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Nixon Presidential Materials Staff

facsimile

TRANSMITTAL

to: William Rogers

fax #: 202-942-5690

re: NSC Files: Haig Telcons

date: 04/07/2004

pages: [18 Pages (including cover sheet)].

Mr. Rogers:

I have enclosed seventeen pages of transcripts from the NSC files. They are from a series titled, Haig Chronological Files. In all, there are approximately 600 pages of Telcons covering the latter part of 1970 through all of 1972. They are from Boxes 998 and 999.

Many of these Telcons are between Haig and the President. There are also many Telcons between Haig and "Prof. Yoshida" and there are also additional Telcons between Haig and Dobrynin, and Haig and Rabin. There are also conversations in which Haig is not a participant: several Telcons are between Col. Kennedy and the President (during the 1972 Vietnam Peace Talks) as well as a few conversations between other NSC staffers and other individuals.

There were no Telcons regarding Chile in the September-November 1970 timeframe.

I will have a list of questions for you regarding the Scope and Content Note early next week and will e-mail them to you as well as our Scope and Content Notes for the Nixon Tapes. If you want to discuss your concerns from the 3/22/04 e-mail, I will be in the office all next week.

John

From the desk of...

John Powers
Archivist
Nixon Presidential Materials Staff
6601 Adelphi Road
College Park, MD 20740
Telephone: (301) 837-2070
Fax: (301) 837-3202
Email: john.powers@nara.gov

National Archives and Records Administration

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TELCON

General Haig
The President
6:25 pm, 12/28/70

P: What's new on the international front today?

H: We have had a few things. First, we have had the problem with the Jewish people. They have decided they will have their appeal day on Wednesday.

P: Yes, we have had that all day.

H: We had a little action in Cambodia close in to the city today. We have not gotten much of a readout on it. We will have to wait until we get something more on it. We have started to move out on both intelligence collection and getting our people in.

P: Laird told me they were getting general Cambodian action on the track.

H: That is right. And the visit out there that Laird is going to make will come back with picture of the spring action.

P: This Cambodian action - you don't know how significant it is. Probably more of the same?

H: Yes, more of the same. Just pecking by the people. They have sharpened the censors up on these gunships in Laos and they fire from high altitude. We were sending you a little memorandum on this POW thing. The play on one of the networks was very bad on this last night. We were told it was a staged interview. It was hit hard by Laird and Ron today.

P: This was obviously a staged deal. They have done this before, haven't they? The networks - what can we do about that? CBS would play it that way. They are the worst in the world.

H: Yes sir.

P: It was hit well. I talked to Rogers and particularly Laird. Another thing, too, if this casualty thing goes up it will build a case for us.

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-2-

H: We had word on My Van Bo. He is probably going to be reassigned. I had an interesting discussion with the Romanian Ambassador today. He is on his way back for consultations. He raised two things. He is interested in our attitude on Peking. I told him after talking to Henry generally that we were ready as soon as they give us an indication, to include sending someone immediately to make arrangements. That parallels what they are getting the other way.

P: Good. They have been talking to us so we will let it go right back there.

H: And that is really about the heart of the thing. The Israelis moved today on Jarring. We had a forthright communique from our guy on Sadat, with a plea from Sadat for more intimate communications with you.

P: Maybe we should have some diplomatic recognition.

H: Yes, it looks better. We have a message from Lon Nol commenting on our visit and thanking you for sending someone over there.

P: The way he can thank us is to just hold on. I have a feeling that this first ARVN operation will have a helluva wallop. And the second is the clincher.

H: Yes, it will be.

P: Tell Henry to relax, I am not going to bother him. I am glad we got our POW statement out.

H: Yes, we have them worried. This interview shows they are worried.

P: Yes, it is interesting. The New York Times carried a picture saying it was done for them by Canadians.

H: Yes they did. The trouble was this was very staged. You had to be aware of the glaze in their eyes and the way they walked. It is damned shame what these men have to go through.

P: Well, keep plugging.

mlh

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Telcon

Secretary Laird - General Haig

12/19/70; 12:55 p.m.

L: I didn't realize you were back today. I just wanted to welcome you back.

H: Thank you. It was a damn good trip.

L: It seemed to be good. I got a lot of read-out along the way.

H: I think they are all shipshape over there.

L: The little operation seems to be doing well. We don't run into many of the enemy is our only problem.

H: On Saturday they had a little run in that hurt them badly. Before the Vietnamese got in - on Route 7.

L: We are battling it out on the Hill. I am going over. I seem to be the only guy that can do it. The Senate is really something.

H: They are playing with that.

L: They may let the whole damn bill slide. We are going to try to salvage that.

H: I am writing up a conversation with Thieu the night before we left. There are a couple of items in it you will want to be alerted to before you go out.

L: How is everything else going?

H: The papers back here are stacked up.

L: Back while you were gone we think it got out from some of their friends. The actual figures on the SS-9 starts and stops got out. This was given to a guy by the name of Gettler. We put out a statement which you had in advance over there which did not confirm or deny, which said something was going on but we said there were more than 250 SS-9's operational, slightly less than 300. You have a copy of our statement. I am trying to track down...this Gettler indicates that his source is not in the building. But he must have had a copy of an intelligence review because his figures that he used are the figures right from the paper.

H: Holy Christ!

L: Now the thing is that Dave Packard was so goddamn mad yesterday that thought he was going to call Admiral Anderson and tell him to kiss ass. I have known Anderson for a long time. I tried to quiet Dave down. Anderson called Bennett and accused Bennett of violating his oath of office. If he ever does that again I will blast that son of a bitch from here to New York. Bennett is a damn fine loyal guy. We were trying to put out the fire over here and

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Bennett had not a damn thing to do with this guy getting that paper, and you can trust Bennett.

H: I know Bennett. There isn't a finer guy in the services.

L: I told Bennett when somebody like that calls him up in the name of the President, for Christ sake. Dave was so goddamn mad I didn't know how to quiet him down. I have never seen him so mad in all my life.

H: We will just get this under control. That guy is going to wheel and deal just as far as we will let him.

L: We are almost certain where that came from. The first story Orr Kelly had 3 weeks ago. He alluded to it. Then this Gettler came down and showed our people the figures he was going with in his story. We wanted to bring up the question maybe they are going for MIRV. We just kept it so it would not be a plus for the Soviets. Tried to put the other twist on it. But to treat a guy like Bennett that way.

H: That's inexcusable.

L: I can't have people talking to our people like that over here. You can't do that to good conscientious military people over here. He has a distinguished career. The DIA is improving and you know what a weak operation we had under the former head of this thing.

H: Yes, everybody I have talked to is impressed with what he is doing.

L: I didn't want Packard to go down to Anderson and tell him what a stupid SOB he is. Anderson better call me the next time. I told ~~Bennett~~ not to take any more calls from him.

H: That is the way to do it, sir. We will have to get a little trimming of the sails here.

L: You have a copy of what we allowed them to say around here. I think it was the only way to handle the thing. We will keep the brake on to find out who is putting out information. I guarantee it was not ever at Bennett's shop. But, that is another problem. I just wanted to welcome you back.

H: Thank you very much, sir.

ms

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Telecon
General Haig/The President
11/28/70 12:20 p.m.

P: You didn't get to the game?

H: No, I will watch the TV.

P: You let Henry go?

H: Yes.

P: That's good. I have got to go to one, I think, maybe next year.

H: I hope you get a better year than this one.

P: Nothing particularly new in the international field today is there?

H: No, we're putting together those understanding papers today.

P: Good.

H: They will be quite conclusive.

P: Good. That will be a good one to have. We must never assume that people know what we know is the truth.

H: Well, I think there are some mischief-makers in there.

P: People trying to renegotiate what they said?

H: Yes.

P: But don't their own words nail them to the cross?

H: I think so.

P: I am convinced-- I've been thinking about it -- and I am convinced that our rescue operation was a plus. I am not concerned about people yakking around about the intelligence failing. What do you think?

H: It was absolutely a solid plus. I was at a dinner last night for Ky...

P: Oh were you!

H: Yes, and from the military peoples' point of view it was a shot in the arm that they needed. To them it was a major breakthrough of national leadership with respect to the military.

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Telecon

General Haig/The President

11/28/70 12:20 p. m. p. 2

P: Trying to win.

H: Yes, doing something they felt we needed.

P: Well, it's up to them. If they come up with another plan, we'll go through with it. We've got a lot of bright people in the military. We're not sending them to War Colleges just to learn the history of the [Napoleonic campaigns] are we?

H: No sir. Some of these men said last night that this was to them the same as the Doolittle raids on Tokyo.

P: Really?

H: Yes sir, and I think it has the same effect on Hanoi. They are a little goosey.

P: It doesn't bother me to have people ask if we dropped bombs. We know we didn't, but let them be confused. I think our critics who jumped on us about this will have to draw back a little bit.

H: Yes, and I think the Cambodian thing has shaken our opponents who were wrong as hell. I think we've turned a corner on this war and how it's conducted. People have confidence

P: Even though it failed. But that's one thing. As far as success, my idea of it is a little different from others, and I hope they teach this at the military schools. My philosophy is . . . they say it failed. I say the greatest failure is not trying. If you try and don't succeed, it's not a failure; it's just a lack of success in one instance. You keep trying.

H: Exactly.

P: These boys did a hell of a job.

H: Yes, and your backing them up and immediately recognizing them had a tremendous impact on the military.

P: It's worth doing then.

H: Absolutely. These were all old military hands, personal friends of Ky.

P: You didn't hear any crying about why wasn't the intelligence better?

H: I never heard anything about it. They were all very enthusiastic.

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Telecon
General Haig/The President
11/28/70 12:20 p.m. p. 3

P: Ky probably mentioned -- he said it to me -- that he wishes they had participated. We know the reason they didn't is they would have leaked, but I think they ought to do it. I want an order put out to Abrams on their conducting a raid. I would be delighted to have our Colonial over there help and advise them. I would like to have one a month from now on. Go in and blow up a power plant or anything, one a month from now on, something once a month. They have killed South Vietnamese. Get that figure for me too. I have heard that in the last year they have killed citizens. Get that figure on how many have been killed since the talks began. Let's give the South Vietnamese the go-ahead on that. We want continued harrassing and cutting them off. CIA tried that Dien Bien Phu thing that fizzled. Let the South Vietnamese go in there. They have got to start fighting in the [North] -- today is the day it begins, where South Vietnam begins fighting the North.

H: That's a meaningful incentive for them.

P: I want our top brains and theirs working in the greatest secrecy to get some plans. If the South is ready to go North, let them go. Ky said there are a lot of people in the South who are Northerners and know the area very well. Let them go. Okay?

H: Yes, sir.

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TELECON

General Haig/Prof. Yoshida

9:55 p.m., November 10, 1970

H: Dr. Jones will not be able to call you for about 2 hours, between 11 o'clock and midnight our time. Two hours from now at the outside.

Y: In about two hours time?

H: At the most.

Y: At the latest, oh I see.

H: Probably 1 1/2 hours, you will be at the office?

Y: I will be waiting for his call. At the latest two hours time I will hear from him.

H: Fine, he will call you then.

Y: He would be going with his own friend ....

H: Yes, he will.

Y: Tomorrow?

H: Tomorrow morning, yes he will.

Y: I will have to talk with him tonight, I will be waiting for his call.

wgh

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Col. Kennedy
Henry Kissinger
12/30/71; p. m.

HAK: When was Walters called in by the second group?

K: He was called -- when he got home tonight he had a message, 6:00 our time - Midnight their time. He is going to see them about 8:00 a.m. their time.

HAK: He got the message at Midnight?

K: He was out for the evening and when he got home he had a message waiting for him.

HAK: I wonder whether they are cancelling the bloody thing.

K: I doubt it. They owe us an answer for this trip.

HAK: For this trip?

K: Yes.

HAK: Well, that's it. If there is anything other than technical, you said he is under instructions to call you immediately?

K: Right.

HAK: As long as it does not call off the trip, it can wait. Otherwise wake me. If they owe us an answer then that's it.

K: I don't think they will go to this extreme. New York Times in Paris carried the Times story that was here -- Walters is rumored to be new Deputy Director.

HAK: That doesn't bother them.

K: I told him to say he didn't know anything about it.

HAK: No, my advice would be to confirm it.

K: I will call him and tell him that.

HAK: It is an administrative position -- no, that doesn't bother them. If he denies it and then it happens, it just looks too bad... On that all the screaming I expected. Although the Soviets are getting very nasty.

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K: Yes. Lots of noise but that may be all for effect, Henry. I think if we just sit tight for a few days it will all blow away. I don't think we will get a public flap.

HAK: You call me if we do. You will know by 5:00 our time. Okay, fine.

K: Do you feel better?

HAK: Yes. I feel better. I will be in Monday morning for a day.

K: We draft/up an answer for Heath. Have you seen it?

HAK: No. Have Coleman get it to me the first thing in the morning and I will act on it.

K: Alex Johnson thinks it is fine.

HAK: Okay, fine.

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TELCOM

The President/General Haig

10:35 p.m., September 5, 1972

P: Al, we signed your thing tonight to make you whatever you are.

H: I am extremely grateful.

P: Don't let your wife spend the money yet.

H: No, I won't.

P: I wanted to tell you -- Of course, to me one thing on the Rogers thing
will you speak to Haldeman before he sees him in the morning.

H: Yes, sir.

P: The European Security Council as you know I'm not a damned bit
interested in. A meeting to discuss here as Haldeman pointed out
that's his bag; understand that and at the proper time we will talk
a little about it. Purpose of this meeting is something else.

H: I think so. Think we ought to say that he is going to have a lead role
in that.

P: That's right.

H: Not going to get into that.

P: The purpose of this meeting is not that. We will look it over.

H: We have got some very shocking news on the Israeli thing.

P: How many killed?

H: All killed.

P: All the Israelis?

H: In one of the helicopters and one of the Arabs threw a grenade in.
There's still an awful lot of confusion.

P: Oh, my.

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- 2 -

The President/General Haig

10:35 p.m., September 5, 1972

H: The Bavarian Interior Minister announced the deaths of the Israelis at 3:00 a.m. There was vague hope that two of the hostages might have escaped. Believe all 9 hostages are dead. It's a real tragedy.

P: Thank God we didn't send the telegram to Brandt.

H: Held everything.

P: They go all out on these damn things. Puts a pawn on the Olympic thing. Hope they killed all the Arabs.

H: One at airfield ... Held all 9 together. Whole helicopter full.

P: Think they killed 14? That's the whole Olympic team.

H: 9 there. Total of 11. Reports there were 14 killed.

P: Under the circumstances we ought to discuss with the Russians and do something. The whole world is going to be shocked by this. Think we've got to take it up ... out of interest. We are going to intervene in it.

H: The Israelis are going to react.

P: Who are they going to hit though?

H: Lebanon, though -- They will find out where based --

R: They are cable of it. They have got to hit somebody, don't you think?

H: Yes, sir, I do but --

P: We don't want to set something off.

H: I'm glad you made that call this morning.

P: Yeah, that was important.

H: Bigger to talk when we have ...

P: They mustn't kill themselves.

H: Think we will probably have to say something tonight. That you were saddened --

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TELECON

Mr. Kissinger/General Haig

6:55 p.m., August 14, 1972

H: Hello. Yes, Henry?

K: Al, Yes.

H: I got the stuff just about an hour ago.

K: It's amazing how long it takes.

H: Well, no; there was another damn breakdown, and I've had
Scowcroft over and really raised hell.

K: You know, that can't be.

H: No, it cannot be.

K: Have you talked to the various people.

H: Everybody I've talked and the one fellow who reads palms --
he said he's sure he can get that clearance.

K: Right.

H: And he's moving on it right away. That's as of 4:00.

K: Yeah, well, I was sure of it. They wouldn't dare that.

H: No, no; he was very pleased to do it and now the boss went back
to David, and I've sent to him the wrapup.

K: Right. Well, this has many fascinating aspects which I couldn't
cover.

H: Yeah, well, the one will be very impressive, I think -- the
one that you mentioned.

K: That's right.

H: And that'll delight him.

K: But we've got to keep it absolutely quiet.

H: Well, I put that in there -- to be absolutely sure he didn't slip
of too much enthusiasm.

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Mr. Kissinger: /General Haig:
6:55 p.m., August 14, 1972

K: Right. Okay. Did the other fellow complain about my New York friend?

H: No, he was very pleased and seemed pleased at the add-on.
I changed the luncheon and offered the film, and we got movement today on one of his characters that he wanted the money on.

K: Oh, good. So he was satisfied.

H: Oh, he seemed very pleased. I asked him if he was going to be around a while because I heard he may not be AND he said, yes, he'll be here.

K: Okay. Well, everything now is really working... couldn't be working better.

H: That's what I think.

K: I mean, people really have to keep their mouths shut now.

H: Well, I've got everything under control.

K: Did my meeting here get good coverage?

H: Yes, it did; better than the last one. OK. But still not banner.

K: Well, we don't want banner.

H: No, they're very good on the front of the STAR.

K: That's about all we wanted, isn't it?

H: I think so; I think it's just about right, and it'll pick up a little, you know.

K: And you've talked with the people from here.

H: Oh, yes; and they were very pleased... I was very complimentary too.

K: Right. I mean, thanking them for everything they had done.

H: Yeah; absolutely. In fact, I said that's the reason, and I said we're going to do something tomorrow.

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K: And that will be 11:00.

H: That's right.

K: Okay; good. Well, I'll be talking to you tomorrow at some point to find out how the announcement goes.

H: Good. I think everything's shipshape, and I'll let you know if any trouble stirred.

K: Right. How did my colleagues in Foggy Bottom take it all?

H: They're very pleased.

K: Well, those are ______ at this point.

H: That's right. Well, you know, they could see right away. I handled it on the secure line and then I gave them two draft messages.

K: Good. Fine. Well done.

H: So, I think everyone is shipshape here.

K: Did Laird send over the names of the replacements.

H: It's coming tonight, but that's something I want to talk to you about. It's really getting around in a dangerous way. I got a call that there are two guys after my scalp.

K: Al, believe me. It cannot be done.

H: I'm not too worried about it, but the die is cast. It either goes or it doesn't.

K: There is no conceivable way it cannot go. Who the hell could stop it?

H: Well, I'm a little worried that there'll be some dirty work on the Hill.

K: Al, if we have any credit on the Hill, it is going to be called in for this.

H: Well, you know how I feel about it. I'm not that strong one way of the other.

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- 4 -

K: Al, I would call in every God-damned IOU we've got outstanding.

H: Right. But I think everything is really proceeding very well here.
Have you seen that piece yet?

K: No. Well, maybe you could have it sent to me.

H: Yeah, I will so that you have it when you get on board.

K: All right. Was that good?

H: A beautiful piece. I mean, I was extremely impressed, And
Also called me. He said that was really exceptional piece of work.

K: Oh, I know what I wanted. You remember Marvin Kalb sent me a letter last week asking me to go on television the second half of September.

H: Right.

K: Tell him this is definitely agreed to, and we will work out the date and the details in San Clemente. We are thinking around the 21st.

H: Right.

K: That's what we would like best.

H: Okay, good, Henry.

K: Okay? I'll talk to you tomorrow.

H: All right. Is everything all right there?

K: Oh, yeah; it was a very nice party after all.

H: Good; that's wonderful.

K: Bye.

Memorandum

To: Dr. Kissinger
Re: Telephone Transcripts at the Library of Congress.

A selected inventory of the telephone transcripts from October 22 to November 23, 1970:

10/22 2 pm. Rogers. His UN speech edits.

10/22. pm. Haldeman. Guest lists for the White House functions.

10/22 4 pm. John Chancellor. K backgrounds him on talks with the Soviets.

10/22 4:15. Dobrynin. re Nixon speech to be given the next day.

10/22 4:10. Kaplow. K briefs re Gromyko meeting.

10/22 5 pm. Ditto.

10/22 5:27. Chalmers Roberts. K call to brief on Cuba. "We have an on the record commitment about submarine bases" based on the 1962 understanding now extended to include bases.

10/22 6:10. Marvin Kalb. K initiates call, advises Kalb that the Soviets gave "assurances on Cuba" as to the 1962 agreement and submarine bases. Comments that this was an improvement of the relationship from 60-40 hostility to 50-50.

10/22 9:55 Jim Cannon re K's speech in New York.

10/22 10:40. Ditto.

10/23 12:20 am. Sisco. K: Does Rogers have a plan cooking for the ME? "What is he up to." Sisco recounts conversation with Rabin, arguing that this is a good time for talks, with a six-month extension of the cease fire. The two agree as to what S will recommend to Rogers. Conversation said to be "between us."

10/23 pm. Ziegler. K: Rogers did not hear the discussion of the President and Gromyko so he could not leak it.

10/23 8:50 am. President. 11 lines out of two pages related to Chile. [Full copy made].

10/23 6:20 pm. Rogers. Again, 11 innocuous lines on Chile out of three pages. [Full copy in hand]

Several telcons with Yoshida on textile agreement.

10/28 pm. Joe Kraft. Kraft says he may go to Chile. K advances no comment as to the political situation or Schneider.

10/29 1:45 pm Sisco: Initiating call, S says this is "between you and me". Then he relates the Israeli complaint about the US delegation.

6/29 9:02 am Extended chat with Robert Kleiman re VN negotiations.

6/30. 12:55. Rogers. Discussion of message Meyers is to deliver to Allende. Rogers asks K to talk to Meyers.

10/31 2 pm. Rogers: K talked to Meyers re delivery of an oral message.

11/3 5:20 pm. Marylin Berger. Pumps HAK on Chile without effect.

11/4 1:15 pm. K: congratulates Jim Cannon on NY political results. Discussion of Nancy's future (Palpably personal, and should be extracted.)

11/5 9:23 am. Moorer re non-cooperation in JCS. [Note: the State Department historians have flagged this item for likely inclusion in the State Department Foreign Relations series. Note also that they flagged none of the brief references to Chile.]

11/6 2:30. Rockwell. Personal conversation. [Though inconsequential, should be excluded from Nixon papers]

11/6 4:55 pm. Milton Katz. Re Tom Hughes for Carnegie presidency.

11/7 10:30. Laird. re strategy for the 1970's [Note: the State Department hisrorians also flagged this one]

11/9 10.. Several inconsequential conversations with the President re his trip to Paris.

11/13 7:19. President. K reports reconnaissance plane shot down. President: "Hit everything.

The 7 choke points ... "

11/13 7:19 8:27 pm. Stanley and Mrs. Hoffman. Personal re getting together.

11/14 2 pm. Ben Welles. K gives guidance re Welles' forthcoming story on Cienfuegos, reporting the US-Soviet "understanding."

11/14 2:05 pm. Frankel. K: reports that he had a "semi-blackmailing call from Welles" and asks that no mention be made in the NYT of the departure of the tender from Cienfuegos.

11/14 2:20 pm. President K: Syrian army has overthrown the government. A "positive result of our Jordanian move."

11/16 8:00 pm. President Discussion of VN bombing plans and prisoner rescue operation.

11/17 9:55 am. Johnson. K re State leaks of his memcons with Soviets re Cuba.

11/20 Various calls re VN rescue effort and the fact that it turned out to be a "dry hole."

11/20 Various calls re VN bombing.

11/21 President. K report on Laird's public statement re bombing. Objective discussion of Moynihan appointment.

11/23 10:27 am. Sullivan reporting Habib's report that DRV postponed further Paris meeting. Several telcons with Haldeman about the undesirability of the President remaining in Washington on weekends

Seattle Post-Intelligencer

Page 1 of 1

SEATTLE POST-INTELLIGENCER

Tuesday, October 5, 2004 · Last updated 5:24 p.m. PT

Kissinger defends South America policies

By SARAH KARUSH
ASSOCIATED PRESS WRITER

DETROIT -- Former Secretary of State Henry Kissinger, defending his approach to Latin American dictatorships in the 1970s, said Tuesday he purposely steered clear of "personal attacks" when it came to condemning human rights abuses.

Kissinger's comments followed Friday's release of transcripts showing he wanted to punish subordinates who criticized Argentina and Chile for human rights abuses. The transcripts were released by the National Security Archive, a foreign policy research center that said it obtained them from the State Department.

Kissinger said the United States at the time was balancing two concerns in Latin America: keeping communist governments from taking root and discouraging human rights abuses.

"The method we chose - which people can argue about - was that I made two public speeches emphasizing the American concerns on human rights and stating that countries that systematically violated (them) would not be able to get the sort of support, economic and otherwise, that they wanted," Kissinger said after a speech at the Detroit Economic Club.

Kissinger said he made the same points in private conversations with Chilean dictator Augusto Pinochet.

"At the same time, I did not want personal attacks on the leaders," he added.

The dictatorships in Chile and Argentina killed thousands of perceived political opponents in the 1970s and '80s.

There has been much debate about Kissinger's relationships with Latin American military dictators when he was secretary of state in the Nixon and Ford administrations. Such regimes often were supported by the United States as anti-communist allies.

http://seattlepi.nwsource.com/printer/ap.asp?category=1110&slug=Kissinger%20Latin%2... 10/6/2004

Yahoo! News - Kissinger-Kennedy Papers Declassified

3/4/04 JI forwarded to WDR.

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BOSTON - The John F. Kennedy Presidential Library is making available papers pertaining to Henry Kissinger's w consultant to the National Security Council during the Kennedy administration.

Kissinger, who later served in the Nixon and Ford administrations as secretary of state and assistant for national affairs, was appointed a part-time consultant to Kennedy in 1961, a job he performed while continuing to work as a Harvard.

The files have been declassified and are now available to scholars, journalists and members of the public. The Kennedy Library said the papers include handwritten notes on White House meetings, documents on nuclear weapons issues, information on the Berlin crisis and related negotiations.

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http://news.yahoo.com/news?模板=story2&cid=519&u=/ap/20040302/ap_on_re_us/kissing... 3/4/2004

F: Doc 03-25563

[Federal Register: October 9, 2003 (Volume 68, Number 196)]
[Notices]

[Page 58361-58362]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID: fr09oc03-106]

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Nixon Presidential Historical Materials; Opening of Materials

AGENCY: National Archives and Records Administration.

ACTION: Notice of opening of materials.

SUMMARY: This notice announces the opening of additional Nixon presidential historical materials. Notice is hereby given that, in accordance with section 104 of Title I of the Presidential Recordings and Materials Preservation Act (PRMPA, 44 U.S.C. 2111 note) and 1275.42(b) of the PRMPA Regulations implementing the Act (36 CFR part 1275), the agency has identified, inventoried, and prepared for public access approximately 240 hours of Nixon White House tape recordings among the Nixon Presidential historical materials.

DATES: The National Archives and Records Administration (NARA) intends to make the materials described in this notice available to the public beginning December 10, 2003. In accordance with 36 CFR 1275.44, any person who believes it necessary to file a claim of legal right or privilege concerning access to these materials should notify the Archivist of the United States in writing of the claimed right, privilege, or defense on or before November 10, 2003.

ADDRESSES: The materials will be made available to the public at the National Archives at College Park research room, located at 8601 Adelphi Road, College Park, Maryland, beginning at 8:45 a.m.

Petitions asserting a legal or constitutional right or privilege which would prevent or limit access must be sent to the Archivist of the United States, National Archives at College Park, 8601 Adelphi Road, College Park, Maryland 20740-6001.

FOR FURTHER INFORMATION CONTACT: Karl Weissenbach, Director, Nixon Presidential Materials Staff, 301-837-3117.

SUPPLEMENTARY INFORMATION: NARA is proposing to open approximately 3073 conversations which were recorded at the Nixon White House from July 1972 to October 1972. These tape segments total approximately 240 hours of listening time.

This is the tenth opening of Nixon White House tapes since 1980. Previous releases included conversations constituting "abuses of governmental power" and conversations recorded in the Cabinet Room of the Nixon White House. NARA is processing the remaining tapes, which cover the period February 1971 to July 1973. The tapes now being proposed for opening consist of the fourth of five segments.

There are no transcripts for these tapes. Tape logs, prepared by NARA, are offered for public access as a finding aid to the tape segments and a guide for the

[[Page 58362]]

10/9/2003 7:25 A

F:\Doc.03-25563

listener. There is a separate tape log entry for each segment of
conversation released. Each tape log entry includes the names of
participants; date, time, and location of the conversation; and an
outline of the content of the conversation.

The tape recordings will be made available to the general public in
the research room at 8601 Adelphi Road, College Park, Maryland, Monday
through Friday between 8:45 a.m. and 4:30 p.m. Researchers must have a
NARA researcher card, which they may obtain when they arrive at the
facility. Listening stations will be available for public use on a
first come, first served basis. NARA reserves the right to limit
listening time in response to heavy demand. Copies of the tape log will
be available for a fee in accordance with 36 CFR 1258.12.

Dated: October 1, 2003.

John W. Carlin,
Archivist of the United States.
[FR Doc. 03-25563 Filed 10-8-03; 8:45 am]

BILLING CODE 7515-01-P

10/9/2003 7:25 AM

THE LIBRARY OF CONGRESS

101 INDEPENDENCE AVENUE, S.E.
WASHINGTON, D.C. 20540-4680

MAR 29 2002

MANUSCRIPT DIVISION

March 26, 2002

Dear Dr. Kissinger:

I refer to the letter of December 18, 2001, from William D. Rogers to Gary M. Stern, copy to me, entitled "Transcripts of Dr. Kissinger's Telephone Conversations." That letter advised Mr. Stern that the National Archives and Records Administration should have access to and might copy the transcripts of your telephone conversations while serving during the Nixon Administration as the Assistant to President Nixon for National Security Affairs and Secretary of State for incorporation in due course into the Nixon presidential materials collection at the National Archives.

Pursuant to that advice, representatives of the National Archives and Records Administration came to the Manuscript Division at the Library of Congress and were granted access to and copied the telephone call transcripts for that precise period. The papers to which they had access are contained in boxes 359-385, 394-397, and 402, which are maintained in the vault of the Manuscript Division as part of your papers. The Archives staff members were here from January 22 through February 4, and copied the general chronological series of unclassified transcripts through August 9, 1974, which are located in boxes 359-385. Our staff copied a small number of security-classified transcripts for that period located in box 402 and made them available to an Archives representative. There is also a series of unclassified transcripts, largely of conversations with Ambassador Dobrynin, located in boxes 394-397, and Archives representatives will be returning to the Library on April 2 to copy those materials through August 9, 1974. The representatives did not have access to any other of your papers.

I have also sent a copy of this letter to Mr. Rogers.

Honorable Henry A. Kissinger
350 Park Avenue
New York, NY 10022-6022

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[LC]

respect to specific bodies of records, that for reasons consistent with standards established in relevant statutory law, such restrictions shall remain in force for a longer period. Restriction on the use or examination of records deposited with the National Archives of the United States imposed by section 3 of the National Archives Act, approved June 19, 1934, shall continue in force regardless of the expiration of the tenure of office of the official who imposed them but may be removed or relaxed by the Archivist with the concurrence in writing of the head of the agency from which material was transferred or of his successor in function, if any.

(b) With regard to the census and survey records of the Bureau of the Census containing data identifying individuals enumerated in population censuses, any release pursuant to this section of such identifying information contained in such records shall be made by the Archivist pursuant to the specifications and agreements set forth in the exchange of correspondence on or about the date of October 10, 1952, between the Director of the Bureau of the Census and the Archivist of the United States, together with all amendments thereto, now or hereafter entered into between the Director of the Bureau of the Census and the Archivist of the United States. Such amendments, if any, shall be published in the Register.

### § 2109. Preservation, arrangement, duplication, exhibition of records

The Archivist shall provide for the preservation, arrangement, repair and rehabilitation, duplication and reproduction (including microcopy publications), description, and exhibition of records or other documentary material transferred to him as may be needful or appropriate, including the preparation and publication of inventories, indexes, catalogs, and other finding aids or guides to facilitate their use. He may also prepare guides and other finding aids to Federal records and, when approved by the National Historical Publications and Records Commission, publish such historical works and collections of sources as seem appropriate for printing or otherwise recording at the public expense.

### § 2110. Servicing records

The Archivist shall provide and maintain facilities he considers necessary or desirable for servicing records in his custody that are not exempt from examination by statutory or other restrictions.

### § 2111. Material accepted for deposit

When the Archivist considers it to be in the public interest he may accept for deposit--

(1) the papers and other historical materials of a President or former President of the United States, or other official or former official of the Government, and other papers relating to and contemporary with a President or former President of the United States, subject to restrictions agreeable to the Archivist as to their use; and

(2) documents, including motion-picture films, still pictures, and sound recordings, from private sources that are appropriate for preservation by the Government as evidence of its organization, functions, policies, decisions, procedures, and transactions.

This section shall not apply in the case of any Presidential records which are subject to the provisions of chapter 22 of this title.

### 44 U.S.C. § 2111 note

#### PRESIDENTIAL RECORDINGS AND MATERIALS PRESERVATION ACT

##### *Delivery and Retention of Certain Presidential Materials*

Sec. 101. (a) Notwithstanding any other law or any agreement or understanding made pursuant to section 2111 of title 44, United States Code [this section] any Federal employee in possession shall deliver, and the Archivist of the United States (hereinafter in this title referred to as the 'Archivist') shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which--

(1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government;

(2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and

(3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974.

(b)(1) Notwithstanding any other law or any agreement or understanding made pursuant to section 2111 of title 44, United States Code [this section], the Archivist shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the

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ARNOLD & FOSTER

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Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.

(2) For purposes of this subsection, the term 'historical materials' has the meaning given it by section 2101 of title 44, United States Code [section 2101 of this title].

## Availability of Certain Presidential Materials

Sec. 102. (a) None of the tape recordings or other materials referred to in section 101 shall be destroyed, except as hereafter may be provided by law.

(b) Notwithstanding any other provision of this title, any other law, or any agreement or understanding made pursuant to section 2111 of title 44, United States Code [this section], the tape recordings and other materials referred to in section 101 shall, immediately upon the date of enactment of this title, be made available, subject to any rights, defenses, or privileges which the Federal Government or any person may invoke, for use in any judicial proceeding or otherwise subject to court subpoena or other legal process. Any request by the Office of Watergate Special Prosecution Force, whether by court subpoena or other lawful process, for access to such recordings or materials shall at all times have priority over any other request for such recordings or materials.

(c) Richard M. Nixon, or any person whom he may designate in writing, shall at all times have access to the tape recordings and other materials referred to in section 101 for any purpose which is consistent with the provisions of this title, subsequent and subject to the regulations which the Archivist shall issue pursuant to section 103.

(d) Any agency or department in the executive branch of the Federal Government shall at all times have access to the tape recordings and other materials referred to in section 101 for lawful Government use, subject to the regulations which the Archivist shall issue pursuant to section 103.

## Regulations to Protect Certain Tape Recordings and Other Materials

Sec. 103. The Archivist shall issue at the earliest possible date such regulations as may be necessary to assure the protection of the tape recordings and other materials referred to in section 101 from loss or destruction, and to prevent access to such recordings and materials by unauthorized persons. Custody of such recordings and materials shall be maintained in Washington, District of Columbia, or its metropolitan

area, except as may otherwise be necessary to carry out the provisions of this title.

## Regulations Relating to Public Access

Sec. 104. (a) The Archivist shall, within ninety days after the date of enactment of this title [Dec. 19, 1974] submit to each House of the Congress a report proposing and explaining regulations that would provide public access to the tape recordings and other materials referred to in section 101. Such regulations shall take into account the following factors:

(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term 'Watergate';

(2) the need to make such recordings and materials available for use in judicial proceedings;

(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings, to information relating to the Nation's security;

(4) the need to protect every individual's right to a fair and impartial trial;

(5) the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;

(6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and

(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.

(b) The regulations proposed by the Archivist in the report required by subsection (a) shall not take effect until the expiration of the first period of 60 calendar days of continuous session of the Congress after the date of the submission of such regulations to each House of the Congress. For the purposes of this subsection, continuity of session is broken only by an adjournment of Congress sine die, but the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded.

(c) The provisions of this title shall not apply, on and after the date upon which regulations proposed by the Administrator take effect under subsection (b), to any tape recordings or other materials given to Richard M. Nixon, or his heirs, pursuant to subsection (a)(7).

(d) The provisions of this title shall not in any way affect the rights, limitations or exemptions

27

ARNOLD & PORTER

004

applicable under the Freedom of Information Act, 5
U.S.C. § 552 ct seq.

Judicial Review

Sec. 105. (a) The United States District Court for the District of Columbia shall have exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title or of any regulation issued under the authority granted by this title, and any action or proceeding involving the question of title, ownership, custody, possession, or control of any tape recording or material referred to in section 101 or involving payment of any just compensation which may be due in connection therewith. Any such challenge shall be treated by the court as a matter requiring immediate consideration and resolution, and such challenge shall have priority on the docket of such court over other cases.

(b) If, under the procedures established by subsection (a), a judicial decision is rendered that a particular provision of this title, or a particular regulation issued under the authority granted by this title, is unconstitutional or otherwise invalid, such decision shall not affect in any way the validity or enforcement of any other provision of this title or any regulation issued under the authority granted by this title.

(c) If a final decision of such court holds that any provision of this title has deprived an individual of private property without just compensation, then there shall be paid out of the general fund of the Treasury of the United States such amount or amounts as may be adjudged just by that Court.

Authorization of Appropriations

Sec. 106. There is authorized to be appropriated such sums as may be necessary to carry out the provisions of this title.

(End of Note)

§ 2112. Presidential archival depository

(a)(1) When the Archivist considers it to be in the public interest, the Archivist may--

(A)(i) accept, for and in the name of the United States, land, a facility, and equipment offered as a gift to the United States for the purpose of creating a Presidential archival depository;

(ii) take title to the land, facility, and equipment on behalf of the United States; and

(iii) maintain, operate, and protect the land, facility, and equipment as a Presidential archival

depository and as part of the national archives system;

(B)(i) make agreements, upon terms and conditions the Archivist considers proper, with a State, political subdivision, university, institution of higher learning, institute, or foundation to use as a Presidential archival depository land, a facility, and equipment of the State, subdivision, university, or other organization, to be made available by it without transfer of title to the United States; and

(ii) maintain, operate, and protect the depository as a part of the national archives system; and

(C) accept, for and in the name of the United States, gifts offered for the purpose of making any physical or material change or addition to a Presidential archival depository.

(2) The Archivist shall promulgate architectural and design standards applicable to Presidential archival depositories in order to ensure that such depositories (A) preserve Presidential records subject to chapter 22 of this title and papers and other historical materials accepted for deposit under section 2111 of this title and (B) contain adequate research facilities.

(3) Prior to accepting and taking title to any land, facility, or equipment under subparagraph (A) of paragraph (1), or prior to entering into any agreement under subparagraph (B) of such paragraph or any other agreement to accept or establish a Presidential archival depository, the Archivist shall submit a written report on the proposed Presidential archival depository to the President of the Senate and the Speaker of the House of Representatives. The report shall include--

(A) a description of the land, facility, and equipment offered as a gift or to be made available without transfer of title;

(B) a statement specifying the estimated total cost of the proposed depository and the amount of the endowment for the depository required pursuant to subsection (g) of this section:

(C) a statement of the terms of the proposed agreement, if any;

(D) a general description of the types of papers, documents, or other historical materials proposed to be deposited in the depository to be created, and of the terms of the proposed deposit;

(E) a statement of any additional improvements and equipment associated with the development and operation of the depository, an estimate of the costs of such improvements and equipment, and a statement as to the extent to which such costs will be incurred by any Federal or State government agency;

(F) an estimate of the total annual cost to the United States of maintaining, operating, and protecting the depository; and

28

§1270.50

the type of record or information is widespread throughout the files.

(b) When specific agency guidance is requested under paragraph (a) of this section, the Archivist shall notify the appropriate Federal agency of the decision regarding disclosure of the specific documents. Notice shall include the following:

(1) A description of the records in question;

(2) Statements that the records described contain information compiled

for law enforcement purposes and may be subject to the exemption provided by 5 U.S.C. 552(b)(7) for records of this type; and,

(3) The name of a contact person at NARA.

(c) Agency guidance under this section is not binding on the Archivist. The final determination on whether Presidential records may be subject to the exemption in 5 U.S.C. 552(b)(7) is the Archivist's responsibility.

36 CFR Ch. XII (7-1-00 Edition)

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ARNOLD & PORTER

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SUBCHAPTER F—NIXON PRESIDENTIAL MATERIALS

PART 1275—PRESERVATION AND PROTECTION OF AND ACCESS TO THE PRESIDENTIAL HISTORICAL MATERIALS OF THE NIXON ADMINISTRATION

Sec.

1275.1 Scope of part.

Subpart A—General Provisions

1275.10 Purpose.

1275.12 Application.

1275.14 Legal custody.

1275.16 Definitions.

1275.18 Requests or demands for access.

Subpart B—Preservation and Protection

1275.20 Responsibility.

1275.22 Security.

1275.24 Archival processing.

1275.25 Access procedures.

1275.28 Extraordinary authority during emergencies.

Subpart C—Access to Materials by Former President Nixon, Federal Agencies, and for Use in Any Judicial Proceeding

1275.30 Access by former President Nixon.

1275.32 Access by Federal agencies.

1275.34 Access for use in judicial proceedings.

Subpart D—Access by the Public

1275.40 Scope of subpart.

1275.42 Processing period; notice of proposed opening.

1275.44 Rights and privileges; right to a fair trial.

1275.46 Segregation and review; Senior Archival Panel; Presidential Materials Review Board.

1275.48 Transfer of materials.

1275.50 Restriction of materials related to abuses of governmental power.

1275.52 Restriction of materials of general historical significance unrelated to abuses of governmental power.

1275.54 Periodic review of restrictions.

1275.56 Appeal of restrictions.

1275.58 Deletion of restricted portions.

1275.60 Requests for declassification.

1275.62 Reference room locations, hours, and rules.

1275.64 Reproduction of tape recordings of Presidential conversations.

1275.66 Reproduction and authentication of other materials.

1275.68 Amendment of regulations.

1275.70 Freedom of information requests.

APPENDIX A TO PART 1275—SETTLEMENT AGREEMENT

AUTHORITY: Sec. 102(a) of the National Archives and Records Administration Act of 1984, Pub. L. 98-497, 44 U.S.C. 2104; and see 103 and 104 of the Presidential Recordings and Materials Preservation Act 88 Stat. 1695; 44 U.S.C. 2111 note.

SOURCE: 51 FR 7230, Feb. 28, 1986, unless otherwise noted.

§1275.1 Scope of part.

This part sets forth policies and procedures concerning the preservation and protection of and access to the tape recordings, papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.

Subpart A—General Provisions

§1275.10 Purpose.

This part 1275 implements the provisions of title I of the Presidential Recordings and Materials Preservation Act (Pub. L. 93-626; 88 Stat. 1695). It prescribes policies and procedures by which the National Archives and Records Administration will preserve, protect, and provide access to the Presidential historical materials of the Nixon Administration.

§1275.12 Application.

This part 1275 applies to all of the Presidential historical materials of the Nixon Administration in the custody of the Archivist of the United States pursuant to the provisions of title I of the Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 88 Stat. 1695).

718

70

1275.14

### 275.14 Legal custody.

The Archivist of the United States or will obtain exclusive legal custody and control of all Presidential historical materials of the Nixon Administration held pursuant to the provisions of title I of the Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 88 Stat. 1695).

### 1275.16 Definitions.

For the purposes of this part 1275, the following terms have the meaning ascribed to them in this §1275.16.

(a) Presidential historical materials. The term Presidential historical materials also referred to as historical materials (and materials) shall mean all papers, correspondence, documents, pamphlets, books, photographs, films, motion pictures, sound and video recordings, machine-readable media, plats, maps, models, pictures, works of art, and other objects or materials made or received by former President Richard M. Nixon or by members of his staff in connection with his constitutional or statutory powers or duties as President until retained or appropriate for retention as evidence of or information about these powers or duties. Included in this definition are materials relating to the political activities of former President Nixon or members of his staff, but only when those activities directly relate to or have a direct effect upon the carrying out of constitutional or statutory powers or duties. Excluded from this definition are documentary materials of any type that are determined to be the official records of an agency of the Government; private or personal materials; stocks of publications, processed documents, and stationery; and extra copies of documents produced only for convenience or reference when they are clearly so identified.

(b) Private or personal materials. The term private or personal materials shall mean those papers and other documentary or commemorative materials in any physical form relating solely to a person's family or other non-governmental activities, including private political associations, and having no connection with his constitutional or statutory powers or duties as President or as a member of the President's staff.

(c) Abuses of governmental power popularly identified under the generic term "Watergate." The term abuses of governmental power popularly identified under the generic term "Watergate" (also referred to as abuses of governmental power), shall mean those alleged acts, whether or not corroborated by judicial, administrative or legislative proceedings, which allegedly were conducted, directed or approved by Richard M. Nixon, his staff or persons associated with him in his constitutional or statutory functions as President, or as political activities directly relating to or having a direct effect upon those functions, and which—

(1) Were within the purview of the charters of the Senate Select Committee on Presidential Campaign Activities or the Watergate Special Prosecution Force; or

(2) Are circumscribed in the Articles of Impeachment adopted by the House Committee on the Judiciary and reported to the House of Representatives for consideration in House Report No. 93-1305.

(d) General historical significance. The term general historical significance shall mean having administrative, legal, research or other historical value as evidence of or information about the constitutional or statutory powers or duties of the President, which an archivist has determined is of a quality sufficient to warrant the retention by the United States of materials so designated.

(e) Archivist. The term Archivist shall mean the Archivist of the United States or his designated agent. The term archivist shall mean an employee of the National Archives and Records Administration who, by education or experience, is specially trained in archivistic science.

(f) Agency. The term agency shall mean an executive department, military department, Independent regulatory or nonregulatory agency. Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government including the Executive Office of the President. For purposes of §1275.32 only, the term agency shall also include the White House Office.

710

§ 1275.26

(g) Archival processing. The term archival processing may include the following general acts performed by archivists with respect to the Presidential historical materials: Shelving boxes of documents in chronological, alphabetical, numerical or other sequence; surveying and developing a location register and cross-index of the boxes; arranging materials; refolding and reboxing the documents and affixing labels; producing finding aids such as folder title lists, scope and content notes, biographical data, and series descriptions; rewinding, duplicating and preserving the original tape recordings; enhancing the tape recordings on which the conversations are wholly or partially unintelligible so that extraneous noises may be filtered out; producing general subject matter logs of the tape recordings; reproducing and transcribing tape recordings; reviewing the materials to identify items that appear subject to restriction; identifying items in poor physical condition and assuring their preservation; identifying materials requiring further processing; and preparation for public access of all materials which are not subject to restriction.

(h) Staff. The term staff shall mean those persons whose salaries were paid fully or partially from appropriations to the White House Office or Domestic Council, or who were detailed on a non-reimbursable basis to the White House Office or Domestic Council from any other Federal activity; or those persons who otherwise were designated as assistants to the President, in connection with their service in that capacity; or any persons whose files were sent to the White House Central Files Unit or Special Files Unit, for purposes of those files.

(i) National security classified information. The term national security classified information shall mean any matter which is security classified under existing law, and has been or should be designated as such.

(51 FR 7230, Feb. 28, 1966, as amended at 61 FR 1784, Apr. 23, 1996)

### §1275.18 Requests or demands for access.

Each agency which receives a request or legal demand for access to Presi-

dential historical materials of the Nixon Administration shall immediately forward the request or demand to the Archivist of the United States, National Archives and Records Administration (NARA), Washington, DC 20406.

## Subpart B—Preservation and Protection

### §1275.20 Responsibility.

The Archivist is responsible for the preservation and protection of the Nixon Presidential historical materials.

(61 FR 17045, Apr. 23, 1996)

### §1275.22 Security.

The Archivist is responsible for providing adequate security for the Presidential historical materials.

### §1275.24 Archival processing.

When authorized by the Archivist and until the commencement of archival processing in accordance with subpart D of this part, archivists may process the Presidential historical materials to the extent necessary for protecting and preserving the materials, and for providing authorized access to the materials pursuant to subpart C of this part.

### §1275.26 Access procedures.

(a) The Archivist will receive and/or prepare appropriate documentation of each access authorized under this part 1275.

(b) Entry to the records storage areas will be provided by the Archivist only to archival, maintenance, security, or other necessary personnel or to Mr. Nixon or his agent. Two persons, at least one of whom represents the Archivist, will be present at all times that records storage areas are occupied.

(c) The Archivist will determine that each individual having access to the Presidential historical materials has a security clearance equivalent to the highest degree of national security classification that may be applicable to any of the material examined.

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ARNOLD & PORTER

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1275.28

(d) The Archivist will provide former President Nixon or his designated attorney or agent (hereinafter Mr. Nixon), prior notice of, and allow him to be present during, each search necessary to comply with an authorized access under §1275.32 or §1275.34.

(e) Only NARA archivists shall conduct searches necessary to comply with authorized accesses under §§1275.32 and 1275.34.

(f) Prior to releasing Presidential historical materials in accordance with an access authorized under §1275.32 or §1275.34, the Archivist will give Mr. Nixon notice of the nature and identity of, and at his request allow him access to, those Presidential historical materials which the archivists have determined are covered by the subpoena, or other lawful process, or request. The notice will also inform Mr. Nixon that he may file a claim with the Archivist objecting to the release of all or portions of the described materials within 5 workdays of his receiving the notice described herein. The claim should detail the alleged rights and privileges of Mr. Nixon which would be violated by the release of the materials. The Archivist will refrain from releasing any of the materials to the requester during this period, and while any claim of right or privilege is pending before him, will refrain from releasing the materials subject to the claim.

(g) The Archivist will notify Mr. Nixon in writing of the administrative determination on any claims filed in accordance with paragraph (f) of this section. In the event the determination is wholly or partially adverse to the claim, the Archivist will refrain from releasing the materials to the requester for an additional 5 workdays from Mr. Nixon's receipt of the determination.

(h) Whenever possible, a copy, which shall be certified upon request, instead of the original documentary Presidential historical materials shall be provided to comply with a subpoena or other lawful process or request. Whenever the original documentary material is removed, a certified copy of the material shall be inserted in the proper file until the return of the original.

§1275.28 Extraordinary authority during emergencies.

In the event of an emergency that threatens the physical preservation of the Presidential historical materials or their environs, the Archivist will take such steps as may be necessary, including removal of the materials to temporary locations outside the metropolitan area of the District of Columbia, to preserve and protect the materials.

## Subpart C—Access to Materials by Former President Nixon, Federal Agencies, and For Use in Any Judicial Proceeding

§1275.30 Access by former President Nixon.

In accordance with the provisions of subpart B of this part, former President Richard M. Nixon or his designated agent shall at all times have access to Presidential historical materials in the custody and control of the Archivist.

§1275.32 Access by Federal agencies.

In accordance with the provisions of subpart B of this part, any Federal agency or department in the executive branch shall have access for lawful Government use to the Presidential historical materials in the custody and control of the Archivist to the extent necessary for ongoing Government business. The Archivist will only consider written requests from heads of agencies or departments, deputy heads of agencies or departments, or heads of major organizational components or functions within agencies or departments.

§1275.34 Access for use in judicial proceedings.

In accordance with the provisions of subpart B of this part, and subject to any rights, defenses, or privileges which the Federal Government or any person may invoke, the Presidential historical materials in the custody and control of the Archivist will be made available for use in any judicial proceeding and are subject to subpoena or other lawful process.

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## National Archives and Records Administration

§1275.42

## Subpart D—Access by the Public

§1275.40 Scope of subpart D.

This subpart sets forth policies and procedures concerning public access to the Presidential historical materials of Richard M. Nixon.

§1275.42 Processing period; notice of proposed opening.

(a)(1) The archivists will conduct archival processing of those materials other than tape recordings to prepare them for public access. In processing the materials, the archivists will give priority to segregating private or personal materials and transferring them to their proprietary or commemorative owner in accordance with §1275.48. In conducting such archival processing, the archivists will restrict portions of the materials pursuant to §§1275.50 and 1275.52. All materials other than tape recordings to which reference is made in §1275.64 will be prepared for public access and released subject to restrictions or outstanding claims or petitions seeking such restrictions. The Archivist will open for public access each integral file segment of materials upon completion of archival processing of that segment.

(2) The archivists will conduct archival processing of the tape recordings to prepare them for public access in accordance with the provisions set forth in the Settlement Agreement (see Appendix A to this part). In conducting the archival processing of the tape recordings, the archivists will restrict segments of the tape recordings pursuant to §§1275.50 and 1275.52. The tape segments which consist of abuses of governmental power information, as defined in §1275.16(c), will be given priority processing by the archivists and will be prepared for public access and released following review and resolution of objections from the Nixon estate and other interested parties as set forth in the Settlement Agreement (see Appendix A to this Part). After the tape segments which consist of abuses of governmental power information have been released, the archivists will conduct archival processing of those tape recordings which were taped in the Cabinet Room, as set forth in the Settlement Agreement. Appendix A to

this Part. Following release of the Cabinet Room tape recordings, the remaining tape recordings will be prepared for public access and released in five segments in accordance with the schedule set forth in the Settlement Agreement. In addition, NARA will identify and return any additional private or personal segments to the Nixon estate, at approximately the time that NARA proposes each segment for public release.

(b) At least 30 calendar days prior to the opening to public access of any integral file segment of the materials, the Archivist will publish notice in the FEDERAL REGISTER of the proposed opening. The notice will reasonably identify the material to be opened and will include a reference to the right of any interested person to file a claim or petition in accordance with §1275.44. Copies of the notice will be sent to the Incumbent President of the United States or his designated agent and by first-class mail to the last known address of: Mr. Nixon, or his designated agent or heirs, any former staff member reasonably identifiable as the individual responsible for creating or maintaining the file segment proposed to be opened; any individual named in the material which the Archivist may not restrict in accordance with §1275.50(b) because the material is essential to an understanding of any abuse of governmental power; and any persons named in the materials who are registered with the National Archives and Records Administration in accordance with paragraph (c) of this section.

(c) The Archivist will maintain a registry which shall contain the names and mailing addresses of persons who wish to receive personal notice of the proposed opening of integral file segments of the materials when those segments contain references about them. To be included in the registry, a person must submit his/her name and mailing address to the National Archives and Records Administration (NLN), Washington, DC 20408. Both the envelope and letter should be prominently marked, "Nixon Materials Registry." By submitting his/her name for inclusion in the registry, a person agrees to reimburse the United States for the cost of

§1275.44

first-class postage for each instance of personal notice received.

(51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17845, Apr. 23, 1998)

§1275.44 Rights and privileges; right to a fair trial.

(a) Within 30 days following publica-
tion of the notice prescribed in
§1275.42(b), any person claiming a legal
or constitutional right or privilege
which would prevent or limit public ac-
cess to any of the materials shall no-
tify the Archivist in writing of the
claimed right or privilege and the spe-
cific materials to which it relates. Un-
less the claim states that particular
materials are private or personal (see
paragraph (d) of this section), the Ar-
chivist will notify the claimant by cer-
tified mail, return receipt requested, of
his decision regarding public access to
the pertinent materials. If that deci-
sion is adverse to the claimant, the Ar-
chivist will refrain from providing pub-
lic access to the pertinent materials
for at least 30 calendar days from re-
cipt by the claimant of such notice.

(b) Within 30 days following publica-
tion of the notice prescribed in
§1275.42(b), officers of any Federal,
State, or local court and other persons
who believe that public access to any
of the materials may jeopardize an in-
dividual's right to a fair and impartial
trial should petition the Archivist set-
ting forth the relevant circumstances
that warrant withholding specified ma-
terials. The Archivist will notify the
petitioner by certified mail, return re-
cipt requested, of his decision regard-
ing public access to the pertinent ma-
terials. If that decision is adverse to
the petitioner, the Archivist will re-
frain from providing public access to
the pertinent materials for at least 30
calendar days from receipt by the peti-
tioner of such notice.

(c) In reaching decisions required by paragraphs (a) and (b) of this section, the Archivist may consult with other appropriate Federal agencies. If these consultations require the transfer of copies of the materials to Federal officials in agencies other than the National Archives and Records Administration, the Archivist will transfer these copies in accordance with the

procedures prescribed in §§1275.26 and
1275.32.

(d) Within 30 days following publica-
tion of notice prescribed in §1275.42(b),
any person claiming that materials
proposed for public access are in fact
private or personal, as defined in
§1275.16(b), and that he or she is the
proprietary or commemorative owner
of those materials shall notify the Ar-
chivist in writing. The claim shall de-
scribe the specific materials to which
it refers, and the claimant's basis for
concluding that these materials are
private or personal. Upon receipt of
such a claim, the Archivist will trans-
mit it to the Presidential Materials Re-
view Board for its consideration and
determination in accordance with
§1275.46(1). The Archivist will refrain
from providing public access to the
pertinent materials or from returning
them to the claimant for at least 30
calendar days from receipt by the claimant
or any intervening parties of the
Board's determination.

(e)(1) In place of the right to make all other objections with respect to the tape segments that NARA has designated as abuses of governmental power materials, the Nixon estate may object to their release only on the ground that such designation by NARA is clearly inconsistent with the term "abuses of governmental power" as used in §104(a)(1) of the Presidential Recordings and Materials Preservation Act (PRMPA) and defined in §1275.16(c), as qualified by §1275.50(b). Any such objection may not be based on isolated instances of alleged failure by NARA to apply the appropriate review standard, but only on a pattern of misapplication of the requirements of the PRMPA and its implementing regulations. Further, any such objection must be accompanied by specific examples of alleged review errors and contain sufficient information to enable the review panel of three Presidential Library archivists appointed by the Archivist, as described in the Settlement Agreement. Appendix A to this Part, to locate those examples readily.

(2) If an objection is made by the
Nixon estate to the abuses of govern-
mental power tape segments, the mat-
ter shall be immediately referred to a

panel of three Presidential Library ar-
chivists appointed by the Archivist as
set forth in the Settlement Agreement,
Appendix A to this Part. The decision
of the panel shall be either that the
Nixon estate's objection is sustained or
that it is rejected. The decision shall
include a brief statement of the panel's
reasons, but it need not include an
item-by-item determination. In decid-
ing whether the designation by NARA
of the material proposed to be released
is clearly inconsistent with the defini-
tion of "abuses of governmental
power", the panel shall consider wheth-
er the release would seriously injure le-
gitimate interests of identifiable indi-
viduals, whether the errors suggest a
pattern of misinterpretation, and any
other factor that bears on the issue of
whether NARA's designation of mate-
rial as relating to "abuses of govern-
mental power" was reasonable, consid-
ered as a whole. The panel's decision
shall be final and binding on all parties
to the *Kutler* litigation, and no party
may exercise any right to appeal to
any person, board, or court that might
otherwise be available.

(3) The Nixon estate may, at any
time, elect to use the procedures out-
lined in paragraphs (e)(1) and (e)(2) of
this section for the tape recordings
other than the abuses of governmental
power segments, except that the stand-
ard under which objections shall be
made by the Nixon estate, and under
which the review panel shall decide
their merits, is whether the release
taken as a whole is plainly incon-
sistent with the requirements of the
Presidential Recordings and Materials
Preservation Act of 1974 and these reg-
ulations. If the Nixon estate elects to
use the procedures in paragraph 1 of
the Settlement Agreement (Appendix A
to this Part) in place of the provisions
in paragraphs 4 (b) and (d) and 5(c) of
the Settlement Agreement for a tape
segment, the estate cannot subse-
quently revert back to the formal ob-
jection process set forth in this section
for that tape segment.

(51) FR 7230. Feb. 28, 1986; 51 FR 8671, Mar. 13, 1986, as amended at 61 FR 17815, Apr. 23, 1998)

§ 1275.46

§1275.46 Segregation and review; Sen-
ior Archival Panel; Presidential Ma-
terials Review Board.

(a) During the processing period de-
scribed in §1275.42(a), the Archivist will
assign archivists to segregate private
or personal materials, as defined in
§1275.16(b). The archivists shall have
sole responsibility for the initial re-
view and determination of private or
personal materials. At all times when
the archivists or other authorized offi-
cials have access to the materials in
accordance with these regulations,
they shall take all reasonable steps to
minimize the degree of intrusion into
private or personal materials. Except
as provided in these regulations, the
archivists or other authorized officials
shall not disclose to any person private
or personal or otherwise restricted in-
formation learned as a result of their
activities under these regulations.

(b) During the processing period de-
scribed in §1275.42(a), the Archivist will
assign archivists to segregate mate-
rials neither relating to abuses of gov-
ernmental power, as defined in
§1275.16(c), nor otherwise having gen-
eral historical significance, as defined
in §1275.16(d). The archivists shall have
sole responsibility for the initial re-
view and determination of those mate-
rials which are not related to abuses of
governmental power and do not other-
wise have general historical signifi-
cance.

(c) During the processing period de-
scribed in §1275.42(a), the Archivist will
assign archivists to segregate mate-
rials subject to restriction, as pre-
scribed in §§1275.50 and 1275.62. The ar-
chivists shall have sole responsibility
for the initial review and determina-
tion of materials that should be re-
stricted. The archivists shall insert a
notification of withdrawal at the front
of the file folder or container affected
by the removal of restricted material.
The notification shall include a brief
description of the restricted material
and the basis for the restriction as pre-
scribed in §§1275.50 and 1275.52.

(d) If the archivists are unable to
make a determination required in
paragraphs (a), (b), or (c) of this sec-
tion, or if the archivists conclude that

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§ 1275.46

the required determination raises significant issues involving interpretation of these regulations or will have far-reaching precedential value, the archivists shall submit the pertinent materials, or representative examples of them, to a panel of senior archivists selected by the Archivist. The Panel shall then have the sole responsibility for the initial determination required in paragraphs (a), (b), or (c) of this section.

(e) If the Senior Archival Panel is unable to make a determination required in paragraph (d) of this section, or if the panel concludes that the required determination raises significant issues involving interpretation of these regulations or will have far-reaching precedential value, the Panel shall certify the matter and submit the pertinent materials, or representative examples of them, to the Presidential Materials Review Board.

(f) The Presidential Materials Review Board (Board) shall consist of the Archivist, who shall serve as Chairman, and the following additional members:

(1) The Assistant Archivist for the Office of the National Archives;

(2) The Assistant Archivist for the Office of the Presidential Libraries;

(3) The Director of the Legal Counsel Staff of the National Archives and Records Administration; and

(4) The Historian of a Federal agency who shall be selected by the Archivist in his capacity as Chairman.

The Board shall meet at the call of the Chairman. Three members of the Board shall constitute a quorum for the conduct of the Board's business, although each member of the Board may participate in all of the Board's decisions. Members of the Board may be represented by their delegates on those occasions when they are unable to attend the meetings of the Board. The Board may consult with officials of interested Federal agencies in formulating its decisions. To the extent these consultations require the transfer of copies of materials to Federal officials outside the National Archives and Records Administration, the Board shall comply with the requirements of §§ 1275.26 and 1276.32.

(g) When the matter certified to the Board by the Senior Archival Panel In-

volves a determination required in paragraphs (a) or (b) of this section, the Board shall prepare a final written decision, together with dissenting and concurring opinions, of the proper categorization and disposition of the pertinent materials. The Board's decision will be the final administrative determination.

(h) When the matter certified to the Board by the Senior Archival Panel involves a determination required in paragraph (c) of this section, the Board shall recommend an initial determination to the Senior Archival Panel, which shall retain the sole responsibility for the initial determination.

(i) When the Board considers a matter referred to it by the Archivist as provided in §1275.44(d), it shall follow these procedures:

(1) The Board shall notify the claimant of its consideration of the claim, and invite the claimant to supplement at his discretion the basis for the claim.

(2) The Board will publish notice in the FEDERAL REGISTER, advising the public of its consideration of the claim and describing the materials in question as fully as reasonably possible without disclosing arguably private or personal information. The notice will further advise that any member of the public may petition the Board within 15 calendar days of the publication of notice, setting forth the intervenor's views concerning the public or private nature of the materials.

(3) The Board shall take into account the positions maintained by the claimant and any intervenors in reaching its decision. The Board shall issue its decision, including dissenting and concurring opinions, no sooner than 20 days nor later than 60 days from the publication of notice in the FEDERAL REGISTER provided in paragraph (h)(2), of this section. The Board's decision shall be the final administrative determination. The Archivist will notify the claimant and any intervenors of the Board's decision by certified mail, return receipt requested, and shall refrain from acting upon that decision for 30 calendar days as provided in §1275.44(d).

(5) FR 7230, Feb. 23, 1986, as amended at 61 FR 17845, Apr. 23, 1996)

794

§ 1275.52

§ 1275.48 Transfer of materials.

(a) The Archivist will transfer sole custody and use of those materials determined to be private or personal, or to be neither related to abuses of governmental power nor otherwise of general historical significance, to former President Nixon's estate, or, when appropriate and after notifying the Nixon estate, to the former staff member having primary proprietary or commemorative interest in the materials. Such materials to be transferred include all segments of the original tape recordings that have been or will be identified as private or personal.

(b) Materials determined to be neither related to abuses of governmental power nor otherwise of general historical significance, and transferred pursuant to paragraph (a) of this section, shall upon such transfer no longer be deemed Presidential historical materials as defined in §1275.16(a).

(5) FR 7230, Feb. 23, 1986, as amended at 61 FR 17845, Apr. 23, 1996; 64 FR 56678, Oct. 21, 1999

§1275.60 Restriction of materials related to abuses of governmental power.

(a) The Archivist will restrict access to materials determined during the processing period to relate to abuses of governmental power, as defined in §1275.16(c), when:

(1) The Archivist, in accordance with §1275.44, is in the process of reviewing or has determined the validity of a claim by any person of a legal or constitutional right or privilege; or

(2) The Archivist, in accordance with §1275.44, is in the process of reviewing or has determined the validity of a petition by any person of the need to protect an individual's right to a fair and impartial trial; or

(3) The release of the materials would violate a Federal statute; or

(d) The materials are authorized under criteria established by Executive order to be kept secret in the interest of national defense or foreign policy, provided that any question as to whether materials are in fact properly classified or are properly subject to classification shall be resolved in accordance with the applicable Executive order or as otherwise provided by law.

However, the Archivist may waive this restriction when:

(i) (A) The requester is engaged in a historical research project; or

(B) The requester is a former Federal official who had been appointed by the President to a policymaking position and who seeks access only to those classified materials which he originated, reviewed, signed or received while in public office; and

(li) The requester has a security clearance equivalent to the highest degree of national security classification that may be applicable to any of the materials to be examined; and

(iii) The Archivist has determined that the heads of agencies having subject matter interest in the material do not object to the granting of access to the materials; and

(iv) The requester has signed a statement, which declares that the requester will not publish, disclose, or otherwise compromise the classified material to be examined and that the requester has been made aware of Federal criminal statutes which prohibit the compromise or disclosure of this information.

(b) The Archivist will restrict access to any portion of materials determined to relate to abuses of governmental power when the release of those portions would constitute a clearly unwarranted invasion of personal privacy or constitute libel of a living person: Provided, That if material related to an abuse of governmental power refers to, involves or incorporates such personal information, the Archivist will make available such personal information, or portions thereof, if such personal information, or portions thereof, is essential to an understanding of the abuses of governmental power.

§1275.62 Restriction of materials of general historical significance unrelated to abuses of governmental power.

(a) The Archivist will restrict access to materials determined during the processing period to be of general historical significance, but not related to abuses of governmental power, under one or more of the circumstances specified in §1275.50(a).

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1275.54

(b) The Archivist will restrict access to materials of general historical significance, but not related to abuses of governmental power, when the release of these materials would:

(1) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential; or

(2) Constitute a clearly unwarranted invasion of personal privacy or constitute tibel of a living person; or

(3) Disclose investigatory materials compiled for law enforcement purposes, ut only when the disclosure of such records would:

(1) Interfere with enforcement proceedings;

(ii) Deprive a person of a right to a fair trial or an impartial adjudication;

(iii) Constitute an unwarranted invasion of personal privacy;

(iv) Disclose the identity of a confidential source, and in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;

(v) Disclose investigative techniques and procedures; or

(vi) Endanger the life or physical safety of law enforcement personnel.

### §1275.54 Periodic review of restrictions.

The Archivist periodically will assign archivists to review materials placed under restriction by §1275.50 or §1275.52 and to make available for public access those materials which, with the passage of time or other circumstances, no longer require restriction. If the archivists are unable to determine whether certain materials should remain restricted, the archivists shall submit the pertinent materials, or representative examples of them, to the Senior Archival Panel described in §1275.44(d), which shall then have the responsibility for determining if the materials should remain restricted. The Senior Archival Panel may seek the recommendations of the Presidential Materials Review Board, in the manner prescribed in paragraph (c) and (h) of §1275.46, in making its determination.

Before opening previously restricted materials, the Archivist will comply with the notice requirements of §1275.42(b).

(51 FR 7230, Feb. 28, 1986; 51 FR 8871, Mar. 13, 1986)

### §1275.56 Appeal of restrictions.

Upon petition of any researcher who claims in writing to the Archivist that the restriction of specified materials is inappropriate and should be removed, the archivists shall submit the pertinent materials, or representative examples of them, to the Presidential Materials Review Board described in §1275.46(f). The Board shall review the restricted materials, and consult with interested Federal agencies as necessary. To the extent these consultations require the transfer of copies of materials to Federal officials outside the National Archives and Records Administration, the Board shall comply with the requirements of §§1275.26 and 1275.32. As necessary and practicable, the Board shall also seek the views of any person, including former President Nixon, whose rights or privileges might be adversely affected by a decision to open the materials. The Board shall prepare a final written decision, including dissenting and concurring opinions, as to the continued restriction of all or part of the pertinent materials. The Board's decision shall be the final administrative determination. The Archivist will notify the petitioner and other interested persons of the final administrative determination within 60 calendar days following receipt of such petition. If the Board's decision is to open previously restricted materials, the Archivist will comply with the notice requirements of §1275.42(b).

(51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1996)

### §1275.58 Deletion of restricted portions.

The Archivist will provide a requester any reasonably segregable portions of otherwise restricted materials after the deletion of the portions which are restricted under this §1275.50 or §1275.52.

ncc

§1275.66

### §1275.60 Requests for declassification.

Challenges to the classification and requests for the declassification of national security classified materials shall be governed by the provisions of 36 CFR part 1254 of this chapter, as that may be amended from time to time.

### §1275.62 Reference room locations, hours, and rules.

The Archivist shall, from time to time, separately prescribe the precise location or locations where the materials shall be available for public reference, and the hours of operation and rules governing the conduct of researchers using such facilities. This information may be obtained by writing to: Office of Presidential Libraries (NL), The National Archives, Washington, DC 20408.

### §1275.64 Reproduction of tape recordings of Presidential conversations.

(a) To ensure the preservation of original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which:

(1) Involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government; and

(2) Were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, DC; Camp David, MD; Key Biscayne, FL; or San Clemente, CA; and

(3) Were recorded during the period beginning January 20, 1969, and ending August 9, 1974, the Archivist will produce duplicate copies of such tape recordings in his custody for public and official reference use. The original tape recordings shall not be available for public access.

(b) Since the original tape recordings may contain information which is subject to restriction in accordance with §1275.50 or §1275.52, the archivists shall review the tapes and delete restricted portions from copies for public and official reference use.

(c) Researchers may listen to reference copies of the tape recordings described in paragraph (a) of this section in a National Archives building in the

Washington, DC area and at other reference locations established by the Archivist in accordance with §1275.62.

(d) The reproduction for members of the public of the reference copies of the available tape recordings described in paragraph (a) of this section will be permitted as follows: Copies of tape recordings will be made available following the public release of the last of the tape segments contemplated in §1275.42(a). If the releases contemplated in §1275.42(a) are not completed by December 31, 1999, NARA will, beginning January 1, 2000, allow members of the public to obtain copies only of the abuses of governmental power tapes, together with any other tapes publicly released as of the effective date of the Settlement Agreement. If the releases contemplated in §1275.42(a) are not completed by December 31, 2002, NARA will, beginning January 1, 2003, allow members of the public to obtain copies of all tapes that have been made available to the public by that date and tapes that subsequently become available as they are released. Such copying will be controlled by NARA or its designated contractor. The fees for the reproduction of the tape recordings under this section shall be those prescribed in the schedule set forth in part 1258 of this chapter or pertinent successor regulation, as that schedule is amended from time to time.

(e) The Archivist shall produce and maintain a master preservation copy of the original tape recordings for preservation purposes. The Archivist shall ensure that the master preservation copy, like the portions of the original tape recordings retained by the Archivist, does not contain those segments of the tape recordings which have been identified as private or personal and which have been transferred to the Nixon estate in accordance with §1275.48.

(51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1996; 64 FR 56678, Oct. 21, 1999)

### §1275.66 Reproduction and authentication of other materials.

(a) Copying of materials other than tape recordings described in §1275.64 may be done by NARA, by a contractor designated by NARA, or by researchers

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§1275.68

using self-service copiers. Such self-service copying shall be done in accordance with the NARA policy on self-service copying set forth at 36 CFR 1254.71, to ensure that such copying will not harm the materials or disrupt reference activities.

(b) The Archivist may authenticate and attest copies of materials when necessary for the purpose of the research.

(c) The fees for reproduction and authentication of materials under this section shall be those prescribed in the schedule set forth in part 1258 of this chapter or pertinent successor regulation, as that schedule is amended from time to time.

[51 FR 7280, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1995]

## §1275.68 Amendment of regulations.

The Archivist may from time to time amend the regulations of this subpart D in accordance with the applicable law concerning such amendments.

## §1276.70 Freedom of information requests.

(a) The Archivist will process Freedom of Information Act requests for access to only those materials within the Presidential historical materials which are identifiable by an archivist as records of an agency as defined in §1275.16(f). The Archivist will process these requests in accordance with the Freedom of Information regulations set forth in §1254.30 of this chapter or pertinent successor regulations.

(b) In order to allow NARA archivists to devote as much time and effort as possible to the processing of materials for general public access, the Archivist will not process those Freedom of Information requests where the requester can reasonably obtain the same materials through a request directed to an agency (as defined in §1275.16(f)), unless the requester demonstrates that he or she has unsuccessfully sought access from that agency or its successor in law or function.

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1995]

## APPENDIX A TO PART 1275—SETTLEMENT AGREEMENT

Settlement Agreement dated April 12, 1998, in Stanley I. Kutler and Public Citizen v. John W. Carlin, Archivist of the United States, and William E. Griffin and John H. Taylor, Co-executors of Richard M. Nixon's Estate, Civil Action No. 92-0662-NJH (D.D.C.) (Johnson, J.)

### Settlement Agreement

This Settlement Agreement ("Agreement") is made by and entered into among plaintiffs Stanley I. Kutler and Public Citizen; defendant/cross-claim defendant John W. Carlin, in his official capacity as Archivist of the United States; and defendant-in-tenants/cross-claimanta John H. Taylor and William E. Griffin, co-executors of the estate of Richard M. Nixon ("the Nixon estate"), in the above-entitled action by and through the parties' undersigned attorneys.

It is hereby agreed, by and among the parties, appearing through their undersigned attorneys, that this action is partially settled on the following terms:

### TERMS OF AGREEMENT

(a). As soon as practicable, the National Archives and Records Administration ("the Archives") will publicly release the segments of tape recordings made during the Presidency of Richard M. Nixon ("tape recordings" or "tapes") identified by the Archivists as relating to "abuses of governmental power," as defined by 36 C.F.R. Part 1275, along with the corresponding portions of the tape log and any other finding aid. The date of that release, which is expected to be on or about November 15, 1996, shall be determined in the following manner.

(b). No later than April 15, 1996, the Archivists shall deliver to an agent of the Nixon estate a copy of the approximately 201 hours of abuses of governmental power tape segments that it proposes to release, together with the corresponding portions of the tape log and any other finding aid, for review by the Nixon estate to determine whether it intends to object to the release. The Archives agrees to provide a period of orientation to the designated Nixon estate agent with respect to the review of the abuses of governmental power tape segments and to be available to respond to questions thereafter.

(c). In place of the right to make all other objections with respect to the tape recordings that the Archives has designated as abuses of governmental power materials, the Nixon estate agrees that it may object to their release only on the ground that such designation by the Archives is clearly inconsistent with the term "abuses of governmental power" as used in section 104(a)(1) of the Presidential Recordings and Materials Preservation Act of 1974 ("the Act").

798

Pl. 1275, App. A

U.S.C. §211j note, and defined in 36 C.F.R. 1275.16(c), as qualified by 36 C.F.R. 1275.50(b). Any such objection shall be in writing and may not be based on isolated instances of alleged failure by the Archives to apply the appropriate review standard, but only on a pattern of misapplication of the requirements of the Act and its implementing regulations. Further, any such objection must be accompanied by specific examples of alleged review errors and contain sufficient information to enable the review panel described in subparagraph (c) below to locate those examples readily. Nothing in this paragraph shall preclude the Nixon estate and the Archives from having informal discussions regarding the appropriate treatment of any of the abuses of governmental power tap segments.

(d). The Nixon estate shall have until October 1, 1996, to submit any objection in accordance with subparagraph (c) above. If no such objection is filed, the Archives shall proceed to issue a notice of proposed release pursuant to 36 C.F.R. 1275.42 as soon as possible, but no later than October 15, 1996.

(e). If an objection is made, the matter shall be immediately referred to a panel of the following three Presidential Library Archivists: David Alsobrook, Frances Seeber, and Claudia Anderson. If any of these three persons is unable to serve, the Archivist shall appoint a substitute who is acceptable to the other parties.

(f). The panel shall have such access to the tapes as it deems necessary to make its decision. The decision of the panel shall be either that the Nixon estate's objection is sustained or that it is rejected. The decision shall include a brief statement of the panel's reasons, but it need not include an item-by-item determination. In deciding whether the designation by the Archives of the material proposed to be released is clearly inconsistent with the definition of "abuses of governmental power," the panel shall consider whether the release would seriously injure legitimate interests of identifiable individuals, whether the errors suggest a pattern of misinterpretation, and any other factor that bears on the issue of whether the Archives' designation of material as relating to abuses of governmental power was reasonable, considered as a whole. The decision of the panel shall be made within sixty (60) days of the date of the objection. However, if the panel determines that exceptional circumstances interfere with its ability to meet this deadline, the panel shall have up to an additional sixty (60) days to make its decision. The Archivists shall notify the other parties of the need for an extension and briefly describe the reasons therefor. The panel's decision shall be final and binding on all parties, and no party may exercise any right to appeal to any person, bond, or court that might otherwise be available. Nothing contained in this Agreement shall preclude the panel from ad-

vising the Archives of any particular processing errors that it believes may have been made, but the Archivist shall make the final determination as to whether to accept such advice.

(g). If the objection of the Nixon estate is sustained, the Archives shall re-review the tapes sufficiently to address the concerns raised by whatever aspect of the objection is sustained. At the conclusion of such re-review, the same process of review, first by the Nixon estate and then by the panel in the event of further objection, shall be repeated for those tape segments concerning the subject matter of the sustained objection prior to any release of tape recordings designated as relating to abuses of governmental power.

(h). The Nixon estate agrees to inform the Archives and plaintiffs whether it intends to file objections as soon as it has made its decision. If there is an objection by the Nixon estate and it is overruled, the FEDERAL REGISTER notice shall be published within ten (10) days of the date of the panel's decision.

(i). If, following the FEDERAL REGISTER notice, no objection by other individuals to a release is received within the time provided by law, the Archives shall release the tape recordings within ten (10) days after such time has expired. If objections are received, they shall be promptly considered by the Archivists and shall be decided as soon thereafter as practical. Any materials as to which an objection to release has been timely filed shall not be released until such objection has been resolved pursuant to 36 C.F.R. 1275.41. All materials not objected to shall be released no later than thirty (30) days after the time for objections has expired, provided that the Archives may withhold any additional conversation to which no objection has been made, pending final resolution of an objection to another conversation, if (i) such additional conversation is in close proximity on the tapes to the objected-to conversation and it would be burdensome for the Archives to separate out the releasable and objected-to portions, or (ii) the subjects of the releasable and the objected-to conversations are closely related to one another and the Archivists determines that it might be misleading or might unfairly prejudice a living individual to release only one conversation. Any release under this Agreement shall include the corresponding portions of the tape log and any other finding aid.

(j). The Archives shall send to plaintiff Kutler, to arrive no later than the day that the release of the tapes occurs, a copy of the portions of the tape log and any other finding aid that correspond to the tapes being released. The Archives shall also make suitable arrangements for plaintiff Kutler to listen to such tapes on the date of their release. and/or on such other subsequent business days as plaintiff Kutler shall designate.

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Pl. 1275, App. A

(2a). Although the Agreement provides that the Archives will identify and return to the Nixon estate a copy of any private or personal materials identified on the tapes, the parties have been unable to reach agreement regarding the Archivist's retention and maintenance of the original tape recordings in their entirety, including those segments deemed to be private or personal, along with a master preservation copy. The government's position is that it is complying with the Act by retaining the original tapes and a master preservation copy, including those portions containing private or personal conversations. The Nixon estate's position, with which plaintiffs agree, is that the family has statutory, constitutional, and other rights that prevent the Archives from retaining private or personal materials, on both the original tapes and all copies.

(b). The parties have agreed to litigate the issue described in subparagraph 2(a) above, including the validity of 36 C.F.R. 1275.48(a) and 1275.64(e) as proposed for amendment. The parties further agree that the Court shall retain jurisdiction of that issue, as provided in paragraph 14 below, and that the right to litigate this issue includes the right to seek review in the United States Court of Appeals for the District of Columbia Circuit and the United States Supreme Court. If there is litigation between the Nixon estate and the Archivist over the issue described in subparagraph 2(a) above, the plaintiffs shall support the Nixon estate in any such litigation by filling a brief supporting the estate's position in District Court. The parties agree to make all reasonable efforts to expedite resolution of this issue.

(c). This Agreement and all discussions, negotiations and exchanges of information, leading to it shall be entirely without prejudice to any positions the parties may take in the event of such litigation. Nothing in this Agreement, in any discussions leading to it, or in any information or materials exchanged by the parties as part of the mediation may be relied on or disclosed by any party to support or rebut the position of any party with respect to the treatment of private or personal materials on the original tapes. Nothing in this subparagraph prevents any party from expressing its understanding as to the meaning and effect of the legal position of another party.

3. The Archives will provide to the Nixon estate any additional private or personal materials at approximately the time that the Archives proposes each segment identified in paragraphs 4 and 5 below for public release. Any additional copies of that material (other than on a master preservation copy, the status of which will be determined in accordance with the resolution of the issue as described in subparagraph 2(a) above), will be destroyed by appropriate method, with appropriate means of verification.

4(a). The second group of tapes to be processed for release is the approximately 278 hours recorded in the Cabinet Room. The hours recorded in the Cabinet Room. The projected date for publishing a notice of proposed opening of tapes in that group is August 1, 1997. The Archives will make the Cabinet Room tapes proposed for release available to the Nixon estate in no fewer than four (4) segments. The process by which those tapes will be reviewed by the Nixon estate, and the objections handled by the Archives, is set forth in the following subparagraphs of this paragraph 4.

(b). The Nixon estate agrees to review each segment as it is received and promptly to call to the attention of the Archives any concerns that it may have. The Archives and the Nixon estate agree to attempt to work out their differences informally in order to minimize any objections to a proposed release. To facilitate informal consultation between the Nixon estate and the Archives concerning the tape review, the Archivist shall designate a panel member identified in subparagraph 1(e) above who will serve as a contact with the Nixon estate and assure access to information relating to Presidential libraries practices and procedures that may arise in the course of the tape review. The designated individual will be responsible for assuring that the Nixon estate has access to the appropriate person to answer its concerns. The Nixon estate may communicate with the designated individual orally or in writing. If the Archives agrees with the Nixon estate that any portion of a segment that has been sent to the Nixon estate as a proposed release should not be released, the Archives shall assure that there is appropriate documentation to reflect that change.

(c). The Nixon estate will have a period of at least six (6) months in which to review all of the Cabinet Room tapes, beginning on the date the Archives makes the first installment of such tapes available to the estate for review (but in no event with the six (6) months begin earlier than November 15, 1996). During the review of the Cabinet Room tapes, the Nixon estate will employ an agent or agents who will spend an average of at least thirty two (32) hours a week (total) in actual review of the tapes. The Nixon estate may request from the Archives an extension of the six-month review period, which the Archives shall grant if good cause is shown.

(d). If, during its review, the Nixon estate becomes aware that there are materials proposed for release that it believes should not be heard even by individuals on the registry list, it will promptly advise the Archives of any such materials so that they can be reviewed and/or segregated by the Archives before any other individual is permitted to listen to them. The Nixon estate will cooperate with the Archives so that the required FEDERAL REGISTER notice is published as soon as possible, but in no event shall such notice be

730

Pl. 1275, App. A

provided later than ten (10) days after the time the Nixon estate completes its review. Final objections from the Nixon estate to the release of portions of the tapes shall be filed in accordance with 36 C.F.R. Part 1275 no later than the date for filing objections by other persons. Thereafter, subject to paragraph 7 below, the provisions of subparagraphs (1)(i) and (1)(j) above will apply.

5(a). The remaining tapes, consisting of approximately 2330 hours, shall be processed for release in five (5) segments. Because the precise number of hours of tapes for each month cannot readily be determined, the parties have agreed to divide the releases into the segments set forth below. The Archives will begin processing (which includes, but is not limited to, tape review, preparing tapes for declassification review, tape editing and production of finding aids) each segment before processing of the preceding segment is concluded. Processing of the tapes in each segment is projected to take from about fifteen (15) to about twenty three (23) months. The approximate number of hours of tapes to be reviewed in each segment is set forth in parentheses in the following listing of the segments. The projected number of months between the completion of the Archives' processing of the immediately preceding segment and the completion of the Archives' processing of each listed segment is set forth in brackets.

1. February 1971-July 1971 (437 hours) [8 months]

2. August 1971-December 1971 (405 hours) [7 months]

3. January 1972-June 1972 (410 hours) [7 months]

4. July 1972-October 1972 (410 hours) [6 months]

5. November 1972-July 1973 (616 hours) [10 months]

(b). The time estimates in this Agreement are not enforceable as such, but the parties agree to have the Court retain jurisdiction to consider requests that it enter a binding order setting a schedule for the Archives to complete the processing of the tapes. No party may seek such an order unless that party first provides twenty (20) days' written notice to the other parties of that party's intention to seek such an order. Further, no party may seek such an order except on the ground that the Archives has unreasonably failed to meet the estimates contained herein by a substantial amount. The type of proof that will demonstrate reasonableness on the part of the Archives in this regard may include, but will not necessarily be limited to, a showing that the Archives is reasonably allocating its resources among its various programs and activities in the event that it experiences a shortage of resources, including any occasioned by court order.

(c). Portions of each segment processed by the Archives shall be provided to the Nixon estate when the processing of each month of tape recorded material is completed, unless there are a very few hours for two (2) or more months, which may then be combined into a single unit. During its review of the chronological tape segments, the Nixon estate will employ an agent or agents who will spend an average of at least thirty two (32) hours a week (total) in actual review of the tapes, forty eight (48) weeks of the year. As its review of the tapes proceeds, the Nixon estate shall provide a written report of its progress to the Archives and the plaintiffs on a bi-monthly basis. The report shall include the number of hours worked in each week, the number of hours of tapes reviewed in each week, and the Nixon estate's projected completion date for review of the segment currently under review. The provisions of subparagraphs 4(b) and 4(d) above shall apply to the review, objections, and releases with respect to the chronological tape segments, subject to paragraph 7 below.

(d). If one of the other parties to this Agreement determines that the Nixon estate's review is not being conducted diligently or in good faith, or that the estate's estimated completion date(s) of one or more segments is unreasonable, that party may petition the Archivist to establish an earlier date(s) for the completion of the review of that segment and/or of future segments. Any such date(s) established by the Archivist shall provide the Nixon estate with a reasonable opportunity to protect and assert its interests without unduly delaying the release of the tapes, and shall be based upon consideration of the progress of the Archives' review and its scheduled completion dates: the progress to date of the estate's review; and the time reasonably necessary to complete the estate's review and to formulate and present any objections. The Archives may also propose earlier dates for the completion of the review by the Nixon estate on the basis provided for in this subparagraph. If a proposal for an earlier date is made, the Nixon estate will have a reasonable opportunity to respond.

6. Once the Archives has completed processing the approximately 2330 hours of tapes discussed in paragraph 5 above, and has made corresponding releases, the Archives shall identify any additional copies of partial tape segments in its possession. If the Archives determines that some or all of such additional partial tape segments are duplicative of any tape recordings that it has already processed, the Archives may dispose of the duplicative tape segments, following notification to the parties, subject to paragraph 3 above. To the extent that such partial tape segments are not duplicative of the tape recordings already processed, the Archives shall promptly process such non-duplicative

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Pl. 1275, App. A

portions and shall treat any portions determined to be private or personal consistently with the resolution of the issue to be litigated as described in paragraph 2 above.

7(a). After completion of the procedures described in paragraph 4 above, the Cabinet Room tapes that are found to be releasable under paragraph 4 above may be released if either there has been a final decision by the district court on the issue to be litigated as described in subparagraph 2(a) above, or the release is scheduled after April 1, 1998, whichever of these two events happens sooner.

(b). After completion of the procedures described in paragraph 5 above, the tapes described in paragraph 5(a) above that are found to be releasable may be released if either there has been a final judgment by the district court, which is not subject to further review by appeal or certiorari, with regard to the issue to be litigated as described in subparagraph 2(a) above, or there has been a final decision by the United States Court of Appeals for the District of Columbia Circuit on this issue, or the release is scheduled to take place after November 1, 1999, whichever of these three events happens sooner.

(c). As used in subparagraphs 7(a) and (b) above, the term "final decision" means a decision-not subject to reconsideration under Rule 59 of the Federal Rules of Civil Procedure, or Rules 35 or 40 of the Federal Rules of Appellate Procedure, respectively.

6. The Nixon estate may, at any time, elect to use the procedures in paragraph 1 above with respect to any tape segment in place of the provisions of paragraphs 4(b) and (d) and 5(c) above, with the following substitution: The standard under which objections shall be made, and under which the panel shall decide their merits, is whether the release taken as a whole is plainly inconsistent with the requirements of the Act and its implementing regulations. Provided, however, that once the Nixon estate elects to use the procedures in paragraph 1 above in place of the provisions in paragraphs 4(b) and (d) and 5(c) above, it cannot subsequently revert back to the formal objection process set forth in 36 C.F.R. Part 1275 for that tape segment.

9. Within thirty (30) days of the Court's entry of an order as described in paragraph 14 below, the Archivist shall designate a particular person who shall be responsible for responding to reasonable inquiries from the plaintiffs on the status of the releases and objections. Such designation may be changed at any time at the Archivist's discretion by a notice to plaintiffs through their counsel.

10. If the Archives appoints a Senior Archival Panel as defined in 36 C.F.R. 1275.46(d) and (e), no party to the Agreement may object to the appointment of such a panel on the ground that the suggestion to appoint such a panel was originated by an individual other than the processing archivists assigned

to the Archives' Nixon Presidential Materials Staff.

11. The Archives will allow members of the public to obtain copies of publicly accessible portions of the tapes after the releases described in paragraph 5 above, are completed: provided, however, that if the releases described in paragraph 5 above are not completed by December 31, 1999, the Archives will allow members of the public to obtain copies only of the abuses of governmental power tapes, together with any other tapes publicly released as of the date of the filing of this Agreement with the Court, beginning January 1, 2000. Further provided, that if the releases described in paragraph 5 above are not completed by December 31, 2002, the Archives will, beginning January 1, 2003, allow members of the public to obtain copies of all tapes that have been made available to the public by that date and tapes that subsequently become available, as they are released.

12(a). Promptly after the Court enters the Order provided for in paragraph 14 below, Plaintiff Kutler will withdraw his request under the Freedom of Information Act. 5 U.S.C. 552, for any and all tape logs and other finding aids, which is pending in Kutler v. Carlin, et al., Civ. A. No. 92-0661-NHJ (D.D.C.). In all other respects, plaintiff Kutler's request in that action shall be unaffected by this Agreement.

(b). Nothing in this Agreement shall affect the processing by the Archives of any videotapes, which are a collection of recordings of former President Nixon and other White House staff members dictating memoranda, correspondence and speech drafts. that are included in the materials that are subject to the Act.

13. Pursuant to Rule 315 of this Court, the plaintiffs and the defendant shall attempt to resolve the plaintiffs' claim for attorneys' fees and expenses and shall advise the Court no later than forty-five (45) days after this Court has entered the Order provided for in paragraph 14 below on whether they have been able to resolve the issue of attorneys' fees and expenses. If no resolution has been reached, they will, at that time, recommend a schedule to the Court to resolve such claim.

14. The parties agree to the dissolution of the preliminary injunction entered on August 9, 1993, and dismissal with prejudice of this action, including all claims and cross-claims, except for the issue to be litigated as described in subparagraph 2(a) above, and any fees and expenses claimed pursuant to paragraph 13 above, by filing the attached Joint Motion to Vacate Preliminary Injunction and to Dismiss Claims, and the attached Consent Order. The parties agree that the Court shall retain jurisdiction to: (a) Consider the entry of an order in accordance

732

Pl. 1275, App.

with the terms of paragraph 5 above; (b) resolve the issue to be litigated as described in subparagraph 2(a) above; (c) determine any fees and expenses claimed pursuant to paragraph 13 above; and (d) for the purpose of enforcing the terms of this Agreement. The parties further agree that such jurisdiction, except with respect to the issue described in paragraph 2 above, will be retained only until the later of the implementation of paragraph 11 above or the completion of the releases called for in paragraph 5 above. Plaintiffs and the Nixon estate further agree that they will not challenge any regulations issued by the Archives which implement and are consistent with this Agreement.

15. The terms of this Agreement may not be altered except with the written consent of the parties. Nothing in this Agreement constitutes an admission of liability or wrongdoing on the part of any party.

Executed this 12th day of April, 1996.

For Plaintiffs Stanley I. Kutler and Public Citizen:
Alan B. Morrison.

(D.C. Bar No. 073114), Public Citizen Litigation Group, 1600 20th Street NW., Washington, DC 20009, (202) 588-1000.

For Defendant John W. Carlin:

Anne L. Weismann,

(D.C. Bar No. 298190)

Judry L. Subar,

(D.C. Bar No. 347518)

Alina S. Kofsky,

(D.C. Bar No. 415093), Department of Justice Federal Programs Branch, Civil Division, 901 Street NW., Room 1010, Washington, DC 205 (202) 514-4523.

For Defendant-Intervenors John H. Tayl and William E. Griffin:

Herbert J. Miller.

(D.C. Bar No. 026120)

R. Stan Mortenson,

(D.C. Bar No. 114678)

Scott L. Nelson,

(D.C. Bar No. 413548)

Ellen Fels Berkman.

(D.C. Bar No. 433310)

Miller, Cassidy, Larroca & Lewin,

2555 M Street, NW., Washington, DC 20001 (202) 293-6400.

(61) FR 17046, Apr. 23, 1996

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William Rogers

10/25/2001 05:41:35 PM

Location: DC - 913
Phone: 202-942-5915
To: Jincao@kmaglobal.com
cc:
Subject: Message for Dr. Kissinger

Confidential and Privileged -- Advice of Counsel

Memorandum
To Dr. Kissinger
From Rogers
Re: NSC Telephone Records

25 October 2001

As I mentioned earlier, the Chief Archivist of the National Archives (not the National SECURITY Archives) has inquired very tactfully with a view to archiving your NSC telephone notes.

The National Archives manages Nixon's presidential records pursuant to the Presidential Recordings and Materials Preservation Act. The Act requires the Archivist to "receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, ... transcripts and other objects and materials which constitute the Presidential historic materials of Richard M. Nixon". Section 101(b)(1), 44 U.S.C. 2111, note. That, in essence, is what the Archivist is doing -- making reasonable efforts to obtain transcripts relating to the Nixon presidency.

The implementing regulations define Presidential records as all papers "by members of his staff in connection with his constitutional or statutory powers or duties as President... appropriate for retention as evidence of or information about these powers or duties." Pretty broad, and of course our position is that you acted in the NSC under the President's direction and in the exercise of authority delegated from him to you.

The Archivist takes the view that the phone notes made during your NSC service, to the extent that they relate to the public business of the presidency -- excepting the private portions, of course -- are "Presidential historical materials of Richard M. Nixon". It is pretty hard to argue otherwise.

The Act in this instance is explicit; "public and private" papers are excluded. The regulations similarly exclude papers "relating solely to a person's family or other non-governmental activities..." Section 1275.16. Private materials are returned and not preserved at the Archives. And the statute and the regulations provide for an extended list of materials which, though retained in the archives, are not available for public inspection -- classified national security information, anything that constitutes "an unwarranted invasion of personal privacy or constitutes libel", Section 1275.52(b)(2), discloses the identity of a confidential source or discloses "financial information".

When the Archivist learned, through State and NSC, of the resolution of the State Department phone records issue he felt he ought to try to follow he same path -- but more

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discreetly. He promises no announcement and no triumphalism on the part of the National
Security Archives. The National Security Archives are not involved in this effort, nor is the
Archivist acting under pressure from that organization. He has no need to announce the resolution
of the issue. The acquisition of the documents by the Archivist will not be a mater of public notice.

The Presidential Records Act contains provisions which are more explicitly favorable to the
individual than the Public Records Act which governed the State Department papers. It provides
that private and personal materials are to be returned, and that the owner of the papers will have
the opportunity to review papers which the Archivist proposes to release beforehand. The papers
are processed to exclude the personal, the classified and any materials that would allow "an
unwarranted invasion of personal privacy or constitute libel..." In this case, only after that process
or winnowing out takes place would the public have access. In this case, that would be soon.
Presidential records are made public after 25 years -- as indeed are public records. You deed of
trust with the Library of Congress contemplated a longer period of nondisclosure, of course..

The Archivist came to see me, with several of his colleagues, to emphasize the effort they
would make to exclude the "personal and private" and his hope that the question could be
resolved as amicably as was the case with the State Department phone notes. I asked that he
write a letter with those assurances. He has sent me a draft which is enclosed. I will send hard
copies of the Presidential Recordings and Materials Preservation Act and the regulations by mail.

I might add that Bellinger, the National Security Legal Adviser, concurs in the Archivist's
request.

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Memorandum

To: Dr. Kissinger
From: Rogers

Sunday

Re: NSC Telephone Notes

Further reflection has lead me to the view that it would be premature to discard Lloyd and David and select someone else as a litigator now - whether it be Sullivan or not.

He would be a good choice if this issue ends up in court. But first you need to decide what you want to do. We don't know yet precisely what the question is. All we have is Bellinger's letter, which says cryptically that the National Archives, an agency for which he is not responsible, thinks it has a custodial responsibility for NSC papers and is going to communicate with you. But what precisely will the National Archives ask for? And on what theory of law?

Better, in my view, to wait until you have something from National Archives telling you what its position is. At that point, you can ask both Lloyd and David for their views. And Sullivan as well, for that matter. Nothing bars a party from seeking opinions from more than one lawyer. With their views in hand you can make the determination whether to cooperate or fight. And decide whom you wish to enlist as your champion in court if it comes to that.