privilege

A president’s heirs would not typically hold positions enabling them to classify documents for national security after he left office. There is another older order [12958] which covers classification, describing it as a governmental function. See www.archives.gov/isoo/policy-documents/eo-12958-amendment.html

The issue in EO 13233 instead appears to be executive privilege. Those of you following the issue of the application of the Presidential Records Act (PRA) and E.O. 13233 may find interesting the comments of former Rep. Steve Horn (R — CA, who served in Congress from 1993 to 2003). He proposed amendments to the PRA in 2002. The proposal did not come to a vote. For his comments and proposal in 2002 to amend the PRA in light of EO 13223, see

http://fas.org/sgp/congress/2002/041102horn.html

Maarja Krusten Submitted by Smartphone on personal time

Maarja Krusten, Historian and former NARA archivist, at 11:56 am EST on February 6, 2007

I must respectfully disagree with Maarja Krusten that “A president’s heirs would not typically hold positions enabling them to classify documents for national security after he left office.” The Bush EO makes such authority by heirs very explicit: “Sec. 10. Designation of Representative. The former President may designate a representative (or series or group of alternative representatives, as the former President in his discretion may determine) to act on his behalf for purposes of the Presidential Records Act and this order. Upon the death or disability of a former President, the former President’s designated representative shall act on his behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges. In the absence of any designated representative after the former President’s death or disability, the family of the former President may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges.”

Mark Greene, President-elect, Society of American Archivists at American Heritage Center, University of Wyoming, at 6:30 pm EST on February 6, 2007

A lawyer’s take on the 2001 order

Here is what Scott L. Nelson, a lawyer with Public Citizen, asserted about E.O. 13233:

“Nor can the Bush Order’s expansion of the secrecy of historical presidential records be justified, as some in the administration have suggested, on the basis of national security concerns. Even without the new Order, the Presidential Records Act and existing Executive Orders on national security classification provide ample authority to prevent the release of materials that could potentially damage national security. Simply put, the Act already provides protection to properly classified information even after the expiration of the 12-year restriction period, and it will continue to do so with or without the Bush Order. See 44 U.S.C. § § 2204(a)(1) & ©(1).

The new Order extends the secrecy not of information relating to national security, but of materials relating to communications between the former president and his advisers that do not implicate national security.

. . . The new Order would allow the former President (or the incumbent) to impose an indefinite, blanket ban on release of these materials even though they contain no sensitive national security information.

In addition, national security reasons can provide no possible justification for the Order s provisions that effectively give a former president veto power over the release of materials by the Archivist. It is the incumbent president, not his predecessors, who has the constitutional power and duty to make judgments about the nation s security needs. If the incumbent president sees no national security justification for keeping particular materials secret, there can be no reason to allow a former president to override that determination.”

Source:http://www.citizen.org/litigation...efs/FOIAGovtSec/articles.cfm?ID=6427

Mr. Nelson specializes in matters related to Presidential records. Prior to joining Public Citizen, he worked for the law firm that represented former President Richard Nixon in some litigation involving the National Archives. The National Archives administers and staffs the presidential libraries.

Maarja Krusten, Historian and former NARA archivist, at 7:05 am EST on February 7, 2007

ongoing litigation, etc.

Mr. (or Ms.) Bigsby, it is executive order 13233 that applies, not any one lawyer’s opinion. That means that sitting and former Presidents can apply privilege and their families, seemingly in perpetuity, later can name representatives to continue to claim privilege in cases where the National Archives proposes to release governmental information under the Presidential Records Act. However, there actually is an ongoing lawsuit. Mr. Nelson represents the historians who are plaintiffs. The matter still is in litigation.

No way to tell the outcome, there isn’t much case law here. Courts, when they have addressed the issue of privilege, previously have found that the “expectation of the confidentiality of executive communications. . . has always been limited andsubject to erosion of time after an administration leaves office.” To my knowledge, no previous court decisions have addressed whether an executive’s family may continue to exert privilege over governmental records. In other words, whether nongovernmental players (a President’s children) have rights in perpetuity to name someone to exert privilege over records created by governmental players.

If you or anyone else knows of any pertinent case law, do let us know, as I’m interested in this issue. I once was employed by the National Archives to screen Richard Nixon’s tapes and files to determine what could be released to the research public. The law required us to release at the earliest reasonable date “the full truth” about “governmental abuses of power.” It was an interesting job for someone such as I, who in my younger days, once had worked on Nixon’s Presidential campaign. During the Watergate hearings, after graduating from college, I briefly worked for Sen. Howard H. Baker (R — Tenn.), Vice Chairman of the Senate Select Committee. So, I’ve been following these complex issues for a long time and continue to be interested in the laws, regulations, legislative history, orders, etc.

For anyone interested in the ownership and access issues, the work of the the National Study Commission on Records and Documents of Federal Officials (commonly known as the Public Documents Commission), 1974-1977, also is worth examining.

Maarja Krusten, Historian and former NARA archivist, at 7:05 am EST on February 9, 2007