New York Times
October 10, 2005
SECRECY has been perhaps the most consistent trait of the George W. Bush presidency. Whether it involves refusing to provide the names of oil executives who advised Vice President Dick Cheney on energy policy, prohibiting photographs of flag-draped coffins returning from Iraq, or forbidding the release of files pertaining to Chief Justice John Roberts's tenure in the Justice Department, President Bush seems determined to control what the public is permitted to know. And he has been spectacularly effective, making Richard Nixon look almost transparent.
But perhaps the most egregious example occurred on Nov. 1, 2001, when President Bush signed Executive Order 13233, under which a former president's private papers can be released only with the approval of both that former president (or his heirs) and the current one.
Before that executive order, the National Archives had controlled the release of documents under the Presidential Records Act of 1978, which stipulated that all papers, except those pertaining to national security, had to be made available 12 years after a president left office.
Now, however, Mr. Bush can prevent the public from knowing not only what he did in office, but what Bill Clinton, George H. W. Bush and Ronald Reagan did in the name of democracy. (Although Mr. Reagan's term ended more than 12 years before the executive order, the Bush administration had filed paperwork in early 2001 to stop the clock, and thus his papers fall under it.)
Bill Clinton publicly objected to the executive order, saying he wanted all his papers open. Yet the Bush administration has nonetheless denied access to documents surrounding the 177 pardons President Clinton granted in the last days of his presidency. Coming without explanation, this action raised questions and fueled conspiracy theories: Is there something to hide? Is there more to know about the controversial pardon of the fugitive financier Marc Rich? Is there a quid pro quo between Bill Clinton and the Bushes? Is the current president laying a secrecy precedent for pardons he intends to grant?
The administration's effort to grandfather the Reagan papers under the act also raised a red flag. President Bush's signature stopped the National Archives from a planned release of documents from the Reagan era, some of which might have shed light on the Iran-contra scandal and illuminated the role played by the vice president at the time, George H. W. Bush.
What can be done to bring this information to light? Because executive orders are not acts of Congress, they can be overturned by future commanders in chief. But this is a lot to ask of presidents given the free pass handed them by Mr. Bush. (And it could put a President Hillary Clinton in a bind when it came to her own husband's papers.)
Other efforts to rectify the situation are equally problematic. Representative Henry Waxman, Democrat of California, has repeatedly introduced legislation to overturn Mr. Bush's executive order, but the chances of a Republican Congress defying a Republican president are slim.
There is also a lawsuit by the American Historical Association and other academic and archival groups before the United States District Court for the District of Columbia. A successful verdict could force the National Archives to ignore the executive order and begin making public records from the Reagan and elder Bush administrations.
Unless one of these efforts succeeds, George W. Bush and his father can see to it that their administrations pass into history without examination. Their rationales for waging wars in the Middle East will go unchallenged. There will be no chance to weigh the arguments that led the administration to condone torture by our armed forces. The problems of federal agencies entrusted with public welfare during times of national disaster - 9/11 and Hurricane Katrina - will be unaddressed. Details on no-bid contracts awarded to politically connected corporations like Halliburton will escape scrutiny, as will the president's role in Environmental Protection Agency's policies on water and air polluters.
This is about much more than the desires of historians and biographers - the best interests of the nation are at stake. As the American Political Science Association, one plaintiff in the federal lawsuit, put it: "The only way we can improve the operation of government, enhance the accountability of decision-makers and ultimately help maintain public trust in government is for people to understand how it worked in the past."