On November 1, 2001, President George W. Bush issued Executive Order 13233
to give himself, Cheney, and anyone else they designated, authority to withhold their records from the public indefinitely under claims of executive privilege.
Under Executive Order 13233, Bush and Cheney could keep their records sealed forever by continuing executive privilege after leaving office and extending it to designees who could exercise it for them. The Order left the National Archives with no authority to challenge a former administration official who might decide to withhold access to federal government records. It greatly expanded the power of former Presidents and former Vice Presidents to control access to records that were required by statute to be turned over to the National Archives and Records Administration at the end of each administration.
At the time, the White House and Alberto Gonzales were busy formulating a new interpretation of the Geneva Convention that would come to be known as the Bush Torture Memos. Bush, Cheney, and their various accomplices covered their tracks well. They were well aware of the magnitude of their crime. Gonzales noted in one memo that punishments for war crimes include the death penalty.
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On January 21, 2009, his first full day in office, President Barack Obama issued Executive Order 13489. President Obama's first Executive Order revoked the Bush-Cheney records policy and replaced it with a new protocol. |
Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked. |
Obama's order preserved the tradition of executive privilege for an incumbent President who could claim it for his or her own Administration's records or for the records of a prior Administration. If the President claimed executive privilege, an Archivist could still release records to the public with a court order. |
This fall, at the Bush Presidential Library in Dallas, they're giving a series of educational talks, titled White House Secrets Revealed. The promotional literature doesn't say whether an exhibit will display torture-related communications along with the Ground Zero bullhorn.
Cheney was sued for his records before he left office by Citizens for Responsibility and Ethics in Washington. On January 19, 2009, the court ruled in his favor, leaving him in charge of his own records..
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Post Script
On November 17, 2014, Congress passed the Presidential and Federal Records Act of 2014 by unanimous voice vote. The President signed it into law on November 26.
The law, which was introduced and sponsored by Emanuel Cleaver (D-MO), codifies Obama's Executive Order. It also prohibits, for the first time, the destruction of records as well as unauthorized removal from archives.
Here is where there may be a path forward.
Courage!.
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February 7, 2009
Presidential Records: Issues for the 111th Congress
May 30, 2014
The Presidential Records Act: Background and Recent Issues for Congress