Executive Order Lets Sitting or Former President Block Release

By: Mike Allen and George Lardner Jr.

President Bush signed an executive order last night (11/1) allowing either the White House or former presidents to veto the release of their presidential papers, drawing criticism from former president Bill Clinton and several historians.

The order reinterprets the Presidential Records Act of 1978, which put the papers of future presidents in the public domain after a court fight over Richard M. Nixon's papers. The act envisioned the release of most sensitive records 12 years after a president had left office.

Administration officials said Bush's order was prompted in part by a request for 68,000 pages of records of Ronald Reagan, the first former president whose records are subject to the act.

Under the order, either the incumbent president or the former president - and, in some cases, the family of a deceased president - could withhold documents requested by scholars, journalists or others. It also provides that if a former president says the records are privileged, they will remain secret even if the sitting president disagrees. If the sitting president says they are privileged, they will remain secret even if the former president disagrees.

White House counsel Alberto R. Gonzales said any decision to withhold documents could be challenged in court, adding that the administration would lose if a decision did not have solid constitutional grounding. He acknowledged that the process could take years.

The order also covers the records of former vice presidents. Gonzales said the White House did not create any new privileges or obstacles but "simply implemented an orderly process to deal with this information".

"There's a recognition of the importance, for historical reasons, of releasing as much information as we can, being mindful of the fact that there may be reasons that it's inappropriate or harmful to this country not to release certain informan", Gonzales said. "I think we would err on trying to release as much information as we possibly can."

Gonzales, briefing reporters in a conference room that once was Nixon's hideaway office, said the administration plans to "give a lot of deference to the former president". But he said the incumbent president "will be in a better position to decide whether or not the release of documents of a former president do, in fact, jeopardize, say, the national security of this country".

Critics, who see the order as the latest in a series of efforts by the Bush administration to restrict information, said national security is already protected by the 1978 act and by other laws and regulations.

The order, citing a 1974 Supreme Court ruling, also requires members of the public seeking particular documents to show "at least a 'demonstrated, specific need'" for the records. The Presidential Records Act, enacted four years after the ruling, does not require any showing of need.

"This is a real monster", said Vanderbilt University historian Hugh Graham.

A Clinton aide said a representative of the president objected to the decision in a recent letter to the White House, arguing that sufficient protections are already on the books. "A government's legitimacy is based on the trust of its people, and 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", the aide said. The letter was written by Bruce Lindsey, Clinton's deputy White House counsel and now a lawyer for the William J. Clinton Foundation.

However, Gonzales said a major reason for the new executive order, which rescinds one signed by Reagan, is that the previous one "gives no deference whatsoever to the opinions of a former president".

Historians said vast troves of documents offering insight into presidential decision-making could be lost. The act applies to the papers of Clinton, Reagan and Bush's father, George H.W. Bush.

Many officials of the Reagan and first Bush administrations are back in the White House, and critics contend that the executive order may be motivated by a desire to protect them. A House Government Reform subcommittee headed by Rep. Stephen Horn (R-CA) will hold a hearing on the dispute on Tuesday.

Anna K. Nelson, a historian at American University who specializes in the declassification of government records, said 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," she said. "It's going to cause a lot of political problems because different parties take over the White House from time to time."

Thomas S. Blanton, executive director of the National Security Archive, a private research institute specializing in U.S. documents obtained through the Freedom of Information Act, asserted that the new executive order would have prevented the release of Nixon's tapes because courts tend to "bend over backwards to defer to the government's claims, unless on their face those claims are absurd".

"The Presidential Records Act was designed to shift power over presidential records from presidents personally to the government and ultimately to the citizens", Blanton said. "This shifts the power back."

Gonzales said lawsuits to gain access over presidential objections would be handled by the U.S. District Court for the District of Columbia. "The requester will have to show compelling circumstance or need to override that privilege", Gonzales said.

The order was toned down somewhat from a draft that was reported yesterday by The Washington Post. At one point, the Oct. 29 draft said the archivist "must withhold records" covered by certain exemptions to the Freedom of Information Act. The final order says such records should be withheld "as appropriate".