Their Records, Our History
by Bruce P. Montgomery
When Allen Weinstein took the oath of office as the ninth archivist of the United States last month, he seemed to allude to the controversy that preceded his appointment and to hint -- perhaps unintentionally -- at the impossible position that any chief archivist now faces.
"In April," he said in his brief remarks, "we will celebrate the 20th anniversary of National Archives independence. Under national archivists during both Republican and Democratic presidencies, the tradition of non-political and highest professional attention to the work involved has been the norm. It will continue to be so on my watch."
This may be wishful thinking from a historian who is certainly aware that recent history says otherwise. Over the past two decades, every president (including the current one) has eroded the independence that Weinstein extolled, particularly in regard to the ownership of presidential papers. In 1978, a bipartisan Congress explicitly settled the matter in favor of the public when it passed the Presidential Records Act, providing for the timely release of all but the most sensitive presidential materials. In 2005, it will take another act of Congress to reverse the damage that has been done.
As U.S. archivist, Weinstein becomes the head of the National Archives and Records Administration (NARA), an independent executive agency that oversees millions of documents housed in its many repositories and presidential libraries. These records embody the governmental history of the nation. (The Archives itself was established in 1934; it was part of the General Services Administration from 1949 until 1985, when Congress created NARA.) Weinstein comes to the post with admirable credentials -- considerable experience as a senior official at the International Foundation for Elections Systems; founder of the Center for Democracy, a nonprofit organization that assists emerging democracies; professor of history at three major universities over two decades; author of several books.
His qualifications, however, matter less than whether he will be given the authority to preserve full public access to presidential records.
His swearing-in followed the ouster of his predecessor, John Carlin, for reasons the White House has refused to explain to Congress, even though an explanation is required by law. Carlin's dismissal was just the latest episode in the ongoing politicization of NARA: His removal follows President Bush's extraordinary Nov. 1, 2001, executive order (E.O. 13233), which erected new barriers to obtaining access to former presidents' White House materials. Weinstein, in a questionnaire that he filed during his confirmation hearings, indicated that he did not intend to challenge E.O. 13233. He wrote that "it would be my responsibility -- so long as E.O. 13233 is in place -- to oversee NARA's legal team in defending the Executive Order against court challenge." But as a historian, Weinstein has expressed discomfort with certain provisions of the decree.
Thus his impossible position: He cannot follow the executive order without violating the spirit, if not the letter, of the 1978 Presidential Records Act.
Before passage of that law, presidents treated presidential material as private property, resulting in significant losses to the historical record. This practice was an oddity noted as early as 1835 by Alexis de Tocqueville in "Democracy in America." He wrote: "In America, no one bothers about what was done before his time. No method is adopted; no archives are formed; no documents are brought together, even when it would be easy to do so. When by chance someone has taken them, he is casual about preserving them."
Indeed, from George Washington to Franklin D. Roosevelt, presidents and their heirs treated their papers as they saw fit, bequeathing, selling, destroying, donating or depositing them in libraries or historical societies. Then FDR created an entirely new American institution -- the presidential library, built with private funds and operated at government expense. While dramatically increasing the preservation of presidential materials, it did nothing to alter the tradition of private ownership or the arbitrary discretion of ex-presidents to restrict access to the documents of their administrations.
But in 1974, the constitutional crisis surrounding President Richard M. Nixon, and the struggle over access to his records for the Watergate investigations and trials, set a new tradition in motion. After Nixon resigned under threat of impeachment, he signed an agreement with Arthur Sampson, head of the General Services Administration. The deal gave Nixon ownership of his presidential materials, including the right to destroy his secret tape recordings.
The Nixon-Sampson deal didn't sit well with the Democratic-led Congress, which immediately seized the Nixon materials for fear the former president would create national amnesia regarding the worst deeds of his White House years.
In a sense, Nixon's own obsession with documenting his deeds created the momentum for Congress to finally confront the question of who owned these sorts of records. In the aftermath of the Watergate abuses, Congress felt intense pressure to ensure that future presidents could not permanently obstruct access to or destroy the records of their administrations.
The result was the Presidential Records Act, or PRA. It declared that after Jan. 20, 1981, the records of all presidents and vice presidents would be the property of the American people. The law allows citizens to review all materials, including confidential communications with advisers, 12 years after a president leaves office. The act also assures that the most sensitive records relating to national security, foreign relations, financial and trade secrets, and personal privacy are exempt from disclosure.
While the PRA may have ended the tradition of private ownership, it did nothing to prevent presidents -- Republicans and Democrats -- from continuing to act as if their records were private property. Starting with Ronald Reagan, the first chief executive covered by the act, presidents have repeatedly sought to get around the statute -- and they have often enlisted the Archives in their efforts.
The first attempt to nullify the act came in 1985, when Reagan officials directed the U.S. archivist to bow to any claims of executive privilege by Nixon -- in violation of the 1974 law that allowed the Nixon materials to be seized and made available at the earliest reasonable date.
With this order, Reagan officials aimed to lay the foundation for Reagan and his presidential successors to exercise maximum discretion over their own presidential records. The directive, however, was overturned by the U.S. Court of Appeals for the D.C. Circuit on grounds that the U.S. archivist was not "constitutionally compelled" to obey a former president's claim of privilege.
The next major attempt to erode the act came in the waning hours of the George H.W. Bush presidency. Close to midnight, on Jan. 19, 1993, then-U.S. archivist Don W. Wilson signed an agreement giving the elder Bush exclusive control over the computerized records of his presidency. According to this agreement, Bush could even order the U.S. archivist to destroy computer tapes and hard drives, the kind of material that had proved critical to the Tower Commission's investigation of the Iran-contra affair during the second Reagan administration. Following this subversion of the PRA, Wilson was appointed director of the George Bush Center at Texas A&M University.
The incoming Clinton administration adopted the Bush-Wilson agreement for the protection of its own historical legacy. In February 1995, however, a federal judge in Washington voided the agreement as a violation of the PRA, ruling again in favor of the people's right to know.
Now, George W. Bush's Executive Order 13233 has effectively eviscerated the PRA altogether. What the father failed to obtain with the overturned Bush-Wilson agreement, his son has won by presidential decree. The order allows former presidents and vice presidents, as well as their designated representatives or surviving families and heirs, to withhold materials by asserting executive privilege -- no matter how arbitrary the claim.
As a result, the order strips the U.S. archivist of his affirmative responsibilities under the PRA to carry out the systematic and timely release of presidential records to the public. The recent release of 9,700 pages of records involving communications with advisers in the first Bush administration suggests compliance with the PRA, except that the materials were first screened (under E.O. 13233) by representatives of former President Bush and incumbent President Bush, who chose -- this time -- not to assert any privilege claims.
Nixon, who fought a 20-year legal battle (with the complicity of senior Archives officials) to keep his records and tapes under wraps, would have admired the sheer sweep of E.O. 13233. By sharply diminishing the public's right of access, it sends the question of who owns the history of the U.S. government back to square one. It requires scholars, journalists and others both to receive the permission of former and sitting presidents and to demonstrate a specific "need to know" when requesting documents regarding all presidencies from Reagan onward.
E.O. 13233 prompted the conservative Dan Burton, then the chairman of the House Committee on Government Reform and Oversight, to lash out at the president. Burton, an Indiana Republican, said, "for the White House to block historical documents that Congress has a right to is just insane."
If Bush and his predecessors take full advantage of this order, historians may not be able to fully reconstruct the past. The losers in this? The public, policymakers and future presidents, who need unvarnished studies to help them understand previous White House successes and failures.
In the final analysis, the onus for assuring the public's right of access to the nation's present and future historical record lies with Congress, which has twice tried and failed to nullify the Bush order. Congress should not allow the new U.S. archivist to be caught in the untenable position of being compelled to enforce an executive order over an act of Congress. Unless Congress is content to leave our governmental history in the hands of former presidents and their heirs -- private citizens, in other words -- it must renew bipartisan efforts to overturn Executive Order No. 13233. After all, whose history is it?
Bruce Montgomery is an associate professor and faculty director of archives at the University of Colorado. His writing on presidential papers has appeared in Presidential Studies Quarterly and the American Archivist.
For more information on access to Archives collections, please contact the Curator:
University of Colorado at Boulder
Boulder, Colorado 80309-0184