Nelson, but you may proceed, Doctor.
STATEMENT OF ROBERT DALLEK
Mr. Dallek. Thank you very much, Mr. Chairman, and thank
you for inviting me today.
Let me begin by just asking the question: Does it matter
that we get at these records? Is it useful to the national well
being? Access to the fullest possible records in the service of
reconstructing the most substantial and honest history of
Presidencies is not some academic exercise that should be
confined to university history departments.
Rather, it can make a significant difference in shaping the
national well being. As John Dos Passos stated it, ``In times
of change and danger, when there is a quicksand of fear under
men's reasoning, a sense of continuity with generations gone
before can stretch like a lifeline across the scary present.''
What we learn from the opening of records is so
instrumental in helping the Nation address serious questions.
The fact recently that Admiral Grayson's papers, Woodrow
Wilson's personal physician--the Grayson family released new
materials that never had been seen by historians and scholars
before. What they demonstrated was that Woodrow Wilson was a
much sicker man than we even knew. If this material had come to
hand decades ago, it seems to me that it would have been
instrumental in advancing the discussion, the debate, about
having a 25th amendment to the Constitution about Presidential
incapacity.
I found in my work on John F. Kennedy medical records, that
happily were opened to me, that President Kennedy had serious
medical issues. Now, happily, he was able to surmount these,
especially during the Cuban missile crisis. But it is the
public's right to know.
I have just finished a big book about Nixon and Kissinger,
under the heading of advertisements for myself. I had access to
20,000 pages of Henry Kissinger's telephone transcripts. This
material had been closed by Dr. Kissinger until 5 years after
his death. He was prodded into opening it by the Historical
Division of the Department of State. It is such a rich and
important body of material, as the Nixon tapes are, as the
Nixon national security files are, as Al Haig's chron files
are. They tell us so much more about what the public should
have known at the time about Vietnam, about the Indo-Pakistan
War, about Chile, about a host of foreign policy issues that
were vital to the well being of this Nation.
And 35 years later, I am grateful that we are able to get
at this material, that we can then turn it into hopefully
readable accounts of what went on in this significant
Presidential administration. But we need access, and Bush's
Executive order carries the possibility that we will lose this
access because reasons don't have to be advanced, a timetable
doesn't have to be offered. They can hold back on this material
in perpetuity.
Abraham Lincoln's papers did not come to hand until 1947.
What a loss for the country until we were able to finally get
these papers so that we could study the Lincoln Presidency to
the extent that it deserved to be studied.
Let me stop here. I think my message is clear enough.
[The prepared statement of Mr. Dallek follows:]
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Mr. Clay. Yes, sir, it is very clear. Thank you for your
testimony.
I will go back to Mr. Nelson. Please proceed.
STATEMENT OF SCOTT NELSON
Mr. Nelson. Thank you, Mr. Chairman.
I provided my testimony in writing at great, and perhaps
excessive, length. So I will also try to be brief.
First, I want to emphasize, as others have, that the PRA's
intention was to expand access and make records available at
the earliest possible time. That is language that we heard the
Archivist himself invoke. To that end, it allowed a former
President the categorical ability to restrict access to his
materials only for 12 years.
Now, the act recognized the theoretical possibility that
after that time, there might be a basis for a constitutional
claim of Executive privilege. But it requires that in the
absence of a valid constitutional claim, materials must be
released upon request once that 12 year period has passed.
Now, prior to Executive Order 13233, the Archives had
promulgated regulations and President Reagan had issued an
Executive order that implemented a former President's ability
to make a claim of constitutional Executive privilege, if he
had one, but that properly provided there would be limited
amounts of time for review and that if the Archivist determined
that the claim was unfounded, the materials would be released
as required by law.
The Executive order that President Bush issued in November
2001 turns that scheme upside down by providing that simply by
claiming Executive privilege, a former President can direct the
Archivist to withhold materials from the public, unless and
until someone from the public who has requested them is able to
go and get a court order requiring access.
It further gives the right to direct the Archivist, not
only to a former President, but to representatives appointed by
the former President's family, even after his death. It even
gives the same privilege to a former Vice President, despite
the absence of any constitutional basis for a Vice Presidential
privilege.
And finally, as Mr. Blanton has explained, perhaps as
significant as all these, it gives the former President the
unlimited ability to extend the time for his review, so that
materials can keep being withheld from the public simply by
virtue of the fact that the former President has not completed
his review and has not yet authorized access.
We filed a lawsuit challenging this order shortly after it
was released in 2001. Throughout the history of that lawsuit,
which remains pending to this day, it has been interesting that
the government of the United States in defending the Executive
order has principally tried to argue that the court shouldn't
hear the case because, in their view, no one has been injured
unless and until some former President claims privilege and
documents are withheld, notwithstanding the lengthy delays in
access that the order is already causing.
But the one thing that they have not done throughout the
history of the lawsuit is argue that any of the features that
we principally object to, namely the grant to a former
President of a veto power over releases of his material, the
grant of a similar power to representatives of former
Presidents, the grant of that same veto power to a Vice
President, or the grant of unlimited review time--none of that
have they ever argued is actually required by the Constitution.
That leads me to the conclusion that legislation
overturning those features of the order is undoubtedly
constitutional and within the power of Congress that the
Supreme Court recognized in upholding the Nixon legislation to
provide for procedures for access to the materials of a former
President.
Having had the opportunity to review the legislation
introduced today, it appears to me that it does overturn those
features of the order that I have pointed to as being the most
suspect constitutionally and legally, and that it would be
undoubtedly constitutional.
Now, the best that we have heard in defense of the order
today from the Archivist is that it has not been invoked yet;
that the former Presidents have not vetoed the release of
materials. They have only claimed privilege as to nine
documents or 60 pages of material which leads me to the
question: Why do we have these lengthy delays that have been
associated with these reviews, if the end result is that, at
the end of the day, claims of privilege are not even being
made?
Second, what assurance do we have that in the future a
future President, a former President once he leaves office,
would not take advantage of this ability to veto the release of
his materials, even if, under the pressure of litigation, it
hasn't yet been exercised over the past 5 years of the history
of this order?
If the best that can be said about this order is that it
hasn't frequently been invoked, there seems to me to be little
reason for the Congress to shrink from setting it aside.
[The prepared statement of Mr. Nelson follows:]
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Mr. Clay. Thank you for that summarized testimony, Mr.
Nelson.
Dr. Nelson, we will go to you. Are you ready?
STATEMENT OF ANNA K. NELSON
Ms. Nelson. The problem, of course, is that being No. 4, I
am going to reiterate and try not to repeat.
I am Anna K. Nelson, and I am the distinguished historian
in residence at American University. I have done research in
five Presidential libraries and the Nixon Presidential papers,
as well as the National Archives. I would like to add that I
was also a staff member of the Public Documents Commission,
which was formed after Watergate. It was a commission to study
what should happen to the records of government. The
Presidential Records Act emerged from that Public Documents
Commission the following year. I guess that means I have been
in it a long time.
Today, I would also like to represent a group that uses the
Archives and Presidential libraries more than almost any other
group, and that is the Society for Historians of American
Foreign Relations. We are big users of the Archives and
Presidential papers.
Mr. Chairman, it was no accident that Roosevelt established
both the first Presidential library and the Executive Office of
the President. The proliferation of New Deal and World War II
agencies moved the records of the President from a collection
of personal letters, such as those found in the Library of
Congress, to a unique set of government records, no longer all
seen by the President.
It took about three decades for the Congress to respond to
this increasingly dramatic change, because Presidents willingly
donated their records. It was Richard Nixon's attempt to hide
and control his records, then, that finally brought into
existence the PRA.
Now, I agree with everyone that the two most important
provisions of the act were to ensure the protection of the
records and to ensure that the records would be open to the
public in a reasonably short period of time. Equally important
to the PRA was that it removed the decision of access from the
heirs of the Presidents and gave it to the Archivist of the
United States.
In establishing a time for disclosure, Congress gave the
President 12 years before his records were available. There are
a lot of other safeguards, national security safeguards,
personnel, privacy etc. With these exemptions, Congress I think
thought that it had duly protected the former Presidents, but
obviously President Reagan and President Bush did not agree and
decided the records needed additional protection.
The revision of the original Reagan amendment to the PRA
did not come to public notice until 12 years after the Reagan
Presidency, because of course the records were still tied up.
When the Bush administration, however, took 9 months to make
their decision on the Reagan records and continued to delay
their release, why, it certainly came to our attention. Their
solution to the Reagan issues was to issue their own revision,
Executive Order 13233, which simply instituted more
restrictions and also more delays.
They gave back to the heirs of the Presidents the right to
make decisions on access. The defenders of the Bush Executive
order note that, except for an original delay, the Reagan
records are being released. The Archivist told us that this
morning, but that is entirely beside the point. Presidential
records are now vast collections. We have heard that. They have
grown exponentially with each President. There were 27 million
pieces of paper in the Reagan Library; 64 million in the
Clinton Library, of which 12 million are classified. This is a
veritable tsunami of paper, and it must be processed and opened
by understaffed libraries.
It will take far more than 25 years for all the records to
be released. In 2030, if the President is no longer alive,
should Presidential families or executors of his estate make
decisions about releasing government records, records that
illustrate public policy that are paid for by taxpayers? Should
the incumbent President in 2030 have the authority to close or
release the papers of a former President? This was clearly
expressed in a headline in the Washington Post recently:
``Clinton papers release to be Bush's decision.'' Supporters of
the Executive order argue that it is merely procedural, but it
is far more than that.
I would like to expand just a minute, foreclosing on
something that Dr. Dallek said, and that is the importance of
records. Why should we find it important? Being a country at
war with major issues, I think we need to think of Presidential
papers as raw material, like iron ore, for the specialized
books and articles of the researchers. These ideas and
conclusions, then, are refined and become subjects of very
influential books and articles that the public reads, and in
that way trickles into the public view of where we are, iron to
steel, perhaps.
Ultimately, these items enter textbooks. So it doesn't
matter how few the researchers; the books are important that
are written from these papers. You can just start to, and yes,
I could spend 5 minutes, which I won't, on listing them, but
the American Library Association has 43 books on their list
that would be actually harmed by this provision if the
provision had been in effect.
And it is not difficult, I think, to discern that through
this Executive order Bush can not only control his own papers,
but the records of his father and also the Reagan
administration.
The United States is now a global power. The records
produced by the White House have become more important to
American history than ever before. Congress passed this
Presidential Records act so the American people could learn
about their past and Congress acted very wisely. Executive
Order 13233 should not be allowed to nullify that act.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Nelson follows:]
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Mr. Clay. Thank you so much for your testimony.
Mr. Hensen, finally, you may proceed.
STATEMENT OF STEVEN L. HENSEN
Mr. Hensen. Thank you, Mr. Chairman.
Happily, I think that my remarks will echo much of what has
been said here. It is nice to know the Archivists are pretty
much in agreement with historians.
My name is Steven Hensen. I have been an Archivist and
librarian for more than 35 years. I have worked at the State
Historical Society of Wisconsin, Yale University, the Library
of Congress, the Research Libraries Group, and for the past 20
years at Duke University.
Today, I am representing the Society of American
Archivists, the world's largest organization of professional
Archivists, with more than 4,800 members throughout the United
States and more than 20 countries. I have been a member of that
society since 1971, and I served as its President in 2001 and
2002.
Those of us who labor in the Nation's archives are
entrusted with ensuring that citizens, scholars and students
have access to the records of human society and culture. We are
professionals who serve a vital role as gatekeepers to the
history of our civilization through responsible keeping of the
public record. The records we preserve make the government more
accountable and responsive to its citizens. And in democracies
like our own, at least, reasonable public access to the records
of government help to ensure that we remain a Nation of laws,
and not of men.
In keeping with our principles, including our commitment to
the integrity of records and their accessibility, and in light
of the ethical consequences stemming from them, the Society of
American Archivists has spoken out frequently when public
officials have sought to delay or deny access to the records.
It is particularly troubling, then, when the highest officer in
our government, the President, attempts to exert improper and
illegal control over access to his records.
In November 2001, the White House issued Executive Order
13233. What was immediately clear to us Archivists is that the
order does not in fact further implement the act as its title
said. Rather, it abrogates the core principles of the act and
violates both its spirit and letter. Where the Presidential
Records Act provides for the orderly and archivally sound
management of Presidential records, with the final authority
residing appropriately with the Archivist of the United States,
the President's order places ultimate responsibility for
decisions regarding access with the President and, indeed, with
any sitting President in the future, and most egregiously with
ex-Presidents and members of an ex-President's family.
The written testimony that we have submitted explains this
more fully, as testimony from the other panelists has
indicated.
Although the White House has argued that this order was
needed to address concerns about national security issues and
Executive privilege with respect to Presidential papers, this
is simply not true. The fact is that all such matters are more
than adequately addressed in the Presidential Records Act. The
professional staff of the National Archives has long experience
working with sensitive records and is well qualified to manage
these things in a thoroughly professional and independent
manner. I dare say there are members of the National Archives
staff that have higher security clearances than most of the
people in the White House.
The casual assumptions that underlie this Executive order
are profoundly contrary to fundamental archival principles and
responsibilities, and they could imperil the evidentiary values
that are at the heart of our work. More important, the accuracy
of the documentary record is at the core of good government,
and more generally, at the heart of the human search for truth.
Although Congress will certainly have a keener sense of
these things than I do, I have a hard time understanding how an
Executive order can be allowed to override statutory law. This
is especially so in a law that is fully consistent with the
requirements of both archival principle and good government,
and when the order erects unnecessary obstacles to government
accountability for the people.
We therefore respectfully urge Congress to take appropriate
action and overturn this dangerous and misguided Executive
order.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hensen follows:]
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Mr. Clay. Thank you very much for your testimony.
I also thank the entire panel for their testimony today.
Let me throw a question out to the entire panel. I would
like for each of you, if you care, to take a stab at it. It
seems to me that granting a former President a right to appoint
a representative to assert privileges over Presidential records
following his death will potentially restrict access to
numerous records for an indeterminate period of time. Would
anyone care to speak about the constitutional issues and
practical problems that this would create?
Also, let me get your reaction on the day in November 2001
when the Executive order was issued. What was your initial
reaction to it?
We will start here, Mr. Blanton, and we will just go down
the table.
Mr. Blanton. Thank you, Mr. Chairman. I will defer to my
expert legal adviser here. We are co-plaintiff in this lawsuit
on the constitutional and legal issues, because my expertise is
the practical ones, how does it actually work. I don't think
any of us has to be an expert in organizational process to
understand it.
If Julie Nixon Eisenhower's kids get to exercise this
privilege, we are in for a delay. It just doesn't make any
sense, just from a practical point of view. At some point, the
Supreme Court held that privilege erodes over time, and surely
at the time it gets to the kids, it should be gone. That is
just practical.
In November 2001, what I love the most, Mr. Chairman, and I
put those quotes in my testimony, were the predictions made
about the Executive order by the President. He said this is a
fair and reasonable set of procedures; by Ari Fleischer, in the
White House press room, who said that, oh, this is more
information that is going to come out and it is going to come
out in a more orderly process. And then before this committee
of the House, by the Acting Assistant Attorney General who said
that, oh, this is just a clear, sensible and workable procedure
for administering the act.
Well, we had a fair, reasonable, workable, sensible, clear,
orderly process producing millions of records before this
Executive order, and we have not had it since. We know enough
to know every one of those quotes was not true.
Thank you.
Mr. Clay. Thank you. Thank you for that response.
Dr. Dallek, yes?
Mr. Dallek. If I may interject, I echo Tom Blanton's
comments. As someone who has worked on a number of Presidential
administrations, what I know is that every one of them,
regardless of their party affiliation, Democrat or Republican,
they want the public to think they walk on water; that they are
without error, without sin. What I find in my research is that
there is always a public face and a private face. And that if
the heirs to that administration, if the children, if the
representatives of a Presidential administration, of a
President, have control of materials, they are going to
sanitize, weed out material that will make the President look
less than spectacular or successful. John Quincy Adams said
that the historian's principal religion is getting at the
truth, speaking the truth.
I don't want to be too self-righteous and too cynical here,
but my experience in 43 years of writing history about
Presidents and politics, and it is quite human, people want to
be seen in history as successful, as wise, as sensible, and of
course, they are always less than that, but the public is well
served by knowing what they were doing in the fullest possible
way.
Mr. Clay. Thank you for that response.
Dr. Nelson, go ahead.
Ms. Nelson. Let me add to that, if I may. I think that we
have a lot of evidence in the papers of the Presidents, the
Presidential papers that were donated to the government,
because almost all of those have provisions for the heirs to
examine. To finally talk about access in the long run when the
President is dead, we have consistently found that the
Presidential families, they vary, some more than others, but
evidence is held back.
Now, there is a difference between the fact that Margaret
Truman did not release the letters her father sent to her
mother until her mother died, that is perhaps a matter of
privacy, but it goes so much farther than that in that we have
situations where families won't even give documents to the
government, but will let them sit in Presidential libraries,
but they are not accessioned to the government. We just have
constant interference. We have that record. We know that
actually exists.
Mr. Clay. Thank you for that.
Mr. Hensen or Mr. Nelson. He will pass. OK.
Mr. Nelson. I would let Mr. Hensen go first, but I do have
some answers myself.
Mr. Clay. Go ahead, Mr. Hensen.
Mr. Hensen. Well, I just wanted to respond to your last
question as to how we felt on that fateful day. I think the
others have certainly spoken to the practical aspects of this.
My testimony reflects, I think, the sort of philosophical
underpinnings with which we approach our work. For us, the
Executive order seemed like such a breathtaking departure.
There are two sort of famous quotations that relate to our
work. The first is, you shall know the truth and the truth
shall set you free. And then the carving in front of the
National Archives, the past is prologue. We do not learn
anything from the past unless that past is reflected
accurately. Everything about this Executive order threw up red
flags in terms of maintaining the authenticity of the record.
We have been very much involved in it ever since.
Mr. Clay. Thank you.
Mr. Nelson, would you speak to the constitutional issue?
Mr. Nelson. Yes, being a lawyer and having my perceptions
and reactions skewed by that fact, I will address your
questions as a lawyer. The Presidential privilege, the Supreme
Court has emphasized, is something that belongs to the
executive branch, to the government. It does not belong to any
individual person. Its primary custodian is the President, the
incumbent President, but the Supreme Court did recognize that a
former President, due to his unique relationship to the office
that he held, can at least make a claim of Executive privilege,
not one that is being on the sitting President or the sitting
members of the executive branch, but he at least has authority
to claim it.
But what authority does a private person designated as a
representative by other private persons, namely the family of a
deceased or incapacitated former President, have to assert this
privilege that belongs to the executive branch of the U.S.
Government? None at all. What expertise or knowledge does that
individual have that would even serve as a basis for a rational
exercise of the government's privilege? None at all.
We saw this to a limited extent when President Reagan's
representative asserted privilege as to 11 documents. We don't
really know anything about who this representative is or what
her qualifications were, but the documents chosen appeared to
be purely arbitrary. They were similar in character to the
subjects of documents that had been produced. In one case, the
document had actually been previously cleared for production by
President Reagan's representatives several months earlier, and
they simply just happened to claim privilege as to a second
copy of it; and another that's subject was Nancy Reagan's use
of military aircraft.
In addition to the legal and constitutional problems, and
of course the problems that have been alluded to before of
whitewashing reputations, there is just a question of when you
assign this task to a representative who has no qualifications
for it, what is the outcome going to be? At best,
arbitrariness; at worst, the possibility for coverup and
actions taken to protect the reputations of those that the
representative has been appointed to represent.
Now, I will also respond as a lawyer to your second
question, which was how did I feel when I read the order. I
remember that very distinctly because the very first case that
I worked on in private practice was a case called Public
Citizen v. Burke where the Reagan Justice Department had issued
an order that purported to direct the Archivist to defer to any
claim of privilege made by former President Nixon. As one of
former President Nixon's lawyers at that time, we intervened to
help defend that Reagan Justice Department directive.
We lost that case. It was not only the first case I ever
worked on, but one of the rare and first cases that I lost. And
the D.C. Circuit said this is just ridiculous. You can't give a
former officeholder the power to direct the actions of
incumbent members of the executive branch. That is an
abdication of the Executive's authority to take care of the
laws we faithfully exercise. So when I read that order, it was
deja vu all over again, and my reaction was, wait a second, I
lost this case already. How could they try this again? I am
still wondering that. [Laughter.]
Mr. Clay. We will do your testimony you are preparing for
another trial. [Laughter.]
Mr. Dallek. Mr. Chairman, just a final word that when that
Executive order was issued it put me in mind that what the
German philosopher Hegel said, that the only thing we ever
learn from history is that we never learn.
Mr. Clay. That's right. Dr. Dallek, on that note, let me
ask you, can you share with us, and I heard some of it in your
testimony already, give us some examples of Presidential
records of research that would not have been possible if access
to privileged information had not been granted.
Mr. Dallek. Sure. Well, we were talking earlier about Henry
Kissinger's telephone transcripts. Mr. Chairman, I can assure
you that they are highly revealing of a variety of things, not
only about the interactions of the personalities of the
President and his, first, National Security Adviser and then
Secretary of State, but also on larger policy questions about
Vietnam, about the Middle East. It is, I find, so timely to
read these materials now because they are so revealing as to
dilemmas that we continue to confront and need to address.
Now, Dr. Kissinger wanted these materials closed until 5
years after his death, and then they were supposed to be a
committee that would vet the requests of people to gain access
to those materials. But as Tom Blanton pointed out to me, he
was part of an effort to get these materials open. I must tell
you, I am very excited about bringing out this book in less
than 2 months because I think it is so revelatory as to the
realities that went on behind the scenes.
Again, the public face and the private face, I think it
will be highly instructive to the public to see the kinds of
things, and I won't enter into the expletives deleted, but they
are there in the book. It is amazing the way these men would
speak, the things they would say about all sorts of people,
about foreign countries, about what they knew as to the limits
of what they were doing in relation, for example, to Vietnam. I
think there are such lessons to be seen from that in relation
to the current war in Iraq.
Mr. Clay. Thank you for that response.
Dr. Nelson, in your work with Presidential records in the
past, which categories of records are the most difficult to
receive? And have past Presidents, meaning those not subject to
PRA, been willing to waive privileges or ownership of records
containing confidential advice or appointments information?
Ms. Nelson. It is very spotty. The Johnson Library, the
Johnson records, for example, have always been more available
to historians than the Kennedy records. A large part depends on
the families, once the President dies. But I have to say that I
agree with Dr. Dallek in that when you do get the confidential
records, these are really records of the staff advisers.
There are really two kinds of Presidential records. Some
the President never sees, and then there are those the ones we
want, that the President does see, actually works with, and
where his advisers are very important to him. In most of my
research, unfortunately, has been on foreign policy, so I get
caught up in the security classification business, too. But
when you reach those records and you see how the White House
works from those records, I agree, you are seeing a totally
different face.
I will give you an example, back to the Eisenhower Library.
When Eisenhower was President, he told the world that he never
read newspapers. He was often thought of as a man who was not
very perceptive, you know, and kind of muddled his press
releases. He would stand in front of the press and muddle up.
When you go back and look at the documents, you will hear him
say to his press officer, ``Well, I don't want to directly
answer that, so I will muddle it.'' So he knew exactly what he
was doing. And furthermore, he and his secretary would discuss
that he read five papers every morning. But if he told the
would he hadn't read the papers, the reporters wouldn't ask him
about it.
So what you got was a totally different view of Eisenhower
as President, but he was much more in control than the public
knew at the time. That is the kind of insight you get to people
when you get into those kinds, and where you learn those in the
Eisenhower Library is from his so-called diary which was kept
by his secretary. Actually he would in the evening dictate, and
those were his personal thoughts and his ideas, and a lot of
the memos that went back and forth.
So this definitely would be a category of confidential
records that, under this Executive order, would be regarded as
something to watch out for.
Mr. Clay. That is quite insightful. Thank you.
And Mr. Hensen, are you aware of any circumstances where
the reclassification of government records has caused certain
Presidential records to be reclassified?
Mr. Hensen. Well, I mean, there has certainly been a lot of
things in the press lately about that. I confess my own
experience has been working entirely in the private manuscript
collections, and I have no personal experience in working with
government records myself, so everything I know is simply sort
of from a higher professional level and from working with my
colleagues. But the recent attempt to reclassify documents that
had been previously declassified again just struck the archival
community as a breathtaking assault on the fundamental
principles under which we try to operate.
Mr. Clay. Thank you for that.
Mr. Blanton, has the administration set aside extra
resources for lawyers or staff to undertake these new document
review requirements?
Mr. Blanton. It is a puzzle to me, Mr. Chairman. I have
this vision of the White House counsel's office and these desks
down the hallway, in the cramped east wing, just lined with
boxes from the Reagan Library, just waiting for the White House
counsel to go leap through them. Surely, there are better
things for those folks to be doing in our national interest. It
is a terrible nightmare, actually.
But there are some examples, on your previous question,
from the Presidential libraries, where the reclassification can
put stuff back in the toothpaste tube. I would be glad to have
a couple of our expert folks at the National Security Archive,
who will be glad to provide some examples to you of that kind
of experience.
Mr. Clay. We would love to see that.
Mr. Blanton. It is the message and the psychology that the
Executive order gives to the Presidential libraries that opens
the door to that kind of absurd behavior. You get the
psychology going in the wrong direction. When you put that on
top of the normal bureaucratic imperative to cover your rear,
you have problems right here in River City.
Mr. Clay. Mr. Blanton, in your testimony you cite the sharp
increase in the time it takes the Reagan Library to respond to
FOIA and mandatory declassification requests. You state that
since 2001, it has gone from an average of 18 months to 6\1/2\
years. Is the increase primarily due to the Bush Executive
order's requirement of unlimited Presidential review, or are
other factors contributing to this delay?
Mr. Blanton. I would say not primarily, Mr. Chairman, but
in real significant part, which is to say the National
Archives, and you already heard from Archivist Weinstein today,
there is an average of direct delay caused by the Executive
order of 210 days. Now, they used to say it was 90 days, and it
is just going up. That is a bad track to be on. Delay is just
increasing.
The message that Executive order sends adds to the further
delay, because it gives that delay in the agencies. It opens
room for them to delay. Then you add that all on top of the
resource problems and the incoming wave of electronic records.
What you have created is a crisis in the system.
But I want to go back to your previous question, because
you asked about on that day, how did people feel. I was struck
when I prepared for this hearing. I went back to a hearing that
this committee held on November 6, 2001. One of the statements
in that hearing was by one of your former colleagues, a
Republican Congressman from Sacramento. He said the problem
with this Executive order, this is Doug Ose, and I don't know
if that is the right pronunciation of his name, but he said the
problem with this Executive order is that I wouldn't have been
able to investigate the gifts given to President Clinton at the
end of his term. The problem with this Executive order is that
it would take one of the words out of the title of this
committee, and that word is ``oversight.''
Mr. Clay. Thank you for that response.
Mr. Nelson, can you explain how constitutional privilege
works with respect to Presidential records, and how the courts
have treated the issue up to this point? You also mentioned the
Reagan Executive order versus the Bush Executive order. The
Reagan Executive order allowed for appeals. It is my
understanding the Bush order does not. Can you try to tackle
those two issues?
Mr. Nelson. Yes. To begin with, as to the Presidential
privilege issues, it is really surprising in some sense how
little law there is on this point, but the recognition of the
Presidential Executive privilege was really first fully
articulated in the Nixon tapes case in 1974, and then in a
followup case called Nixon v. Administrator of General
Services, which concerned the constitutionality of the Nixon
Materials Act. The Supreme Court held that a former President
can assert a constitutional privilege over that small subset of
records that reflect his direct communications with his
advisers, but that privilege is not an absolute privilege. It
is a qualified privilege. It can be overcome by various public
needs. The court also said that it erodes over time, and that
after the passage of some years, most Presidents had recognized
that even those materials that reflected their confidential
communications with advisers would ultimately be made public.
So it is something that gradually loses its force as the years
pass after an administration leaves office.
Now, in litigation over Presidential privilege issues there
have been a number of cases, the Nixon tapes cases being one,
but also some cases that came out of various investigations of
the Clinton administration, that concerned access to materials
of a sitting President. In those cases, the privilege is
stronger than that of a former President, as a requirement in
those cases of a specifically demonstrated need for access to
overcome the privilege, such as the need for grand jury
materials.
It is my view, though, that what the Supreme Court's
opinions on the subject reflect is that with the passage of
time after the departure of an administration, a more
generalized public interest in access to materials of
historical significant should be sufficient to overcome a claim
of privilege.
So that if a former President claims privilege, it is a
fundamental inversion of that principle of the privilege
eroding over time to say, as this Executive order does, that
the Archivist must automatically defer to that claim of
privilege. Instead, what I think should happen is that there
should be a determination made of whether there is something
extraordinarily sensitive or significant about this particular
record that would overturn the usual presumption that should
apply under the Presidential Records Act that once a 12 year
period specified by Congress has elapsed, the material really
should no longer be subject to protection.
Now, as to the, and I am sorry, I got so caught up in my
answer to the first part of the question----
Mr. Clay. I was just curious as to how the Reagan Executive
order compared with the Bush one, and was the Reagan Executive
order the start of the erosion to the access, or did it go that
far?
Mr. Nelson. I think that the Reagan Executive order is much
more balanced than the Bush Executive order because it does not
grant the former President the ability, merely by making an
assertion of privilege, to direct the Archivist to withhold
materials. What it provides instead is that the former
President has a period of time for review, a limited period.
The former President could make a claim, and then the Archivist
in effect, with guidance from the incumbent President, which I
think in the area of Presidential privilege would have to be
expected, basically would sit in judgment on that claim. If
they determined that the claim was not valid, was not an
appropriate claim of privilege, the material would be slated
for release, and it would be up to the former President if he
wanted to say, ``No, I have a constitutional claim that this
material must not be released.'' He has to go to court and back
that up.
I think that is much more consistent with the design of the
PRA. The draft legislation that is introduced today I think
would return to that model, which seems to me to be a much more
appropriate way of balancing the theoretical existence of a
constitutional claim of privilege by a former President, with
the PRA's mandate of access to materials as to which there is
no valid claim of constitutional privilege.
Mr. Clay. Thank you for that response.
Before we adjourn, I will allow any witness on this panel
to make concluding remarks in regard to the PRA.
Dr. Dallek.
Mr. Dallek. Can I be excused? I have an appointment I must
meet.
Mr. Clay. You certainly may. We were just about to adjourn.
You may be excused. Thank you for your attendance today.
Mr. Dallek. Thank you.
Mr. Clay. Mr. Hensen.
Mr. Hensen. Mr. Chairman, I would just like to, since it
has not come up, to give my recollection, in the course of
these hearings. I just wanted to point out that the whole issue
of the Executive order is particularly interesting right now in
connection with the debates going on at Southern Methodist
University and the proposed Bush Library there. As a member of
the staff of Duke University, where there was debate took place
30 or 40 years with respect to President Nixon's papers, it is
particularly interesting.
But I think with respect to the Executive order, we have to
ask ourselves whether a Presidential library existing under
this order at SMU or wherever it ends up, is the issue of what
a library should be. That although there might be papers in
such a library, if they are embargoed indefinitely by Mrs. Bush
or Jenna or any other members of the family, what are those
papers but mockeries of accountability? I just wanted to make
that point.
Mr. Clay. Thank you very much for that.
Dr. Hensen, any concluding remarks?
Ms. Nelson. And actually it often is not even family. There
are one or two libraries, they have executives who are friends,
who worked with the Presidents. You never know who is going to
be there to make that judgment over time.
Mr. Clay. For lack of knowledge, has George Bush, Sr.,
established a Presidential library yet?
Ms. Nelson. Oh, yes. It is at Texas A&M. We will now have
three Presidential libraries in Texas, when George W's library
is there.
Mr. Hensen. And interestingly, President Bush tried to
place the records of himself as Governor of Texas in the
Presidential library, totally contrary to Texas State records
law.
Mr. Clay. Thank you for that.
Mr. Nelson, any concluding remarks?
Mr. Nelson. I think I have said plenty, but I would like to
thank you, Mr. Chairman and the committee, for hearing us out
today. I think this is a very important issue. It is one that
all of us at this table have been working on for many years,
and we are very encouraged to see this subcommittee taking it
up.
Mr. Clay. Thank you for that.
Mr. Blanton.
Mr. Blanton. Mr. Chairman, I would just echo those remarks.
This law, the Presidential Records Act, is a real flagship of
American democracy. It fulfills one of the aspirations we, as
Americans, have tried to rise up to over 200 years. To see it
in the broken down state that it is in is a sad commentary. To
turn President Kennedy's admonition on its head, he said
something like, after the Bay of Pigs disaster, he said, ``You
know, victory has 100 parents, but defeat is an orphan.''
Well, there are a lot of people that sort of would want to
say we are at fault for this crisis in this defeat of the
Presidential Records Act, but I think this subcommittee is
taking a big step forward, a small step for the subcommittee,
giantly for the Presidential Records Act.
Thank you.
Mr. Clay. Thank you for that.
I thank the entire panel for their testimony today. It is
apparent that it is a testament from the witnesses on this
panel and the previous panel that the Presidential Records Act
is needed more than ever at this time. You will see action on
that piece of legislation.
Thank you all, and this committee is adjourned.
[Whereupon, at 5:05 p.m. the subcommittee was adjourned.]
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