Analysis:

Why Does Bush Want to Bury Presidential Records?

On November 1, George W. Bush signed Executive Order 13233, ending 27 years of Congressional and judicial efforts to make Presidential papers and records publicly available.

John Dean, former Counsel to Richard Nixon, another secretive White House incumbent, wrote in FindLaw.com, “[W]e have a President who likes secrecy. He has hired only tested leak-proof and loyal staffers, effectively sealing the Bush White House. He has had his records as the Governor of Texas hidden, shipping them off to his father's Presidential library, where they are inaccessible. He has stiffed the Congressional requests for information about how he developed his energy policy— refusing to respond.”

The events of September 11 appear to have become a justification for Bush to seek even greater secrecy--a concentrated effort to keep the real work of a President hidden, showing the public only a scripted version of what is being done in their name.

Several well-publicized executive orders since that date have brought down a veil of secrecy on the government. Terror-related suspects have been secretly arrested (at least 1,000 whose identities are not known to the public). The availability of wiretaps has been increased under powers of a secret federal court hidden within the Department of Justice. News organizations and congressional leaders have only limited access to information about the war in Afghanistan.

Bush has not actually repealed the existing law--that is beyond a President’s powers--but he has modified it and makes it much more restrictive. “White House Press Secretary Ari Fleischer has tried, unsuccessfully, to spin Executive Order 13233 as doing nothing more than implementing the existing law,” charges Dean, “but in fact, the Order does much more. In doing so, he has exceeded his executive powers under the Presidential Records Act of 1978.”

Under the 1978 Presidential Records Act, virtually all of a former President's records are to be made publicly available by the Archivist 12 years after that President leaves office. There are narrow exceptions for papers that still must be withheld for national security reasons.The statute specifically states that among the material to be released by the Archives are a President’s confidential and private communications with his staff and cabinet advisers. The law does not provide an exception for withholding "attorney-client" or "attorney work product" materials.

The Bush Order seeks to re-interpret the 1978 law by adding executive privileges by which a former or incumbent President can block release of a former President's materials. In claiming that the Order does not contradict the Records Act, Bush relies on a clause in the Act that states that it does not "confirm, limit, or expand constitutionally-based privileges which may be available to an incumbent or former President."

The 1978 law only recognizes the enumerated privileges set forth in the Freedom Of Information Act. Bush's Order invokes additional privileges: the state secrets or national security privilege; the communications with advisors privilege, the attorney-client and attorney work product privileges, and the deliberative process privilege.The Order also shifts the burden of demonstrating that the material sought qualifies for public release from the former President to the person seeking the material. Such a person must show that he should be given it; it is no longer necessary for a former President to show why material must not be disclosed.

The Order also takes the Archivist of the United States out of the role of deciding if a former President's invocation of privilege should or should not be honored. That role is now assigned to the incumbent President. It also creates an elaborate procedure for an incumbent President to block his predecessor from releasing documents, a former President can indefinitely block release of his material, which is not possible under the existing law.

Furthermore, when an incumbent President agrees with the former President about not releasing records, the incumbent President (through the Department of Justice) will defend the privilege against attack, thereby saving the former President what could be heavy legal expenses to contest the case in court.

The most remarkable change is that Bush’s Order gives not just a President, but also a Vice President, the power to invoke executive privilege over his papers, though it does not give a former Vice President the right to invoke executive privilege, which is only accorded to a President under the US Constitution.

Bush has not explained why he revoked the existing Executive Order (Number 12667) addressing Presidential Records. Reagan issued that Order in 1989 after his staff studied the law for almost eight years of his presidency. Though many believed Reagan's Order went beyond the law, his Order was not challenged by Clinton. Yet if Clinton had been the one to issue Reagan’s Order, he the Republican Congress undoubtedly would have sought his impeachment for failing to abide by the Presidential Records Act. When Clinton asserted presidential privilege in court, he was characterized as someone who wanted to obstruct justice.

Bush’s Order is thought to have stemmed from an ongoing Bush effort to keep the roughly 68,000 documents from the Reagan years from being released to the public by the National Archives. By law, they should have been made available on January 12, 2001, but the Bush White House has used various legal maneuvers to keep them sequestered. The documents may reflect poorly not only on Reagan, but on Bush’s father and others who worked for one or both of the earlier administrations and are now back in public office under the second Bush administration.

The Bush Order will surely be tested in court if Bush does not withdraw it as requested by some Republicans and Democrats in Congress. If it is not overturned by the courts, Congress may very well act to overturn it. Insiders do not expect Bush's Order to withstand scrutiny.

John Dean cites former Senator Daniel Patrick Moynihan in his report on government secrecy: "Behind closed doors, there is no guarantee that the most basic of individual freedoms will be preserved. And as we enter the 21st Century, the great fear we have for our democracy is the enveloping culture of government secrecy and the corresponding distrust of government that follows."