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Bush Signs Presidential Records Act Executive Order: Congressional
Hearings Held
On 1 November 2001 President Bush issued Executive Order 13233 entitled,
"Further Implementation of the Presidential Records Act." The order replaces
President Reagan's Executive Order 12667 (issued 18 January 1989) and reinterprets
the Presidential Records Act of 1978 (PRA). The new Executive Order (E.O.)
is posted at: <http://www.fas.org/sgp/news/2001/11/eo-pra.html>. The order allows a sitting president to keep secret the papers of a previous president, even if the previous president desires to have his papers made public. In essence, the new order provides for the release of certain types of presidential papers only when the former and sitting president both agree to release those papers. The order reverses the premise of public access built into PRA, which provides for the systematic release of presidential records after twelve years or by way of a Freedom of Information (FOIA) request--the new E.O. requires that the materials can be released only when a FOIA request shows a "demonstrable, specific need."
According to administration officials, the new E.O. was designed merely to provide an "orderly process" for the release of presidential papers. Specifically, White House spokesman Ari Fleischer explained that the order would give a current administration a "safety valve" in the case that a former president, out of office for twelve years, did not recognize the national security implications of releasing certain documents (For the exchange, see
<http://www.fas.org/sgp/news/2001/11/wh110101.html >.
On 6 November 2001, a congressional inquiry into the E.O. and related issues was held by Representative Stephen Horn (R-CA), chair of the Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations of the House Committee on Government Reform. Witnesses at the hearing included: John W. Carlin, archivist of the United States; M. Edward Whelan III of the Department of Justice; Scott L. Nelson, attorney for the Public Citizen Litigation Group; and several university-based expert witnesses including Mark J. Rozell of Catholic University, Peter M. Shane of the University of Pittsburgh and Carnegie Mellon University, and Anna Nelson of the American University. Professor Nelson testified on behalf of the Organization of American Historians, the American Historical Association, and the Society of American Archivists. The testimony of the various witness may be found at:
<http://www.fas.org/sgp/congress/2001/index.html#pra>.
In addition, the Society of American Archivists issued its response to
the order by sending a letter to Rep. Horn expressing "grave concern" about
the E.O. (See
<http://www.archivists.org/news.stephenhorn.html>.
No Democrats attended the two-hour hearing, though the ranking minority
member, Rep. Henry Waxman (D-CA) and committee member Janice Schakowsky (D-IL)
issued a joint statement calling for Bush to rescind the order. (See:
http://www.fas.org/sgp/news/2001/11/pra_let.html> .) The Republican majority was represented by chairman Horn and Rep. Doug Ose (R-CA). Horn fell just short of calling for the order to be rescinded--urging the Bush Administration to "revisit" it in order to remove the hurdles to public access that the order creates.
Legal scholars pointed out at the hearing that the order stepped beyond current law and legal precedent by allowing the application of executive privilege to vice-presidential records. With the exception of Whelan, all the panelists expressed concern that the order tried to rewrite the PRA by requiring individuals to show a "demonstrated, specific need" through an FOIA request rather than rely on the process provided in the PRA which mandates systematic release of records through an established archival procedure. Archivist of the United States John W. Carlin testified that the order would apply retroactively to all presidential record requests waiting to be processed, including the sixty-eight thousand documents from the Reagan presidency. The release of the Reagan papers—the first to be covered by the 1978 PRA—has
been delayed three times.
It was clear as the hearing concluded that in addition to the legal challenges
being contemplated by several national organizations, Rep. Horn intended to
continue a dialogue with Administration officials in an effort to remove hurdles
to public access. Staff informed the NCC that the congressman would not hesitate
to consider legislation to supplant the controversial decree if necessary.
The NCC and other organizations have agreed to work with Horn and his staff
in seeking some reasonable solution.
Suit Filed by Public Citizen
On 28 November, Public Citizen--a Washington, D.C., based nonprofit consumer advocacy organization--filed a suit in a federal court in Washington, D.C., to overturn E.O. 13233 on behalf of the American Historical Association, the Organization of American Historians, the National Security Archive, the Reporters Committee for Freedom of the Press, Public Citizen, and eminent presidential historians Hugh Graham and Stanley Kutler. The suit seeks to compel the National Archives to abide by the terms of the 1978 PRA and release to the public some sixty-eight thousand pages of Reagan administration records that should have been released last January. A copy of the complaint is online at
<http://www.citizen.org/>
. The plaintiffs contend that the Bush executive order jeopardizes access
to those records, and those of other former presidents, by allowing a former
president to assert a claim of "executive privilege," at any time, preventing
the Archives from opening records to the public even if the claim of privilege
is legally invalid. The status of the suit was not affected by the 20 December
2001 release of eight thousand pages of presidential records.
Appropriations Legislation
President Bush has signed the Treasury/Postal appropriations legislation
(P.L. 107-67) which provides funding for the National Archives and Records
Administration (NARA). The legislation provides the agency with a total budget
of $289.82 million which includes $244.25 million for operating expenses,
$39.14 million for repairs and restorations, and $6.44 million for competitive
grants administered by the National Historical Publications and Records Commission
(NHPRC). The budget includes $19 million for the Electronic Records Archives
(ERA) and $28.5 million to build a new Southeast Regional Archives facility
in Morrow, Georgia, just outside Atlanta. The appropriation also includes
$5.69 million for renovation and improved accessibility to the Eisenhower
Presidential Library and Ford Library and Museum. Some $450,000 is allocated
for microfilming the records of the Bureau of Refugees, Freedmen, and Abandoned
Lands. Funding provides for seven full-time employees to complete the staffing
of the Clinton Library as well as $1.14 million to build an interim repository
to preserve and make available the Clinton White House electronic records,
in addition to an automatic system to redact privacy information from Clinton
Presidential records. NARA also will receive $3.97 million for the development
of an enhanced NARA web site.
Legislative Branch Appropriations Act
On 12 November 2001 President Bush signed the Congressional Operations Appropriations Act, 2002 (P.L. 107-68), a measure that provides funding for the legislative branch of government. Included in the annual funding package are monies for the Congressional Research Service (CRS), the Library of Congress (LC), and the Copyright Office. The CRS budget is pegged at $81.5 million (an increase of $8 million over FY 2001); and the Copyright Office is slotted to receive $40.9 million (an increase of $3.9 million). Congress approved a net appropriation to the LC of $452 million for FY 2002. This figure exceeds the president's proposed budget ($444.3 million) by 1.7 percent. Nevertheless, the appropriation is 11.7 percent less than FY 2001, which included funding for several projects for which expenditures were authorized for a limited period of time. The LC appropriation provides monies for a number of special projects including $249,776 for the Veterans History Project administered by the American Folklife Center; $250,000 in new funds for the advisory National Recording Preservation Board (authorized during the 106th Congress to support the preservation of sound recordings); $5 million for additional discretionary purchase of rare and valuable materials for the LC collections (thus bringing the Library's total acquisitions budget to $15.8 million); and a $500,000 pass-through for the Abraham Lincoln Bicentennial Commission. The National Digital Library Program received an increase of $9.6 million which will allow the program to hire 46 new employees. Congress also appropriated $7.1 million for the "Hands Across America" program, which is designed to teach educators how to incorporate the LC's digital collections into school curricula.
Adams Memorial Authorized
On 25 October 2001, President Bush signed legislation (P.L. 107-62) authorizing
a national memorial on federal land in Washington, D.C., to honor former President
John Adams, his wife Abigail Adams, former President John Quincy Adams, and
the family's legacy of public service. The bill forbids the use of any federal
funds to pay for the memorial, but rather authorizes the Adams Memorial Foundation
to privately raise the funds for the project. The passage of the bill could
foreshadow, as some Hill insiders believe, another contentious debate over
just how many more memorials should be placed on the National Mall.
Brown v. Board Commission Established
On 18 September 2001 President Bush signed into law (P.L. 107-41) legislation
establishing the Brown v. Board of Education Fiftieth Anniversary
Commission to commemorate the Supreme Court decision in In anticipation of
the fiftieth anniversary on 17 May 2004, Congress has established a twenty-two
member commission "appointed for the life of the Commission" to "encourage,
plan, develop, and coordinate observances" of the Brown decision.
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