[Congressional Record Volume 153, Number 44 (Wednesday, March 14, 2007)]
[Senate]
[Pages S3140-S3141]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN (for himself and Mr. Leahy):
  S. 886. A bill toamend chapter 22 of title 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; to the Committee 
on Homeland Security and Governmental Affairs.
  Mr. BINGAMAN. Mr. President, I rise today with my colleague from 
Vermont, Senator Leahy, to introduce a bill that would restore the 
American people's access to Presidential papers. This bill is the 
companion to H.R. 1255, which is sponsored by Representative Henry 
Waxman, and was passed in the House of Representatives with strong 
bipartisan support.
  In 1978, this body passed the Presidential Records Act and declared 
that a President's papers were the property of the people of the United 
States of America and were to be administered by the National Archives 
and Records Administration, or NARA. The Act provided that Presidential 
papers would be made available 12 years after a President left office, 
allowing the former or incumbent President the right to claim executive 
privilege for particularly sensitive documents. In order to fulfill 
that mandate, President Reagan in 1989 signed Executive Order 12667, 
which gave the former or incumbent President 30 days to claim executive 
privilege.
  However, in 2001, President Bush issued Executive Order 13233, 
nullifying President Reagan's order and imposing new regulations for 
obtaining Presidential and Vice-Presidential documents. President 
Bush's new order greatly restricts access to Presidential papers by 
requiring that all requests for documents, no matter how innocuous, be 
approved by both the former President and current White House. In this 
way the order goes against the letter and the spirit of the 
Presidential Records Act by creating a presumption of nondisclosure, 
thus allowing the White House to prevent the release of records simply 
by inaction.
  The President's order also limits what types of papers are available 
by expanding the scope of executive privilege into new areas--namely 
communications between the President and his advisors and legal advice 
given to the President. The order extends executive privilege to the 
records of the Vice President for the first time. Also, former 
Presidents can now designate third parties, including family members 
and Vice Presidents, to exercise executive privilege on their behalf, 
meaning that Presidential papers could remain concealed many years 
after a President's death. These expansions raise some serious 
constitutional questions. Deleted sentence. My legislation simply seeks 
to restore a presumption that Presidential records belong to the people 
of the United States and to create a legitimate, streamlined means of 
carrying out this body's wishes--making Presidential records available 
for examination by the public and by Congress.
  The administration shouldn't fear passage of this bill. Any documents 
that contain sensitive national security information would remain 
inaccessible, as would any documents pertaining to law enforcement or 
the deliberative process of the executive branch. Executive privilege 
for both former and current Presidents would still apply to any papers 
the White House designates. With these safeguards in place, there is no 
reason to further hinder access to documents that are in some cases 
more than 20 years old.
  By not passing this bill, the Congress would greatly limit its own 
ability to investigate previous administrations, not to mention limit 
the ability of historians and other interested parties to research the 
past. Knowledge of the past enriches and informs our understanding of 
the present, and by limiting our access to these documents we do both 
ourselves and future generations a great disservice. Numerous 
historians, journalists, archivists and other scholars have voiced 
their disapproval of Executive Order 13233 because they understand how 
important access to Presidential papers can be to accurately describing 
and learning from past events. We here in the Congress cannot and 
should not surrender our ability to investigate previous Presidential 
administrations because doing so would remove a vitally important means 
of ensuring Presidential accountbility.
  I believe it is time for these documents to become part of the public 
record. I believe in open, honest, and accountable government, and I do 
not believe in keeping secrets from the American people. The 
Presidential Records Act was one of this country's most vital post-
Watergate reforms and

[[Page S3141]]

it remains vitally important today. In these times when trust in 
government is slipping more and more every day, we need to send a 
statement to the American people that we here in Washington don't need 
to hide from public scrutiny--that instead we welcome and encourage 
public scrutiny. This bill will send just such a message.
  Franklin Roosevelt commented on the opening of his Presidential 
library in 1941:
  ``To bring together the records of the past and to house them in 
buildings where they will be preserved for the use of men and women in 
the future, a Nation must believe in three things. It must believe in 
the past. I must believe in the future. It must, above all, believe in 
the capacity of its own people to learn from the past so that they can 
gain in judgment in creating their own future.''
  I believe that the American people deserve and need access to 
Presidential records.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 886

       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 shall 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:
       ``(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.
                                 ______