Executive Order Undermines Democracy

Ira Berlin

If a nation is only as good as its history, its history is only as good as the sources from which it is written. The central role of history in a democratic society and the importance of full access to the records of the past has never been clearer than in the controversy that now rages over the Presidential Records Act of 1978.

A product of the Watergate Crisis, the Presidential Records Act had its origins in Richard Nixon's attempt to privatize and presumably destroy the records of his presidency. Congress intervened and enacted legislation that placed Nixon's records in the hands of the General Services Administration, the parent organization of the National Archives. Subsequently, Nixon sued and, in the Supreme Court, lost. In a footnote, the Court's majority declared that the ownership of the president's papers was a yet unsettled question.

In 1978, Congress seemingly settled that matter with the passage of the Presidential Records Act, which declared that "the United States shall reserve and retain complete ownership, possession, and control" of the president's records. While the act had its origins in post-Watergate concerns about executive usurpation, it also reflected the demands of the American people for political transparency and openness in government. Specifically, the legislation provided that when the president and vice-president leave office, their papers would be transferred to the National Archives. After five years, during which the records would be processed, access would be subject to requests made under the Freedom of Information Act, and after twelve years they would be open to the public. Some exceptions were made for records that address questions of national security, trade, and other matters relating to advice given to the president in confidence. The legislation was signed by Jimmy Carter and went into effect under his successor, Ronald Reagan. By law, the records of the Reagan presidency were to be opened in 2001.

Last November, just as the National Archives was preparing to release a small portion of the records of the Reagan administration, President George W. Bush issued Executive Order 13233. The order challenges both the spirit and, I believe, the letter of the Presidential Records Act, reversing the commitment to open access. It gives former presidents and their assignees--seemingly in perpetuity--the right to prevent the release of presidential papers. It also allows a sitting president to block the release of a former president's records, even after that former president has signaled his approval. It requires that those who challenge the action of either a former president or the sitting president seek redress in court.

President Bush's action was immediately challenged by the late Hugh Davis Graham and Stanley Kutler, both historians with a long-standing commitment to open access. They were soon joined by a host of others, including both Republican and Democratic members of Congress, dozens of journalists, and the leaders of numerous scholarly and civic associations. On 7 December, I, along with the executive directors of the American Historical Association, the National Coordinating Committee for the Promotion of History, and the American Society of Newspaper Editors; the presidents and past presidents of the Society of American Archivists and the American Political Science Association, and others, met with Brett Kavanaugh, the associate counsel to the president, at the White House. Mr. Kavanaugh was polite and cordial, but firm in his judgment that Executive Order 13233 merely implemented the Presidential Records Act and did nothing to subvert its intent.

While I certainly appreciated the counsel's courtesy, I strongly disagree with the judgment. The OAH--along with numerous other historical and archival associations, journalists, and civic groups--has since joined the Public Citizens Litigation Group in a lawsuit to reverse the order. We are encouraged by the plans of Democratic Representative Henry Waxman and Republican Representative Steven Horn to introduce legislation that would have a similar effect. But we are also aware that since September 11, the nation's concerns lie elsewhere.

Still, the importance of the success of these actions cannot be overemphasized, and I am delighted to find historians in the forefront of the fight to secure open access. It is fitting and it is right. I deeply appreciate the work of professors Graham and Kutler in taking the lead in these events--they understood early the significance of this matter both to American democracy and to the historical enterprise. I urge you to write both President Bush and your congressional representatives, entreating them to reverse a decision that threatens both American democracy and the writing of its history.

In assuming the presidency of the Organization of American Historians, I had hoped to speak to matters concerning the teaching of American history and the role of history in the curriculum, the status of historians in the various venues in which we work, the changing nature of historical scholarship, and the relationship of the OAH to all of these matters. I hope to do so in the future, but for now, this critical matter at the intersection of politics and scholarship must take precedence.