By George Lardner Jr.
Washington Post Staff Writer
Wednesday, November 7, 2001; Page A27
The Republican chairman of a House subcommittee pointedly urged the
Bush administration yesterday to rescind an executive order that both Democratic
and GOP lawmakers denounced as charting a new era of secrecy for presidential
records.
Rep. Stephen Horn (R-Calif.), whose panel has jurisdiction over the
Presidential Records Act, said the administration should "revisit" the
order President Bush signed last week to remove the hurdles to public access
that it creates. Aides said Horn is also considering legislation to supplant
the controversial decree.
Acting Assistant Attorney General M. Edward Whelan III told the subcommittee
at a hearing yesterday that Bush's order simply sets up a procedure whereby
the incumbent president and former presidents can invoke "constitutionally
based" privileges to withhold documents that might otherwise be disclosed
after a 12-year waiting period.
Whelan denied that the order amounts to an expansion of the privileges
recognized under the records act or that it otherwise revises the 1978
law.
Under the order, a former president or a sitting president -- or in
some cases, the family of a deceased president -- could block the release
of records requested by journalists, scholars or others and force them
to go to court to challenge such decisions.
Under current interpretations of the Presidential Records Act, a former
president can claim privilege for particular documents, but the archivist
of the United States could overrule him, and the former president would
have to go to court to sustain his claim.
The Bush order would require individuals to show a "demonstrated, specific
need" for particular records if they wished "to overcome the constitutionally
based privileges" that have been invoked. The Presidential Records Act
imposes no such requirement.
Rep. Doug Ose (R-Calif.) said Bush's order would treat as privileged
two broad new categories of documents: "communications" between the president
and his advisers; and records containing "legal advice or legal work (the
attorney-client or attorney work product privileges)."
The 1978 law protects only "confidential communications" between the
president and his advisers and makes no mention of the attorney-client
privilege.
"The bottom line is that the new order appears to violate not only
the spirit but also the letter of the Presidential Records Act," Ose said.
"In 1978, Congress expressed its clear intent to make presidential records
available for congressional investigations and then for the public after
a 12-year period. This new order undercuts the public's rights to be fully
informed about how its government operated in the past."
No Democrats attended the hearing, in part because of travel delays
and Election Day commitments, but Reps. Henry A. Waxman (D-Calif.) and
Janice D. Schakowsky (D-Ill.) said in a letter that the Bush order also
"tries to rewrite the act by withholding records that are a part of the
deliberative process." There is a deliberative process exemption for records
sought under the Freedom of Information Act, but the two Democrats said
the 1978 records act specifically states that exemption cannot be used
for presidential materials after a 12-year period.
Whelan took the position that "constitutionally based privileges" include
those involving attorney-client relationships as well as the deliberative
process even if the 1978 law did not mention them. He also said that the
dropping of the word "confidential" from "confidential communications"
did not amount to an "expansion" of authority.
Asked for the policy reasons underlying the "expansion" of authority,
Whelan replied: "There is no expansion. Therefore, there is no policy basis
for an expansion."
Historians, academics and public interest advocates at the hearing
were also highly critical of the Bush order. Scott Nelson, an attorney
for Public Citizen, said the Reagan Justice Department issued a virtually
identical ruling in the 1980s, requiring the archivist to abide by former
President Richard M. Nixon's claims of privilege, but the ruling was repudiated
in the U.S. Court of Appeals here.
|