Bush secret strategy re US Archivist appointment

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A Controversial Choice for the Position of Archivist of the United States:
Part of the Bush Administration's Secrecy Strategy?
By JOHN W. DEAN
Friday, Apr. 23, 2004

On April 8, the U. S. Senate received the President's nomination for a new Archivist of the United States -- historian Allen Weinstein. For most Americans, this is an obscure post. But the Weinstein nomination has rightly been gathering increasing attention.

Indeed, within the archival and historical communities, the nomination has sent sirens screaming and bells clanging. No fewer than nine professional organizations that deal with government records have expressed concern -- faulting Weinstein for his excessive secrecy.

As I have argued in my latest book, President Bush has had a problem with excessive secrecy for quite awhile. As Governor of Texas, he made sure to block any later access to his gubernatorial records. As President, he has tried to seal off the government from scrutiny in numerous ways.

Such secrecy is not a partisan matter. Rather, it is an issue of good government versus bad government -- and secrecy smells of bad government.

Why is President Bush so eager to switch archivists? Bruce Craig of the National Coalition for History explains that the Administration is likely motivated both by "the sensitive nature of certain presidential and executive department records expected to be opened in the near future," and also by "genuine concern in the White House that the president may not be re-elected."

Craig also notes that "in January 2005, the first batch of records (the mandatory 12 years of closure having passed) relating to the president's father's administration will be subject to the Presidential Records Act (PRA) and could be opened."

Finally, Craig (like many others) also reports that there is White House concern about the release of the 9/11 Commission records.

Bush's Earlier Texas Trick To Hide His Gubernatorial Records

Texas has one of the nation's strongest public information laws. But Governor Bush wanted to keep his papers secret anyway. Accordingly, in 1997, he sought and obtained a change in Texas law to help him do so.

The new law allows the governor to select a site for his papers other than the Texas State Library -- as long as it is in Texas. But the governor must first consult with the state's library and archives commission to make certain any alternative arrangement satisfied the state's open access law.

When Bush became president-elect, however, he simply sent his papers and records with no consultation whatsoever to his father's presidential library at Texas A&M University -- known as the most secretive of all the existing presidential libraries.

The result was, in effect, to federalize the papers and records, placing them in a legal limbo where no one could have access. Bush Senior's presidential library is run by the Federal Government -- specifically, the National Archives And Records Administration (NARA).

But Peggy Rudd, Director and Librarian of the Texas State Library and Archives Commission, refused to accept Bush's designation of his father's library as the repository for his papers. Eventually, she procured a ruling by the Texas attorney general, making Bush's gubernatorial papers subject to the Texas Public Information Act -- whereupon they were sent to Austin for processing.

Soon, however, Texas Governor Perry -- Bush's friend and hand-picked successor -- and the new attorney general found new exceptions in the state's information law that they claim give them the keys to the relevant filing cabinets. Good luck to those seeking access.

Now it appears Bush is doing what he did in Texas, on a national level.

Gutting the 1978 Presidential Records Act

This effort began on November 1, 2001, when Bush issued Executive Order 13233. The Executive Order drew loud objections from not only historians and archivists, but also members of Congress -- who were highly critical of the Order in hearings. In the end, however, the Republican leaders quelled the grumbling, and Congress took no action.

The Executive Order gutted prior law -- specifically, the 1978 Presidential Records Act. The Order granted all former presidents, as well as any persons selected by them, an unprecedented authority to invoke executive privilege to block release of their records. In addition, it granted the power to invoke executive privilege to present and former vice-presidents as well.

Moreover, it shifts the burden to the requester to establish why he or she seeks the presidential records. (In contrast, the 1978 law properly put the burden on the former president who seeks to withhold them.) And Bush's Order empowers a current president to block release of a former president's records even when the former president wishes to release them. Finally, it makes the Department of Justice available to represent, in litigation, any incumbent or former president seeking to withhold information.

The public interest group Public Citizen filed a complaint in the U.S. District Court for the District of Columbia. Both sides have filed for summary judgment. So far, the court has not ruled.

Bush should lose the suit. A President should not be able to overturn a statute with an Executive Order -- especially when he is doing so in a self-interested bid to protect the secrecy of his own records.

Bush's Move To Appoint A New Archivist Again Ignores The Law

Bush's earlier moves to ensure records secrecy bring us to the most recent such bid: The President's nomination for Archivist of the United States. The Archivist will head NARA, which administers the 1978 Presidential Records Act -- so even if Bush loses in his attempt to protect his Executive Order in court, he may still preserve his records' secrecy if he manages to appoint a sympathetic enough Archivist.

The Archivist is appointed by the President with the advice and consent of the Senate. A 1985 law makes NARA an independent agency within the executive branch.

That law says that an "Archivist may be removed from office by the President" when he "communicate[s] the reasons for any such removal to each House of the Congress." But President Bush seems to have effectively removed the incumbent Archivist, John Carlin, without following this procedure.

Carlin was appointed by President Clinton. Carlin had long given the impression that he planned to remain in his post for at least ten years -- that is, until at least 2005. Yet in December 2003, Carlin resigned -- apparently due to Bush Administration pressure. However, he has said he will stay until his successor is confirmed, so there is no vacancy.

The law also says that the President must appoint the Archivist "without regard to political affiliations and solely on the basis of the professional qualifications required to perform the duties and responsibilities of the office of Archivist."

Clinton didn't follow this provision: Carlin was a former Democratic governor of Kansas with no archival experience. Neither has Bush. Allen Weinstein is hardly a political neutral. Although he is a registered Democrat, he has close ties with conservative Republicans, and has become something of a champion of their Cold War views.

Both Presidents ought to be faulted for politicizing our nation's archival records and our history. And Clinton's wrong does not create a precedent for Bush to follow.

The U.S. Senate Should Withhold Its Consent

Just as no president could fill a Supreme Court vacancy this close to an election, similarly, President Bush should not be able to now fill the Archivist post -- particularly given Bush's record as the most secretive president this nation has ever had.

Under the rules of the U.S. Senate, any Senator can place a hold on a nomination. Hopefully, one (or more) will do just that -- insisting that this post be filled only after the election, and then demanding that the president comply with the law in filling it.

If Bush should lose, a lame duck president's appointments, obviously, are easily rejected. But should Bush win reelection, the Senate still must require the president comply with the law -- and make a non-political selection of a qualified future Archivist. Not only does our past require it, so does our future.
--------------------------------------

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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Allen Weinstein authored "Was Alger Hiss Framed?"

Interesting topic.

He appears to be one of "the bunch" in Bush's cabinet and advisors.

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Tah, BBB

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Scholars question changing chief of archives
Scholars question changing chief of archives
Bush's decision may delay release of documents
Stewart M. Powell, Hearst Newspapers
Sunday, April 25, 2004
©2004 San Francisco Chronicle | Feedback | FAQ
URL: sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/04/25/MNGDP69O461.DTL

Washington -- President Bush's unexpected decision to replace the chief of the National Archives has sparked concern among some scholars that the switch will delay release of documents from the first Bush administration that might embarrass officials serving in the second Bush administration.

Bush has nominated historian Allen Weinstein to replace former Kansas Gov. John Carlin as head of the archives nine months before the scheduled release of "confidential communications" between the president's father and his advisers.

Dozens of current officials who served in first Bush administration are likely to be mentioned in the documents, including:

-- Vice President Dick Cheney, then secretary of defense.

-- Secretary of State Colin Powell, then chairman of the Joint Chiefs of Staff.

-- National Security Adviser Condoleezza Rice, then Soviet affairs director at the National Security Council.

-- Deputy Defense Secretary Paul Wolfowitz, then undersecretary of defense for policy.

-- Deputy Secretary of State Richard Armitage, then a presidential envoy to the Philippines and the Middle East after serving as assistant defense secretary for international security affairs.

Under provisions of the 1978 Presidential Records Act, Bush's presidential library at Texas A &M University in College Station, Texas, is required to begin releasing the confidential material 12 years after the former president left office -- or next Jan. 20.

The National Archives also will be taking custody of more than 2.5 million pages of documents and transcripts from more than 1,000 interviews accumulated by the National Commission on Terrorist Attacks Upon the United States when the bipartisan inquiry issues a final report in July and wraps up operations in late September. The timetable for release of those documents remains to be determined.

Scholars' concern over timely release of the treasure trove of documents from the Bush presidency and the Sept. 11 commission has prompted the Association of Research Libraries, the Council of State Historical Records Coordinators, the Organization of American Historians and the Society of American Archivists to launch a public campaign to question the appointment of Weinstein.

"We believe that Professor Weinstein must -- through appropriate and public discussions and hearings -- demonstrate his ability to meet the criteria that will qualify him to serve as archivist of the United States," the four organizations declared in a joint statement on behalf of thousands of scholars.

The organizations are asking the Senate Governmental Affairs Committee to quiz Weinstein at his confirmation hearing on whether he has the ability to balance requirements for public access with competing responsibilities to protect sensitive or confidential information.

Bruce Craig, an official with the National Coalition of History based in Washington, D.C., says he fears the new appointee to the nonpartisan post of chief archivist might slow the release of documents by the Bush presidential library or the Sept. 11 inquiry, including notes from private interviews with Bush, Cheney, former President Bill Clinton and former Vice President Al Gore.

"It doesn't take a rocket scientist to realize that all these documents are going to be very sensitive and very interesting," says Craig. "With so much at stake, the administration would like to have its own guy in there."

Timothy A. Slavin, director of Delaware Public Archives and an official with the Council of State Historical Records Coordinators, says the nation's chief archivist has "tremendous power to delay access by stalling."

Slavin says the timing of Bush's appointment raises suspicions that the White House is angling to slow the release of documents early next year as part of a broader effort to limit public access to sensitive materials drawn from the presidency or vice presidency of his father.

Bush issued an executive order in November 2001 giving an incumbent president power to veto the release of former presidents' documents, even over the objections of the former president. Bush used this authority to indefinitely delay release of 68,000 pages of records from the administration of President Ronald Reagan, where his father served for eight years as vice president.

"It looks like President Bush is making this appointment with one eye on the release of materials from his father's administration and the other eye on the possibility that he might lose the election in November," Slavin said.

Scholars said they became suspicious about White House intentions when Bush announced his nomination of Weinstein on April 8 before Carlin had even resigned. Carlin declined comment.

But the White House subsequently released a letter dated Dec. 19, 2003, in which Carlin advised the president that it would be "time for me to look for other opportunities" after completing a major electronic records initiative this fall.

National Archives officials said scholars need not worry about politics interfering with the release of documents.

"We're in the process of going back through the records to look at all the closed material so that when January comes around, the bulk of the material that was previously closed can be released," said Warren Finch, deputy director of the Bush presidential library at Texas A&M University in College Station, Texas. "I don't know if we'll get everything opened up on Jan. 20, but the bulk of it will be open."

The archives own all presidential documents dating back to the Reagan presidency, but the presidential libraries maintain custody. The library of former President George Bush has 38 million pages of documents from Bush's presidency, vice presidency and private life.

As many as three of the library's eight archivists have been poring through millions of Bush presidential documents for more than a year to get ready for the January release that will add to the 15 percent of Bush presidential documents already released, Finch said.

Documents will be released without regard to whether officials cited in the documents are now serving in the second Bush administration, Finch said.

None of the documents readied for release so far has been put off-limits under Bush's executive order, Finch said. "The administration has in no way told us what to open and what not to open."

Confidential documents prepared for release by the presidential library are sent to the National Archives in Washington, D.C., for prerelease review under Bush's executive order, so it remains possible that the release of some documents might be put off indefinitely by the White House.

Susan Cooper, spokeswoman at the headquarters of the National Archives in Washington, D.C., says neither the current archivist nor his replacement would play any role in that process.

"The archivist doesn't get down to the minutiae of examining documents --

he generally doesn't operate at that level," Cooper said.

Finch, who has served at the Bush library for 11 of his 15 years with the National Archives, says he has never seen the chief archivist in Washington, D. C., reach down into the proceedings of a presidential library to delay public release.

"We don't operate like that," Finch said. "I just don't see something like that ever happening."

The scholars' suspicions and the National Archives' precautions are expected to be aired at the Senate Governmental Affairs Committee's yet-to-be- scheduled confirmation hearing for Weinstein, a former head of the foreign- election monitoring Center for Democracy who also has been on the faculties of Boston University, Georgetown University and Smith College. Weinstein has written a number of books including "The Haunted Wood: Soviet Espionage in America -- The Stalin Era" and "Perjury: The Hiss-Chambers Case."

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Bush secret strategy re US Archivist appointment

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