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Congress Should Return Public Records To The Public

Floyd J. McKay

Imagine for a moment that President Hillary Clinton's first act upon taking office is an executive order giving her husband, the former president, unlimited power to keep records of his presidency secret for an indeterminate length of time.

Hold the phones! Alert the right-wing blogosphere! Holy Rush O'Reilly! Abuse of power!

But wait, wait, it has already been done — in 2001 by President George W. Bush!

Not only did he give his dad, the former president, the power to withhold his presidential records, he expanded the power to former vice presidents, of which dad was also one. So Prez Hillary need not act to protect Bubba's secrets — Dubya has already done the job.

Which provides reasons why Congress would do the American public, and historians, journalists and researchers in particular, a big favor by passing legislation that returns public records to the public. Congress is looking for almost anything that can get past Republican roadblocks in the Senate and a Bush veto, and this could be the vehicle. A measure repealing the Bush order passed the House 333-93, and appears to have strong bipartisan (veto-proof?) support in the Senate.

Few administrations have been as secretive and hostile to public access to public documents as the Bush administration. Although the White House has no compunction to leaking top-secret information when it fits its agenda (viz. Scooter Libby and Karl Rove), it has consistently withheld information previously open to the public.

Bush's 2001 order (EO 13233) is described by the American Historical Association (AHA) as "(giving) not only current and former presidents, but also vice presidents and a former president's family and other designees the authority to withhold presidential records or delay their release indefinitely." This would protect not only President George H.W. Bush but also his key staffers, including Dick Cheney and Donald Rumsfeld. Cheney, upon becoming a former veep, could extend the ban to his papers in the second Bush administration. Based on Cheney's approach to secrecy thus far, you can bet historians will wait a long time to learn the membership of his energy task force.

History is important, and it is written in stages. Today, we can start with Web logging — blogs — which are instantaneous, often based on rumor; a second stage is newspapers and broadcast, "the first draft of history"; followed by long magazine pieces and books written by journalists without access to archives; and finally, books by historians poring through mountains of archival files, tapes, notes. We need all these steps.


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I was reminded of how capricious it is to allow public officials to dictate their own rules, as I read Haynes Johnson's new biography of Sen. Joe McCarthy, "The Age of Anxiety." Fifty years after McCarthy's death, many records of his senatorial inquisitions have finally been declassified. Yet, many of the most valuable records, covering his Senate office and financial and legal records, are under lock and key until the death of his daughter — who was an infant when McCarthy died. Now about 50, she refuses access to the papers. The House bill will deal only with presidential records, however.

Approval of the House-passed bill would revert to the practice before Bush's 2001 order. Former presidents would have 12 years to complete turnover of records, with procedures to protect sensitive national-security records.

Also part of the House legislative package is a second bill described by the AHA as "(reaffirming) the presumption that records should be released to the public if disclosure is allowable under the law and the agency cannot reasonably foresee harm from such a disclosure." Since the Nixon era, rules for disclosing federal information have been designed to benefit the public. In 2001, the Bush Justice Department reversed the priority, making it much easier to deny access; some agencies have stalled requests for years.

"Instead of viewing the public as the customer or as part of the team," Meredith Fuchs of the nongovernmental National Security Archives told Congress, "the handling of Freedom of Information programs at some agencies suggests that the public is considered the enemy and any effort to obstruct or interfere with the meddlesome public will be tolerated." The House, by a 308-117 margin, passed a bill reverting to pre-2001 policies.

Senators have before them both House-passed bills, plus one forcing disclosure of donations to presidential libraries, and the entire package will force the president to defend some very bad policy and possibly lose a veto override in Congress.

Historians and the public in general will benefit from a more open presidency, whether the president is in office or retirement.

Floyd J. McKay, a journalism professor emeritus at Western Washington University, is a regular contributor to Times editorial pages. E-mail him at

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