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(FWD) NCC WASHINGTON UPDATE, Vol. 7, #46, November 9, 2001



> NCC WASHINGTON UPDATE, Vol. 7, #46, November 9, 2001
> by Bruce Craig <rbcraig@nccph.org
> National Coordinating Committee for the Promotion of History (NCCPH)
> *****************
> 1.   Bush Signs Presidential Records Act Executive Order: Legal Suits Sure
> to Follow
> 2.   Reagan Papers/ New Executive Order - Topics of Congressional Hearing
> 3.   More Executive Order Revisions in the Works: Executive Order12958
> 4.   Legislative Branch Appropriations
> 5.   News Bits and Bytes: Florida Election Memorabilia on Auction Block;
> Appeals Court Rejects Suite Over WWII Memorial
>
> 1.    BUSH SIGNS PRESIDENTIAL RECORDS ACT EXECUTIVE ORDER: LEGAL SUITS SURE
> TO FOLLOW
> On November 1, 2001 President Bush issued Executive Order 13233 entitled,
> "Further Implementation of the Presidential Records Act." The order
> replaces President Reagan's Executive Order 12667 (issued January 18, 1989)
> and reinterprets the Presidential Records Act of 1978 (PRA).  The new
> Executive Order (E.O.) is posted at:
> http://www.fas.org/sgp/news/2001/11/eo-pra.html
>
> The order, which closely resembles the draft version secured by the NCC
> last week (see NCC WASHINGTON UPDATE, Vol. 7, #45, November 1, 2001),
> allows a sitting president to keep secret the papers of a previous
> president, even if that previous president desires to have his papers made
> public. In essence, the order  provides for the release of certain types of
> presidential papers only when the former and sitting president both agree
> to release the papers. The order reverses the very premise of public access
> built into PRA which provides for the systematic release of presidential
> records after 12 years or by way of a Freedom of Information (FOIA)
> request; the new E.O. requires that the materials can be released only when
> a FOIA request shows a "demonstrable, specific need."
>
> Administration officials stated that the new E.O. was merely designed to
> provide an "orderly process" for the release of presidential papers. During
> a testy press briefing on November 1, White House spokesperson Ari
> Fleischer stated that the order was designed to provide a "safety valve"
> for a current Administration because a former president, out of office for
> 12 years, may not recognize the national security implications of releasing
> certain documents (For the exchange,
> see  http://www.fas.org/sgp/news/2001/11/wh110101.html).  During a brief
> question and answer session in the Rose Garden the next day, President Bush
> stated his belief that, "It's a process that I think will enable historians
> to do their jobs" and at the same time help protect state secrets (For
> Bush's comments, see: http://www.fas.org/sgp/news/2001/11/wh110201.html).
>
> Historians familiar with the provisions of the Presidential Records Act
> disagreed and lashed out at the Administration.  Vanderbilt University
> historian Hugh Graham said the claims of the White House spokespersons "are
> absurd" because national security records are already protected from
> release.  Graham characterized the order as "draconian...merely the latest
> effort by the Bush White House to clamp down on the flow of information to
> the public...clearly it will make it harder for the public to gain access
> to historically valuable presidential materials."  American University
> historian Anna Nelson said that President Bush appears to be trying to set
> a precedent that would give him full control over his own papers 12 years
> after he leaves office. "This order sets up a minefield in front of what
> was a straightforward piece of legislation" said Nelson.
>
> Not only were historians upset over the order, but similar concerns were
> voiced by an aide to former President Bill Clinton who reportedly opposed
> the language of the order.  A letter written to the Bush White House by
> Bruce Lindsey, Clinton's deputy White House counsel and now a lawyer for
> the William J. Clinton Foundation, stated, "a government's legitimacy is
> based on trust of its people...when decisions are made on behalf of the
> American people, citizens eventually have to be able to see the process of
> how those decisions came to be."
>
> Shortly after the E.O. was issued, a Congressional inquiry into the
> Executive Order and related issues (principally focusing on the delays in
> the release of the Reagan presidential papers by the White House) was
> announced by Representative Stephen Horn (R-CA), Chair of the Subcommittee
> on Government Efficiency, Financial Management and Intergovernmental
> Relations of the House Committee on Government Reform (see related story
> below). The new order is also likely to be challenged in court.
>
> The NCC has scheduled a strategy meeting of representatives of concerned
> organizations on Friday, November 9, 2001 to explore the possibility of a
> legal challenge and to discuss a legislative strategy to bring about needed
> revisions to the Presidential Records Act.
>
> 2.  REAGAN PAPERS/ EXECUTIVE ORDER IS TOPIC OF CONGRESSIONAL HEARING
> On November 6, 2001 the House Committee on Government Reform, Subcommittee
> on Government Efficiency, Financial Management and Intergovernmental
> Relations conducted a hearing on the Presidential Records Act
> (PRA).  Scheduled several weeks ago, the hearing was postponed several
> times due to anthrax threats on Capitol Hill.  Originally, Congressional
> interest focused on the White House's delay in releasing some 68,000 pages
> of presidential papers from the Reagan Presidential Library, but with the
> issuance of Executive Order 13223 on November 1 by President Bush (see
> related story above), Representative Stephen Horn (R-CA) quickly
> rescheduled the hearing and announced that his subcommittee would examine
> the totality of the Presidential Records Act of 1978.
>
> The witness list included: John W. Carlin, Archivist of the United States;
> M. Edward Whelan III of the Department of Justice; Attorney Scott L.
> Nelson, Attorney for the Public Citizen Litigation Group; and several
> university-based expert witnesses: Mark J. Rozell of Catholic University,
> Peter M. Shane of the University of Pittsburgh and Carnegie Mellon
> University, and Anna Nelson of the American University.  Professor Nelson
> delivered testimony on behalf of the American Historical Association, the
> Organization of American Historians, and the Society of American
> Archivists. The testimony of the various witness may be found at:
> http://www.fas.org/sgp/congress/2001/index.html#pra.  In addition, the
> Society of American Archivists issued its response to the order by sending
> a letter to Rep. Horn expressing "grave concern" with the E.O.; see
> http://www.archivists.org/news/stephenhorn.html.
>
> No Democrats attended the two-hour hearing, though the ranking minority
> member, Rep. Henry Waxman (D-CA) and committee member Janice Schakowsky
> (D-ILL) issued a joint statement calling for Bush to rescind the order (For
> their November 6 letter to President Bush, see:
> http://www.fas.org/sgp/news/2001/11/pra_let.html).  Two Congressman
> representing the Republican majority did attend, including Chairman
> Horn.  Horn fell short of calling for the order to be rescinded, but urged
> the Bush Administration to "revisit" it in order to remove the hurdles to
> public access that it creates. A fellow California Republican, Rep. Doug
> Ose (R-CA), who has his own interest in seeing Clinton presidential
> documents released, pressed Administration witnesses hard for answers to
> specific issues and concerns during questioning.
>
> Representing the White House was Acting Assistant Attorney General M.
> Edward Whelan III.  Whelan stated the Administration's position -  that the
> order simply sets up a "procedure" whereby presidents can invoke
> "constitutionally-based privileges" to withhold documents that otherwise
> might be disclosed after a 12-year waiting period.  Rep. Ose grilled Whelan
> and asserted that the new order, "appears to violate not only the spirit
> but also the letter of the Presidential Records Act... it undercuts the
> public's right to be fully informed about how its government operated in
> the past."
>
> Ose demonstrated that the order imposes new requirements not envisioned in
> the PRA including the inclusion of two new broad categories of documents
> that can be withheld: "communications" between the president and his
> advisors, and records containing "legal advice or legal work." Ose noted
> that the 1978 law only protects "confidential communications" between the
> president and his advisors and makes no mention of the attorney-client
> privilege. The Congressman was particularly galled that the Bush order
> drops the word "confidential" from "confidential communications"- he argued
> that this policy change (along with several others discussed during the
> hearing) amounted to an illegal expansion of authority. Whelan replied,
> "There is no expansion. Therefore, there is no policy basis for an expansion."
>
> Legal scholars who testified pointed out that the order steps beyond the
> current law as well as legal precedent by asserting executive privilege for
> vice-presidential records, which, one witness argued has no basis in law.
> With the exception of Whelan, all the panelists expressed concern that the
> order tries to rewrite the PRA by requiring individuals to show a
> "demonstrated, specific need" through a FOIA request rather than rely on
> the process provided in the PRA that mandates systematic release of records
> through an established archival procedure.
>
> Archivist of the United States John W. Carlin testified that the order
> would apply retroactively to all presidential record requests waiting to be
> processed, including the 68,000 documents from the Reagan presidency (the
> Reagan papers are the first to be covered by the 1978 PRA; their release
> has been delayed three times).
>
> During questioning, historian Anna Nelson said that undoubtedly the new
> order "will hamper the ability of the public to gain timely access to
> records."  When asked about the Reagan records, she stated that it is not
> unusual for past presidents and their staffs "to worry about the content of
> papers they no longer remember" but one should note that "secrecy breeds
> conspiracy theories." Consequently, she urged that the Reagan papers be
> opened as quickly as possible.
>
> It was clear by the time the hearing ended that in addition to legal
> challenges that are being contemplated by several national organizations
> with interests in seeing historical records opened consistent with the
> provisions of the PRA, Rep. Horn intends to continue a dialog with
> Administration officials in an effort to remove hurdles to public
> access.  Staff informed the NCC that the Congressman would not hesitate to
> consider legislation to supplant the controversial decree if
> necessary.  The NCC and other organizations have agreed to work with Horn
> and his staff in seeking some reasonable solution.
>
> In the mean time, reactions to the Bush decree in the press continue to be
> uniformly critical. A November 6 editorial in the Los Angeles Times states,
> "This decree is not about protecting troops or homeland security...rather,
> the administration's sweeping refusal to release any documents from the
> Reagan era suggests a secrecy fetish."
> (see
> http://www.latimes.com/news/opinion/commentary/la-000088720nov06.story).
> Other critical editorials are in the works by several other newspapers
> including the Washington Post and San Francisco Chronicle.
>
> 3. MORE EXECUTIVE ORDER REVISIONS IN THE WORKS: Executive Order 2958
> According to Secrecy News, a newsletter of the Federation of American
> Scientists (FAS) Project on Government Secrecy, the Bush Administration has
> created an interagency group to prepare changes to the Clinton
> Administration's 1995 Executive Order 12958 which governs national security
> classification and declassification policy. Clinton's order provides that
> most classified records be automatically declassified when they become 25
> years old.
>
> The text of the FAS news item first appeared in the Department of Energy
> newsletter "Communique." According to that report, a drafting subcommittee
> held its first meeting on August 9. "There is a general recognition that
> there need to be some changes made," said Laura L.S. Kimberly, associate
> director for policy at the Information Security Oversight Office and Chair
> of the new E.O. drafting subcommittee.  Kimberly noted that the
> subcommittee was in the very beginning stages of the anticipated rewrite.
> She also indicated that there would be an opportunity for  public comment
> on any substantial changes that are ultimately proposed. Others
> knowledgeable about the subcommittee's first meeting reported, "There's
> fewer changes than you might have thought...it's more of a refinement."
>
> 4.  LEGISLATIVE BRANCH APPROPRIATIONS
> On November 1, by a vote of 374 to 52, the House of Representatives
> approved the conference report (H. Rept. 107-259) that reconciles
> differences between the House and Senate for the Legislative Branch
> Appropriation bill (H.R. 2647).  This legislation provides funding levels
> for both houses of Congress, the Architect of the Capitol, the Government
> Printing Office, the General Accounting Office, and of most interest to
> historians and archivists, the Library of Congress.  The Senate has yet to
> act on the measure.
>
> In general, the conference report reflects the higher appropriation figures
> urged by the House instead of the somewhat lower Senate figures.  The
> Government Printing Office, for example, is slotted to receive $29,639,000
> instead of the figure suggested by the Senate of $28,728,000.  As passed by
> the House, the Library of Congress is slotted to receive $452 million, with
> Congressional Research Service being funded at $81 million.
>
> 5.  NEWS BITS AND BYTES
> Item #1 - Florida Election Memorabilia on Auction Block: Reuters News
> Service reports that some 5, 000 votomatic machines, ballot boxes, sample
> ballots, and official butterfly ballots will be auctioned off as "pieces of
> history" on the online auction network, EBay. According to West Palm Beach,
> Florida, County Administrator Bob Weisman, "We believe that historians,
> curators and collectors of political memorabilia will want to own the
> devise and the ballot that played a significant role in our history."
> Bidding will open at $600.
>
> Item #2 - Appeals Court Rejects Suit Over WWII Memorial: On November 6, a
> federal appeals court refused to halt construction of the proposed World
> War II Memorial on the National Mall, thereby decreeing that Congress acted
> legally when it passed a law (P.L. 107-11) last spring shielding the
> project from judicial review.  Construction of the controversial memorial
> is underway and is scheduled to be completed in about 28 months. Opponents
> of the monument who filed suit stated, "Its just so disappointing...We
> tried to stop this before a huge mistake is made."
>
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