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(FWD) NCC WASHINGTON UPDATE, Vol. 8, #6, February 14, 2002



NCC WASHINGTON UPDATE, Vol. 8, #6, February 14, 2002
by Bruce Craig <rbcraig@nccph.org
National Coordinating Committee for the Promotion of History (NCCPH)
*****************

1.   Petitions Filed in Presidential Records Case; More Reagan Papers
Authorized for Release
2.   Kissinger Telephone Summaries to be Released
3.   Smithsonian Fires 45 Employees in Budget Cutting Move
4 .  News Bits and Bytes: NPS/Other Interior Agencies Back On-line; New
Research Identification Requirements at NARA
5.   Articles of Interest: "The Enronification of a Museum Near You" (The
Wall Street Journal); John W. Carlin's "State of the Archives Address"


1.   PETITIONS FILED IN PRESIDENTIAL RECORDS ACCESS CASE; MORE REAGAN
PAPERS AUTHORIZED FOR RELEASE
On February 8, 2002 Public Citizen (a Washington, D.C. based nonprofit
consumer advocacy organization) filed a brief - a "Motion for Summary
Judgement" - stating that President Bush's recent Executive Order 13233
"Further Implementation of the Presidential Records Act," violates the law
and should not be implemented. The petition requested that a federal court
order the National Archives to allow public access to presidential records
and disregard President Bush's executive order restricting access because
it plainly violates federal law. The same day, Justice Department lawyers
filed the government's "Motion to Dismiss" petition to the court and
authorized the release of thousands more of President Reagan's restricted
papers.

Both motions were filed in the United States District Court for the
District of Columbia as part of a lawsuit initiated in November 2001 on
behalf of the American Historical Association, the Organization of American
Historians, the National Security Archive, the Reporters Committee for
Freedom of the Press, and historians Hugh Graham and Stanley Kutler who
collectively are seeking to overturn the executive order (see "Lawsuit
Challenges Bush Presidential Records Executive Order," NCC WASHINGTON
UPDATE, Vol. 7, #48, November 29, 2001). According to Scott Nelson, the
Public Citizen attorney who filed the lawsuit, "The Administration has
stubbornly refused to recognize that the order violates not only the
Presidential Records Act, but also clear judicial precedents.  The
Archivist is obligated to follow the law, not this unauthorized and
unlawful executive order."

Public Citizen's motion explains that because Bush's order violates the
1978 Presidential Records Act and has no constitutional basis, the court
should declare that the Archivist of the United States and his agency, the
National Archives and Records Administration (NARA), should not implement
the order. The motion also seeks a permanent injunction against the
implementation of the order and requiring the prompt release of the Reagan
and Bush presidential and vice-presidential records.

The Presidential Records Act, which was passed in the wake of controversy
over control of President Nixon's records, makes records of presidents and
vice-presidents public property and broadly opens them to the public,
making exceptions for classified materials that could damage national
security if released.  Bush's recent executive order jeopardizes public
access by providing that whenever a former president asserts a claim of
executive privilege, the Archivist of the United States may not open the
records, even if the claim is legally invalid. The court filing argues that
because there are no disputed material facts as to the illegality of the
order, the Archivist should not be implementing it at all.

The order has also blocked release of certain vice-presidential records of
George H.W. Bush currently stored at the Bush Presidential Library.  The
Bush order creates a new vice-presidential privilege that the Archivist is
required to honor. The Public Citizen petition argues that this
vice-presidential power has no basis in constitutional law or practice, and
that if allowed to stand, George H. W. Bush will be the first to receive
this new privilege. The order also unlawfully permits representatives of
the families of former presidents to assert executive privilege long after
the former president dies or becomes disabled.

The government's motion argues that the Public Citizen's "action should be
dismissed."  The government brief authored by Department of Justice
attorneys states, "whether viewed as a problem of standing, ripeness, or
mootness (or some combination of the three), Plaintiffs' claims are not
justiciable.  Most importantly, the only 'injury' Plaintiffs allege is
neither traceable to the Bush Order provisions they challenge, nor
redressable against the Defendants."

Another aspect of the Public Citizen filing relates specifically to some
68,000 pages of Reagan Administration "P-5 exemption papers" that reflect
"confidential advise" given to or made between policy advisors to the
president. Over a year ago, the 12-year restriction period for 68,000 pages
of these P-5 exemption documents from the Reagan Administration expired. On
November 29, 2001 representatives of President Reagan informed NARA that
Reagan had no objection to the release of any of the 68,000 pages. But the
current Bush Administration delayed their release, then promulgated the
executive order, which has further delayed the release of the documents and
may permanently bar access to some of them. Up until the February 8 filing
of motions, only 8,000 pages of the documents had been released to the
public (see "Partial Release of Reagan Presidential Records Announced," NCC
WASHINGTON UPDATE, Vol. 8, #1, January 11, 2002).

In anticipation of filing their motion, government lawyers apparently
rushed to review the remaining 59,000 papers associated with the Reagan
presidency that the Public Citizen suit seeks to see released. Now, with
the filing of the government's motion, all the remaining papers being held
back except approximately 1,000 pages were authorized for release.
According to the government brief, "As of this date [February 8, 2002]
President Bush has authorized the release of approximately 67,000 of the
68,000 pages.  The remaining approximately 1,000 pages are under active
review, and we will promptly advise the Court when that review is completed."

None of the 59,000 papers most recently reviewed by government lawyers and
authorized for release, however, have yet been opened to the public by the
National Archives.  According to press spokesperson Susan Cooper, NARA is
waiting for the Department of Justice to complete its review of the
remaining 1,000 pages before opening all of the papers "authorized" for
release to the public at the Reagan Library.

According to Bush's executive order, "absent compelling circumstances, the
incumbent President will concur in the privilege decision of the former
President in response to a request for access under section 2204(c)(1)"
thus raising the question of what is contained in the 1,000 pages being
more thoroughly scrutinized by the Bush White House that is so "compelling"
that justifies withholding them from immediate release?

The government's motion is not yet posted on any web site. A copy of the
Public Citizen filing is posted at:
http://www.citizen.org/litigation/briefs/FOIAGovtSec/articles.cfm?ID=7116.

2.   KISSINGER TELEPHONE SUMMARIES TO BE RELEASED
The National Archives has received copies of more than 20,000 pages of
records detailing telephone conversations of Henry Kissinger from 1969-1973
when he was President Nixon's top foreign policy advisor.  Kissinger
routinely had secretaries tape phone calls and then type summaries
detailing the conversations.  It will be about a year before the documents
will be opened to the public.

The records were obtained in response to a request by National Archives
lawyers and continuing pressure from attorneys affiliated with the George
Washington University based National Security Archive.

Last year, Kissinger agreed to release 10,000 pages of telephone summaries
from 1973-1977 when he was Secretary of State. These records are still
under review and have not yet been made available to the public. Kissinger
has long considered the transcripts to be personal property and has
routinely refused to let National Archives representatives inspect them to
determine if they are government records. Kissinger, who has deeded the
records to the Library of Congress but has placed restrictions on their
access until five years after his death, justified the release by stating
that much of the information could be found in other documents already open
to the public.

3.  SMITHSONIAN FIRES 45 EMPLOYEES IN BUDGET CUTTING MOVE
Faced with declining revenues as a result of a dramatic drop in visitation
attributed to the September 11 terrorist attacks on New York and Washington
D.C., on February 13, the Smithsonian Institution fired some 45 employees
in a budget cutting move designed to help arrest a projected $9 million
revenue shortfall. This was the second dismissal of employees in six
months.  Since September 11, some 1% of the Smithsonian's total workforce
has been dismissed. All of the employees fired in the latest cost-cutting
move worked in various administrative support areas as accountants, visitor
information specialists, and public information officers.

According to Smithsonian spokeswoman, Linda St. Thomas, "It was with great
sadness that we eliminated any positions. But with so much of our budget
tied up in salaries we had no alternative but to cut jobs."  Originally,
the projected shortfall was estimated to be in the $5 million range, but
figures were revised upward yesterday to $9 million. In addition to the
firings, over 70 current vacancies Institution-wide will not be
filled.  The total cost-saving move will save an estimated $8.6 million -
the balance of the needed cuts will come in other budget lines such as
travel and supplies.

The Smithsonian receives about 70% of its budget from the federal
government. Private funds donated to the various museums are usually
earmarked  for specific exhibitions, targeted capitol improvements, or
education programs. Like so many museums across the country, Smithsonian
fund-raising officials have had little success in finding donors to cover
costs associated with routine operations.

4.  NEWS BITS AND BYTES:
Item #1 - NPS/Other Interior Agencies Back On-Line: The computer shutdown
that played havoc at the Department of the Interior for historians,
archivists, and other employees during the last two months is over - at
least for some Interior officials and agencies.  On February 13, a
departmental spokesmen stated that the lack of e-mail service that has kept
thousands of department employees in the dark since December 5, 2001 has
been restored.  Web and e-mail service is expected to be back on line today
for the National Park Service.  The Bureau of Land Management, Fish and
Wildlife Service, and the department's general web site will remain offline
indefinitely.

Item #2 - New Research Identification Requirements at NARA:  The National
Archives and Records Administration (NARA) has recently issued a
clarification of its existing requirements for people who want to use
original records in their research rooms.  Prospective researchers now must
present picture identification (e.g., a driver's license or school
identification card) when they apply for a researcher identification card
at any NARA location.  The research card is required for anyone who wishes
to use original archival materials.  Individuals who have recently moved
and whose identification is no longer current must present proof of the new
address from an official source, such as a voter registration card, motor
vehicle registration, phone or utility bill, or bank statement. NARA hopes
that archive users will understand the need to enhance security by
clarifying these requirements.

ARTICLES OF INTEREST
For Archivist of the United States, John W. Carlin's "State of the
Archives" address delivered on December 5, 2001 tap into:
http://www.nara.gov/nara/vision/stateofarchives2001.html

Following up on last week's story announcing the cancellation of the
Reynolds gift to the Smithsonian Institution (see "Reynolds Foundation
Withdraws Support for Smithsonian Exhibit" NCC WASHINGTON UPDATE, Vol. 8,
#5, February 7, 2002), editorial responses in the nation's press were
nearly uniformly favorable to the withdrawal of the $38 million donation. A
particularly insightful editorial appeared in the February 8, 2002 issue of
"The Wall Street Journal."  For "The Enronification of a Museum Near You"
by Eric Gibson tap into:
http://www.opinionjournal.com/forms/printThis.html?id=95001836
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *  * * * * * *
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