On March 1, 2007, the House Oversight and Government Reform Committee’s Subcommittee on Information Policy, Census, and the National Archives held a hearing to consider presidential records, specifically the impact Executive Order (E.O.) 13233 has had on the disposition of those materials. The E.O. was issued in November 2001 by President George W. Bush, and gives not only current and former presidents, but also vice presidents and a former president's family, the authority to withhold presidential records or delay their release indefinitely.

Concurrently with the hearing, House Oversight and Government Reform Committee Chairman Henry Waxman (D-CA), along with Information Policy, Census, and the National Archives Subcommittee Chair William Lacy Clay (D-MO) as cosponsor, introduced legislation (H.R. 1255) that would nullify the Bush E.O.; establish a 40-day records review period for presidents and former presidents to raise objections to the Archivist on the release of records; limit the reach of claims of executive privilege to the sitting and former president personally and not their heirs or designees; and eliminate claims of executive privilege by former vice presidents.

At the hearing, Chairman Waxman said that the Bush E.O. had eviscerated the Presidential Records Act turning it into “the Presidential Secrecy Act.” Waxman went on to say, “History is not partisan,” and that “Historians and scholars need access to our nation’s history as it happened, not as a former president wished it had happened.” The bill is expected to move quickly and markup by both the subcommittee and the full committee may occur as early as next week.

Four NCH member organizations testified at the hearing: Steven L. Hensen, Past President of the Society of American Archivists; Dr. Anna K. Nelson representing the Society for Historians of American Foreign Relations; Tom Blanton of the National Security Archive; and Dr. Robert Dallek representing the American Historical Association. Also testifying was Scott Nelson of the Public Citizen Litigation Group, who is the counsel handling AHA’s lawsuit in federal district court (American Historical Association, et. al., v. The National Archives and Records Administration) to overturn E.O. 13233.

Archivist of the United States Allen Weinstein and Dr. Harold Relyea of the Congressional Research Service were on the first panel of witnesses. Dr. Relyea provided the subcommittee with a historical perspective on the handling of presidential records. Archivist Weinstein stated that, “The most important measure in evaluating, E.O. 13233 is whether presidential records are being made available to the public. In that regard, I can report to you that, since E.O. 13233 went into effect in November 2001, NARA has opened over 2.1 million pages of presidential records. During this time there has been only one occasion when presidential records were kept closed from the public by an assertion of Executive Privilege under the order. . .Thus, there should be no question that, to date, E.O.13233 has not been used by former Presidents or the incumbent President to prevent the opening of records to the public.”

The public witnesses on the second panel, however, were united in their opposition to E.O.13233.

Dr. Nelson said that, “Supporters of the E.O. argue that it is merely a procedural addition to the Presidential Records Act, but it negates important parts of that Act. While the purpose of the Act was to provide greater and rapid access, the E.O. encourages delay since the incumbent and past president are not bound by the time restrictions as they peruse documents. Finally, broadening the definition of the president’s constitutional privileges and allowing their closure will remove most of the records of the confidential advice a president receives. In other words, it will have the potential to remove the core policy-making documents from the president’s collection.”

Mr. Hensen representing the Society of American Archivists said, “On behalf of the nation’s archivists, I ask your consideration in overturning this six-year old Executive Order that has seriously compromised the basic principles of government accountability, which are underpinned by the people’s right of access to the records of their government. In the case of the records of the office of the President of the United States, it is a right that took a long time for the nation to claim fully, but just a quick stroke of the pen to destroy.”

Dr. Dallek said, “President Bush’s order carries the potential for incomplete and distorted understanding of past presidential decisions, especially about controversial actions with significant consequences. Consider what difference the release of the Kennedy, Johnson, and Nixon tapes has made in our understanding of the decision-making on Vietnam.” He went on to say, “Access to the fullest possible record in the service of reconstructing the most substantial and honest history of presidencies is not some academic exercise confined to history departments. Rather, it can make a significant difference in shaping the national well-being.” Dallek said that every president, regardless of party, wants the public to think they walk on water, but in his research he has always found both a public and a private face to a president. His fear is that a president’s heirs will attempt to sanitize material that reflects badly on the former president. He concluded that the public is well-served by seeing the whole person.

In his testimony, Mr. Blanton said that the release of presidential records was in crisis. Using the Ronald Reagan Presidential Library as an example, Blanton showed that since the E.O. had been issued in 2001, the average response time to Freedom of Information Act and Mandatory Declassification Review requests had gone from 18 months to 6.5 years. Blanton stated, "We are only six years down the road from the initial White House decision in early 2001 to intervene in the Presidential Records Act process, and five years of that turns out to be pure delay.”

Copies of all of the testimony should be available shortly the website below. A copy of the legislation is already accessible at that site. http://oversight.house.gov