Are Roberts Documents Being Withheld in Violation of Law?
In spite of the controversial missing "lost file" -- the folder relating to Roberts' work on affirmative action some 20 years ago that appears to have gone missing at the Reagan Presidential Library after it was reviewed by White House and Justice department lawyers, NARA, and particularly the Reagan Library, has received the praise of both White House and government openness advocates for doing a job that would normally have taken three months in less than three weeks. Indeed they have been working night and day and have performed a herculean task. Nevertheless, Executive Order (EO) 13233 issued by President Bush in 2001 -- an order that in fact is still being litigated in court by history and archives organizations --grants White House lawyers the right to block the release of Roberts' memos produced when he worked for president Reagan including any documents in which an incumbent president wishes to assert a "constitutionally based privilege" based on "legal advice or legal work" performed -- a privilege the White House has claimed. \
Elliot Mincberg, vice-president and legal director for the advocacy group, People for the American Way states, "We are concerned about what they [NARA and the White House] have withheld." On 23 August Mincberg's group filed a formal appeal with the Deputy Archivist of the United States calling for "expedited treatment" of what may be upwards of 3,000 pages of Roberts-related documents that Mincberg's organization believes should be released prior to the beginning of the Senate confirmation hearings.
Mincberg's appeal is scathing: the group charges that the personal privacy exemption is being abused, that overly broad standards are being applied to NARA withholdings, that redactions sheets are insufficiently descriptive, and argues that segregable portions of the withheld documents "should be released immediately." Senator Charles E. Schumer (D-NY) goes even farther in expressing his concerns: "I fear that...the timely production of important documents located at the Reagan Library related to Judge Roberts' work in the White House Counsel's Office is being delayed and possibly politicized." If true, Schumer's concerns should also be the concern of the history and archives professions.
In fact, the professionals at the Reagan Library and the two White House lawyers who were sent to the Simi Valley based presidential library to review and screen documents, quickly made a first cut of the mountain of Roberts' papers. White House aides have declared that "documents that opponents [of Roberts] would try to twist and launch attacks on....would not be a criterion for withholding documents for release." Perhaps not, but now that the bulk of the non-sensitive papers have been processed and released, what is now left are those documents that deserve closer scrutiny. They deserve special attention as to whether they are being legitimately withheld.
Right now the White House is withholding all of the documents produced by Roberts during his tour as deputy solicitor general in George H. W. Bush's administration (these papers are still in the custody of the Department of Justice and are not subject to NARA custody or processing); awaiting processing are the nearly 3,000 "politically sensitive" memos from the Reagan Library that have been set aside by government archivists during the initial review for further closer examination and review by NARA and White House authorities.
Insiders report that most of the documents that NARA officials pulled aside during the initial screening were done so because of statutory Freedom of Information (FOIA) exemptions (such as national security and personal privacy) and most do not relate to the more discretionary PRA privilege exemptions. Nevertheless, on their face the redaction sheets of some of the held back documents are suggestive of generalized topics that may tell senators much about Roberts' views on a wide range of issues and could be important with respect to the nomination. Among the topics covered include Roberts' views on presidential pardons and President Reagan's strategy on judicial nominations; thoughts on the Equal Employment Opportunity Commission; thoughts on spending US money to aid to the Nicaraguan Contras in their fight against the Sandinista government; and advise on and during the Iran-contra scandal.
Now that the sensitive documents have been flagged, the tricky work, the real work relating to the review of the most sensitive documents that could be subject to executive privilege claims begins. Through what NARA officials describe as a "surgical redaction" process, archivists are electively redacting names, individual words or sentences that relate to various exemptions. It is hoped the White House will permit such a redaction process and permit the release of the bulk of the document rather than withhold the contents of a document in its entirety. This was frequently done with the release of the controversial P-5 ("confidential advise" records) that were withheld by the Bush administration several years back when President Reagan's more sensitive papers were slotted for release in accordance with the PRA.
In a recent letter to R. Duke Blackwood, the Reagan Library's executive director, Senator Patrick Leahy (D-VT), the Ranking Member on the Judiciary Committee, stated that the senators will need "accurate and complete information" before they can vote on the Roberts nomination. The senators need to stand firm in that position as from the historians' perspective what is at stake is not only wrenching loose more information about Roberts and his political and legal views, but also the integrity of the implementation process for the Freedom of Information Act and Presidential Records Act.
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