[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[Extensions of Remarks]
[Pages 4516-4517]
[From the U.S. Government Publishing Office, www.gpo.gov]




    INTRODUCTION OF THE PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2002

                                 ______
                                 

                           HON. STEPHEN HORN

                             of california

                    in the house of representatives

                        Thursday, April 11, 2002

  Mr. HORN. Mr. Speaker, today I am introducing the Presidential 
Records Act Amendments of 2002. Prompt enactment of this bill will fix 
a serious, but in my view readily solvable, problem that has developed 
in the implementation of the Presidential Records Act of 1978. I am 
pleased that a number of my colleagues from both sides of the aisle 
have joined me as co-sponsors of the bill.
  The Presidential Records Act of 1978 was a landmark law. It declared 
for the first time that the official records of a former President 
belong to the American people. It gave custody of a former President's 
records to the Archivist of the United States and imposed upon the 
Archivist ``an affirmative duty to make such records available to the 
public as rapidly and completely as possible consistent with the 
provisions of this Act.''
  The Act built in safeguards over the disclosure of presidential 
records. It allowed former Presidents to restrict disclosure of certain 
confidential records for up to 12 years after they leave office. The 
authors of the Act considered this 12-year embargo sufficient to 
prevent a ``chilling effect'' on a President's ability to get candid 
and confidential advice. In this regard, they were mindful of the 
Supreme Court's observation in Nixon v. Administrator of General 
Services, 433 U.S. 425 (1977), that the expectation of confidentiality 
in presidential communications ``has always been limited and subject to 
erosion over time after an administration leaves office.'' The Act also 
permanently shielded from public release records containing military 
and diplomatic secrets or other categories of information whose 
disclosure would not be in the national interest.
  The Act first applied to the records of former President Ronald 
Reagan. Therefore, records that former President Reagan restricted for 
12 years should have become publicly available in February 2001. 
Unfortunately, it took one full year after the release date envisioned 
by the Act for just a relatively small portion of those records to be 
made public. One reason for this is that the records have undergone 
lengthy reviews to determine whether the former or incumbent President 
should attempt to prevent their release by claiming ``executive 
privilege.''
  For much of last year, release of the Reagan records was delayed 
while the current Administration repeatedly extended the deadline for 
making executive privilege decisions under an Executive Order that 
President Reagan had issued before he left office. On November 1, 2001, 
President Bush issued a new, and much more restrictive, Executive Order 
to govern the review of a former President's records for possible 
executive privilege claims.
  The new Executive Order No. 13233 starts with a ``background'' 
section that asserts an extremely expansive view of the scope of 
executive privilege. It requires the Archivist to notify both the 
former and incumbent Presidents of requests for access to presidential 
records. It then prohibits the Archivist from releasing the records 
``unless and until'' both the former President and incumbent President 
agree to authorize access, or unless the Archivist is directed to 
release the records by a final and non-appealable court order. The 
Executive Order makes any claim of executive privilege by either the 
former or incumbent President binding on the Archivist. Indeed, the 
Archivist must comply with a privilege claim by a former President even 
if the incumbent President does not believe the claim is well founded. 
The Order sets a target date of 90 days for the review of records. 
However, under the terms of the Order, the review periods available to 
the former and incumbent Presidents are essentially open-ended. A 
former or incumbent President can indefinitely postpone public 
disclosure of records simply by withholding approval for their release, 
without ever needing to claim executive privilege.
  Last November, the Subcommittee on Government Efficiency, Financial 
Management and Intergovernmental Relations, which I chair, held a 
hearing on implementation of the Presidential Records Act. At that 
hearing, lawyers, historians, and other experts criticized the 
Executive Order on legal and policy grounds. Members of Congress from 
both sides of the aisle voiced similar criticisms. Following the 
hearing, a host of archivists, historians and others contacted me to 
express their concerns over the Executive Order. Finally, several 
groups have filed a lawsuit to overturn the Executive Order.
  I agree that the Executive Order violates the letter and spirit of 
the Presidential Records Act. However, I do not think we should wait 
perhaps years for the lawsuit to run its course. We need to act now in 
order to get implementation of the Act back on track. I believe we can 
solve the problem in a way that protects the constitutional 
prerogatives of former and incumbent Presidents while preserving the 
Act's intent of publicly disclosing presidential records as promptly 
and completely as possible. That is what my bill seeks to do.
  Like the Executive Order, my bill establishes a process for the 
consideration of executive privilege claims. Like the Executive Order, 
it requires advance notice to the former and incumbent Presidents 
before presidential records are released. This permits them to review 
the records in order to decide whether to claim privilege. Also like 
the Executive Order, my bill requires the Archivist to withhold records 
(or parts of records) for which the incumbent President claims 
privilege. In this event, a requester would have the burden of 
challenging a privilege claim in court.
  However, my bill differs from the Executive Order in several ways. 
The bill does not attempt to define the scope of executive privilege. 
It leaves this to the courts. The bill limits the amount of time the 
former and incumbent President can take to review records and claim 
privilege. The basic review period is 20 working days, which is the 
same limit imposed on agencies under the Freedom of Information Act. 
This period may be extended for not more than another 20 working days 
if the Archivist determines that an extension is necessary to permit 
adequate review. If there is no claim of privilege within the 
applicable review period, the Archivist must release the records.
  The other key difference between my bill and the Executive Order 
concerns what happens if a former President claims privilege. As noted 
previously, the Executive Order forces the Archivist to withhold 
records any time a former President claims privilege. The requester 
then has the burden of going to court to challenge the privilege claim. 
This is the feature of the Executive Order most clearly at odds with 
the Presidential Records Act. The

[[Page 4517]]

bill reverses this burden. If a former President claims privilege, the 
Archivist will withhold the records for an additional 20 days in order 
to give the former President time to file suit to enforce his privilege 
claim. However, the Archivist will then release the records absent a 
court order to the contrary.
  I believe this is a reasonable approach, and one that is consistent 
with the intent of the Presidential Records Act. The Act already 
provides for lawsuits by a former President to vindicate his rights and 
privileges. Furthermore, the Act already protects from disclosure those 
categories of information that would ordinarily be subject to executive 
privilege claims. Thus, any privilege claim a former President might 
assert probably would be based on novel and untested legal grounds that 
should be initially considered by a court.
  The bill also includes several provisions that are not in the 
Executive Order. Most of these provisions are intended to ensure more 
transparency and public accountability with respect to possible 
executive privilege claims. For example, a claim of privilege would be 
in a written public document signed by the incumbent or former 
President, as the case may be. This is consistent with the settled 
principle that the right to claim executive privilege is personal to 
the incumbent or former President and cannot be delegated to their 
assistants, relatives, or descendants.
  Mr. Speaker, I request that a summary of the Presidential Records Act 
Amendments of 2002 be placed in the Congressional Record.

        THE PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2002 SUMMARY

       The Presidential Records Act Amendments of 2002 establishes 
     statutory procedures to govern the assertion of executive 
     privilege claims by a former or incumbent President over 
     records covered by the Presidential Records Act. It preserves 
     the constitutional right of a former or incumbent President 
     to assert privilege claims, but does so in a way that 
     complies with the framework and intent of the Presidential 
     Records Act. It supersedes the procedures established in 
     Executive Order 13233.
       The bill requires the Archivist to provide advance notice 
     of 20 working days to the former and incumbent Presidents 
     before releasing presidential records in accordance with the 
     provisions of the Act. The Archivist would release the 
     records upon the expiration of this 20-day period, except any 
     records (or parts of records) for which the former or 
     incumbent President asserts a claim of privilege.
       The Archivist could extend the 20-day period for an 
     additional 20 days if the former or incumbent President 
     demonstrated a need for additional time to review the 
     records. Additional time should rarely be needed. The former 
     and incumbent Presidents have access to the records and could 
     conduct their reviews well before the time the records are 
     ready for public release. The Archivist also would have 
     thoroughly categorized and screened the records before a 
     notice is issued, which should greatly facilitate reviews by 
     the former and incumbent Presidents.
       The bill requires that any claim of privilege be in writing 
     and signed by the former or incumbent President, specify the 
     records to which it applies, and state the nature and grounds 
     of the privilege claim. Notices of the proposed release of 
     records, as well as any privilege claims, would be made 
     public.
       If the former President submitted a privilege claim, the 
     Archivist would withhold the records covered by that claim 
     for another 20 working days. This would permit the former 
     President to seek judicial enforcement of his privilege 
     claim, as already provided for in the Presidential Records 
     Act. After expiration of this 20-day period, the Archivist 
     would release the records unless a court ordered their 
     continued withholding. This approach places the burden of 
     establishing a privilege claim on the former President. 
     Privilege claims should be extremely rare, given the 
     protections already built into the Act and the age of the 
     records.
       If the incumbent President submitted a privilege claim, the 
     Archivist would withhold the records unless and until the 
     incumbent President withdrew the claim or there was a final, 
     non-appealable court order directing the Archivist to release 
     the records. This approach recognizes the legal and practical 
     reality that the Archivist must honor a privilege claim by an 
     incumbent President.
       The bill would apply similar procedures to requests for 
     access to records by Congress and the courts. The time 
     periods, however, would be modified to ensure compliance with 
     deadlines imposed by subpoenas or other legal process. Also, 
     the bill does not specify an outcome if the incumbent 
     President claimed privilege in response to a congressional or 
     judicial access request. Disputes between the incumbent 
     president and either the Congress or the courts would be left 
     for resolution on a case-by-case-basis.
       The bill makes several conforming changes to existing 
     provisions of the Presidential Records Act. It recognizes 
     that authority to claim executive privilege is personal to a 
     former or incumbent President and cannot be delegated to 
     their representatives. This is consistent with current legal 
     theory and practice concerning executive privilege. It also 
     recognizes that a former or incumbent Vice President cannot 
     claim presidential privileges.
       Finally, the bill provides that Executive Order 13233 shall 
     have no force or effect.

     

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