Topic: On Executive Order 13233 Part One

topic by
John Calvin
12/4/2001 (20:28)

HIDING PAST AND PRESENT PRESIDENCIES

The Problems With Bush's Executive Order Burying Presidential Records

John Dean is the former White House counsel for President Richard Nixon and author of the new book, The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court.

http://www.tompaine.com/features/2001/11/30/3.html

On November 1, President George W. Bush signed Executive Order 13233, a policy enabling his administration to govern in secrecy. For good reason, this has upset many historians, journalists, and Congresspersons (both Republican and Democratic). The Order ends 27 years of Congressional and judicial efforts to make presidential papers and records publicly available. In issuing it, the president not only has pushed his lawmaking powers beyond their limits, but he may be making the same mistakes as Richard Nixon.

The Secret Presidency

As president watchers know, we have a president who likes secrecy. He has hired only tested leak-proof and loyal staffers, effectively sealing the Bush White House. He has had his records as the Governor of Texas hidden, shipping them off to his father's presidential library, where they are inaccessible. He has stiffed the Congressional requests for information about how he developed his energy policy -- refusing to respond.

No president can govern in a fishbowl. But not since Richard Nixon went to work in the Oval Office has there been as concentrated an effort to keep the real work of a president hidden, showing the public only a scripted president, as now. While this effort was evident before the September 11th terrorist attacks, the events of that day have become the justification for even greater secrecy.

The mystical veil of 'national security' has been cast over much of the Bush administration. There were the secret arrests of terror-related suspects (currently over 1,000 publicly unknown people). There was the expansion of the wiretap granting powers of a secret federal court hidden within the Department of Justice. There was, and continues to be, an apparent policy of precluding news organizations and congressional leaders from access to anything other than managed and generic news about the war in Afghanistan.

With all these moves, President Bush is brushing aside one historical tradition of openness after another. It is in this context that the president's latest action must be viewed.

The Executive Order suggests that President Bush not only does not want Americans to know what he is doing, but he also does not want to worry that historians and others will someday find out. Certainly that is the implicit message in his new effort to preclude public access to presidential papers -- his, and those of all presidents since the Reagan-Bush administration. There is, however, no justification whatsoever for this latest effort to hide the work of past, present, and future presidents.

What Bush's Executive Action Means

There has been some confusion about the meaning of the president's actions in addressing presidential papers. He has not repealed the existing law, as some have asserted, because he does not have that power. But he has sought to significantly modify the law, and made its procedures far more complex, cumbersome and restrictive. In doing so, he has exceeded his executive powers under the Presidential Records Act of 1978.

White House Press Secretary Ari Fleischer has tried, unsuccessfully, to spin Executive Order 13233 as doing nothing more than implementing the existing law, but in fact, the Order does much more. Perhaps unsurprisingly, when pressed during his briefing, Mr. Fleischer dodged the tough questions, or said 'that's a matter for the lawyers.' Fleischer's contention that the Order is innocuous would not hold up under close scrutiny, and so he avoided that scrutiny.

Attorney Scott Nelson's Testimony Against the Order

One lawyer who appreciates exactly what has been done is Washington attorney Scott L. Nelson, who represents Public Citizen, the public advocacy group that flushed out the Nixon papers during several decades of litigation. Mr. Nelson knows these laws well because Richard Nixon was his client for 15 years -- ironically, much of that time fighting Public Citizen. Indeed, Scott Nelson has been involved in the litigation that has shaped the body of law that President Bush has ignored in issuing his Executive Order.

On November 6, Nelson appeared before a subcommittee of the House Committee on Government Reform, chaired by Congressman Stephen Horn, to address the new Bush Order. He explained in detail its flaws -- which I have only summarized below, by highlighting a few examples of how the Bush Order ignores, or seeks to change, the law.