Capitol Commentary

Lee White

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Presidential Records Fight Back on Front Burner

Long-time readers of this column are aware of the now six year battle that the historical and archival communities have waged to overturn the Bush administration's Executive Order (EO) 13233. Under the Presidential Records Act, presidential records are legally required to be released to historians and the public twelve years after the end of a presidential administration. In November 2001, President George W. Bush issued EO 13233 giving current and former presidents, their heirs or designees, and former vice presidents broad authority to withhold presidential records or delay their release indefinitely.

Less than a month after EO 13233 was issued, a lawsuit was brought by Public Citizen on behalf of itself, the American Historical Association (AHA), National Security Archive (NSA), Organization of American Historians (OAH), Reporters Committee for Freedom of the Press, American Political Science Association (APSA) and historian Stanley Kutler against the federal government questioning the order's legality.

After years of filing and counter-filings, on October 1 a federal district court judge gave historians and researchers a partial but significant victory in the suit. Judge Colleen Kollar-Kotelly struck down the section of the Executive Order that allows a former president to indefinitely delay the release of records. However, the judge did not rule on the constitutionality of the Executive Order itself, narrowly crafting her decision to address only specific provisions in the order.

Unfortunately, Judge Kollar-Kotelly did not rule on the legality of the sections of the Executive Order allowing heirs and designees of former presidents, and former vice presidents, the authority to control the release of documents, calling them "unripe" since no records have yet been withheld pursuant to those provisions. However, the judge left open the right for the plaintiffs to challenge these provisions in the future. According to press reports, the Bush administration is reviewing its options concerning an appeal of the decision.

Legislation to overturn Executive Order 13233 overwhelmingly passed the House by a vote of 333-93 in April. At the time the legislation was considered in the House, the Bush administration issued a threat to veto the bill, but it passed the House by a veto-proof margin.

Similar legislation cleared the Senate Homeland Security and Government Affairs Committee by voice vote this summer. However, when the Democratic leadership sought to bring the bill to the floor on September 29, Senator Jim Bunning (R-KY) objected to consideration of the bill.

On October 2, Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (ID-CT) called for an end to the hold that has been blocking Senate consideration. "While I am pleased that the court struck down a troubling section of this Executive Order, the ruling underscores the need to replace the entire order with a process that provides greater public access to presidential records," Lieberman said. "This bill was offered in the spirit of the First Amendment and the principle of freedom of information upon which our nation was founded. I call on my colleagues to refrain from procedural roadblocks and allow the public access to the important historical records of their elected leaders."

Then former President Bill Clinton jumped into this political maelstrom asserting that the Bush administration was at fault for delaying the release of his records. "I want to open my presidential records more rapidly than the law requires, and the current administration has slowed down the opening of my own records," the former president said. "And I do think that I will have extra responsibilities for transparency should the American people elect Hillary president."  Judicial Watch, a conservative watchdog group, has filed suit against the National Archives seeking release of Senator Hillary Clinton's (D-NY) records from when she was first lady. The group alleges that the Archives has not responded to its request for the Clinton documents in a timely manner. The National Archives has countered that there were 156 Freedom of Information Act (FOIA) requests pending before Judicial Watch filed its request and that they have shown "no irreparable harm" that would result if the records were not released on an expedited basis.

In a court filing in response to the lawsuit, Emily Robison, the acting director and the deputy director of the William J. Clinton Presidential Library, said there were 287 pending FOIA requests, which involve the processing of approximately 10,500,000 pages of presidential records. She estimated that it would take through January 2008 to complete processing the 10,000 pages of records representing the first portion of the first lady's records requested by Judicial Watch. The Clinton Presidential Library has only six archivists on staff for processing all of its pending FOIA requests for textual and electronic records.

House Passes Woodrow Wilson Presidential Library Bill

On September 24, by voice vote, the House of Representatives passed H.R. 1664, a bill that would authorize the National Archives and Records Administration (NARA) to make pass-through grants towards the establishment of a Woodrow Wilson presidential library in Staunton, Virginia, Wilson's birthplace. It should be made clear that H.R. 1664 only authorizes that federal funds can be used to make grants to the Wilson library. Separate language in an appropriations bill would be needed to provide the Archives the funds needed to make the grants.

In addition, the legislation sets stringent requirements that must be met before any federal dollars may be appropriated. First, the private entity running the Wilson library must certify that it has raised double the amount of the proposed federal grant from nonfederal sources. Second, the grant is conditioned on the Wilson library coordinating its programs with other federal and nonfederal historic sites, parks, and museums that are associated with the life of Woodrow Wilson. Finally, the bill prohibits the use of federal grant funds for the maintenance or operation of the library. The legislation also makes it clear that the library will not be considered part of the existing Presidential Library System and that the National Archives will have no involvement in the actual operation of the library.

While the Bush administration took no formal position on H.R. 1664, sources at the National Archives do not feel that NARA should be used as a pass-through for federal funds to a private entity. Private institutions usually receive funds through specific earmarks in appropriations bills. The bill had the unanimous support of the Virginia delegation in the House. Companion legislation (S. 1878) has been introduced by Senator James Webb (D-VA), with the coponsorship of Virginia's senior Senator John Warner (R-VA).  

World War II Crimes Group Issues Final Report to Congress

On September 28, the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group (IWG), formed under the Nazi War Crimes Disclosure Act of 1998 and the Japanese Imperial Government Disclosure Act of 2000, issued its final report to Congress describing the seven-year, approximately $30 million government-wide effort to locate, declassify, and make publicly available U.S. records of Nazi and Japanese war crimes.

More than eight million pages were declassified and opened to the public as a result of the Disclosure acts. Notably, the records include the entirety of the operational files of the Office of Strategic Services (the predecessor agency of the CIA), and more than 163,000 pages of CIA materials of a type never before opened to the public.

One of the IWG's aims was to uncover documentation that would shed light on the extent to which the U.S. Government had knowingly used and protected war criminals for intelligence purposes. Findings on this subject were explored in two volumes produced by the IWG: Researching Japanese War Crimes: Introductory Essays (January 2007) and U.S. Intelligence and the Nazis (April 2004).

Smithsonian Channel Debuts on DirecTV

The long-delayed Smithsonian television channel finally made its debut on satellite provider DirecTV. The launch ends a lengthy saga of fits and starts and controversy since the Smithsonian Institution announced its exclusive deal with Showtime Networks, Inc. to develop a television presence nearly two years ago. Originally conceived as an on-demand digital channel, the venture debuted on September 26 as a traditional channel with regular programming scheduled twenty-four-hours a day.

In March 2006, the Smithsonian ignited a storm of controversy when it announced that it had entered into a thirty-year, semi-exclusive contract with Showtime to create a digital on-demand television channel. Members of Congress and other stakeholders, including the National Coalition for History, raised issues concerning the contract's potential effects on public access to and use of the Smithsonian's collections, its confidential nature, and the process by which the Smithsonian negotiated the agreement.

The Smithsonian claims that the fears that access to their holdings by filmmakers would be impacted have proved unfounded. From January 1, 2006 to August 3, 2007, the Smithsonian says it received more than 210 requests to film at the institution. Of these, only two were declined due to the creation of Smithsonian Networks. One request was for a one-hour show, focusing entirely on the Smithsonian and the other was a proposal for a partnership with the Smithsonian on a children's series. Producers for commercial cable channels made both requests.

Lee White is the executive director of the National Coalition for History. He can be reached at lwhite at historycoalition dot org.