[Senate Hearing 108-591]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-591

                     NOMINATION OF ALLEN WEINSTEIN

=======================================================================


                                HEARING

                               before the


                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                 ON THE

  NOMINATION OF ALLEN WEINSTEIN, OF MARYLAND, TO BE ARCHIVIST OF THE 
      UNITED STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

                               __________

                             JULY 22, 2004

                               __________

      Printed for the use of the Committee on Governmental Affairs


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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas
           Michael D. Bopp, Staff Director and Chief Counsel
                    Johanna L. Hardy, Senior Counsel
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
           Jennifer E. Hamilton, Minority Research Assistant
                      Amy B. Newhouse, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Collins..............................................     1
    Senator Lieberman............................................     4
    Senator Shelby...............................................     6
    Senator Durbin...............................................     7
    Senator Levin................................................     7
Prepared statement:
    Senator Lautenberg...........................................    25

                               WITNESSES
                        Thursday, July 22, 2004

Hon. Richard Lugar, a U.S. Senator from the State of Indiana.....     3
Allen Weinstein, to be Archivist of the United States, National 
  Archives and Records Administration............................     9

                     Alphabetical List of Witnesses

Lugar, Hon. Richard:
    Testimony....................................................     3
Weinstein, Allen:
    Testimony....................................................     9
    Prepared Statement...........................................    26
    Biographical and professional information requested of 
      nominees...................................................    32
    Pre-hearing questionnaire for the Record.....................    44
    Responses to pre-hearing questionnaire for the Record........    53
    Post-hearing questions from Senators.........................   123

                                APPENDIX

Additional letters and prepared statements submitted for the 
  Record
    Letter from Senator Levin to Mr. Carlin, dated July 21, 2004.   130
    Letter to Senator Levin from Mr. Carlin, dated July 22, 2004.   131
    Letter to the President from Mr. Carlin, dated December 19, 
      2003.......................................................   132
    Letter to Senator Collins from Senator Hutchison, dated May 
      12, 2004...................................................   133
    Letter to Senators Collins and Lieberman from Juanita M. 
      Skillman, CRM, FAI, Chairman, ARMA International, dated 
      April 27, 2004.............................................   134
    ARMA International, prepared statement.......................   137
    Society of American Archivists, prepared statement with an 
      attachment.................................................   143
    National Coalition for History, prepared statement with 
      attachments................................................   148
Letters to Senator Collins from:
    Sharon Babaian, President, National Council on Public 
      History, dated July 16, 2004...............................   155
    Barbara B. Kennelly, President and CEO, National Committee to 
      Preserve Social Security and Medicare, dated April 27, 2004   157
    James S. Henderson, Director, Maine State Archives, dated May 
      13, 2004...................................................   158
    Timothy J. Naftali, Associate Professor, Miller Center of 
      Public Affairs, University of Virginia, dated May 4, 2004..   160
    Heather Gallegos-Rex, President, New Mexico Library 
      Association, dated May 6, 2004.............................   162
    Elspeth Davies Rostow, Stiles Professor Emerita, Lyndon B. 
      Johnson School of Public Affairs, University of Texas at 
      Austin, dated May 6, 2004..................................   163
    Thomas F. Eagleton, Thompson Coburn LLP, St. Louis, Missouri, 
      dated May 14, 2004.........................................   164
    Daraka S. Cook, President, Maryland Library Association, 
      dated June 9, 2004.........................................   166
    Robert L. Livingston, The Ivingston Group, LLC, dated April 
      13, 2004...................................................   168
    Susanne Hoeber Rudolph, President, American Political Science 
      Association, and Michael A. Genovese, President, Presidency 
      Research Group, a section of the American Political Science 
      Association, dated July 26, 2004...........................   170

 
                     NOMINATION OF ALLEN WEINSTEIN

                              ----------                              


                        THURSDAY, JULY 22, 2004

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:30 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Susan M. 
Collins, Chairman of the Committee, presiding.
    Present: Senators Collins, Shelby, Lieberman, Levin, and 
Durbin.

             OPENING STATEMENT OF CHAIRMAN COLLINS

    Chairman Collins. The Committee will come to order.
    This afternoon, the Committee on Governmental Affairs is 
holding a hearing to consider the nomination of Allen Weinstein 
to be the Archivist of the United States.
    As anyone who loves history knows, the Archivist holds an 
important and challenging position. As head of the National 
Archives and Records Administration, the Archivist is 
responsible for maintaining the historical documents of our 
country and for ensuring that those and other government 
records are preserved for the public. Currently, the National 
Archives holds an astounding 6 billion pieces of paper, 18 
million aerial photographs, 11 million still pictures, 3 
million architectural and engineering plans, 2 million maps and 
charts, and hundreds of thousands of motion pictures and audio 
and video recordings.
    The Archivist provides guidance and assistance to Federal 
officials on the management of records to determine their 
retention and disposition. He must decide where to place those 
records with sufficient value to warrant their continued 
preservation. Not surprisingly, the National Archives is 
running out of storage space. However, space is one of only 
many challenges facing the National Archives.
    While rapidly advancing information technology has been a 
boon for business and government alike, it has created a 
particularly difficult problem for the Archivist. Ensuring that 
electronic documents created using today's software and 
computer programs will be accessible 50 or 100 years from now 
creates novel technological and archival issues. The current 
Archivist, Governor John Carlin, has been working on this 
problem for several years and the National Archives will soon 
begin the design competition phase for its electronic record 
archives. Whoever replaces him must continue to make this 
significant project a high priority.
    The Archivist is also responsible for making grants to non-
Federal institutions to support historical documentation 
through the National Historical Publications and Records 
Commission. In Maine, for example, 23 museums, libraries, 
colleges, State and local agencies have received more than $1 
million in grants to improve the preservation of, and access 
to, their historic records. It is vitally important to such 
institutions throughout the Nation that the Archivist ensure 
that this program is adequately funded.
    The Archivist must also be able to work with key 
stakeholders. Other archivists, historians, records managers, 
and ordinary citizens all rely upon the National Archivist. 
During our review of this important nomination, the Committee 
has received a significant amount of input from organizations 
such as the National Coalition for History, ARMA International, 
and others including officials from the State of Maine 
Archives. The Committee staff has met with and consulted 
extensively with various groups and individuals and I continue 
to welcome their insights and advice.
    Many stakeholders expect the Archivist to be the advocate 
for open access to government records. At times, this role can 
prove to be difficult. The Archivist must understand the 
concerns of the public, of historians and other stakeholders 
and be committed to working to improve public access. The 
Archivist must believe in and adhere to the core mission of the 
National Archives which is to ensure ``for the citizens and the 
public servant, for the President and for the Congress and for 
the courts, ready access to essential evidence.''
    The National Archives is a public trust that documents our 
national experience and the activities of our government. Its 
mission is critical to a free and open society because it 
allows us another means of evaluating the actions of our 
government. For these reasons, it is important that the 
Archivist not only have the skills needed to manage the 
National Archives but also possess a knowledge of relevant 
issues such as records management, and demonstrate a commitment 
to the core mission of the agency.
    As a professor, scholar, and author, Professor Weinstein 
has a multidimensional perspective on the importance of the 
mission of the National Archives. In addition, his work with 
organizations such as the Center for Democracy, and the 
International Foundation for Election Systems demonstrates his 
capacity to manage and address complex issues.
    I look forward to hearing the professor's views on the many 
issues that he would face if he is confirmed. I note that he is 
accompanied today by one of our most distinguished members who 
is going to introduce him. I will now turn to Senator Lugar, 
for whom I have such great respect, in a moment. But first, I 
would be happy to turn to the Ranking Member of the Committee, 
Senator Lieberman, who managed to arrive just in time not to 
hear any of my eloquent opening statement.
    Senator Lieberman. I was receiving the vibrations as I 
walked over here. I am going to hold and I am happy to yield to 
our respected and dear colleague, Senator Lugar.
    Chairman Collins. Senator Lugar, I will call on you and 
then we will resume opening statements by the Committee 
Members. I know that Senator Shelby is also a friend of 
Professor Weinstein and is eager to make comments as well.
    Senator Lugar.

TESTIMONY OF HON. RICHARD LUGAR, A U.S. SENATOR FROM THE STATE 
                           OF INDIANA

    Senator Lugar. Thank you very much, Madam Chairman and 
Members of the Committee. I appreciate this opportunity. I want 
to testify on behalf of my friend Allen Weinstein from a 
perspective of fairly recent history, that is within the last 
two decades.
    I first met Professor Weinstein when he was a professor at 
Boston University, but had just become the head of the Center 
for Democracy in about 1985. That was a big year for me. That 
was my first year as chairman of the Foreign Relations 
Committee. We were already hearing from young people in the 
State Department, among them Rich Armitage and Paul Wolfowitz, 
other familiar names who are still on the scene, that there 
were problems in terms of our relationship with President 
Marcos.
    Those developed further throughout the year and when I was 
in Guatemala observing the election at the behest of President 
Reagan I got word that on television in the United States, 
President Marcos was calling a snap election in the 
Philippines. But it was a challenge to our country, and he 
said, in essence, and he heard a lot of criticism, but now it 
was put up or shut up. He was going to win and win big. And he 
invited us to come over and observe this.
    Now the problem of observation was a technical one. Before 
falling into this, Secretary Shultz suggested to me--and the 
thought was that I would head another delegation to observe 
this election--we had better find out where our footing was. So 
for this I called on my good friend Professor Weinstein.
    He did some reconnaissance of the Philippines election 
situation which led us to ask some probing questions of the 
embassy back here. Namely, how close to the polls could we get? 
Who could we interview? As a matter of fact, what were the 
rules of the game in terms of the election laws? And what kind 
of security would our delegates have? Because the President 
intended to name 30 people from business, from politics. 
Senator Kerry and Senator Cochran were both parts of that 
delegation and are still in the Senate, and Jack Murtha from 
Pennsylvania was a part of that situation.
    So we asked Allen and his group to find out for us, and 
they asked the right questions so we asked the right questions. 
In essence, we established a presence, we observed the 
election. It was covered by enormous fraud and abuse, which we 
reported before leaving the Philippines fairly abruptly 
thereafter, and came directly back to report to the President, 
who at first was very skeptical and said he saw fraud and abuse 
on both sides.
    But without relating all the problems, by Saturday the 
President decided the fraud and abuse was principally on one 
side and instructed his friend, Senator Paul Laxalt to give the 
famous words, ``cut and cut clean,'' to Ferdinand Marcos up in 
room S-407 as we all observed this.
    Now at that point we asked Allen Weinstein to go back to 
the Philippines for a very important scholarly reconnaissance 
to find out exactly what were the voting totals, what had 
occurred in all the precincts, and which anecdotally, the 
people had turned over the wagons literally and come up with 
scores of 400 to zero, or what have you. So that there was not 
a very good historical record of physically what had occurred 
in that race as well as other races on that day. He performed 
in an exemplary fashion, as you might imagine.
    This is all a part of history, and on the basis of this 
President Reagan changed our foreign policy by saying that we 
will no longer make a distinction between totalitarians on the 
left and authoritarians on the right. Both are enemies of 
democracy, and we will oppose both. That was a very significant 
change for President Reagan and it came really out of this 
experience, and out of the documentation. Not just a single 
observation, but a scholarly effort of published work.
    Allen helped me make certain all the recollections I have 
in my book, ``Letters to the Next President,'' on the 
Philippines election were right as we both understood it. So in 
a contemporary way we recorded that part of American history.
    Subsequently, I continued to serve on Allen's board until 
it was in fact merged into IFES, as you have suggested, Madam 
Chairman, and the board meetings were always stimulating. They 
always brought in Members of Congress, and the academic 
community. A good number of legislatures in Latin America and 
elsewhere have their genesis from the beginnings of the Center 
for Democracy, and the instructions, the materials, as well as 
judicial conferences that Allen Weinstein sponsored with the 
center here in this country as well as elsewhere each year.
    So for all these reasons, you can understand the depth of 
my regard and my friendship for this remarkable American. I am 
most hopeful the Committee will give him very favorable 
consideration.
    Chairman Collins. Thank you very much, Senator Lugar, for 
being here. Your recommendation means a great deal to this 
Committee. I know your schedule is very busy so I am sure that 
the members would join me in excusing you from listening to 
their eloquent opening statements as well.
    Senator Lugar. Thank you very much.
    Chairman Collins. Thank you. Senator Lieberman.

             OPENING STATEMENT OF SENATOR LIEBERMAN

    Senator Lieberman. Thank you, Madam Chairman, both for the 
introduction and that adjective eloquent. I am going to ask 
that my full statement be put in the record and welcome Dr. 
Weinstein.
    Nine years ago when this Committee considered the 
nomination of then-Governor Carlin to be Archivist the 
nomination attracted what was to me at the time a surprising 
amount of interest and controversy. Today we are considering 
the nomination of Dr. Allen Weinstein for the same position, 
and again there is some interest and some controversy.
    This is actually a week in which the Archives have probably 
received more attention, thanks to Sandy Berger, than they have 
in a long time. So the limelight is unexpectedly on this 
usually quiet and non-controversial agency of our government. 
The position of Archivist is anything but ordinary, although it 
is usually not in the limelight. Senator Glenn, our former 
chairman and friend once said, and maybe said it best, ``that 
the Archivist is the guardian of our heritage,'' our national 
heritage, because the Archivist ensures the Nation's historical 
records are kept safe, never altered, and certainly not 
illegally destroyed.
    The Archives are now in the midst of a great transition. 
Along with all Federal agencies, National Archives and Records 
Administration must manage a rapidly increasing volume of 
electronic records. The Archives not only must preserve raw 
data, they must ensure that the best methods for reading and 
recalling that data are preserved as well, so that not just 
next year or in 10 years, but forever the American people will 
have access to their heritage.
    The next Archivist will also have to deal with the 
sensitive issues surrounding Executive Order 13233 issued by 
President Bush in November 2001 regarding release of 
presidential documents. As you know, Dr. Weinstein, the order 
has drawn some criticism on the basis that it undermines the 
Presidential Records Act and, among other things, diminishes, 
some would say takes the Archivist out of the process of 
deciding what documents should be released, and gives the 
former or sitting Presidents very large sway and time to review 
requests for the release of those documents. I hope that is a 
subject that we can talk about today.
    But I welcome Dr. Weinstein, an accomplished historian, 
which incidentally is a profession several past Archivists have 
shared and it certainly seems to prepare you for this position. 
An author, a teacher, leader of a private non-profit 
organization that helped emerging democracies around the world 
foster open government. And in the spirit of full disclosure I 
should add, I was privileged to be a member of the board of 
that organization for some time. So I welcome you. I thank you 
for your willingness to serve, and I look forward to your 
testimony today.
    [The prepared statement of Senator Lieberman follows:]

            PREPARED OPENING STATEMENT OF SENATOR LIEBERMAN
    Thank you Madam Chairman, and welcome Dr. Weinstein. We appreciate 
your being with us today.
    Nine years ago, when this Committee considered the nomination of 
then-Governor Carlin to be Archivist, the nomination attracted a 
significant amount of interest and some controversy. Today we are 
considering the nomination of Allen Weinstein for the same position, 
and again there is significant interest and some controversy. This 
surprises people who consider the Archivist's job to be an ordinary 
one, far removed from the limelight and the daily tug of current 
events.
    But the position of Archivist of the United States is anything but 
ordinary. The Archivist safeguards the very nature of democratic 
government. He works with the President, the Congress, the courts, and 
all the Federal agencies to determine what government records should be 
saved, who controls those records, how government can preserve them for 
historical purposes, and how and when the public should gain access to 
them. The Archivist, then, is our national record keeper. His is a 
public trust.
    Both government and the public depend on the National Archives for 
a wide range of information. The National Archives preserves the 
records citizens rely on to trace their families' history. It also 
maintains the records historians use to evaluate the government and the 
people who serve within it. From those records we judge our 
predecessors, just as succeeding generations will judge us.
    Former Senator Glenn may have said it best when he noted that ``the 
Archivist is the guardian of our heritage.'' He ensures this nation's 
historical records are kept safe, never altered or illegally destroyed.
    The National Archives, however, is, in many ways, on the cusp of a 
monumental transition, and the next Archivist must be prepared to lead 
the agency through this transformation. Just as all Federal agencies 
do, the National Archives and Records Administration (NARA) must manage 
a rapidly increasing volume of electronic records. E-mails, electronic 
documents, and World Wide Web site pages all present special archival 
challenges because the technologies behind them are constantly 
changing. The Archives not only must preserve raw data, it must ensure 
the best methods for reading and recalling that data are preserved as 
well, so that 10, 20, or 100 years into the future, American citizens 
will still have access to their heritage.
    The Archivist must also be prepared to face some of the same 
management challenges other Federal agencies are confronting. He must 
be able to lead a large and diverse workforce into the 21st Century. He 
must also cope with the retirement of experienced personnel and be able 
to recruit and retain new employees with the appropriate training.
    The next Archivist will also have to wade into the sensitive issues 
surrounding Executive Order 13233, issued by President Bush in November 
2001, regarding release of presidential documents. the order has drawn 
criticism for undermining the Presidential Records Act, which provides 
for the public release of presidential records. The Executive Order, 
among other things, essentially takes the Archivist out of the process 
of deciding what documents should be released, gives the former and 
sitting President potentially unlimited time to review requests, and 
shifts the legal burden of challenging decisions to withhold documents 
to the requestor of the documents. This is a subject I am sure we'll 
spend some time discussing this afternoon.
    Allen Weinstein is not an archivist by trade. He is an historian, 
an honorable, indeed significant profession several past Archivists 
have shared. He is an author and teacher, and was the leader of a 
private non-profit organization that helped emerging democracies around 
the world foster open government. Concerns have been raised, as you 
know, in connection with Dr. Weinstein's historical pursuits.
    Some have complained that the previous Archivist, John Carlin, was 
pressured to resign or that Allen Weinstein was an opponent of open 
access because he kept some of his own records and files closed. The 
Committee has explored these issues and will continue to debate them 
today.
    Again, I welcome Dr. Weinstein, and look forward to his testimony 
before this Committee as we consider his nomination and the 
interesting, sometimes controversial issues confronting the National 
Archives and the ``guardian of our heritage,'' as we enter the 21st 
Century.

    Chairman Collins. Thank you. Senator Shelby.

              OPENING STATEMENT OF SENATOR SHELBY

    Senator Shelby. Madam Chairman, I want to thank you for 
holding this hearing today to consider the nomination of Dr. 
Allen Weinstein to be the Archivist of the United States. Dr. 
Weinstein, as you probably know, is a noted historian, 
respected educator, renowned author and founder, president and 
the CEO of the Center for Democracy. Dr. Weinstein has had an 
outstanding career and a demonstrated record of service in non-
partisan and bipartisan organizations over the past two 
decades. Throughout his career he has conducted a significant 
amount of scholarly research and published a number of works 
that brought him in direct contact with vast amounts of 
historic documents and information.
    Throughout his years, Madam Chairman, whether as a writer 
or as an educator, Dr. Weinstein's reliance on historical 
documents has bolstered his understanding of the importance of 
maintaining the most accurate, accessible and thorough 
historical records in order to connect citizens to their 
government. I believe that Dr. Weinstein will serve our Nation 
honorably and with the utmost respect for materials that he 
will be responsible for safeguarding. These materials are 
precious and irreplaceable national treasures and it is 
imperative they be preserved and protected.
    I thank you again for holding this hearing. I look forward 
to supporting this nomination. I think it is a great 
nomination.
    Chairman Collins. Thank you. Senator Durbin.

              OPENING STATEMENT OF SENATOR DURBIN

    Senator Durbin. Thank you, Madam Chairman, and welcome, Dr. 
Weinstein, to the Committee. I have to agree with Senator 
Lieberman, rarely is there this much intrigue in a nomination, 
particularly for someone to the Archives. Having had a chance 
to sit down and speak with you, I have no question in my mind 
that you are thoroughly qualified to fill the chair of 
Archivist. The question in the minds of many of us is whether 
that chair is empty. And if it is empty, why is it empty? What 
decision was made and who made it to tell Governor Carlin it 
was time to go?
    I suppose you may know nothing about that and perhaps 
questions in this Committee will raise that issue. But it is an 
unusual circumstance and I do not know, God forbid, that 
politics may be involved in it. But it does not take away from 
the fact that you bring extraordinary qualifications. So I am 
looking forward to the questions and your responses.
    Thank you, Madam Chairman.
    Chairman Collins. Thank you. Senator Levin.

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Madam Chairman, thank you very much. Let me 
join you and the other Members of our Committee in greeting Mr. 
Weinstein here and welcoming him.
    As has been stated by you, Madam Chairman, and other 
Members of the Committee, and Senator Lieberman, the National 
Archives are a national treasure, a repository of critical 
information illuminating the Nation's development, our 
understanding of our history, and our view of ourselves. The 
Archives merit our full attention and protection. They were 
created 20 years ago by the National Archives and Records 
Administration Act of 1984. The report issued by this Committee 
at the time said that if the decisions made at the Archives 
were made ``arbitrarily or motivated by political rather than 
professional considerations, the historical record could be 
impoverished, even distorted.'' The report explained that the 
law established the Archives as an independent agency in order 
to ``provide the best insurance that archival and records 
management decisions would be made on a professional basis 
unaffected by political considerations or other extraneous 
factors.''
    Just as decisions at the National Archives must be based on 
professional, non-political considerations, it is critically 
important that the process of selecting a new Archivist follow 
the same path. Some of the events leading up to the proposed 
replacement for the current Archivist trouble me deeply. The 
nominee, Dr. Weinstein, stated in written answers to questions 
sent him by the Committee that he first met with the White 
House about his possible nomination on September 23, 2003. He 
stated that he was then asked by the Office of Presidential 
Personnel to fill out certain forms required for the nomination 
process during late November and early December 2003.
    Until now, it has been unclear whether the process of 
seeking out a new Archivist had been initiated by the White 
House or at the suggestion of the current Archivist, John 
Carlin. I recently decided just to ask Mr. Carlin directly, and 
I sent him a letter asking whether he initially approached the 
Administration about resigning from his position or whether the 
Administration had initially approached him. Mr. Carlin 
responded, ``the Administration initially approached me. On 
Friday, December 5, 2003, the Counsel to the President called 
me and told me the Administration would like to appoint a new 
Archivist. I asked why, and there was no reason given.''
    Mr. Carlin decided, obviously, to go along with the 
request. Two weeks after the initial contact from the White 
House, on December 19, 2003, Mr. Carlin sent a letter to the 
President stating that by the Fall of 2004 he would look for 
other opportunities. He stated he would submit his resignation 
upon the swearing-in of his successor. I am not sure that Mr. 
Carlin was aware at the time he wrote this letter his potential 
replacement had already begun the paperwork needed to complete 
the nomination process.
    Congress intended for the Archivist to be a non-political 
position. The law authorizes the Archivist to serve for an 
indefinite term. If a President initiates the removal of a 
sitting Archivist he is required by law to inform Congress of 
the cause for removal. In this case, it was apparently the 
White House who asked Mr. Carlin to remove himself and gave no 
apparent reason other than wanting to name his replacement.
    Mr. Carlin may be willing to leave at the request of the 
White House, but we have an obligation to protect the 
objectivity of the Archives and to find out why the White House 
asked him to leave.
    I make no suggestion, by the way, that Mr. Weinstein played 
any role in the request of Mr. Carlin to resign, because I know 
he did not--because he told me he did not. The issue is totally 
separate from Mr. Weinstein's qualifications, which are high 
qualifications, from his experience which is extensive. But it 
seems to me that it is essential that this Committee now 
request the White House to let us know whether in fact they 
requested the resignation of Mr. Carlin, and if so, why. That 
again is a separate issue from Mr. Weinstein's qualifications 
and I think it is important that we talk to him about his 
vision and his qualifications, but that we not simply overlook 
the importance of finding out how is it and why is it that the 
White House requested the current Archivist to resign.
    The National Archives Vision Statement states that the 
National Archives is a ``public trust on which our democracy 
depends. . . . It enables officials and agencies to review 
their actions and helps citizens hold them accountable.'' Part 
of that accountability, it seems to me, is that we do make that 
inquiry of the White House, and I will be talking to the 
Chairman and to the Ranking Member about that. I just received 
the letter today. I tried to get it to our Chairman this 
afternoon and to the Ranking Member. I do not know even, 
frankly, if they got a copy of the letter.
    Chairman Collins. Just now.
    Senator Levin. But in any event, it just struck me 
literally yesterday, I just wanted to find out directly from 
the Archivist as to was this his idea or not? And if it is not 
his idea, I think we should find out the source of the idea, to 
protect the objectivity and independence and integrity of the 
Archives. So that is, again, a separate matter which I am happy 
to keep separate from questions of Mr. Weinstein, because again 
I know he should not be caught up in this issue, but it is an 
issue which needs to be resolved. Again, I welcome him to the 
Committee and I look forward to his answering questions about 
his own views, vision, and qualifications.
    Chairman Collins. Thank you.
    Allen Weinstein has filed responses to a biographical and 
financial questionnaire,\1\ answered pre-hearing questions 
submitted by the Committee,\2\ and had his financial statements 
reviewed by the Office of Government Ethics. Without objection, 
this information will be made part of the hearing record with 
the exception of the financial data which are on file and 
available for public inspection in the Committee's offices.
---------------------------------------------------------------------------
    \1\ The biographical information appears in the Appendix on page 
32.
    \2\ Pre-hearing questions and responses in sequential order appear 
in the Appendix on pages 44 and 53 respectively.
---------------------------------------------------------------------------
    Our Committee rules require that all witnesses at 
nomination hearings give their testimony under oath so, 
Professor, I would ask that you stand and raise your right 
hand.
    [Witness sworn.]
    Chairman Collins. Thank you. Professor, before I ask you if 
you have a statement you would like to make, I am told that you 
do have members of your family here with you and I would ask 
you to introduce them to the Committee.
    Mr. Weinstein. I would like you to meet my wife, Adrienne 
Dominguez, and my son, Andrew Weinstein.
    Chairman Collins. Thank you. We welcome you here today.
    Professor, you can proceed with your statement.
    Mr. Weinstein. May I introduce one more person?
    Chairman Collins. I am sorry. I had been told there are 
just two.
    Mr. Weinstein. One of your former colleagues in the 
Congress and my friend, Barbara Kennelly, is here in the back. 
Congresswoman Kennelly? Well, she was here in the back. I don't 
know where she is now.
    Chairman Collins. You should have stopped when you were 
ahead. [Laughter.]
    Mr. Weinstein. It has been a problem, Chairman.
    Chairman Collins. Professor, proceed please.

TESTIMONY OF ALLEN WEINSTEIN,\3\ TO BE ARCHIVIST OF THE UNITED 
      STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

    Mr. Weinstein. Thank you. Chairman Collins, Senator 
Lieberman, Senators on the Governmental Affairs Committee, 
Committee staff, ladies and gentlemen: I am honored and humbled 
by the President's nomination of me to become the next 
Archivist of the United States. Should this Committee and the 
full Senate confirm the nomination, I will devote all of my 
effort and energy to addressing the range of responsibilities 
assigned to the Archivist as the head of the National Archives 
and Records Administration.
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    \3\ The prepared statement of Mr. Weinstein appears in the Appendix 
on page 26.
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    I want to thank Senator Lugar, a friend and mentor, for 
having introduced me to the Committee. I want to thank you, 
Chairman Collins, and all of the Senators on the Committee, 
along with your able staffs; no nominee could have been treated 
with greater fairness. If confirmed, I look forward to working 
with the Members and staff of this Committee in a completely 
cooperative manner.
    The Archivist of the United States essentially works for 
the American people across partisan lines and not, regardless 
of which administration nominates the person, for a particular 
President or political party. Thus, the Archivist must display 
at all times scrupulous independence and a devotion to the laws 
and principles which govern the responsibilities of the office. 
It should be of some help in this connection that for two 
decades, in this city and throughout the country and the world, 
I have led an independent, bipartisan existence while 
developing a range of programs and initiatives with Members of 
Congress, their staffs, and administration officials of both 
parties. I would continue that independent and bipartisan 
approach to my work as Archivist of the United States, the 
designated custodian of America's essential government 
``records that defy the tooth of time.'' I note with special 
pride the Center for Democracy's bipartisan Board of directors 
which, at various times was honored to include Senators Kay 
Bailey Hutchison, John Kerry, Joseph Lieberman, Richard Lugar, 
Sam Nunn, Charles Robb, and former Senator William Brock.
    With the Committee's indulgence, I would like to spend a 
moment reviewing in summary my qualifications for the post of 
Archivist. My answers to the Committee's biographical and 
policy questionnaires, which you already have and which I have 
appended to this statement, expand on these comments.
    First, I believe that my several careers--as a teacher and 
scholar of American history, a global democracy activist for 
two decades, and an NGO administrator for that same period--
constitute a varied yet significant professional background, 
one capable of assuming quickly and effectively the Archivist's 
roles and responsibilities.
    Second, my specific activities over four decades as an 
educator, historian, and writer should be noted: As the holder 
of three long-term professorships--Smith College, Georgetown, 
and Boston University; author or co-author of six books well 
received by reviewers, of eight edited collections, and of 
dozens of articles; a user of and advisor to various research 
archives; and an award-winning recipient of fellowships and 
lectureships.
    Third, having witnessed over almost two decades as 
President of the Center for Democracy in dozens of 
dictatorships or transitional nations the destructive impact of 
non-democratic habits of mind, history, and political behavior, 
I am keenly aware of the priceless constitutional heritage 
enjoyed by Americans. This awareness instills a fierce desire 
to protect that heritage and, in doing so, to educate Americans 
in the meaning and importance of our pivotal documents. In 
short, the Archivist's role in preserving and disseminating our 
Nation's ``essential evidence'' is one for which both the 
global and American aspects of my past experiences have 
prepared me.
    Fourth and finally, the bipartisan background of my 
international work during the past 20 years, first in 
developing the National Endowment for Democracy and then in 
creating and managing the Center for Democracy, working closely 
in these decades with the U.S. Congress and administrations of 
both parties, has provided a useful context for assuming 
leadership and supervision of NARA's various components.
    The Committee's policy questionnaire asked, among other 
things, what challenge NARA would confront in the period ahead. 
If confirmed as Archivist, I would undertake both an initial 
set of briefings by NARA's management team and other senior 
staff and another briefing by key NARA stakeholders to gain 
their assessments of current systemwide challenges and 
priorities. I believe this will allow a more cost-effective and 
efficient use of NARA's budget. Until then, I would place the 
following group of clear challenges and priorities in any list 
of concern to the Archivist of the United States:
    Providing effective post-September 11 security for the 
documents, materials, and staff at the Washington, DC, and 
College Park NARA headquarters and throughout NARA's 
installations (i.e., presidential libraries, regional records 
centers, et al.);
    Completing the Redesign of the Federal Records Management 
Initiative;
    Moving forward NARA's major electronic records initiative 
(i.e., Electronic Records Archive (ERA), the Electronic Records 
Management (ERM), Records Lifecycle Business Process Re-
engineering (BPR), et al.);
    Expanding NARA's educational and public programming not 
only in Washington but throughout the regional records centers 
and the presidential library system;
    Supporting the National Historical Publications and Records 
Commission (NHPRC) in its important work at effective budgetary 
levels;
    Addressing major internal administrative concerns at NARA, 
including (but not limited to) the loss of experienced 
personnel due to retirement, aging facilities, deteriorating 
records, and administrative backlogs;
    And, finally, strengthening cooperation with the 
presidential library system while creating effective liaison 
with State and other non-Federal archival groups.
    Once fully briefed, however, undoubtedly other priorities 
will join this initial list.
    Chairman Collins and Members of the Committee, I want to 
call to your attention the fact that several archival and 
historical organizations have raised concerns regarding 
insufficient consultation with their groups prior to this 
nomination, concerns--they were quick to point out--more about 
the process of selection itself than about the nominee. I would 
mention, as a historical note, that many of these same 
concerns--and others--were also expressed when President 
Clinton appointed Governor Carlin as Archivist in 1995.
    To address these concerns, one of my important goals, if 
confirmed as Archivist, would be to maintain an open dialogue 
with all of NARA's key stakeholders and partners, and since my 
nomination in April, I have attempted informally but vigorously 
to reach out to many of these groups. I have met with the heads 
of over a dozen archival and historical organizations and with 
a number of other influential figures involved in NARA-related 
activities seeking not endorsements but dialogue. At these 
meetings, mostly I have listened and opened lines of 
communication; if confirmed, I would continue to strengthen 
mechanisms of consultation with these and other stakeholding 
groups. They are all valuable members of the NARA family.
    Since these meetings, one of the concerned archival groups, 
the important Council of State Historical Records Coordinators, 
your State Archivists, unanimously endorsed my nomination as 
Archivist. In short, I have been working hard and steadily to 
keep open communications with the many concerned NARA 
stakeholders and, as Archivist, will try to engage all segments 
of NARA's constituent communities, both in and out of 
government.
    In closing, I want to share with the Committee two personal 
stories of my encounters with the three great ``Charters of 
Freedom'' housed in the National Archives Building on 
Pennsylvania Avenue. The first occurred in Boston in 1987, when 
I was invited to deliver the 216th annual Fourth of July 
Oration at historic Faneuil Hall. I called my remarks ``The 
Declaration Meets the Constitution: A Bicentennial Fourth of 
July,'' and the talk concerned the efforts at Philadelphia's 
Constitutional Convention--in the end successful efforts--to 
avoid a deadlock in its deliberations. The ``Great Compromise'' 
eventually agreed upon confirmed the convergence of the 1776 
and the 1787 guarantees of freedom, which even today balance in 
the American Republic the rights of citizenship and its 
obligations.
    Three years later, in 1990, the Center for Democracy hosted 
the new President of a democratic Hungary, Arpad Goncz, who 
spoke in front of the Bill of Rights at the National Archives, 
in a ceremony commemorating its Bicentennial, on the global 
influence of that document. The Faneuil Hall talk had confirmed 
for me the unbreakable links among the three great founding 
documents of our ``first new nation'' in guaranteeing the 
rights and responsibilities of our people. President Goncz's 
remarks called attention to the ideological and geographic 
reach of this country's principles, from its beginnings, in a 
world filled with despots, now as then, in which ordinary 
people dream of and fight for freedom, individual rights, and 
the rule of law. Together, the two occasions also symbolize for 
me the awesome responsibilities placed on the Archivist of the 
United States as a designated custodian of America's national 
memory. For the Archivist, this role is the result of his 
obligation to preserve and assure timely and maximum access to 
our governmental records in the evolving historical saga of the 
American people.
    On a personal note, as the son of pre-World War I Russian-
Jewish immigrants, if confirmed, I would view my work as 
Archivist as an optimal way of giving back to this great 
country a small measure of what the United States of America 
has given to me and to my family.
    Chairman Collins and Members of the Committee, I am keenly 
aware of the responsibilities involved in the position for 
which I have been nominated, and I welcome the challenge, 
Senators, as I now welcome your questions and comments.
    Thank you very much.
    Chairman Collins. Thank you, Professor.
    There are three standard questions that the Committee asks 
of all nominees. First, is there anything you are aware of in 
your background which might present a conflict of interest with 
the duties of the office to which you have been nominated?
    Mr. Weinstein. No, Chairman. Nothing that I can think of.
    Chairman Collins. Second, do you know of anything, personal 
or otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office?
    Mr. Weinstein. No, I do not.
    Chairman Collins. And, third, do you agree without 
reservation to respond to any reasonable summons to appear and 
testify before any duly constituted committee of Congress if 
you are confirmed?
    Mr. Weinstein. Absolutely.
    Chairman Collins. We will now have a round of questions 
limited to 6 minutes each.
    Professor, in your responses to this Committee's written 
questions, you cited former Senator Daniel Patrick Moynihan's 
writings on the need to combat excessive government secrecy. 
You also declared your lifelong commitment to what Senator 
Moynihan called ``a culture of openness.'' You went on to state 
that, as Archivist, it would be your duty to speak out plainly 
as a primary advocate for access.
    Mr. Weinstein. Right.
    Chairman Collins. There are, however, some scholars who 
have questioned your commitment to public access to important 
records. How would you respond to their concerns? Which I know 
you are aware of.
    Mr. Weinstein. Well, I am aware of them. Let me take that 
in two parts, if I may, and I will try to be brief. The four 
most dangerous words in the English language are ``I will be 
brief,'' but I will try.
    First, on my record on access, back in 1972, when I sued, 
with the assistance of the ACLU, the FBI for its files, this 
was no easy matter, and I won't go into the details except to 
say that we were very delighted when the suit was finally won 
in 1975. My lawsuit opened FBI files for the first time records 
of historical interest, not just to myself but to any scholar, 
any researcher who wanted those records. The release set a 
precedent, the FOIA release. Those files, those FBI files, are 
deposited at the Harry Truman Library.
    I have brought other collections to bear at two libraries, 
for example, the Herbert Solow papers. I brought them from 
Mexico to the Hoover Library. They are a Hiss-related 
collection.
    I worked with Boris Yeltsin's Commission on Archives in the 
1990's to produce the first English-language translation of the 
first Russian archival publication that was designed for a mass 
audience. I worked with the Russian Government to try to 
improve their access relationships at the time.
    I have helped the Mary Baker Eddy Library in Boston open 
the papers of Mrs. Eddy which had been closed for over 100 
years. When the new library opened, those papers were opened to 
all scholars, and I was one of the leading forces in that 
process.
    My commitment has been constant. I could mention other 
things. I worked on seminars with my friends in the Russian 
Federation at which documents were opened. There are a number 
of instances I could mention of that kind.
    There is one incident, one issue that critics of my record 
have brought up, and that is the issue of what to do about the 
fact that I have not put my personal records and my personal 
memos of the Hiss case into public display.
    Chairman Collins. Let me follow up with a question on that 
particular case.
    Mr. Weinstein. That is fine.
    Chairman Collins. There has been concern expressed by some 
scholars who say that you failed to make available for review 
by other scholars the notes and records that you relied upon in 
writing two of your well-known historical works: the 
``Perjury'' book and ``The Haunted Wood'' book. You had told 
the Committee staff that, in fact, you planned to donate the 
notes that you relied on in writing the ``Perjury'' book, 
regarding the Hiss-Chambers case, to the Hoover Institution.
    Do you plan to impose restrictions that would limit public 
access to those notes once they are donated.
    Mr. Weinstein. No. Madam Chairman, I have signed the deed 
of gift already to the Hoover Institution, and the hope is that 
these papers will all be available by early next year, at the 
least. I have got to get them out there. I have got to collect 
them. Archivists have to process them, and then they will be 
all available.
    But I do want to point something out. There are two 
separate instances, if I may spend a moment or two on this.
    Chairman Collins. Certainly.
    Mr. Weinstein. When I started my book on the Alger Hiss 
case--I began thinking that Mr. Hiss may have been innocent. I 
changed my mind as the case went along and as I read the FBI 
files and other materials. I found no conspiracy. I found a 
great deal of confusion in the FBI. But I did not find that 
anyone had conspired against him to convict him. And so I wrote 
the book that way.
    The book was controversial. It was a very tense period. I 
was sued by a gentleman who had been a former member of the 
Communist Party who had been encouraged to sue me for 
misstating his situation. Maybe I did, maybe I didn't, but it 
was a lawsuit against myself and the New Republic magazine and 
Alfred A. Knopf Publishers. It was settled out of court. But I 
was threatened with other lawsuits, and on advice of counsel, 
my counsel said, well, this is not a time to be giving your 
papers to anyone who wants to look at your private papers.
    In retrospect, I think I probably should have donated them 
afterwards, because the historical verdict seemed very clear. 
My book was well received, and there hasn't been another 
complete book on the case in the period since 1978. There was 
another edition of ``Perjury'' that came out in the late 
1990's. So those are going to the Hoover Institution, every 
last bit of documentation, and people can make what they want 
of them.
    By the way, my book was used as one of the major sources 
for Sam Tanenhaus' brilliant biography of Whittaker Chambers. I 
gave him total access to the papers. I have given others access 
to the papers.
    ``The Haunted Wood,'' I still don't know to this day--
people ask me what arrangements my publisher made at the time 
with the KGB's retired agents organization. There was an 
arrangement to allow four Western scholars to do four books. 
The KGB records had never been opened before. The authors had 
no ability to tell the Soviet folks what to do with this. If we 
wanted to look at the material, we had to come to a negotiated 
agreement with them. We had to work with the Soviet--with 
Russian authors. And basically, I think it is fair to say that 
we learned a fair amount.
    All of this is stated in the introduction of my book. I did 
not write a check to the KGB for materials there, and all of 
this material that we found will be in the Hoover Institution, 
and people can make what they want of it. There were four 
excellent books produced. One of my colleagues wrote a superb 
book about the Cuban missile crisis, Professor Timothy Naftali, 
who is in the room here, and can explain the lengths to which 
all of the American authors went to try to encourage the 
Russians to increase their access to the West. We failed. They 
shut down after about a year. And just at that time the VENONA 
Papers in Washington opened up, so we were able to confirm a 
lot of the materials that we had in our book. But those were 
two different stories.
    Chairman Collins. Thank you. Senator Lieberman.
    Senator Lieberman. Thanks, Madam Chairman.
    Thanks for your answers to Senator Collins, Dr. Weinstein. 
One of the matters that I wanted to take up Senator Collins has 
asked and you have answered--and others may take it up again--
which is one of the points of concern expressed to us by some 
has been what your policy would be on openness. I want to get 
back to that in a minute.
    But the second concern I think has little or nothing to do 
with you, but more to do with the White House. And that concern 
is deepened by the letter that Senator Levin read earlier, in 
which the current Archivist, Governor Carlin, clearly says that 
he was asked to resign.
    I wanted to ask you, just to clarify, whether you had any 
knowledge of why there was a vacancy or how the vacancy came to 
be when the White House began to talk to you about whether you 
were interested in being nominated for Archivist.
    Mr. Weinstein. No.
    Senator Lieberman. None at all?
    Mr. Weinstein. No, sir. They asked me if I would be 
interested in the position. Frankly, at the time, I had very 
little contact with Governor Carlin. We have had a few social 
contacts. We had lunch once or twice over the years. I didn't 
know him very well. I assumed at the time that he was--that for 
some reason or other he was leaving his post. I didn't ask, 
they didn't tell. And I didn't have a job offer. They didn't 
say, ``We want you to become Archivist.'' They said, ``We are 
considering the possibility that you might become Archivist. 
Would you be interested if the job were open?'' And, frankly, 
if the job were open, I would have been interested.
    Senator Lieberman. Yes. I presume--or let me ask you, have 
you seen and talked to Governor Carlin since you were 
nominated?
    Mr. Weinstein. Once. I called Governor Carlin, I guess the 
day after my nomination was announced, and suggested that we 
get together. He agreed; then he cancelled the meeting. And 
after that, the only person at the Archives that I had been in 
touch with was Mr. Runkel, Deputy General Counsel, who helped 
me fill out the financial forms that I had to fill out at the 
time, and I did do that.
    But I took the position that I should not be in touch with 
anyone at the Archives. It was improper or inappropriate for me 
to be in touch with them while Governor Carlin, as Archivist, 
was still there. I didn't want any confusion about it.
    Senator Lieberman. Right.
    Mr. Weinstein. One instance in which somebody from the 
Archives called about a particular policy matter, a relatively 
minor one, and I said, ``Please don't talk to me. This is not 
my business. You should talk to Governor Carlin.''
    Senator Lieberman. But other than that phone call, you have 
not talked to Governor Carlin?
    Mr. Weinstein. No, sir.
    Senator Lieberman. And in that phone call, did he raise 
any--did he say anything about why the position was becoming 
vacant?
    Mr. Weinstein. No.
    Senator Lieberman. And I presume, therefore, didn't say to 
you that he had been asked to resign?
    Mr. Weinstein. Senator, he didn't say anything like that, 
no. We talked about the meeting.
    Senator Lieberman. Who was the person at the White House 
who asked you whether you might be interested in being 
Archivist if there was----
    Mr. Weinstein. As I said in my questionnaire, the Director 
of Presidential Personnel, Dina Powell.
    Senator Lieberman. Right. And in those conversations--you 
see, I want to get this all out in the interest of disclosure. 
I think there are some people who are maybe not doing it in 
print but raising questions about whether this change is 
occurring, that Governor Carlin was asked to resign, you are 
coming in, in some sense to carry out a more secretive policy 
at the Archives, perhaps even to protect records of this 
administration or the previous Bush Administration. So I want 
to ask you whether there was ever a conversation between you 
and Dina Powell or anyone else at the White House along the 
lines of what your decisions would be about opening up records 
of the first Bush Administration or this one.
    Mr. Weinstein. Absolutely not. And, Senator, may I say a 
word about this? You and others on the Committee have worked 
with me on different matters and I think understand that I 
would not be here today under those circumstances, neither the 
job, the very prestigious job of Archivist of the United States 
or any other government position is worth my integrity or 
anything like that. No, I would not--the Archivist's job is as 
the advocate for access.
    Senator Lieberman. Right.
    Mr. Weinstein. And if one can't be a serious advocate for 
access, then one shouldn't want to be Archivist of the United 
States.
    Senator Lieberman. Who else have you at any time spoken to 
at the White House about this appointment?
    Mr. Weinstein. Judge Gonzales once.
    Senator Lieberman. Judge Gonzales? And that was at an in-
person meeting or a phone call?
    Mr. Weinstein. That was an in-person meeting that was in 
late November, at some point. I don't have the date in front of 
me. And his deputy, whose name at the moment, forgive me, 
escapes--Mr. Deutsch, I think?
    Senator Lieberman. No problem. Did Judge Gonzales question 
you about what your policy would be on the openness of public 
records?
    Mr. Weinstein. We talked generally about public records, 
but did he ask me how I would behave in connection with opening 
records? No.
    Senator Lieberman. No? And just to----
    Mr. Weinstein. But generally about the Archivist's role in 
dealing with these records, right.
    Senator Lieberman. Yes. And just to get it out in the open, 
no specific questions about how you would deal with access to 
the records of this administration?
    Mr. Weinstein. Oh, no.
    Senator Lieberman. Or the former Bush Administration?
    Mr. Weinstein. No, absolutely not.
    Senator Lieberman. OK.
    Mr. Weinstein. I have only met the President, just to 
complete that catalogue, if I may, I met him once in 1988 when 
the President was a participant in a Center for Democracy 
program.
    Senator Lieberman. Right.
    Mr. Weinstein. That is the only time that I met the 
President of the United States.
    Senator Lieberman. Thank you. My time is up.
    Chairman Collins. Senator Durbin.
    Senator Durbin. Mr. Weinstein, since seeing Mr. Carlin's 
letter, I have to ask you a question. He says in his letter, 
``We are on the verge of awarding a contract for the design of 
the Electronic Records Archive, a ground-breaking system that 
will allow the Government to manage and preserve any kind of 
electronic records. The design is just the first step. We are 
working very hard to secure support and funding for systems 
development. I would like to see the budget request through to 
fruition over the next 4 months.''
    Are you familiar with this contract?
    Mr. Weinstein. I'm familiar with the briefing materials on 
it that were given to me, Senator, yes. I haven't read the 
contract.
    Senator Durbin. Do you know the companies involved in the 
competition for the contract?
    Mr. Weinstein. No, I don't.
    Senator Durbin. OK. Let me go to another issue, if I might, 
and I am trying to reconcile one of your responses to the 
questions with some information that I have here. You have said 
repeatedly in your responses to our questions that you are 
committed to maximizing access to all manner of government 
records, including Presidential records, in a timely manner and 
to the greatest extent appropriate. And when it comes to 
Presidential documents, I gather from reading the law, Chapter 
22, Section 2203, that the Archivist has the responsibility to 
deposit Presidential records and to decide under the law when 
to release them. Is that correct, one of your legal 
responsibilities would be that?
    Mr. Weinstein. I would assume in general, but I'd prefer on 
any legal matter to be able to amend any answer by consultation 
with the general counsel over there before I would do that.
    Senator Durbin. That is fair.
    Mr. Weinstein. I am not a lawyer.
    Senator Durbin. But I am going to go----
    Mr. Weinstein. I'm married to one, but I'm not a lawyer.
    Senator Durbin. Maybe you want to talk to her. [Laughter.]
    Because I want to ask you about something you say here 
because it doesn't square with that. And here is what it is: We 
passed in 1989, 25 years ago, the Presidential Records Act 
declaring Presidential papers were the property of the people 
of the United States to be administered by the Archives, made 
available 12 years after a President left office. President 
Reagan issued an Executive Order which established how long a 
President had to claim Executive privilege on these records.
    Then comes President Bush, in an administration where the 
availability and confidentiality of records has been a big 
issue, to the point where the Vice President took a case to the 
Supreme Court to avoid disclosing documents in the preparation 
of his energy bill.
    Mr. Weinstein. Right.
    Senator Durbin. Now, President Bush, with Executive Order 
13233, nullified President Reagan's order, imposing new 
restrictions on the access to Presidential papers, requiring 
the presumption of non-disclosure, which runs counter to your 
stated purpose of being committed to maximum access.
    Mr. Weinstein. Right.
    Senator Durbin. Now, that is the state of play. You have a 
law where you as Archivist are responsible for Presidential 
records. You have a personal commitment to access. You have a 
President who has issued an Executive Order reducing access.
    Now, let me read you what you told the Committee about 
this. There is a declaratory judgment action involved now about 
this Executive Order. ``If confirmed by the Senate as 
Archivist, it would be my responsibility--'' you say, ``so long 
as Executive Order 13233 is in place--to oversee NARA's legal 
team defending the Executive Order against court challenge.'' 
That seems exactly the opposite. It would seem that you would 
be defending the underlying law against the new Executive Order 
which restricts access to Presidential records. Why would you 
be defending President Bush's Executive Order instead of the 
law that creates your office?
    Mr. Weinstein. Senator, may I read the remainder of that 
paragraph?
    Senator Durbin. Of course.
    Mr. Weinstein. Because I think it explains this, and also, 
as you know, the current Archivist has the responsibility and 
is, in fact, defending--or the general counsel is defending 
this in court.
    What I said was as follows, after that, I said, ``. . . I 
would respectfully defer a fuller response until I can consult 
with NARA's general counsel and his staff.'' What I can state 
as a private citizen at this point, however, in response to the 
question of Executive Order 13233's impact on balancing the 
interest of preserving confidentiality with the interest of 
public disclosure is that obviously the Executive Order tilts 
the balance in confidentiality's direction rather than timely 
disclosure. That much is clear.
    Then down further, I make my essential point: ``The pursuit 
of consensus on the issues''--the lawsuit did not work, did not 
get the Executive Order rescinded. ``The pursuit of consensus 
on the issues raised by Executive Order 13233 surely ought to 
be allowed a moment or two of dialogue and negotiation before 
proceeding on the current legal and adversarial track.''
    I can't say that anything will happen to that, but I can 
say that if I was confirmed as Archivist, what I would like to 
do would be to sit down with all the interested principals and 
see if anything can be done about the problems here.
    Senator Durbin. Mr. Weinstein, I hope if you are confirmed 
that you can do exactly that and the lawsuit goes away. You 
have stated here that you believe that as Archivist you would 
be responsible for overseeing the Archives legal team defending 
the Executive Order against a court challenge. Everything else 
you say is fine: You need to consult with attorneys, you hope 
to work this all out. But why would you start arguing from the 
point that you are not defending the law that creates your 
office rather than the Executive Order which diminishes the 
power of your office? Did you discuss this Executive Order with 
Mr. Gonzales?
    Mr. Weinstein. No, not at all.
    Senator Durbin. Did this ever come up?
    Mr. Weinstein. It never came up.
    Senator Durbin. Well, I am glad it didn't, but I really 
hope that you will revisit that statement. I think that 
statement is conflicting with your basic statutory 
responsibility. I think you need to defend the law first, 
whomever the President might be.
    Mr. Weinstein. I couldn't agree more, Senator, but one 
thing that I think you recognize is that the business of 
restricting access conflicts with my impulses to encourage 
access at all times. And in that statement, there is a 
conundrum there. I don't have an easy answer for that. But I 
will go back and look at it again.
    Senator Durbin. I think I know where your heart is, but I 
want to know where your lawyers' will be.
    Mr. Weinstein. All right.
    Senator Durbin. That is what this is all about. And if your 
lawyers are going to be defending the restriction of access to 
Presidential records, then I think you are on the wrong side.
    Mr. Weinstein. You make a very good point.
    Senator Durbin. Thank you.
    Chairman Collins. Senator Levin.
    Senator Levin. Thank you, Madam Chairman.
    Was this drafted, this answer to the question, by you or by 
the deputy at the White House?
    Mr. Weinstein. The answer to what question?
    Senator Levin. Question 42, the one you were just reading.
    Mr. Weinstein. I drafted every question that was given to 
me, the 46 questions that were sent by the Committee. There was 
no input by anybody, as far as I know, unless--they may have 
read it by now, depending on how one gets copies of these 
things around town. But, no, there was no input by--and not 
just in the White House. I can categorically say there was no 
input by anybody in the Congress, in the White House, in the 
interested groups and the stakeholders, in the Archives. This 
is Allen Weinstein's answer to that question. And, as Senator 
Durbin indicated, Senator Levin, I was trying to balance off a 
number of different ideas in my own mind based upon what is 
certainly not at this stage in the game the most informed 
knowledge of where the Archives has been on this issue over the 
last several years.
    Senator Levin. You, in two places in your answer on 
Question 42, indicate that the impact of that Executive Order 
``on balancing the interest of preserving confidentiality with 
the interest of public disclosure is that, obviously, the 
Executive Order tilts the balance in confidentiality's 
direction rather than in timely disclosure.'' And then at the 
end of that answer, you say, ``As previously stated in response 
to this question, it tips the balance--at least temporarily--in 
favor of greater confidentiality and less public disclosure.''
    So I assume from that you would believe that the Executive 
Order at least contradicts the spirit of the 1978 Act?
    Mr. Weinstein. It doesn't help.
    Senator Levin. Now, in answer to Senator Durbin's 
question--it's a good question--will you expand your answer to 
that question for the record?
    Mr. Weinstein. Absolutely.
    Senator Levin. Are you familiar with the scheduled release 
of certain records from the first Bush Administration in 
January 2005?
    Mr. Weinstein. Not to any great degree, Senator. Not to any 
great degree, no.
    Senator Levin. Well, to the degree that you are----
    Mr. Weinstein. Well, that this was scheduled, yes, but I 
haven't seen any literature on that.
    Senator Levin. Are you prepared and willing to release on 
schedule whatever records of that administration are scheduled 
to be released, if you are confirmed?
    Mr. Weinstein. If I'm confirmed, I'm prepared to honor the 
law, whatever the law states and wherever that may take me. If 
those materials are scheduled for release at that stage in the 
game, then I don't see why they shouldn't be released.
    But, Senator, I have not received extensive briefing 
materials on that whole area.
    Senator Levin. OK. Madam Chairman, I would just ask that 
the letters that I made reference to before, the letter that I 
wrote to Governor Carlin and his response to my letter, be made 
part of the record.\1\
---------------------------------------------------------------------------
    \1\ The letters referred to appear in the Appendix on page 130 and 
131.
---------------------------------------------------------------------------
    Chairman Collins. Without objection.
    Senator Levin. And I also would ask you and the Ranking 
Member, if you would at some point in the near future, to 
consider requesting the White House to comment on Governor 
Carlin's statement that he was asked to resign. I think it is 
important that we ask the White House why it is that they asked 
the current Archivist to resign. So I am not going to request 
that that decision be made at this point right now, but I would 
ask that you and the Ranking Member convene your great minds on 
that question and hopefully ask the White House for their 
comment on that statement.
    Chairman Collins. I would note that the Archivist does not 
have a statutory term. I mentioned to the Ranking Member that I 
was surprised to learn that. So I think that is an important 
point to be put into the record because this is not a case 
where there is a set term.
    Senator Durbin. Madam Chairman, may I ask a question? Isn't 
it also a fact, though, that if an Archivist is to be removed, 
there has to be a reason stated?
    Senator Levin. That was the part that I read earlier.
    Chairman Collins. But there was consideration to having a 
10-year term for the Archivist that was not included. It may be 
something that this Committee should revisit.
    Senator Levin. I think that is accurate. There is no 
specified term. But it is also, as Senator Durbin, and as I 
said in my opening statement, that if the Archivist is to be 
removed, there must be a stated reason given to the Congress, I 
believe, for that. Both of those facts, assuming I stated them 
correctly, are interesting and to some extent relevant. But the 
issue that I am interested in here, because I think it really 
goes to the question of the independence of this office, is, 
if, in fact, Governor Carlin was asked to resign, as he says he 
was, in effect--they said they wanted to appoint a new 
Archivist. So that amounts to a request to resign. I would be 
interested in giving the White House the opportunity to tell us 
why it was they requested that he resign.
    I think that is an important question to be answered, and I 
would ask that the Committee ask the question. Obviously, if 
the Committee through its Chairman and Ranking Member decide 
for whatever reason not to, that is a right I will defend. But 
I would then ask the question on my own as an individual Member 
of the Committee. I think it would be preferable, frankly, that 
it come from the Committee, if it is appropriate. But I do not 
want to prejudge the appropriateness or your thought processes 
on it, because I have tremendous respect for you both. And 
whatever decision you make I will defend. But if the Chairman 
and the Ranking Member decide for whatever reason not to 
request that information from the White House, then I as an 
individual Member would make that request.
    Thank you.
    Chairman Collins. You are welcome.
    Senator Levin. Could these be made part of the record?
    Chairman Collins. The letters will be made part of the 
record.
    I will also enter into the record Governor Carlin's letter 
of resignation,\1\ which has a very different tone to it, and I 
think that is important to be part of the record as well.
---------------------------------------------------------------------------
    \1\ The letter referred to appears in the Appendix on page 132.
---------------------------------------------------------------------------
    Senator Levin. That was part of my request.
    Chairman Collins. His letter, as opposed to your letter to 
and from?
    Senator Levin. If I failed to say that, I made a mistake. I 
should have included his letter of resignation. I thank the 
Chairman for that.
    Chairman Collins. Without objection.
    Professor, I just want to ask you one closing question, and 
that is, in view of the discussion we have just had and the 
questions that Senator Levin and others have raised not about 
your nomination but, rather, the circumstances surrounding your 
nomination, do you believe this Committee should consider 
legislation that would give the Archivist a set term, say, of 
10 years? Do you have an opinion on that?
    Mr. Weinstein. I would support such legislation, Chairman, 
because it may do away with some of the dilemmas of archival 
terms. The Archivist's terms up to now have averaged 8 or 9 
years a term for the previous Archivists. However, I wouldn't 
say that it was essential. I think it is essential in the 
future to engage in a consultative process beyond perhaps the 
one that now exists. But as far as legislation is concerned, I 
would support it if the Committee and the Congress were in 
favor of it.
    Chairman Collins. Thank you.
    Do either of my colleagues have a final question for our 
witness today?
    Senator Lieberman. I do not. I thank you, Dr. Weinstein. 
There is this funny conundrum which I do think that Senator 
Levin has amplified, which is that Governor Carlin has not been 
removed from office, literally, because he submitted his 
resignation. But now we find that he was asked to submit his 
resignation, so that is what we are going to counsel together 
on, whether we should ask the White House to explain to us why 
they asked for that resignation. So the Chairman and I will sit 
and reason together.
    Senator Levin. Madam Chairman, just one other thing. As I 
look at the letter, the resignation letter, so-called, actually 
is--there is a statement that, ``I will submit my resignation 
upon the confirmation and swearing-in of the ninth Archivist of 
the United States.'' So, technically, I guess, he has not 
resigned yet. He has been asked to submit his resignation, 
which he has done conditionally.
    Chairman Collins. An intention to resign, I guess would be 
a more appropriate description.
    Senator Levin. Right.
    Senator Lieberman. Anyway, Dr. Weinstein, I would say your 
testimony has been very responsive, and you do, again--you are 
caught in a swirl that certainly is not of your making, but it 
is around the nomination. But, you know, you do have an 
extraordinary and very broadly respected record as a historian, 
and that actually seems to make you qualified for this job.
    Mr. Weinstein. Thank you, Senator.
    Chairman Collins. You get applause. I mean, the rest of us 
don't get electronic applause. [Laughter.]
    Senator Lieberman. My staff does this for me, just to make 
me feel good. [Laughter.]
    Chairman Collins. To compensation you for no longer being 
on the campaign trail.
    I want to thank the professor for appearing before the 
Committee today and for his cooperation throughout the process. 
I personally am impressed that you on your own answered all 46 
of those questions. I think there are very few nominees who 
would have answered, ``Yes, I wrote those personally,'' to the 
Committee's questions.
    There have been several letters and statements submitted to 
the Committee from a variety of organizations, scholars, 
historians, archivists, and others. All of those, without 
objection, will be included in the hearing record.\1\
---------------------------------------------------------------------------
    \1\ The letters referred to appear in the Appendix on pages 134 
through 170.
---------------------------------------------------------------------------
    And also, without objection, the record will be kept open 
until 5 p.m. tomorrow for the submission of any additional 
materials, written questions, or statements for the record.
    Again, thank you very much for being here today. You 
certainly have a distinguished background, and your commitment 
to openness and public access is very important to this 
Committee, and we look forward to working with you in your new 
position, if all goes well. Thank you.
    Mr. Weinstein. Thank you, Chairman.
    Chairman Collins. This hearing is now adjourned.
    [Whereupon, at 4:41 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


           PREPARED STATEMENT OF SENATOR FRANK R. LAUTENBERG
    Madam Chairman: I want to welcome Professor Weinstein to today's 
hearing. Professor Weinstein has done ground-breaking research to 
illuminate Cold War history on such important matters as the Alger 
Hiss-Whittaker Chambers case and the extent of Soviet espionage in 
America from the 1930's to the early 1950's.
    I intend to support Professor Weinstein's nomination to be 
Archivist of the United States. But I do want to raise several concerns 
about the way in which this nomination has been brought before the 
Governmental Affairs Committee.
    First, the current Archivist, John Carlin, had expressed his desire 
to remain in the post until 2005. Then, last December, he abruptly 
changed course and announced his intention to step down as soon as a 
successor has been ``nominated and confirmed.''
    I want to know if Governor Carlin is being forced out of his job by 
the Bush Administration and, if so why.
    Second, I want to know why this Committee has not conducted any 
oversight hearings with regard to the National Archives and Records 
Administration in over a decade.
    Third, I want to know why the Bush Administration made no attempt 
to ``vet'' Professor Weinstein's nomination with ``recognized 
organizations of archivists and historians''--something required under 
the National Archives and Records Administration Act of 1984. And I 
want to know why the Committee refused to invite the heads of any of 
these organizations to testify in person today.
    Fourth, I hope to get Professor Weinstein's personal commitment--if 
he is confirmed as our Nation's Archivist--to pursuing what our former 
colleague Pat Moynihan called ``a culture of openness.''
    I agree with Senator Moynihan's assessment that classifying some 
six million documents each year is the most pernicious form of 
government regulation since we ``don't know what we don't know.'' I'm 
anxious to hear Professor Weinstein's ideas on how, as Archivist, he 
will work to make our government operate in a more transparent manner 
since we are, after all, a democracy.
    Thank you, Madam Chairman.

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