Congressional Record: March 27, 2003 (Extensions)
Page E597-E598



                             HON. DOUG OSE

                             of california

                    in the house of representatives

                        Thursday, March 27, 2003

  Mr. OSE. Mr. Speaker, today, I rise to introduce a simple bill to 
revoke Executive Order 13233, "Further Implementation of the 
Presidential Records Act," which President Bush issued on November 1, 
2001. My bill would replace this Order with President Reagan's 1989 
implementing Executive Order 12667. During the 107th Congress, on April 
11, 2002, Representative Steve Horn introduced the "Presidential 
Records Act Amendments of 2002" (H.R. 4187). I co-sponsored this bi-
partisan bill. The Government Reform Committee held hearings on the 
Bush Order and then, after introduction, on Mr. Horn's bill. On October 
9th, the House Government Reform Committee reported out an amended 
version of this bill. On

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November 22nd, an accompanying House Report (Report 107-790) was 
published. Unfortunately, the full House never considered this bill.
  In the 1978 Presidential Records Act, Congress clearly intended to 
make Presidential records available for Congressional investigations 
and then for the public after a 12-year period. The Act authorized the 
National Archives and Records Administration (NARA) to issue 
implementing regulations. President Reagan's Order expanded on NARA's 
implementing regulations. The Reagan Order clarified some areas not 
specifically addressed in the regulations. Most importantly, the Order 
identified only three areas where access to Presidential records could 
be limited--if disclosure might impair national security, law 
enforcement, or the deliberative processes of the executive branch.
  President Bush's Order changed these access limitations. In a 
nutshell, law enforcement was dropped and two areas were added: 
"communications of the President or his advisors (the presidential 
communications privilege); [and] legal advice or legal work (the 
attorney-client or attorney work product privileges)." This broadening 
could severely limit Congressional access to key documents in its 
investigations of a former Administration.
  Besides broadening the grounds for executive privilege claims, the 
Order is inconsistent both with the Presidential Records Act itself and 
with NARA's codified implementing regulations. NARA's rules were 
promulgated after the public had notice and an opportunity to comment, 
as required by the Administrative Procedure Act.
  In November 2001, a week after issuance of the Order, I raised 
concerns in a Subcommittee hearing on the Order. I questioned the 
Administration witness about the legal and substantive justification 
for the policy changes. After the hearing and further discussions with 
White House officials, I had hoped that the Administration would amend 
or revoke its Order. Unfortunately, it has not done so. As a 
consequence, I believe that legislation is needed to void the Order. My 
bill would do just that.
  The Order violates not only the spirit but also the letter of the 
Presidential Records Act. It undercuts the public's rights to be fully 
informed about how its government operated in the past. My bill would 
restore the public's right to know and its confidence in our