[Congressional Record Volume 153, Number 44 (Wednesday, March 14, 2007)]
[House]
[Pages H2496-H2500]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2007

  Mr. CLAY. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 1255) to amend chapter 22 of title

[[Page H2497]]

44, United States Code, popularly known as the Presidential Records 
Act, to establish procedures for the consideration of claims of 
constitutionally based privilege against disclosure of Presidential 
records, as amended.
  The Clerk read as follows:

                               H.R. 1255

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Presidential Records Act 
     Amendments of 2007''.

     SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 
                   CONSTITUTIONALLY BASED PRIVILEGE AGAINST 
                   DISCLOSURE.

       (a) In General.--Chapter 22 of title 44, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2208. Claims of constitutionally based privilege 
       against disclosure

       ``(a)(1) When the Archivist determines under this chapter 
     to make available to the public any Presidential record that 
     has not previously been made available to the public, the 
     Archivist shall--
       ``(A) promptly provide notice of such determination to--
       ``(i) the former President during whose term of office the 
     record was created; and
       ``(ii) the incumbent President; and
       ``(B) make the notice available to the public.
       ``(2) The notice under paragraph (1)--
       ``(A) shall be in writing; and
       ``(B) shall include such information as may be prescribed 
     in regulations issued by the Archivist.
       ``(3)(A) Upon the expiration of the 20-day period 
     (excepting Saturdays, Sundays, and legal public holidays) 
     beginning on the date the Archivist provides notice under 
     paragraph (1)(A), the Archivist shall make available to the 
     public the record covered by the notice, except any record 
     (or reasonably segregable part of a record) with respect to 
     which the Archivist receives from a former President or the 
     incumbent President notification of a claim of 
     constitutionally based privilege against disclosure under 
     subsection (b).
       ``(B) A former President or the incumbent President may 
     extend the period under subparagraph (A) once for not more 
     than 20 additional days (excepting Saturdays, Sundays, and 
     legal public holidays) by filing with the Archivist a 
     statement that such an extension is necessary to allow an 
     adequate review of the record.
       ``(C) Notwithstanding subparagraphs (A) and (B), if the 
     period under subparagraph (A), or any extension of that 
     period under subparagraph (B), would otherwise expire after 
     January 19 and before July 20 of the year in which the 
     incumbent President first takes office, then such period or 
     extension, respectively, shall expire on July 20 of that 
     year.
       ``(b)(1) For purposes of this section, any claim of 
     constitutionally based privilege against disclosure must be 
     asserted personally by a former President or the incumbent 
     President, as applicable.
       ``(2) A former President or the incumbent President shall 
     notify the Archivist, the Committee on Oversight and 
     Government Reform of the House of Representatives, and the 
     Committee on Homeland Security and Governmental Affairs of 
     the Senate of a privilege claim under paragraph (1) on the 
     same day that the claim is asserted under paragraph (1).
       ``(c)(1) The Archivist shall not make publicly available a 
     Presidential record that is subject to a privilege claim 
     asserted by a former President until the expiration of the 
     20-day period (excluding Saturdays, Sundays, and legal public 
     holidays) beginning on the date the Archivist is notified of 
     the claim.
       ``(2) Upon the expiration of such period the Archivist 
     shall make the record publicly available unless otherwise 
     directed by a court order in an action initiated by the 
     former President under section 2204(e).
       ``(d)(1) The Archivist shall not make publicly available a 
     Presidential record that is subject to a privilege claim 
     asserted by the incumbent President unless--
       ``(A) the incumbent President withdraws the privilege 
     claim; or
       ``(B) the Archivist is otherwise directed by a final court 
     order that is not subject to appeal.
       ``(2) This subsection shall not apply with respect to any 
     Presidential record required to be made available under 
     section 2205(2)(A) or (C).
       ``(e) The Archivist shall adjust any otherwise applicable 
     time period under this section as necessary to comply with 
     the return date of any congressional subpoena, judicial 
     subpoena, or judicial process.''.
       (b) Restrictions.--Section 2204 of title 44, United States 
     Code (relating to restrictions on access to presidential 
     records) is amended by adding at the end the following new 
     subsection:
       ``(f) The Archivist shall not make available any original 
     presidential records to any individual claiming access to any 
     presidential record as a designated representative under 
     section 2205(3) if that individual has been convicted of a 
     crime relating to the review, retention, removal, or 
     destruction of records of the Archives.''.
       (c) Conforming Amendments.--(1) Section 2204(d) of title 
     44, United States Code, is amended by inserting ``, except 
     section 2208,'' after ``chapter''.
       (2) Section 2207 of title 44, United States Code, is 
     amended in the second sentence by inserting ``, except 
     section 2208,'' after ``chapter''.
       (d) Clerical Amendment.--The table of sections at the 
     beginning of chapter 22 of title 44, United States Code, is 
     amended by adding at the end the following:

``2208. Claims of constitutionally based privilege against 
              disclosure.''.

     SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001.

       Executive Order number 13233, dated November 1, 2001 (66 
     Fed. Reg. 56025), shall have no force or effect.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Missouri (Mr. Clay) and the gentleman from Ohio (Mr. Turner) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Missouri.


                             General Leave

  Mr. CLAY. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Missouri?
  There was no objection.
  Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
  As chairman of the Oversight Subcommittee on Information Policy, 
Census, and National Archives and an original cosponsor of the 
Presidential Records Act Amendments of 2007, I strongly support H.R. 
1255 and urge its passage by the House. It is appropriate that the 
House should consider H.R. 1255 during Sunshine Week, when we can call 
attention to the importance of transparency and open government.
  Introduced by Representative Waxman, this bipartisan bill is intended 
to promote the timely release of Presidential records under the 
Presidential Records Act of 1978, by rescinding Executive Order 13233. 
Issued by President Bush in November 2001, the executive order granted 
new authority to Presidents, former Presidents, their heirs and 
designees and Vice Presidents, allowing them to withhold information 
from public view unilaterally and indefinitely.
  Mr. Speaker, I reserve the balance of my time.
  Mr. TURNER. Mr. Speaker, I yield myself such time as I may consume.
  When it comes to the records of a President, we need to ensure that 
the public's interest remains paramount. As I noted in the 
subcommittee, it is important that we distinguish the Nation's interest 
from that of a former President's interest. We need to achieve that 
critical balance between the President's constitutional privilege and 
the public's right to know.
  The bill is one step toward preserving and protecting the 
constitutional prerogatives of Presidents while preserving public 
access to important and historic Presidential records. The legislation 
before us established a process whereby incumbent and former Presidents 
could, within specified time limits, review records prior to their 
release and determine whether to assert constitutional privilege claims 
against release of the records.
  This legislation is identical to H.R. 4187, introduced in the 107th 
Congress and approved by the committee under the leadership of the 
gentleman from Indiana (Mr. Burton). I want to commend him for his work 
in this area.
  In addition, I want to highlight an amendment which was approved by 
the full committee. This provision will close a loophole in the 
Presidential Records Act which would have allowed individuals 
previously convicted of a crime relating to the mishandling of Archives 
records to continue to have special access to Presidential records. The 
amendment to the bill states that the Archivist shall not make 
available any Presidential records to any individual claiming access as 
a designated representative under section 2205(3) of title 44 if that 
individual has been convicted of a crime relating to the review, 
retention, removal or destruction of Archives records.
  If you are convicted of mishandling Archives records, you should not 
have special access to original Presidential records. You are a proven 
risk, and we are obligated to mitigate this type of risk. Given the 
critical importance of Presidential records to the public, to 
researchers and to the press, we must ensure no one is able to tamper 
with history. This bill today includes this important amendment.

[[Page H2498]]

  I also want to commend the Chair of our subcommittee, Mr. Clay, for 
his leadership on the subcommittee, and his thoughtful hearings held by 
the subcommittee in support of this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CLAY. Mr. Speaker, at this time I now yield 3 minutes to the 
distinguished Chair of the full Committee on Oversight and Government 
Reform, the gentleman from California (Mr. Waxman).
  Mr. WAXMAN. I thank the chairman of the subcommittee for yielding to 
me and the fine work he and his subcommittee have done with this 
legislation. I also want to commend the gentleman from Ohio, the 
ranking member of that subcommittee.
  Mr. Speaker, this bill also builds on a bipartisan proposal that came 
to light in the last Congress, and I think it fits well within the 
theme of many of the bills that we are pursuing this week, openness in 
government.
  The bill has a straightforward goal. It ensures that future 
historians have access to Presidential records as the Presidential 
Records Act intended.
  This law was adopted after the Watergate scandals to underscore the 
fact that Presidential records belong to the American people, not to 
the President, not to his family, but to the American people. It has 
been a bipartisan proposal from the very beginning. In fact, this bill 
had bipartisan support not only from Mr. Clay and others, but Mr. 
Platts and Mr. Burton.
  The act said that these records would be available to researchers and 
the general public in a timely manner. This was the rule for over two 
decades, but in 2001, President George W. Bush issued an executive 
order that turned the Presidential Records Act on its head and gave 
Presidents the authority to keep their records out of the public eye.
  The Bush order gives both current and former Presidents nearly 
unlimited authority to withhold Presidential records from public view 
or to delay their release indefinitely. It allows a designee of former 
Presidents to assert executive privilege after the President's death, 
and for the first time, it gives former Vice Presidents the authority 
to assert privilege over their own documents. In short, this gives 
former Presidents and their heirs the ability to control their legacy 
and determine what information will be available to history.
  That undermines the entire purpose of the Presidential Records Act. 
Historians and scholars need access to Presidential records so that 
there is an accurate record of a President's term in office and not an 
alleged version based on what the President chooses to share.
  During Sunshine Week this bill fits in so well, because it would make 
sure that information about government and government activities is 
open to public scrutiny. It is an essential component of this open 
government agenda.
  I urge my colleagues to support this legislation, protect historical 
research, and vote for this bill.
  Mr. TURNER. Mr. Speaker, I reserve the balance of my time.
  Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, during subcommittee hearings last week, the Archivist of 
the United States, Allen Weinstein, testified that Executive Order 
13233 has ``added to the endemic problem of delay that NARA faces from 
the PRA in the processing of Presidential records.''
  Tom Blanton of the National Security Archive testified that the order 
already has added 5 years to the response time for records from the 
Reagan library and violates the letter and spirit of the PRA.
  Presidential historian Robert Dallek urged Congress to rescind the 
order, stating, ``President Bush's order carries the potential for an 
incomplete and distorted understanding of past Presidential decisions, 
especially about controversial actions with significant consequences.''
  ``It is understandable,'' said Dr. Dallek, ``that every President and 
his heirs wants to put the best possible face on his administration, 
but an uncritical or limited reconstruction of our Nation's history 
does nothing to serve its long-term national interest.''
  Mr. Speaker, the long-term national interest demands that the 
American people know how and why important decisions are made at the 
highest level of our government. This straightforward and bipartisan 
legislation would ensure that this will be the case by requiring that 
Presidential records will be treated as the property of the American 
people.
  Mr. Speaker, I urge all of my colleagues to support the bill as 
reported by the Committee on Oversight and Government Reform.
  Mr. Speaker, I reserve the balance of my time.
  Mr. TURNER. Mr. Speaker, I reserve the balance of my time.
  Mr. CLAY. Mr. Speaker, I yield such time as the gentleman from 
California (Mr. Waxman) may consume.
  Mr. WAXMAN. Thank you very much for yielding to me.
  Mr. Speaker, history is important because it informs us of events of 
the past, so we can learn from those events, not to make the same 
mistakes or to follow good examples that turned out to be successful. 
History always is an ongoing process. It is a process of looking at 
facts and reinterpreting those facts, often in light of current events 
and matters that are before the researchers at the present time.
  But there are those who would like to rewrite history for their own 
purposes, and to the extent that we can keep that from happening, I 
think this bill goes a long way. It would allow the records, the raw 
information, to be available, let those who want to interpret those 
events do so as they see fit; and in doing so, by making these records 
available to scholars and the public, we can find out the information 
that we didn't know at the time the events were taking place: what 
motivated certain decisions, what other factors were being considered, 
what was going on that led to certain conclusions.
  There are books now being written about the present day, how we got 
into Iraq, what we had hoped to do, what we still hope we can 
accomplish, what the thinking was of those who led us into the 
adventure. Many of the books have been praiseworthy, and most of them 
have been quite critical. But it won't be until the judgment of history 
that we will be able to fill in many of the gaps that remain.
  So, at some point, Presidential records help scholars fill in those 
gaps. That is why I think it is so worthwhile to have this information 
available, at least at a time when there is some historical 
perspective. Many times it is after the President has passed on, but 
certainly long after the President's administration.
  During the Nixon period, President Nixon thought that the records 
belonged to him, and he sought, as I recall, a tax break for donating 
his records to a nonprofit organization. He felt he could control those 
records.
  Well, I think the American people looked at that and said, wait a 
minute, some things are his, the President's, to do with as he sees 
fit, but some things don't really belong to him.

                              {time}  1115

  They belong to the American people. They belong to scholars. They 
belong to history. And the Presidential Records Act was adopted because 
of that concern. It has worked well for several decades, and it is only 
when we saw the executive order presented by President George W. Bush 
that some of the concerns have been raised because that Presidential 
order overturned the one that was put into effect by President Reagan 
implementing the post-Watergate legislation.
  So I wanted to use this additional time to give some historical 
background to this matter. We heard from many scholars, as the chairman 
of the subcommittee indicated, who set out the reasons why they thought 
it was important to be able to get this information, the Archivist, Mr. 
Weinstein, Presidential scholars like Mr. Dallek and Mr. Reeves, 
particularly, who have written about recent Presidents, urged us to 
adopt this legislation. And I am pleased that now we are considering 
it. And it is important, it is a good government bill, and we are doing 
it in the appropriate way, in a bipartisan spirit where we vote 
together on the committee. And I commend all those involved. And I know 
now, because I have just been informed, that the next bill is ready for 
consideration of the House.

[[Page H2499]]

  Mr. CLAY. Mr. Speaker, I want to thank the chairman of our committee 
for those anecdotes and his knowledge of history.
  I also want to thank the ranking member from Ohio for his cooperative 
spirit of allowing the sunshine in on this bill and the other bills 
that we have been discussing today.
  And I just want to close by urging all of my colleagues to vote in 
support of H.R. 1255, the Presidential Records Act Amendments of 2007.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in strong support 
of H.R. 1255, the ``Presidential Records Act Amendments of 2007,'' 
which vitiates an Executive order issued in 2001 by President Bush that 
unreasonably and severely restricts public access to Presidential 
records. By negating that Executive order, we win a great victory for 
open government.
  Under the Presidential Records Act, Presidential records are supposed 
to be released to historians and the public 12 years after the end of a 
Presidential administration. Shortly after taking office in 2001, 
President Bush issued Executive Order 13233, which overturned President 
Reagan's Executive order and gave current and former Presidents and 
Vice Presidents broad authority to withhold Presidential records or 
delay their release indefinitely. H.R. 1255 will nullify the Bush 
Executive order and establish procedures to ensure the timely release 
of Presidential records.
  Under the Bush Executive order, the Archivist of the United States 
must wait for both the current and former President to approve the 
release of Presidential records, a review process that can continue 
indefinitely. Under the bill, the current and former President would 
have a set time period of no longer than 40 business days to raise 
objections to the release of these records by the Archivist.
  Mr. Speaker, another salutary feature of H.R. 1255 is that it limits 
the authority of former Presidents to withhold Presidential records. To 
prevent the release of his records under the regime established by 
President Reagan's Executive order, a former President was required to 
request the incumbent President to assert the claim of executive 
privilege. If the incumbent President decided not to assert executive 
privilege, however, the records would be released unless the former 
President succeeded in obtaining a court order upholding the assertion 
of privilege and enjoining disclosure.
  The regime established by President Bush's Executive order turned 
this process on its head. It requires the incumbent President to 
sustain the executive privilege claim of the former President unless a 
person seeking access could persuade a court to reject the claim. In 
effect, the Bush order gave former Presidents virtually unlimited 
authority to withhold Presidential records through assertions of 
executive privilege. H.R. 1255 restores the Reagan approach, giving the 
incumbent President the discretion to reject ill-founded assertions of 
executive privilege by former Presidents.
  Mr. Speaker, under President Bush's Executive order regime, claims of 
executive privilege could be asserted to defeat disclosure even after 
the death of a former President by his heirs, assigns, and descendants. 
The practical effect of eliminating the requirement that the former 
President had to assert the privilege personally is to extend the time 
in which Presidential records may be withheld in perpetuity. H.R. 1255 
makes clear that the right to claim executive privilege is personal to 
current and former Presidents and does not survive the death of the 
former President.
  Mr. Speaker, perhaps the most egregious aspect of President Bush's 
Executive order is that it authorized former Vice Presidents to assert 
executive privilege claims over Vice Presidential records. If the 
authority to assert such a claim is left undisturbed, the public will 
never learn what really went on behind the closed doors of Vice 
President Cheney's secret energy task force or the White House Iraq 
Group's marketing campaign to sell the Iraq War to the Congress and the 
American people. That is why I support the provision in H.R. 1255 
limiting the right to assert executive privilege over Presidential 
records only to Presidents and former Presidents.
  Mr. Speaker, I strongly support H.R. 1255 and urge all my colleagues 
to join me in supporting this legislation amending the Presidential 
Records Act to nullify the Bush Executive order and establish 
procedures to ensure the timely public release of Presidential records.
  Mr. UDALL of Colorado. Mr. Speaker, as a proud cosponsor of this 
bill--and of similar legislation since shortly after I was first 
elected to Congress--I strongly support its approval by the House.
  The bill amends the Presidential Records Act of 1978 to establish a 
clear and equitable process enabling incumbent and former Presidents to 
review records prior to their public release under the act and 
determine whether to assert constitutional privilege claims against 
release of the records.
  Importantly, it would revoke an Executive order issued by President 
George W. Bush in 2001 that overturned rules set by President Ronald 
Reagan. By that order, President Bush has sought to give himself and 
Vice President Cheney--as well as former Presidents and Vice 
Presidents--broad authority to withhold Presidential records or delay 
their release indefinitely. I do not think that order should be allowed 
to stand.
  The Presidential Records Act was enacted in 1978 after the Watergate 
scandal and the subsequent resignation of President Nixon. It makes 
clear that Presidential records belong to the American people, not to 
the President, and required the Archivist of the United States--who was 
given custody of the records--to make the records available to the 
public as rapidly and completely as possible consistent with the 
provisions of the law.
  The act first applied to the records of former President Ronald 
Reagan. In 1989, he issued an Executive order requiring the Archivist 
to give the incumbent and former Presidents 30 days notice before 
releasing Presidential records, with the records to be released after 
that unless the incumbent or former President claimed executive 
privilege, or unless the incumbent President instructed the Archivist 
to extend the period indefinitely. If the incumbent President decided 
to invoke executive privilege, the Archivist would withhold the records 
unless directed to release them by a final court order. If the 
incumbent President decided not to support a former President's claim 
of privilege, the Archivist would decide whether or not to honor the 
claim.
  Before he left office, President Reagan used his authority under the 
act to restrict access to some of his records for 12 years, a period 
that expired in January 2001.
  In February 2001, the Archivist provided the required 30-day notice 
of his intent to release about 68,000 pages of former President 
Reagan's records. In March, June, and August of 2001, the counsel to 
President Bush instructed the Archivist to extend the time for claiming 
executive privilege. And then, in November 2001, President Bush issued 
a new Executive order extending the review period for former Presidents 
to 90 days and allowing a former President to extend it indefinitely. 
In addition, that order allows an unlimited review period for the 
current President and requires the Archives to honor the assertions of 
executive privilege made by either the incumbent or a former 
President--even if an incumbent President disagrees with the former 
President's claim. And, while the Reagan order said records were to be 
released on a schedule unless action occurred, the Bush Executive order 
says records will be released only after actions by the former and 
current Presidents have occurred--so, secrecy, not disclosure, is the 
rule. Also, the Bush Executive order allows designees of a former 
President to assert privilege claims after that President's death and 
authorizes former vice Presidents to assert executive privilege claims 
over their records.

  Mr. Speaker, when we think what difference the release of the 
Kennedy, Johnson, and Nixon tapes has made in our understanding of the 
decision-making on Vietnam we can see how much could be lost if 
representatives of the Reagan, Clinton, and current Bush 
administrations in the future can hold back any and all documents 
related to Iran-contra, the first gulf war, the way the Clinton 
administration responded to intelligence about a potential Al Qaeda 
attack, or the current administration's decisions about Iraq.
  It is understandable that every President and his or her heirs wants 
to put the best possible face on his administration, but an edited and 
airbrushed version of history is not something that will serve our 
long-term national interest.
  H.R. 1255 would nullify Executive Order 13233 and establish 
procedures to ensure the timely release of Presidential records.
  It requires the Archivist to give advance notice to former and 
incumbent Presidents before records are released so they can review the 
records and decide whether to claim privilege and provides for 
withholding of material for which the incumbent President claims 
privilege. The bill also clarifies that the incumbent and former 
Presidents must make privilege claims personally and that a right to 
claim executive privilege cannot be bequeathed to assistants, 
relatives, or descendants. And the bill eliminates executive privilege 
claims for vice Presidents, restoring the long-standing doctrine that 
the right to executive privilege over Presidential records is held only 
by Presidents.
  Mr. Speaker, this is a fair, balanced, and essential bill. I strongly 
urge its approval.
  Mr. CLAY. Mr. Speaker, I yield back the balance of my time.
  Mr. TURNER. Mr. Speaker, I urge all Members to vote in support of 
passage of H.R. 1255, and I yield back the balance of my time.

[[Page H2500]]

  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Missouri (Mr. Clay) that the House suspend the rules and 
pass the bill, H.R. 1255, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CLAY. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.

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