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34–911 PDF 2007

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

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

——— ———

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

CAROLYN B. MALONEY, New York

JOHN A. YARMUTH, Kentucky

PAUL W. HODES, New Hampshire

MICHAEL R. TURNER, Ohio

CHRIS CANNON, Utah

BILL SALI, Idaho

TONY HAYWOOD, Staff Director

(III)

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

(1)

H.R. 1255, THE PRESIDENTIAL RECORDS ACT

OF 1978: A REVIEW OF EXECUTIVE BRANCH

IMPLEMENTATION AND COMPLIANCE

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 inVerDate 11-MAY-2000 12:00 May 14, 2007 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\34911.TXT HGOVREF1 PsN: HGOVREF1
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sight 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.

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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.

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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

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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.

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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.’’

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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.

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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.

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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

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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

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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.

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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

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recipient of the American Library Association’s James Madison

Award Citation for defending the public’s right to know. He has coauthored 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.

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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

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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,

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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.

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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 repVerDate 11-MAY-2000 12:00 May 14, 2007 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 C:\DOCS\34911.TXT HGOVREF1 PsN: HGOVREF1
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resentatives 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.

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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

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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.

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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.

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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.

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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

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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 61⁄2 years. Is the inVerDate 11-MAY-2000 12:00 May 14, 2007 Jkt 000000 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 C:\DOCS\34911.TXT HGOVREF1 PsN: HGOVREF1
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crease 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

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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.

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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.

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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.]

[Additional information submitted for the hearing record follows:]

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