Lawmakers ask Bush to rethink order on presidential papers

President Bush should reconsider an executive order that gives former Presidents wide authority to withhold presidential papers under the claim of executive privilege, Rep. Stephen Horn, R-Calif., said Tuesday. The order, issued last Thursday, creates new procedures for complying with the 1978 Presidential Records Act, which gave the public ownership of all presidential papers and required nearly all presidential records to be released 12 years after a President has left office. Under Bush's order, both an incumbent President and a former President can elect to withhold papers indefinitely after the 12-year period by asserting executive privilege. Previous guidance allowed the archivist of the United States to release such records even if a former President claimed executive privilege. Members of the public can still challenge a President's decision to block the release of papers in court, but must show a "documented, specific need" to win access, according to the new White House order. The 1978 Act included no obligation to show need. The new requirement will ultimately make it more difficult for the public to gain access to presidential papers, said Mark Rozell, a professor at Catholic University in Washington D.C., during a Tuesday hearing of the Subcommittee on Government Efficiency of the House Government Reform Committee. "The burden will shift from those who must justify withholding information to fall instead on those who have made a claim for access to information," he said. Edward Whelen, the acting assistant attorney general in the Justice Department who testified for the Bush administration, noted that executive privilege is based in the Constitution and that Presidents typically release most of their papers. "The administration anticipates that this historical practice will continue," he said. Rep. Horn and Rep. Doug Ose, R-Calif., the only two members of the Subcommittee present at the hearing, took turns questioning Whelen on the legal and policy rationale for Bush's order. Ose, who used the Presidential Records Act to investigate President Clinton, repeatedly asked if the order expanded a President's ability to keep communications with senior advisors out of the public view. "There is no intention via this [executive] order to expand or redefine constitutional privileges," replied Whelen. Peter Shane, a professor of law and public policy at Pittsburgh's Carnegie Mellon University, testified that Bush's order could actually hasten the release of documents since, as written, it would only trigger presidential review of information requests that could be exempt from the 1966 Freedom of Information Act (FOIA). In Shane's view, the order allows the archivist to release documents that could not reasonably qualify for an exemption to FOIA without first seeking approval from a President. But Whelen testified that the Bush directive applies to all presidential records, not only those that could possibly be withheld under FOIA. "I didn't know what to make of that [testimony]," said Shane after the hearing. "On its face, the [order] is unambiguous that it applies only to FOIA requests. If [the order] applies to everything then surely it delays the process." The order grew out of a decision by the Bush administration early this year to block the release of 68,000 pages of confidential communications between President Ronald Reagan and his advisers that officials at the National Archives had cleared for release. Whelen confirmed that the new White House order applies to these records.