U.S. Senate needs to act to reverse Bush’s order that keeps public in the dark

One of the first things President Bush did after taking office in 2001 was ask Alberto Gonzales, then his White House counsel, to draft an executive order that would gut the Presidential Records Act of 1978. The law, which was passed in the wake of the Watergate scandal, requires that unclassified papers of a president or vice president be routinely released 12 years after the president’s term ends.

There has been speculation that the president was interested in shielding from public view papers from the Reagan administration that might prove embarrassing to the president’s father, who was vice president to Ronald Reagan, or to give his father the ability to shelf records from his own presidency, which should have become public in 2004. Records pertaining to the Iran-Contra scandal during the Reagan years had already been cleared for release by the National Archives and could have proved embarrassing to some members of the new Bush administration who had also served President Reagan.

Whatever the motivation, Gonzales drafted a doozy of an executive order, and President Bush signed it Nov. 1, 2001, at a time when the nation was still in shock from 9/11 and the inclination to challenge the president’s prerogatives was scant. President Bush’s characterization of his order as necessary to bring “fairness” to a “new law” — the law was 23 years old — should have at least been pounced on by late-night comedians, but, again, this was happening in a post- 9/11 world.

In hindsight, it becomes more apparent that Executive Order 13233 was simply part and parcel of the administration’s penchant for secrecy and for exerting a claim of executive privilege at every turn.

Hereditary privilege

The order requires the national archivist to withhold records in response to any claim of privilege by a former president, regardless of its merit. And it establishes a hereditary privilege to a designee of the former president’s choice that would extend, presumably, for as long as the designee lives. In other words, one of the Bush daughters could be barring the release of historical documents from his presidency 50 years from now.

It places a burden on whomever is requesting access to a presidential document to establish “a demonstrated specific need” to overcome a privilege claim.

And it gives a sitting president a veto over release of records even if the past president has cleared them. Bush could block the release of records from the Reagan administration even if the designated overseer of those records agreed to release.

This is the kind of inside-baseball issue that apparently excites only historians and journalists. But it should be of concern to every American. Those who ignore history are condemned to repeat it, and a nation that is denied access to its own history by a past president or his heirs — or by a sitting president — is diminished.

It should be noted that the law as written had ample protection for any records that would compromise national security, but there is a big difference between national security and presidential embarrassment. The first deserves to be protected; the other doesn’t.

The executive order has been challenged in court but the primary case has been bottled up for years by a federal judge who appears to be sympathetic to the president’s position. It could be decades before the case works its way through the Supreme Court.

Congressional action

As the Bush-Cheney administration enters it final year, it is past time for Congress to act on an amended presidential records act that will make it clear that Congress had no intention of giving a past-president, the sitting president or an heir the ability to withhold White House documents from the public.

The Presidential Records Act Amendments of 2007 has been passed the House by a veto-proof margin. It is stalled in the Senate by a hold placed on it by one senator, Jim Bunning of Kentucky.

Thirty-one open government groups, including the Society of Professional Journalists, have signed a letter calling specifically for those senators, Republican and Democratic, who are seeking the presidency to become co-sponsors of the bill, to lead the effort to break the hold on the legislation and to pass it by a veto-proof margin.

Any senator who wants to be taken seriously as a candidate for president must be willing to assert the rights of the people over the rights of the president. Support for the open records act would be one way of demonstrating such a commitment.

It is vital that this issue be addressed now. The administration has already acknowledged the destruction of hundreds of thousands of White House e-mails. The vice president has asserted his own view of who controls his office’s papers that runs contrary to the 1978 law.

The Senate must act before a part of the nation’s history is lost, possibly forever, to a dubious claim of executive privilege.