Executive Order 13233

ExecutiveOrder|13233 limits access to the records of former United States Presidents. It was drafted by then White House Counsel Alberto Gonzales and issued by President George W. Bush on November 1, 2001. Section 13 of Order 13233 revoked ExecutiveOrder|12667 of January 18, 1989. Order 13233 was partially struck down in October 2007.

Background

In 1974, Congress passed legislation placing the presidential records of Richard Nixon in federal custody to prevent their destruction. The legislative action was intended to reduce secrecy, while allowing historians to perform their responsibilities. In 1972, decades of official and unofficial Federal Bureau of Investigation records had been destroyed, upon the death of J. Edgar Hoover, by his longtime secretary. The Presidential Records Act of 1978 expanded such protection of historical records, by mandating that the records of former presidents would automatically become the property of the federal government upon his leaving the Oval Office, and then transferred to the archivist of the United States, thereafter to be made available to the public after no more than 12 years.

Thus, the presidential papers of Ronald Reagan were due to be made public when George W. Bush took office in January 2001. However, in a White House memocite web |url=http://www.fas.org/sgp/news/2001/09/presrecs.html |title=White House Blocks Release of Reagan-Era Presidential Records |accessdate=2008-09-06 ] dated March 23 2001, the Counsel to the President conveyed the following to U.S Archivist John W. Carlin:

Section 2(b) of Executive Order 12667, issued by former President Ronald Reagan on January 16 1989, requires the Archivist of the United States to delay release of Presidential records at the instruction of the current President. On behalf of the President, I instruct you to extend for 90 days (until June 21 2001) the time in which President Bush may claim a constitutionally based privilege over the Presidential records that former President Reagan, acting under Section 2204(a) of Title 4, has protected from disclosure for the 12 years since the end of his Presidency. This directive applies as well to the Vice Presidential records of former Vice President George H.W. Bush.

This instruction was repeated on June 6 2001, before the 90 days had elapsed, giving a new deadline of August 31 2001. On the day of this deadline, Alberto Gonzales instructed the Archivist to wait a few additional weeks. On 1 November 2001, Bush issued Executive Order 13233, limiting the access to the records of former U.S. Presidents:

...reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisers, and to do so in a manner consistent with the Supreme Court's decisions in "Nixon v. Administrator of General Services", 433 U.S. 425 (1977), and other cases...

Critical response

The Society of American Archivists [cite web |url=http://www.archivists.org/news/actnow.asp |title=Call to Action on Executive Order 13233 |accessdate=2007-02-14 |author=Society of American Archivists |date=2001-11-15 ] and the American Library Association [cite web |url=http://www.ala.org/ala/godort/godortresolutions/20020121269.htm |title=Resolution Concerning Executive Order 13,233, Further Implementation of the Presidential Records Act |accessdate=2007-02-14 |author=American Library Association (Government Documents Roundtable) |date=2002-01-21 ] were critical of the president's exercise of executive power by issuing EO 13233. They claimed that the action "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in USC|44|2201|2207," noting that the order "potentially threatens to undermine one of the very foundations of our nation."

John Wertman, a member of the former President Bill Clinton's White House staff, wrote an opposite editorial critical of the executive order that appeared in "The Washington Post" on February 26, 2006. [ [http://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022401805.html John Wertman editorial] in the Washington Post] Wertman asserted that Order 13233 "represents a wholesale change in the way the federal government preserves and promotes our national public memory." He also included a quote from former President Gerald Ford on the topic: "I firmly believe that after X period of time, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public, and the sooner the better."

Congressional response

In 2002, shortly after Order 13233 went into effect, a bipartisan group of U.S. House of Representatives members, led by Stephen Horn (R-CA), Dan Burton (R-IN), Jan Schakowsky (D-IL), and Henry Waxman (D-CA) wrote and debated a bill aimed at repealing Order 13233, thereby restoring Order 12667 to full force and effect. The bill passed the House Committee on Oversight and Government Reform, which was chaired by Burton at the time, but never saw floor action.

On March 1, 2007, a subcommittee of the Committee on Government Reform held a hearing on bill USBill|110|H.R.|1255, the Presidential Records Act Amendments of 2007. At the hearing, several historians argued that Order 13233 has severely curtailed public access to presidential records and added to delays in obtaining materials from presidential libraries. The bill was reported favorably by the full committee, and on March 14, 2007, the House passed the bill in an overwhelmingly bipartisan vote of 333-93. The bill also passed on June 13, 2007 in a Senate committee, but as of March 2008 has not yet been brought up for floor consideration, reportedly due to a hold placed on the measure by Senator Jim Bunning (R-KY) [ [http://www.gwu.edu/~nsarchiv/news/20071001/index.htm Court Rules Delay in Release of Presidential Papers is Illegal] ] . President Bush has threatened to veto the bill, but the House vote marked a veto-proof majority and the Senate Committee passage was unanimous.

Lawsuit

In November 2001, the National Security Archive, the American Historical Association and other plaintiffs filed a lawsuit in the D.C. District Court against the National Archives and Records Administration and the Archivist, claiming constitutional problems with the order, and pointing out that "access to materials may be delayed for an unlimited period of time after the expiration of the 12-year restriction period while a former president and the incumbent president ‘review’ materials proposed for release", because of § 3(b) of the order, which states

After receiving the records he requests, the former President shall review thoserecords as expeditiously as possible, and for no longer than 90 days for requests that arenot unduly burdensome. The Archivist shall not permit access to the records by arequester during this period of review or when requested by the former President toextend the time for review.

While most of the lawsuit was found to be unjusticiable at this time due to lack of ripeness, the Court held that "the Archivist’s reliance on § 3(b) of Executive Order 13,233 is arbitrary, capricious, an abuse ofdiscretion, and not in accordance with law in violation of the Administrative Procedure Act" and enjoined "the Archivist from further relying on § 3(b) of Executive Order 13,233". [cite web |url=http://www.gwu.edu/~nsarchiv/news/20071001/PRAdecision.pdf |title=Opinion of the D.C. District Court |date=2007-10-01 |accessdate=2008-06-18|format=PDF] The rest of the lawsuit was dismissed without prejudice.

ee also

* Freedom of Information Act (United States)
* U.S. reclassification program

References

* [http://www.archives.gov/presidential-libraries/laws/access/pra-1978.html Archives.gov] - 'Statement by John W. Carlin Archivist of the United States to the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations of the Committee on Government Reform House of Representatives Congress of the United States: On the Implementation and Effectiveness of the Presidential Records Act of 1978' (November 6 2001)
* [http://www.archives.gov/presidential-libraries/laws/access/complaint.txt Archives.gov] - American Historical Association, Hugh Davis Graham, Stanley I. Kutler, National Security Archive, Organization of American Historians, Public Citizen, Inc., and The Reporters Committee for Freedom of the Press, Plaintiffs, v. The National Archives and Records Administration, and John W. Carlin, Archivist of the United States, Defendants. Complaint for Declaratory, Injunctive and Mandamus Relief (November 28 2001)
* [http://www.fas.org/sgp/news/2001/11/eo-pra.html FAS.org] - 'Executive Order 13233 Further Implementation of the Presidential Records Act' (text of EO 13233), George W. Bush, (November 1, 2001)
* [http://www.whitehouse.gov/news/releases/2001/11/print/20011101-12.html WhiteHouse.gov] - 'Presidential Records Act Executive Order: Further Implementation of the Presidential Records Act Executive Order' (text of EO 13233), George W. Bush, (November 1, 2001)

External links

* [http://www.whitehouse.gov/news/releases/2001/11/20011101-12.html Whitehouse.gov] - Full text of Executive Order 13233
* [http://www.ala.org/Template.cfm?Section=Intellectual_Freedom_Issues&Template=/ContentManagement/ContentDisplay.cfm&ContentID=2417 ALA.org] - 'Executive Order 13233', American Library Association
* [http://www.archivists.org/statements/stephenhorn.asp Archivists.org] - 'Society of American Archivists responds to Executive Order 13233 on Presidential Papers' (November 6, 2001)
* [http://www.archivists.org/news/actnow.asp Archivists.org] - 'Call to Action on Executive Order 13233: A Message from President Steve Hensen', Society of American Archivists (November 15, 2001)
* [http://www.arl.org/info/frn/gov/hornletter.html ARL.org] - 'Serious concerns with Executive Order 13233 on Further Implementation of the Presidential Records Act' (Letter to Representative Stephen Horn), American Association of Law Libraries, American Library Association, Association of Research Libraries, National Humanities Alliance
* [http://www.findarticles.com/p/articles/mi_go2158/is_200203/ai_n6772820 FindArticles.com] - 'American Political Science Association response to Executive Order 13233' (Letter to Representative Stephen Horn), Robert D. Putnam, "Presidential Studies Quarterly" (March, 2002)
* [http://www.impeach-bush-now.org/Articles/Bush/impeachable.htm Impeach-Bush-Now.org] - 'Hiding Past and Present Presidencies: The Problems With Bush's Executive Order Burying Presidential Records', John Dean (November 9 2001)
* [http://listserv.muohio.edu/SCRIPTS/WA.EXE?A2=ind0111a&L=archives&F=&S=&P=3914 MUOhio.edu] - Draft Presidential Records Act Executive Order: A "Disaster" for History', Bruce Craig, National Coordinating Committee for the Promotion of History (November 1, 2001)
* [http://www.projectcensored.org/censored_2006/#1 ProjectCensored.org] - 'Top 25 Censored Stories of 2005: #1 Bush Administration Moves to Eliminate Open Government', Project Censored (January, 2006)
* [http://www.law.nyu.edu/journals/lawreview/issues/vol79/no4/NYU407.pdf] - 'The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History,' Stephen H. Yuhan, "New York University Law Review (October, 2004)