Democrats ride to the rescue of historians and archivists
Anyone who wondered if a Democratically-controlled Congress would make a difference for historians, archivists, and journalists need look no further than what transpired in the House of Representatives on March 14, 2007. On that day three bills mandating increased public disclosure by the federal government all passed the House by substantial margins.
Republicans treated historians well in other areas, I would add, increasing funding for history projects (though the Bush administration zeroed out funding for the NHPRC).
Still: we're better off with the Democrats. They get the issue of open records; Republicans don't seem to.
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Elliott Aron Green - 3/22/2007
Maarja, thanx for your answer. It seems that the situation at the archives is worse than I thought. However, I think the situation needs airing, at least in professional circles.
Maarja Krusten - 3/20/2007
Sandy Berger was authorized to do privilege reviews on behalf of President Clinton. That is permissible with under the Presidential Records Act. He also was authorized to look over materials pertinent to the work of the 9/11 Commission.
According to a publicly available report, the Inspector General (IG) for the National Archives and Records Administration (NARA) found that during four research visits, Berger was left alone at times in an Archives’ official’s office. This did not fit with the Archives’ normal procedures as regular researchers are kept in sight of a NARA employee at all times while they are working with archival materials.
After the document loss was discovered, the NARA Inspector General, Paul Brachfield, had several confrontations with the Department of Justice (DOJ) over the Berger matter. A staff report released to the public earlier this year revealed that "Brachfield told Committee staff he found himself in an extremely precarious position." The IG faced off with "powerful and influential" Justice Department officials but came to believe "it was career suicide" to cross some of them. Berger visited the National Archives four times during 2002 and 2003. The 9/11 Commission concluded its work without knowing that Berger had been left alone with original documents during visits to the National Archives other than the one which resulted in removal of materials. DOJ, not NARA, was responsible for prosecuting Berger.
R. Emmett Tyrrell charged in a column in January that Berger "apparently corrupted Archives officials and officials in the Justice Department." I responded to Mr. Tyrrell. To its credit, the American Spectator published my thoughts although they did not echo Mr. Tyrrell’s view. I appreciate the fact that its website welcome my differing perspective. Rather than repeating my comments, I’ll provide the link
(Scroll down and look for the section headed “Berger Justice.”)
The Berger incident was not the only time Archives’ staff failed to follow rules and historical material was lost. The Washington Post reported in 2006 about the loss of another file although what happened to it is not clear. Again, normal research room rules and procedures were not followed at NARA. Shortly after George W. Bush nominated John Roberts as Chief Justice, White House lawyers spent time at NARA's Reagan Library, reviewing records about the nominee. After the lawyers left, archivists discovered a file was missing.
As in the Berger case, rules were not followed. According to a news report, NARA's Inspector General "was unable to determine whether the missing file was taken intentionally, unintentionally, or lost. Investigators did conclude, however, that the Archives staff did not follow agency policies and procedures in providing tens of thousands of pages of requested material to lawyers, who were allowed to review the documents in a private office 'because it would be discreet and keep them out of sight of the main research room.'" The lawyers also were left alone with documents for as long as 30 minutes to make phone calls. To date, as far as I know, and I know this story just from press reports, the file still is missing. I hope it only was misfiled but we may never know what happened.
Having once worked as an employee of NARA with Presidential records (Richard Nixon’s tapes and files), I can tell HNN’s readers that I would not have left Berger alone in an office with documents. Nor would I have left lawyers alone with the Roberts materials. I am certain -- at least would hope -- that most of my former bosses at NARA's Nixon Presidential Materials Project, people I worked with from 1976 to 1987, would have backed me up. However, dealing with power players is fraught with peril and you never know what will happen if you say, “let’s follow the rules.”
The environment at NARA largely is unknown to those outside the federal government and although I once thought otherwise, I believe that there is nothing to be gained by trying to explain it on this website. NARA needs protectors and advocates, people who can give difficult issues some thought and speak effectively and knowledgeably from outside the agency. In that, it is no different from a university or any other institution facing pressure or tough challenges in balancing opposing forces. But after careful consideration, which took place only after I started this thread on Sunday, and despite Rick Shenkman’s kindness and courtesy, I’ve decided that HNN is not the place for that.
Elliott Aron Green - 3/20/2007
What about the attitude towards archives of a certain famous Democrat named Sandy Berger? It seems that he thinks it OK to sneak documents out of the archives and destroy them, if I am not mistaken. btw, I am not a Republican. But how come Sandy got off basically without punishment for his anti-archival deeds?
Maarja Krusten - 3/18/2007
Here is what John Carlin, Archivist of the United States from 1995 to February 2005, said right before President Bush issued his Executive Order on the Presidential Records Act. Governor Carlin's August 2001 explanation of the events that
immediately preceded issuance of the order as they pertain to NARA
provides useful background information. See
So, how is this going to play out? It's hard to tell. I've excerpted a few passages from articles that discuss these issues (links are not available for all of these, hence the excerpts).
If you look at the administration's statement on the Presidential records act amendments, available at
you will see that the policy statement says that "Although the Administration is otherwise willing to work with interested parties to strike a meaningful balance of competing interests, if H.R. 1255 were to be presented to the President, his senior advisors would recommend that he veto the bill."
From the National Journal, March 3, 2007, "Checking Out Presidential Records," by Alexis Simendinger:
"When asked about the long odds of succeeding with legislation that the president could veto, Waxman suggested that the administration might opt to voluntarily improve the executive order. "At some point, I guess I'll have to talk to [White House Counsel Fred] Fielding," Waxman said while smiling, "or to the president."
A White House spokeswoman said this week that the president has no plans to amend his 2001 order.
Nonetheless, Fielding made it his business on his second day of work as Bush's counsel to pay a call on Allen Weinstein, the archivist of the United States. Weinstein's staff testified this week about how the National Archives processes White House records. To date, out of 2.1 million pages of records that the NARA has cleared since Bush's order took effect in November 2002, the White House has withheld from public view only 64 pages of Reagan documents. (See NJ, 4/6/02, p. 996.)
Archives officials said the White House 'in the last couple of weeks' cleared an additional 200,000 presidential documents that could have been a combination of Reagan, Bush I, and Clinton records."
From Roll Call, March 15, 2007, "Showdown Brewing Over Presidential Papers":
"Presidential records are subject to the Freedom of Information Act five years after the president leaves office, except for "confidential records," which are protected from FOIA for 12 years. After that time, all of the records are subject to FOIA unless either the current or former president asserts that the records are privileged.
"[Assistant Archivist for Presidential Libraries Sharon] Fawcett said the Bush executive order had so far affected very few records. Since Bush signed the executive order, the National Archives has released 2.5 million pages of presidential records and have closed only 64 pages because of a claim of privilege, she said. The closed records are all from former President Ronald Reagan's administration, including a memo to Reagan from his counsel regarding the pardons of Oliver North and John Poindexter for their involvement in the Iran-Contra scandal."
I have been unable to find a transcript of the testimony at the PRA hearing before the House subcommittee on March 1. Only the prepared witness statements are available. I listened to the hearing and my recollection is that Dr. Weinstein mentioned compromise or consultation. I don't remember the exact word he used.
It is very difficult to tell what is happening with NARA. Alberto Gonzalez still was White House counsel when President Bush issued his Executive Order in November 2001. When NARA speaks, I sometimes have trouble distinguishing to what extent its officials are speaking for the National Archives and to what extent they are speaking for the White House and DOJ. Of course, the President himself could have modified Executive Order 13233 before any legislsative action occurred. Had I been one of his advisors, I would have suggested he do so, shortly after the Bush Library stories hit the press in December. Of course, there always will be some provisions for the exertion of executive privilege, and rightfully so, no matter how this plays out.
I hope that in lieu of exerting privilege, no President or his representative ever pressures NARA to mark as its own, independently assessed restrictions any items that archival case law suggest should instead be opened to the public. There is some judicial review that might protect NARA in such cases. But, it could happen and the public would never know. In my view, if a President wants something closed for privilege, he or his representatives should act like stand up guys and say so and not seek to cloak their wishes behind NARA's subordinate archivists. They do, after all, have the right to claim privilege.
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