Remember this?
The White House has drafted an executive order that would allow the current administration to withhold release of presidential papers from a previous administration, even if the former president wanted to make those available to the public.
Ari Fleischer, President Bush's spokesman, said the goal of the executive action is to "provide a safety valve" if any national security issues might arise by releasing past presidential records.
For instance, Fleischer said there may be intelligence concerns the previous administration was not aware of when it decided to allow the release of its records, or the national security situation may have changed since the decision to release such records was made.
In a word: Bullshit.
One of the first things the guy before Barack Obama did when he took office was block the impending release of 70000 classified documents to the Reagan Library. The papers were to be released under the Presidential Records Act of 1978, which reclassified Presidential (and Vice-Presidential) records as public. Most Presidential documents were to be available to the public twelve years after the end of a Presidency; that would have meant that on the first day of Bush's term, Ronald Reagan's records would have been released. Bush blocked that, and on November 1, 2001, he issued an Executive Order, which essentially said that all unreleased records were too sensitive to make public.
This, of course, meant that the activities of Donald Rumsfeld and George Herbert Walker Bush during the Reagan years were kept from the public. Iran-Contra, anyone? How about activities in Iraq? Afghanistan? What might have been known about Osama bin Laden at the time? I'm not going to be a conspiracy theorist; but the genesis of our current world affairs disaster was the Reagan Administration. There clearly are some things being hidden.
Congress has attempted to address this, so far unsuccessfully. A lawsuit by several groups resulted in a mixed verdict; the DC District Court held that the lawsuit was premature, but that the United States Archivist could not rely on Bush's order to prevent access beyond a thirty day review period. A pdf of its ruling is here. As it stands, though, the Court dodged the hard questions:
In a carefully constructed decision, the court held that the Archivist of the United States acts arbitrarily, capriciously, and contrary to law by relying on the Executive Order to delay release of the records of former presidents. The court did not reach the issue of whether it was permissible for President Bush to extend the authority over disclosure of presidential papers to a former president’s heirs or to former vice presidents.
...Archive General Counsel Meredith Fuchs commented, "The court is enforcing procedural standards, but has avoided the hard questions about the role former presidents, former vice presidents, and their heirs can play when it comes to disclosure of presidential records." She noted, "Unless the Executive Order is reversed or withdrawn, decisions about the release of records from this administration may ultimately be made by the Bush daughters."
It's past time for this nonsense to end. I realize that President Obama will have bigger fish to fry when he takes office; still, signing an Executive Order that reverses Executive Order 13233 and restores Reagan's original Order would be a simple matter. It would force Bush the Least to challenge in court the release of the records; I'm not sure that he has any standing to do so. Obama should also signal to Congress that he would welcome passage of the long-stalled legislation to update the Presidential Records Act; perhaps in a spirit of comity Republicans in the Senate could prevail on Senator Jim Bunning to remove the hold he is rumored to have placed on the bill.
And the real reason to do this right away? Because it will signal that the windows will be opened to air the room; or, as Justice Brandeis put it:
Sunlight is the best disinfectant.