Of the panoply of things I could have written to change.gov about, I chose exactly one: to revoke Executive Order 13233, the infamous withholding of Presidential records by He-Who-Shan't-Be-Named. How could I know that I'd get my wish so quickly?
This story was front-paged yesterday, but much was missed. Let me explain the full consequences of the new Executive Order, and why Dick Cheney and Donald Rumsfeld, and shortly pretty much every member of GWB's Administration, have much to fear in coming months.
Update: I see that, while I was writing this, another diary on this topic has hit the reclist. Since I've covered the EO in much more detail, I'm leaving this up as a reference for those interested.
The Executive Order, like Gaul, is divided into three parts. One applies to the current President; one applies to past living Presidents; and one applies to deceased Presidents.
Now, if you've read the Order at the link I provided above, you should be protesting that last part. The Order says not a word about deceased Presidents! Except:
Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked.
Ta da! Revocation of Bush's Executive Order automatically means that all records are subject to the rest of Obama's new Order. That means that deceased Presidents -- and their heirs -- have no rights to their records. The only exception is in the event the deceased President left specific instructions otherwise; as you'll see below, this doesn't matter in the case of Ronald Reagan.
That means that Obama, the Archivist of the United States,
Dr. Allen Weinstein, and the Attorney General (presumably Eric Holder) or their assignees, are the only people who can stop us from seeing the records from the Reagan years. The treasure trove is hereby released.
But there's more! On to the records of living ex-Presidents. If the Attorney General and the Counsel to the President, Greg Craig, decide that no claim of Executive Privilege should be made, and the living ex-President has made no claim, they will notify the Archivist, and the records will be released. Obama will only be involved if the AG and his Counsel think Executive Privilege should be invoked. In other words, Obama trusts the system and his people. Further, if Obama does invoke Executive Privilege, Obama will release records if a final court order mandates it.
Now, then, let's turn to situations where a living ex-President makes a claim of Privilege. The new Order says that George W. and Bill Clinton can claim the Privilege for anything from their Administrations. The Archivist must consult with the AG, the President's Counsel and any other agency he thinks appropriate, then make his own decision, subject to the restrictions of the original Presidential Records Act of 1978. Obama has the right to overrule him, but no one else does. On George Herbert Walker Bush, since it's been more than twelve years, most of those records are now available. GHWB can claim Executive Privilege if he wants to, but he will almost certainly lose a court challenge. Reagan isn't around to claim Executive Privilege, so his records are hereby released, save for any Obama chooses to hold back. Clinton and GWB can exercise the twelve year hold; but even under that clause, there are exceptions, listed in my bonus point below.
Though the law allows Obama a minimum of five years and a maximum of twelve to hold most records, he has not claimed those rights in this Executive Order. In theory, he might decide to release records ahead of time if asked. He certainly may exercise the options; but it's interesting that he chose not to reference them here.
To recap, then: Nearly all records from 1980 to 1996 are now available to us upon request. Records from Bill Clinton's second term will start to become available next year. Records from Bush's first term will start to become available during Obama's second term ;-) and Obama may opt to release records throughout his term of office.
Now, for bonus points. Since the original Records Act is now restored, its regulations apparently will be followed by the Obama Administration. The twelve year hold does not apply to all records. Here's the rules:
(a) Prior to the conclusion of his term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:
(1)
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
(B) in fact properly classified pursuant to such Executive order;
(2) relating to appointments to Federal office;
(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), provided that such statute
(A) requires that the material be withheld from the public in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular types of material to be withheld;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) confidential communications requesting or submitting advice, between the President and his advisers, or between such advisers; or
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
If the record doesn't fall into one of those categories, it can't be protected. Will there be lawsuits? You betcha (also). I suspect Obama will win more than a few of them.
Lastly, Obama's Order restores the original understanding of the 1978 act that Vice-Presidential records are covered by the law. Sorry, Dick.