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President who Eviscerated Presidential Records Act Relying on His Presidential Library to Boost Legacy.

April 25, 2013
Presidents Carter, H.W. Bush, Clinton, W. Bush, and Obama at the George H.W. Bush Presidential Library today.

Presidents Carter, H.W. Bush, Clinton, W. Bush, and Obama at the George H.W. Bush Presidential Library today.

George W. Bush views today’s opening of his Presidential Library at Southern Methodist University as, “a way for the public to get all the facts so that they can make an educated decision about how they regard him and what he did in office.”

Really?  That’s the same George W. Bush that signed Executive Order 13,233 that gave former Presidents and their heirs (as well as former Vice Presidents for the first time) indefinite authority to hold up release of White House records?  My, have the times changed.

Fortunately, for those who believe in access to historical records, President Obama revoked this damaging executive order on his first full day in office.  (Just one of a slew of pro-transparency measures he has not gotten proper credit for.)

Executive Order 13,233 was signed by President Bush on November 1, 2001, so that his White House Counsel –not the National Archives– could review 68,000 pages of records from the Reagan Presidential Library, and decide if the public had the right to read them.  These documents included a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, “Talking Points on Iran/Contra Affairs”; a series of memos dated 22 November and 1 December 1988 for the President entitled, “Pardon for Oliver North, John Poindexter, and Joseph Fernandez”; and a two-page memo for the President from the Attorney General, “Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987.”

At the time, Bush’s decision to make his administration a Presidential Records censor was met with widespread opposition and dismay for his decision to “effectively rewrite[] the Presidential Records Act in its inverse image; converting the Act from a measure guaranteeing public access to one that blocks such access.”

The National Security Archive and other public interest groups filed a lawsuit to revoke the Executive Order, which was partially won.  A judge found that the Bush administration had acted “arbitrarily, capriciously, and contrary to law by relying on the Executive Order to delay release of the records of former presidents,” but failed to answer whether former presidents, former vice presidents, and their heirs can can stop the disclosure of presidential records.

The issue was not fully resolved until January 21, 2009, when President Obama revoked the Executive Order –igniting a hope (as yet not completely fulfilled) that his administration would truly be transformatively transparent.

But even after Obama instilled a basis of historical fairness to the release of presidential records, the Presidential Library System remains a mess.  The Presidential Records Act does not allow requesters to even begin requesting documents until five years after president has left office.  After that, a president can invoke as many as six specific restrictions to public access for up to twelve years.  Then, regular FOIA and national security exemptions still apply.  (Documents from the Eisenhower Library –and probably earlier– remain classified.)

More troubling, is that for the most important historical  documents there is no plan or system for a well-organized, planned release.  Rather, documents are simply deemed “closed” until a requester submits a FOIA request for a particular folder or series of folders.  Then, the folders are reviewed, and any document with classified material is automatically and blanketly denied (no line by line review).  If the requester is savvy enough, he can request a declassification review, but that is another painful process.  In some instances, declassification reviews need to be signed off by as many as 14 different government agencies.  This is exactly what is happening to an important document that the National Security Archive requested from the George H. W. Bush Presidential Library in 2004, and has not yet received.

(Of course, high level officials like Douglas Feith and Donald Rumsfeld get to cut the line and get their documents declassified so they can include them in their memoirs –and get their hefty advances.)

If President Bush truly cares about allowing the public to see the documents of his presidential legacy, he should put down his paintbrush and start advocating for reform of the US Presidential Library and declassification systems.

Or maybe Bush is playing the long game.  He told Barbara Walters, “history will ultimately decide that [my legacy], and I won’t be around to see it.”  Unless the system is reformed, he might be right.

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