[Congressional Record Volume 156, Number 84 (Monday, June 7, 2010)]
[Senate]
[Pages S4614-S4615]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRESIDENTIAL RECORDS ACT
Mr. LIEBERMAN. Madam President, recently the Obama administration
asked the National Archives to speed up its already planned release of
Supreme Court nominee Elena Kagan's records from her time in the
Clinton administration.
I applaud the administration's openness. But this speedy release of
documents is not required by the current Presidential Records Act and
might have been impossible under an Executive order issued by former
President George W. Bush. That order allowed former Presidents, Vice
Presidents, and their heirs to withhold the release of documents
indefinitely by claiming Executive privilege.
On his first day in office, President Obama repealed the Bush
Executive order, but a future President could just as easily change it
back or add new impediments to the timely release of an
administration's records.
I have long championed legislation to make it clear that these
documents are the property of the American people and therefore should
be subject to timely release.
But we cannot move forward with this legislation because my friend,
colleague, and ranking member on the Judiciary Committee, Senator Jeff
Sessions, has placed a hold on it.
Regarding the release of the Kagan documents, Senator Sessions
recently told the Washington Post:
I think all the documents that are producible should be
produced. The American people are entitled to know what kind
of positions she took, and what kind of issues she was
involved with during her past public service.
I agree with Senator Sessions and hope he will now release his hold
on my legislation so this kind of speedy release of documents and the
right of the American people to view them will be the legal standard
for all future Presidents.
A little history will help explain how we got to where we are today.
Securing Presidential documents is a problem as old as the Republic.
George Washington had planned to build a library on his estate at Mount
Vernon to house his Presidential papers. But Washington died before he
could get his plan underway and his heirs were not always careful
stewards of our Founding President's legacy.
Some of the documents were so badly stored they were eaten by mice.
Others were sold off or given away haphazardly. One of Washington's
heirs even took to cutting the signature from Washington's
correspondence and sending it to collectors.
In a letter, this heir wrote:
I am now cutting up fragments from old letters and
accounts, some of 1760 . . . to supply the call for anything
that bears the impress of his venerated hand. One of my
correspondents says, ``Send me only the dot of an i or the
cross of a t, made by his hand, and I will be content.''
Despite this inauspicious beginning in preserving our Nation's
history, for nearly two centuries it was presumed that the papers of
former Presidents were their personal property to be disposed of
however they or their heirs saw fit.
Think of all our national history that has been lost, destroyed or
kept locked away far too long.
The bulk of Andrew Jackson's papers were scattered among at least 100
collections. Jackson's successor, Martin Van Buren, destroyed
correspondence he decided was--I quote--``of little value.''
The papers of Presidents Harrison, Tyler, Taylor, Arthur, and Harding
were destroyed in fires--sometimes by accident, sometimes intentional.
President Lincoln's son Todd burned his father's Civil War
correspondence and threatened to burn all of his father's Presidential
papers until a compromise was reached with the Library of Congress that
kept most of the papers sealed until 1947. This delay helped fuel
conspiracy theories that the papers were kept hidden because they would
show that members of Lincoln's Cabinet were part of the assassination
plot--in effect, that Lincoln died in a coup.
Of course, when the papers were finally released, they showed that
wasn't true, but it took 82 unnecessary years to put the rumor to rest.
These historical records are too valuable to be left to the judgment
of former Presidents, the whims of their heirs, the caprice of nature
or--as in George Washington's case--the appetite of rodents.
This situation finally began to change under President Franklin
Roosevelt who, on December 10, 1938, announced he would build a library
on his estate in Hyde Park, NY, to house the papers and collections of
his public life that stretched back to 1910, when he was elected to the
State Senate of New York.
Roosevelt set a standard for openness, asking his aides and Cabinet
Secretaries to contribute to the collection, and almost every President
who followed carried on in the spirit of Roosevelt--also building
libraries to house their papers.
But this system was voluntary and began to crumble with the
resignation of our 37th President, Richard Nixon.
Nixon had an agreement with the General Services Administration, GSA,
which would have allowed him to keep all his records locked away,
including the infamous Watergate tapes, and mandated many of them be
destroyed.
This put us right back where we started, with a former President
choosing what historical records the public was entitled to. Congress
passed legislation in 1974 specifically ordering that the Federal
Government take control of Nixon's records and then in 1978 passed
legislation declaring that Presidential papers were public property
that must be turned over to the National Archives at the end of an
administration and be open to the public after 5 years.
Systems, however, were put in place to allow a former President to
review documents--and challenge their release on the grounds of
Executive privilege. But the presumption was in favor of openness
unless the former President could show the court a compelling reason to
withhold the documents.
But then, as mentioned, President Bush weakened the law with
Executive Order No. 13233, issued on November 1, 2001. Just to repeat,
under this order, not only former Presidents and their heirs, but Vice
Presidents and their heirs as well, could withhold the release of
documents by claiming Executive privilege.
The order also required those challenging claims of Executive
privilege to prove in court that they have a ``demonstrated, specific
need'' for the documents--an impossibly high standard since only the
document's author can know precisely what a document contains.
And since the Executive order also allowed for an indefinite review
period, these records--housed in Presidential libraries maintained by
the taxpayers--could be locked away for indefinite periods of time,
making them about as useful as the ashes of Lincoln's letters.
In reversing Bush's Executive order, President Obama made clear that
only the sitting President can claim Executive privilege--not their
heirs, and not their Vice Presidents or the Vice Presidents' heirs.
In signing the new Executive order, President Obama said:
Going forward, anytime the American people want to know
something that I or a former President wants to withhold, we
will have to consult with the Attorney General and the White
House Counsel, whose business
[[Page S4615]]
it is to ensure compliance with the rule of law. Information
will not be withheld just because I say so. It will be
withheld because a separate authority believes my request is
well grounded in the Constitution.
This is wise public policy and should be the law of the land--subject
to repeal only by Congress, not by Executive order.
When President Roosevelt dedicated his library and began opening up
his records and other artifacts to public view, he made it clear that
this kind of openness is good for a democracy. ``The dedication of a
library,'' Roosevelt said, ``is in itself an act of faith. 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. It
must believe in the future. It must, above all, believe in the capacity
of its own people so to learn from the past that they can gain in
judgment in creating their own future.''
This Congress can now reassert Roosevelt's faith in our democracy.
That is why I urge my colleague, Senator Sessions, to release his hold
on H.R. 35 so we can pass it, get it to the President, and make history
now by preserving Presidential history as an open resource for
Americans to learn from in the future.
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