before the

                     CENSUS, AND NATIONAL ARCHIVES

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION


                               H.R. 1255



                             MARCH 1, 2007


                            Serial No. 110-3


Printed for the use of the Committee on Oversight and Government Reform

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                 HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California               TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
    Columbia                         BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
JIM COOPER, Tennessee                ------ ------
PAUL W. HODES, New Hampshire

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
                  David Marin, Minority Staff Director

   Subcommittee on Information Policy, Census, and National Archives

                   WM. LACY CLAY, Missouri, Chairman
PAUL E. KANJORSKI, Pennsylvania      MICHAEL R. TURNER, Ohio
JOHN A. YARMUTH, Kentucky            BILL SALI, Idaho
PAUL W. HODES, New Hampshire
                      Tony Haywood, Staff Director

                            C O N T E N T S

Hearing held on March 1, 2007....................................     1
Text of H.R. 1255................................................     3
Statement of:
    Blanton, Thomas, director, National Security Archive, George 
      Washington University; Robert Dallek, author/historian; 
      Scott Nelson, senior attorney, Litigation Group, Public 
      Citizen; Anna K. Nelson, distinguished historian in 
      residence, the American University; and Steven L. Hensen, 
      director of technical services, Rare Book, Manuscript, and 
      Special Collections Library, Duke University...............    40
        Blanton, Thomas..........................................    40
        Dallek, Robert...........................................    55
        Hensen, Steven L.........................................    97
        Nelson, Anna K...........................................    88
        Nelson, Scott............................................    61
    Weinstein, Allen, Archivist of the United States, National 
      Archives and Records Administration; Harold Relyea, 
      Specialist in American National Government, Congressional 
      Records Service; and Sharon Fawcett, Assistant Archivist 
      for Presidential Libraries.................................    10
        Fawcett, Sharon..........................................    35
        Relyea, Harold...........................................    21
        Weinstein, Allen.........................................    10
Letters, statements, etc., submitted for the record by:
    Blanton, Thomas, director, National Security Archive, George 
      Washington University, prepared statement of...............    43
    Dallek, Robert, author/historian; Scott Nelson, senior 
      attorney, Litigation Group, Public Citizen, prepared 
      statement of...............................................    57
    Hensen, Steven L., director of technical services, Rare Book, 
      Manuscript, and Special Collections Library, Duke 
      University, prepared statement of..........................    99
    Nelson, Anna K., distinguished historian in residence, the 
      American University, prepared statement of.................    90
    Nelson, Scott, senior attorney, Litigation Group, Public 
      Citizen, prepared statement of.............................    62
    Relyea, Harold, Specialist in American National Government, 
      Congressional Records Service, prepared statement of.......    24
    Weinstein, Allen, Archivist of the United States, National 
      Archives and Records Administration........................    13



                        THURSDAY, MARCH 1, 2007

                  House of Representatives,
   Subcommittee on Information Policy, Census, and 
                                 National Archives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m. in room 
2154, Rayburn House Office Building, Hon. Wm. Lacy Clay 
(chairman of the subcommittee) presiding.
    Present: Representatives Clay, Waxman, Yarmuth, Turner, and 
    Staff present: Tony Haywood, staff director; Alissa Bonner, 
Adam C. Bordes, and Anna Laitin, professional staff members; 
Jean Gosa, clerk; Nidia Salazar, staff assistant; Leneal Scott, 
information systems manager; Molly Gulland, assistant 
communications director; Steve Castor and Charles Phillips, 
minority counsels; Allyson Blandford, minority professional 
staff member; John Cuaderes, minority senior investigator and 
policy advisor; Patrick Lyden, minority parliamentarian and 
member services coordinator; and Brian McNicoll, minority 
communications director.
    Mr. Clay. The Subcommittee on Information Policy, Census, 
and National Archives of the Committee on Oversight and 
Government Reform will now come to order. Today's hearing will 
examine issues relating to the Presidential Records Act of 
1978, the role of the National Archives in administering the 
act, and the effect of Executive Order 13233, an order issued 
by President Bush to give former Presidents greater control 
over the disposition of their White House records.
    Without objection, the Chair and ranking minority member 
will have 5 minutes to make opening statements, followed by 
opening statements not to exceed 3 minutes by any other Member 
who seeks recognition.
    Without objection, Members and witnesses may have 5 
legislative days to submit a written statement or extraneous 
materials for the record.
    Let me welcome all of you here today on the Presidential 
Records Act of 1978 and issues relating to its implementation. 
Presidential records serve as a vital resource for the 
researchers and historians who document our Nation's history. 
These documents provide insight into how and why critical 
decisions are made at the highest level of our democratic 
    Access to Presidential records ensures greater government 
transparency and accountability. In addition, access to 
Presidential records allows historians to develop a complete 
chronology of the events and circumstances that shape and 
define a Presidency. With the perspective these documents 
provide, policymakers and the public can learn important 
lessons from past successes and mistakes as we confront new 
challenges facing our great Nation.
    Congress has recognized the importance of Presidential 
records by establishing a federally supported system of 
Presidential libraries, which serve as a depository for a 
former Presidents' records and correspondence. Following the 
Watergate scandal, the need to establish stronger controls and 
transparency over Presidential records became clear, and the 
Presidential Records Act of 1978 was enacted. The PRA gave 
definition to the term ``Presidential records'' and officially 
made these records Federal property once the incumbent 
President leaves office. The act also established appropriate 
protections to ensure that sensitive or classified information 
would not be released to the public.
    In 2001, President Bush issued Executive Order 13233, which 
established new restrictions on access to Presidential records. 
Specifically, the order granted former Presidents and their 
appointees veto authority over the release of records 
containing confidential advice and deliberations among 
advisers. Such restrictions provide former Presidents 
indefinite control over many records that addressed important 
strategic and planning decisions. As such, they directly 
undermine the purpose of disclosure that animates the PRA.
    I am proud to say that I am an original cosponsor of 
legislation introduced today by full Committee Chairman Henry 
Waxman, who has joined us today, that would rescind Executive 
Order 13233. I am happy that Chairman Waxman is participating 
with us today as ex officio member of the subcommittee. I thank 
him for his leadership on this important issue.
    The Presidential Records Act Amendments of 2007 has 
bipartisan support with Representatives Duncan and Platts, 
joining us as original cosponsors. I look forward to working 
with my colleagues on both sides of the aisle to move this 
legislation forward in the coming weeks, and I sincerely hope 
that we will have a meaningful and constructive dialog with the 
Bush administration along the way.
    I think that today's hearing will make it clear that 
rescinding Executive Order 13233 is clearly in the public 
    We will have two panels today. I want to thank all of the 
witnesses for appearing today and for your testimony.
    I will yield to my colleague from Ohio, Mr. Turner.
    [The text of H.R. 1255 follows:]

    Mr. Turner. Thank you, Mr. Chairman. I appreciate you 
holding this hearing today.
    The Presidential Records Act, originally passed in 1978, 
sets forth policies for Presidential records and how those 
records should be made available to the public. The act gave 
custody of a former President's records to the Archivist of the 
United States. It imposed upon the Archivist the duty to make 
sure records available to the public are available as quickly 
and completely as possible under the law.
    More importantly, however, it established that the official 
records of a former President belong to the American people. 
The act built in safeguards over the disclosure of Presidential 
records, allowing former Presidents to restrict disclosure of 
certain confidential records for a period of time after they 
leave office. The act also permanently shielded from public 
release records containing military and diplomatic secrets or 
other categories of information whose disclosure would not be 
in the national interest.
    It is important that we distinguish the Nation's interest 
from a former President's interest, as we do not want to expand 
the scope of Executive privilege to mean a President can simply 
withhold approval for release and public disclosure of records 
indefinitely. As the chairman has noted clearly, educators, 
researchers, historians and the public should have access to 
these documents under the direction and care of the Archivist. 
These records are a tremendous resource for all of those who 
have access to them.
    As we have seen, however, gaining this access can take 
years after a Presidency has ended. According to some 
commentators, Executive Order 13233 shifted the burdens and 
responsibilities established by the act. We need to determine 
whether the balance between a President's constitutional 
privilege and the public's right to know has been tipped beyond 
Congress's intent. I hope today's hearing will draw on and 
buildupon the work this committee has previously done, 
specifically the efforts of our colleague, Mr. Burton, in the 
107th Congress. I am confident that we can find a way to 
preserve and protect the constitutional prerogatives of 
Presidents, while preserving the act's intent of publicly 
disclosing Presidential records as promptly and completely as 
    I want to thank our witnesses and I look forward to hearing 
their testimony.
    Mr. Clay. I thank the gentleman from Ohio for his opening 
    I now yield to the gentleman from California, the 
distinguished chairman of the full committee on Oversight and 
Government Reform, Mr. Waxman.
    Chairman Waxman. Thank you very much, Chairman Clay, for 
holding today's hearing and for your strong leadership in 
trying to make sure that we have an open government.
    Today, we are considering one of the Nation's most 
important open government laws, the Presidential Records Act. 
This vital law is supposed to make Presidential records 
available to historians and the public 12 years after the end 
of a Presidential administration. Unfortunately, President Bush 
issued an Executive order in 2001 that carved enormous 
loopholes in the Presidential Records Act.
    The Executive order gave unprecedented authority to former 
Presidents and their heirs to withhold documents from the 
public. It allowed current and former Presidents to 
indefinitely delay the release of any records. And for the 
first time, it gave former Vice Presidents authority to assert 
Executive privilege. Taken together, the changes turned the 
Presidential Records Act into the ``Presidential Secrecy Act.''
    Today, I am introducing legislation with you, Chairman Clay 
and Representatives Platts and Burton, to nullify this 
misguided Executive order. The Presidential Records Act 
Amendments of 2007 restore many of the procedures established 
under the old Executive order issued by President Reagan. It 
would make clear that Executive privilege is personal to 
Presidents and former Presidents, and it would set firm 
deadlines for current and former Presidents to review records 
before they are released to the public.
    This legislation not only has bipartisan sponsors, but it 
has bipartisan roots. In 2002, Representative Steve Horn 
introduced a similar bill that had widespread support.
    History is not partisan. Historians and scholars need 
access to our Nation's history as it happened, not as a former 
President wished that it had happened. President Gerald Ford 
once said, ``I firmly believe that Presidential papers, except 
for the most highly sensitive documents involving our national 
security, should be made available to the public,'' and that is 
exactly the sentiment that motivates the legislation we will be 
considering today.
    I look forward to hearing the testimony of today's 
witnesses, and again I thank you for calling this hearing.
    Mr. Clay. Thank you so much, Chairman Waxman, for that 
opening statement.
    I now yield to the gentleman from Kentucky, Mr. Yarmuth.
    Mr. Yarmuth. Thank you, Mr. Chairman. I want to 
congratulate the bipartisan leadership of the committee in 
organizing these hearings. It is a very important topic. As a 
former journalist, it is one that I am particularly interested 
    I will say that this is the type of issue that motivated me 
in seeking membership on this committee and this subcommittee, 
along with the integrity and courage and charm of the chairman.
    I look forward to hearing the testimony and doing some 
important work on behalf of transparency in government for the 
American people.
    I yield my time.
    Mr. Clay. Thank you so much for that opening statement, Mr. 
    If there are no additional opening statements, the 
subcommittee will now receive testimony from the witnesses 
before us today. I want to start by introducing our first 
panel. Dr. Allen Weinstein, Archivist of the United States, 
leads the National Archives and Records Administration. 
Welcome. And Dr. Harold Relyea is a specialist in American 
National Government with the Congressional Research Service of 
the Library of Congress. Also we have Ms. Sharon Fawcett, who 
is here with us, and we want to welcome you, too. We thank all 
three of you all for appearing today.
    It is the policy of the Committee on Oversight and 
Government Reform to swear in all witnesses before they 
testify. Please rise and raise your right hands.
    [Witnesses sworn.]
    Mr. Clay. Let the record reflect that the witnesses 
answered in the affirmative. Thank you.
    I ask that each of the witnesses now give a brief summary 
of their testimony and to keep the summary under 5 minutes in 
duration. Bear in mind your complete written statement will be 
introduced in the hearing record. Also bear in mind that we 
expect to be interrupted very shortly by votes on the House 
    So Dr. Weinstein, please, let's begin.

                     PRESIDENTIAL LIBRARIES


    Mr. Weinstein. Thank you, Chairman Clay, Congressman 
Turner, members of the subcommittee and subcommittee staff. I 
am Allen Weinstein, Archivist of the United States. I want to 
thank all of you for the opportunity to testify this afternoon 
on the implementation of the Presidential Records Act of 1978, 
PRA, under Executive Order 13233.
    I particularly want to thank you all for your continued 
interest in the programs and responsibilities of the National 
Archives and Records Administration, which we call NARA. Five 
years ago, shortly after Executive Order 13233 was promulgated, 
my predecessor, John Carlin, appeared before this subcommittee 
as then comprised to provide historical background on the PRA 
and how NARA had worked to implement public access to 
Presidential records. Since that time, NARA has had extensive 
experience under the Executive order, and there has also been 
much public discussion about it.
    Today, Mr. Chairman, I would like to update the 
subcommittee on NARA's experience in working with the PRA and 
Executive Order 13233. I have submitted for the record a more 
extensive written paper.
    Since the enactment of PRA, NARA has taken legal custody of 
the Presidential records of Presidents Ronald Reagan, George 
H.W. Bush, and William J. Clinton. The PRA also applies to all 
of the Vice Presidential records in the same manner as 
Presidential records, and affords the former Vice Presidents 
the same authority as the former Presidents.
    The PRA established government control over Presidential 
records that Presidents have donated to the National Archives, 
dating back to President Hoover. The PRA mandates, ``that the 
Archivist shall have an affirmative duty to make such records 
available to the public as rapidly and completely as possible, 
consistent with the provisions of this act.'' As noted during 
floor debate in 1978, among other things, the PRA represents an 
effort to legislate, as one member put it, ``a careful balance 
between the public's right to know, with its vast implications 
to historians and other academic interests, and the rights of 
privacy and confidentiality of certain sensitive records 
generated by the President and his staff during the course of 
their White House activities.''
    Prior to the PRA, and with the exception of the materials 
of former President Richard M. Nixon, Presidential papers and 
materials maintained under NARA's oversight at the Presidential 
libraries of former Presidents Hoover, Roosevelt, Truman, 
Eisenhower, Kennedy, Johnson, Ford, and Carter had been 
controlled by the terms of the deeds of gifts, by which the 
former Presidents donated their records to the National 
Archives. Each of these deeds has provisions outlining 
categories of records that may be withheld from public access 
for some period of time. NARA processed and opened Presidential 
materials based on the deeds and professional archival 
    Moreover, because the materials at these libraries were 
donated to the United States, they are not subject to requests 
under the Freedom of Information Act [FOIA], or any other 
public access statute. In contrast, because the PRA subjects 
all Presidential records to public access through FOIA 5 years 
after the end of an administration, PRA libraries practice open 
records almost exclusively in response to FOIA requests and 
mandatory declassification review requests under Executive 
Order 12958 on classified national security information, and 
have less opportunity to conduct systematic processing of 
    President Bush issued Executive Order 13233 in November 
2001. As the subcommittee is aware, Executive Order 13233 
replaced Executive Order 12667, which was issued by President 
Reagan and under which NARA operated for the first 12 years 
that we processed and opened Presidential records under the 
PRA. Some researchers have raised concerns that Executive Order 
13233 would fundamentally alter the process for requesting and 
opening Presidential records and would result in a significant 
withholding of records.
    The most important measure in evaluating Executive Order 
13233 is, of course, whether Presidential records are being 
made available to the public. In that regard, I can report to 
you that since Executive Order 13233 went into effect in 
November 2001, NARA has opened over 2.1 million pages of 
Presidential records. During that time, there has been only one 
occasion when Presidential records were kept closed from the 
public by an assertion of Executive privilege under the order, 
which occurred in 2004, for a total of 64 pages of records from 
the Reagan Library, out of which 30 were duplicate copies.
    There should be no question that to date Executive Order 
13233 has not been used by former Presidents or the incumbent 
to prevent opening records to the public, which does not mean, 
Mr. Chairman, that I do not think there are legitimate concerns 
over the Executive order, and I look forward to listening to my 
friends and colleagues as they discuss their views on this 
later this afternoon.
    Just a few more comments, and I will be through, Mr. 
    Executive Order 13233 also has added to the endemic problem 
of delay that NARA faces from the PRA and the processing of 
Presidential records. At the three Presidential libraries that 
operate under the PRA--Reagan, George H.W. Bush, and Clinton--
NARA has FOIA backlogs that extend up to 5 years. These queues 
are the direct result of the Archivist at each library 
contending with an ever-increasing volume and demand for 
Presidential records, but not an expansion of the number of 
    Once NARA completes the search and review of a FOIA 
request, we then must provide notice to the representatives of 
the former and incumbent Presidents under Executive Order 13233 
for their review. The average combined time for the 
representatives to complete the reviews is currently 
approximately 210 days.
    Finally, Mr. Chairman, a personal word, to encourage dialog 
on these issues between you and your colleagues in the Congress 
and the administration--a discussion of whatever changes one 
would care to make in the Executive order, it seems to me that 
this is a moment for dialog and perhaps a moment for returning 
to the original concerns and values of the founders of the 
Presidential Library System.
    So I will end with a quote, which was Franklin Roosevelt's 
comment on the dedication of the first Presidential library on 
June 30, 1941, in which he said the following: ``The dedication 
of a Presidential library,'' said President Roosevelt, ``is 
itself an act of faith. To bring together the records of the 
past and house them in buildings where they will be preserved 
for the use of men and women living in the future, a nation 
must believe in three things. It must believe in the past. It 
must believe in the present. But most of all, it must believe 
in the capacity of its people so to learn from the past that 
they can gain in judgment for the creation of the future.''
    Thank you, Mr. Chairman. Thank you, members of the 
committee. I am happy to answer any questions.
    [The prepared statement of Mr. Weinstein follows:]
    Mr. Yarmuth [presiding]. Thank you for your statement, Mr. 
    Dr. Relyea, welcome.


    Mr. Relyea. Mr. Chairman and members of the subcommittee, 
thank you for your invitation to appear here today. I am Harold 
Relyea, a Specialist in American National Government----
    Mr. Yarmuth. Can you turn your mic on, Doctor?
    Mr. Relyea. It is.
    I am Harold Relyea, a Specialist in American National 
Government with the Congressional Research Service of the 
Library of Congress.
    During the initial years of the Federal Government, 
departing Presidents had little choice with regard to the 
disposition of their records. There was no national archive to 
receive such papers, and for reasons of etiquette or politics 
or both, there was a reluctance to leave them behind. Thus, the 
early chief executives carried away their documents of office, 
entrusting them to their families, estate executors, and often 
to fate.
    President Franklin Roosevelt sought to return Presidential 
papers to the public realm through a new type of institution, 
the federally maintained Presidential library, the first of 
which was constructed with private funds on the grounds of his 
family home in Hyde Park, NY. Chartering legislation for the 
Roosevelt Presidential Library was enacted in 1939, and the 
completed facility was accepted for Federal maintenance on July 
4, 1940. With the later enactment of the Presidential Libraries 
Act of 1955, basic policy was set for the creation of 
subsequent federally maintained Presidential libraries.
    About two decades later, as a consequence of the so-called 
Watergate incident and related matters, the official papers and 
records of President Richard M. Nixon were placed under Federal 
custody by the Presidential Recordings and Materials 
Preservation Act of 1974, to assure their availability to 
Federal prosecutors. Following the enactment of this statute, 
Congress developed the law we are talking about today, the 
Presidential Records Act of 1978, which defined Presidential 
records and, for all such materials created on or after January 
20, 1981, effectively made them Federal property that was to 
remain under the custody and control of the Archivist when each 
President left the White House.
    Prior to the conclusion of his term of office, the 
departing President was authorized to specify durations not to 
exceed 12 years for which access to certain specified 
categories of information would be restricted. After the 
expiration of these periods of restriction, the records of the 
former President would be protected by exemptions to the rules 
of disclosure specified in the Freedom of Information Act.
    A former President was to be notified by the Archivist when 
records were about to be disclosed, particularly, in the words 
of the statute, ``when the disclosure of particular documents 
may adversely affect any rights and privileges which the former 
President may have.''
    The statute also stated, ``Nothing in this act may be 
construed to confirm, limit or expand any constitutionally 
based privilege which may be available to an incumbent or 
former President.'' This provision addressed the so-called 
Executive privilege, or the exercise of a claim of 
constitutionally based privilege by the Executive against the 
disclosure of Presidential records.
    Jimmy Carter was the last occupant of the Oval Office who 
could truly take away his records and papers. His successor, 
Ronald Reagan, in the closing days of his second term as 
President, issued an Executive order of January 18, 1989, 
requiring the Archivist to notify the incumbent President and 
former Presidents whose papers were involved, of his intent to 
disclose publicly Presidential records which were not otherwise 
subject to protection under the terms of the Presidential 
Records Act. The Archivist was to identify any specific 
materials in the records to be disclosed which may raise a 
substantial question of Executive privilege. As defined in the 
order, a substantial question of Executive privilege existed if 
the disclosure of Presidential records might impair the 
national security, law enforcement, or the deliberative 
processes of the executive branch.
    The first incumbent President to exercise this authority 
was George W. Bush. The Reagan order, as we heard, was 
subsequently revoked by Executive Order 13233 of November 1, 
2001, which many regarded as providing a more expansive basis 
for the exercise of Executive privilege. Opposition to 
Executive Order 13233 was expressed by historians, political 
scientists, journalists, and lawyers, among others. On November 
15, 2001, for example, the New York Times editorially commented 
that the order, ``essentially ditches the law's presumption of 
public access in favor of a process that grants either an 
incumbent President or a former President the right to withhold 
the former President's papers from the public,'' and concluded 
that ``if a remedy for the situation was to be realized, 
Congress must pass a law doing so.''
    A bill, H.R. 4187, to overturn the order, was introduced in 
the House on April 11, 2002, by Representative Steven Horn for 
himself and 22 bipartisan cosponsors. It also amended the 
Presidential Records Act to provide for the exercise of 
Executive privilege in terms more limited than those of 
Executive Order 13233.
    A subcommittee under the chairmanship of Representative 
Horn held hearings on the Executive order and H.R. 4187, and 
the Committee on Government Reform held a hearing on the impact 
of the Executive order on the public availability of 
Presidential records. Summarizing these proceedings, the 
subsequent report accompanying H.R. 4187 stated, ``Witnesses at 
these three hearings included historians, lawyers, and other 
experts who testified that Executive Order 13233 violated the 
Presidential Records Act and greatly inhibited the release of 
Presidential records as envisioned by the act.''
    The measure, with an amendment, was favorably reported from 
the committee on November 22, 2002, but did not receive a floor 
vote prior to the adjournment of the 107th Congress. 
Representative Horn did not stand for reelection to the next 
Congress, and no successor legislation was subsequently 
introduced in either House during the 108th or 109th 
    Today, in the course of examining executive branch 
implementation of and compliance with the Presidential Records 
Act, this subcommittee has before it the question of the need 
for such legislation.
    Thank you for your attention. I welcome your questions.
    [The prepared statement of Mr. Relyea follows:]
    Mr. Yarmuth. Thank you both for your testimony.
    Dr. Relyea, as you are aware, some have suggested that 
because Executive Order 13233 grants a former President the 
power to assert privilege over the release of records, that it 
may violate the intent of the Presidential Records Act, to 
ensure that Presidential records are treated as Federal 
property and not personal property. Do you agree with that 
assessment, or do you take a different view?
    Mr. Relyea. I agree that the Executive order distorts the 
original intent of the Presidential Records Act. It, in effect, 
turns the situation of the Presidential Records Act on its 
head. The President, in asserting Executive privilege, directs 
the Archivist not to disclose papers, and the Archivist is 
expected to abide by that. Whereas, I think the original intent 
of the Presidential Records Act is to have the Archivist 
exercise a discretion when a former President asserts Executive 
privilege. If he disagrees with a former President, then it is 
up to the former President to seek judicial enforcement of his 
    Mr. Yarmuth. Thank you.
    Dr. Weinstein, could you describe for us in general terms 
the major challenges that NARA faces in archiving and releasing 
Presidential records?
    Mr. Weinstein. Certainly, Mr. Chairman. We begin with the 
shortage of trained, adequate staff for the purpose of doing 
this. I will not go into detail because I do not have to, but 
as I think you know, this has been a dilemma for the last 
several years.
    Second, we do have a situation now in which I think it 
would be interesting to see what action, if any, will be taken 
by the Congress in this regard. It would be unseemly of us to 
suggest anything because we are here to implement. We are 
trying to implement in a very serious way what is possible 
under the law. It would be nice to have the authority again to 
have a bit more authority that we had in terms of being able to 
administer, as Dr. Relyea was saying, the act, but that 
authority may come back. We will see.
    In general terms, I think it is fair to say that trying to 
administer fairly a statute in which there is not necessarily 
universal agreement as to its validity, an Executive order 
presents its own problems.
    Mr. Yarmuth. Thank you. I am informed I mispronounced your 
name. I apologize for that.
    Mr. Weinstein. I don't think you have. It depends on which 
side of the Grand Concourse you are from, Weinstein on this 
side and Weinstein on the other. [Laughter.]
    Mr. Yarmuth. Good. Well, I get mine mispronounced 20 
different ways, so that is fine.
    How much money from NARA is dedicated annually to 
activities surrounding the release of Presidential records? And 
how does the President's fiscal year 2008 budget match up with 
that expense? And how much additional money and resources would 
be required to do an adequate job, in your opinion?
    Mr. Weinstein. I appreciate the questions, especially since 
I am going to turn to my colleague, Sharon Fawcett, who runs 
the Presidential Library System, for the first answer to that.
    Mr. Yarmuth. Thank you. Welcome.


    Ms. Fawcett. Thank you, Mr. Chairman.
    The annual appropriation for Presidential libraries this 
year is just short of $58 million. We have dedicated to 
processing Presidential records about 42 percent to 45 percent 
of the staff in the individual Presidential libraries. At the 
Reagan Library, we have 45 percent of the staff that are 
Archivists or archive specialists charged with reviewing the 
records. At the Clinton and Bush libraries, it is 42 percent of 
the appropriated staff.
    That does not translate into very many Archivists. It is 10 
Archivists at Reagan and, let's see, it is 8 Archivists at Bush 
and 10 Archivists at Clinton. So it is not a substantial amount 
that would average about $1.7 million.
    Mr. Yarmuth. And that is what you think we would need to 
add to the President's budget request to bring it up to an 
adequate number?
    Ms. Fawcett. For our request for the Bush Library, we have 
begun planning for a library a couple of years out. This year, 
we will be hiring four Archivists for future work in the Bush 
Library so that we can train them on the FOIA process and the 
review of Presidential records. We hope to hire up to 20 
Archivists for the Bush Library. So we plan on doubling the 
    I am not sure that even that is sufficient to adequately 
manage the workload. Just to give you an example of how the 
workload has grown, the number of FOIAs filed the first year 
that the Reagan Library opened for FOIA was 103 requests. 
Likewise for Bush, 91 requests. For Clinton, in the first year, 
we had 336 FOIA requests for a backlog of over 9 million pages.
    Mr. Weinstein. Congressman, I would add to that only the 
fact that the exact figure one would want would depend, to some 
extent, on how quickly one wanted to end the backlog in this 
process, the 3 or 4 or 5 year delay sometimes in processing 
material, but we can get you those figures and we will.
    Mr. Yarmuth. Thank you very much. My time has expired.
    Mr. Turner.
    Mr. Turner. I noted in the testimony that millions of pages 
of records have been released, and you confirmed that again 
with respect to the requests. Can you tell us what percentage, 
or the number of records that are withheld?
    Ms. Fawcett. Of the 2.1 million pages that have been opened 
for research so far, the number of pages closed in all 
restriction categories, I am sorry, I can't tell you the number 
for the past 2 years under the Executive order. I have the 
total number since we started opening PRA records in the 
library, but I can get you the other figure.
    Mr. Turner. The total number is fine, at least.
    Ms. Fawcett. OK. About 391,000 pages have been closed at 
Reagan; over 8 million pages have been opened. At Bush, 538,000 
pages have been closed; over 5 million pages have been opened; 
at Clinton, 1.220 million pages have been opened; 27,000 pages 
    Mr. Turner. OK. We have had testimony concerning open 
records before the subcommittee in other areas. One of the 
questions that other agencies have acknowledged as relevant 
post-9/11 is the review of documents as they might pertain to 
national security or issues where we would not want them to be 
    Does 9/11 give us a context where that review might be at a 
different standard than it was pre-9/11?
    Mr. Weinstein. Well, I don't think I would say so. I say we 
have been fairly consistent in that regard. Although, once 
again, there would be areas in which obviously comments on 9/11 
would be pivotal because that would be the subject matter. But 
if you are talking about the process itself, we have----
    Mr. Turner. I am talking about subject matter. Does it give 
you additional pause in subject matter areas where you had no 
pause before?
    Mr. Weinstein. Oh, of course. It absolutely has. Sure.
    Mr. Turner. Great. I think your affirmative response to 
that is very important, because that is something that other 
agencies have acknowledged, and it certainly provides some 
context to the Executive order of a greater concern, not of 
secrecy, but one of national concern, and in giving us some 
additional time to reflect on the subject matter as we see that 
the world is changing.
    Mr. Weinstein, one of the things that obviously we are 
concerned about in Presidential records and their release is 
eliminating a context of partisanship. That relates both to the 
fact they are being released or they are not being released. 
Wouldn't you agree that is one of the concerns that people have 
about how records are handled, both for present issues of 
partisan flavor and/or for interpretation of past issues?
    Mr. Weinstein. Well, it is certainly a concern that one 
might have, should have perhaps generally, but I can tell you 
as a matter of fact that I have led a very bipartisan life in 
Washington, if you know something about my background. I ran 
the Center for Democracy for 16 years. Basically, there is 
nothing more important to me than maintaining the integrity of 
the documents and of the Archives against partisanship.
    Mr. Turner. Mr. Weinstein, before my time is up, obviously 
the Sandy Berger incident is one that has caused pause in the 
manner in which the Archivist handles records such as this. 
Paul Brachfeld, the Inspector General, had some concerns as to 
the manner in which he was treated, and the matter was treated. 
There was just recently a Washington Post article where it was 
indicated that he had received an e-mail from the Archivist's 
lawyer saying, ``I don't think it comes as a great surprise if 
I were to venture the opinion that senior management of this 
agency have serious problems with the manner in which your 
office conducted itself during the Berger investigation.''
    Obviously, the concern that we have in the Berger 
investigation is that we want to err on the side of making 
certain we know the facts, because it could impact the 
availability of information or what information has been 
available to some, and perhaps to others.
    Could you please comment on that matter and how it might 
reflect on the Archivist's handling of these records?
    Mr. Weinstein. I am delighted to. I am happy to comment on 
    First of all, Sandy Berger was arrested years before I got 
to the Archives. This was 2003, as I recall, and I didn't 
become Archivist until 2005. So I can't speak to that 
particular element in the process.
    But second, that letter you quoted from an Archives 
attorney received from me a very harsh note about sending 
letters of that kind. The Inspector General received from me, 
quoted in the same Washington Post article, a letter in which I 
indicated, and he knew this as well, the Inspector General, 
that the letter did not reflect my concerns and did not reflect 
my perspectives or the perspectives of the majority of his 
colleagues at the National Archives.
    The IG has his job to do. I have my job to do. I think we 
have a great deal of mutual respect, and that is the way I will 
continue to behave toward the thing.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Clay [presiding]. Thank you very much, Mr. Turner.
    Mr. Weinstein, the Executive Order 13233, Further 
Implementation of the Presidential Records Act, was issued by 
President Bush in November 2001, replacing the previous 
implementing order issued by President Reagan. Among other 
changes, the Bush Executive order extended the period for 
notification and review from 30 days to 90 days. Can you 
explain this change and its impact, if any? Specifically, have 
you observed a significant increase in the amount of time used 
in the notification and review process?
    Mr. Weinstein. We very much have, Mr. Chairman, but that is 
in part because of a greater caseload, a greater number of 
people who want to make use of the Reagan Library for research 
purposes and raise Freedom of Information requests. The issue 
of resources is never far from the center of the matter, Mr. 
Chairman. I would be grateful for the subcommittee's concern 
about that.
    Sharon, do you have anything to add?
    Mr. Clay. Ms. Fawcett.
    Ms. Fawcett. Yes. As we said earlier in our testimony, the 
backlog is quite significant. While the notification process 
adds time to it, when you consider that the backlog is 5 years 
in the first place, it is not a significant amount of time as 
we have in the backlog.
    Mr. Clay. Mr. Relyea, have you noticed any impact with the 
new Executive order?
    Mr. Relyea. I am not really in the position to assess that, 
as folks at the Archives are. My research is such that I would 
have to rely upon other management studies, which I am not 
aware of, and they would certainly be coming from the Archives 
in that regard.
    Mr. Weinstein. Mr. Chairman, can I add a word in response 
to Mr. Turner's original question?
    Mr. Clay. Sure.
    Mr. Weinstein. It is a very serious point. It would be nice 
if we lived in a country in which the National Security Adviser 
to the President of the United States could be matter of factly 
trusted to engage in no shenanigans and no lawbreaking 
enterprises, and we could all have confidence in that without 
putting into effect the security measures that test that.
    Unfortunately, although I had been under the impression 
before reading all of this, since I was not Archivist yet, that 
was the kind of country we live in. Obviously, this did not 
turn out to be the case with the gentleman in question.
    So what we have done at the Archives is to strengthen in 
measurable ways our security mechanisms to avoid any such 
process from happening in the future. I didn't want to leave 
Mr. Turner's question unanswered.
    Mr. Clay. Thank you for that response.
    Before I dismiss the panel, because we are about to go do 
some votes, Doctor, your testimony states that because PRA 
records are subject to FOIA and declassification requirements, 
NARA staff has less time to conduct the systematic processing 
of records. I have two questions regarding this.
    Is FOIA the problem, or is the real problem staff shortages 
and resource limits?
    Mr. Weinstein. That is a significant part of it, Mr. 
Chairman, a very significant part of it. And also one keeps in 
mind the sheer volume, just in terms of the volume of documents 
system-wide. We allegedly have 9 billion. I have not counted 
them all, so I can't say, but 9 billion documents. That 
requires a lot of processing. So finally, that is an issue.
    Ms. Fawcett. Could I add to that?
    Mr. Clay. Yes, Ms. Fawcett.
    Ms. Fawcett. I think the PRA envisioned that during the 
first 5 years before the records were opened to FOIA, the 
Archives would be able to systematically process a good deal of 
those materials. In fact, during the Reagan and first Bush 
post-Presidential periods, we did process upwards of 4.5 
million pages.
    However, the number of special access requests by the 
Congress, by the courts, and by those with statutory rights to 
view the records, has increased considerably, and that takes 
most of the staff time. So there has been little time for the 
systematic processing.
    One of the things that we are trying to do to speed up our 
processing efforts and to be more efficient is to take the FOIA 
requests we get and kind of clump them together, as these are 
all requests that kind of relate to this subject area. We will 
process that as an entire file more systematically, and then 
notify each one of the researchers that we have processed some 
major files that they would be interested in. It has helped to 
speed up the processing a little at Reagan. We are going to try 
it at some of our other libraries, but we still have 
significant backlogs even with that effort.
    Mr. Clay. Thank you for that response.
    Mr. Turner, any further questions?
    If there are no further questions for this panel, I want to 
thank the panel for your time and your testimony today.
    I will now call the committee into recess until 
approximately 3:15 p.m., and then we will take testimony from 
the second panel.
    Thank you all so much for your testimony.
    Mr. Clay. The Subcommittee on Information Policy, Census, 
and the National Archives will resume.
    We are fortunate to have an outstanding group of witnesses 
on our second panel.
    Mr. Thomas Blanton serves as Director of the National 
Security Archive at George Washington University in Washington, 
DC. He is a noted expert on government information policy. He 
is a past recipient of the American Library Association's James 
Madison Award Citation for defending the public's right to 
know. He has co-authored several books, and his articles have 
appeared in numerous publications, including the International 
Herald Tribune, the New York Times, the Washington Post, and 
the Wall Street Journal. Welcome, Mr. Blanton.
    Mr. Scott Nelson is an attorney at the Public Citizen 
Litigation Group in Washington, DC, where he has practiced 
since 2001. Previously, Mr. Nelson's work focused on a variety 
of constitutional and administrative law issues, including the 
disposition of the Presidential papers of former President 
Richard Nixon. Welcome, Mr. Nelson.
    Mr. Steven L. Hensen is director of Technical Services in 
the Rare Book, Manuscript, and Special Collections Library at 
Duke University. He is recognized both nationally and 
internationally as an authority on archival description and 
access, and he has taught more than 50 workshops and consulted 
extensively on a variety of archives matters. He is a past 
President of the Society of American Archivists, from 2001 to 
2002, a former member of its Governing Council, and a fellow at 
that organization. You are also welcome, and thank you for 
being here.
    Dr. Robert Dallek is a noted Presidential biographer whose 
published works have covered the life and times of Presidents 
Franklin Delano Roosevelt, Kennedy, Johnson, and Reagan. He has 
also served as a faculty member at Columbia University, UCLA, 
and most recently at Boston University. In addition, Dr. Dallek 
has served as a consultant to many films and documentaries, and 
is often quoted in national publications and newspapers on 
Presidential history and politics. Thank you for being here.
    And finally, Dr. Anna K. Nelson currently serves as 
Distinguished Historian in Residence at the American 
University. She has previously served as a member of the State 
Department Historical Advisory Committee, and received a 
Presidential appointment to the John F. Kennedy Records Review 
Board. Her past articles and essays have appeared in the 
Journal of American History, Diplomatic History, Journal of 
Military History, Human Studies, and Political Science 
Quarterly. Welcome to the committee.
    It is the policy of the Committee on Oversight and 
Government Reform to swear in all witnesses before they 
testify. Please rise and raise your right hands.
    [Witnesses sworn.]
    Mr. Clay. Thank you. Let the record reflect that all 
witnesses answered in the affirmative.
    As with panel one, I ask that each witness give an oral 
summary of his or her testimony and keep the summary under 5 
minutes in duration. Bear in mind, your complete written 
statement will be included in the hearing record.
    Mr. Blanton, let's begin with you.



    Mr. Blanton. Thank you very much, Mr. Chairman.
    I have just have three points to make today. You have my 
written statement, which gives it in detail. The three points: 
one is, is the Presidential Records Act System working? No, it 
is in crisis, and I will back that up. Second, is it the fault 
of the Executive order? Yes, in part, but not completely. And I 
will back that up. And third, what do we do about that?
    On the Presidential Records Act, we got a little bit of 
good news from the first panel, when Archivist Weinstein said 
that we have released 2.1 million pages of records under the 
Presidential Records Act since this Executive order came in. He 
announced that like we were supposed to applaud. Mr. Chairman, 
that is less than half as many records out of the entire 
Presidential Library System than the Reagan Library alone 
produced in the previous 5 years.
    On the front page of my written testimony today I have 
given you a little chart. What happens when you write the 
Presidential library if you are a citizen, and you ask for one 
of President Reagan's records? Before this Executive order, 
they wrote you back a letter that said it will take about 18 
months. And that is not unreasonable in my experience, and we 
have hundreds of requests currently pending with Reagan and all 
the libraries from Eisenhower through Clinton. It is highly 
classified. It is high level material. There are sensitivities 
there. Eighteen months is not unreasonable for the government 
to take to review it.
    Today, you will get a letter back that says it is 78 
months. In other words, 6 years have elapsed since the White 
House intervened in the Presidential records process to stop 
the release of Reagan records, back in early 2001. After those 
6 years, 5 are pure delay, pure delay, and you see the sequence 
of events.
    Now, it is a crisis, because the system is not working the 
way the Congress intended, or I would argue our constitutional 
framers intended, because we did not intend our Presidents to 
be kings or to be allowed to act like kings. Their records 
belong to us.
    So is it the fault of the Executive order? I would say yes, 
in part, and you had Archivist Weinstein admit that. He said 
that, oh, it used to only add about 90 days, then it added 
about 170, days, and now it is adding an average of back to 110 
days. That was his testimony. My experience is it is well over 
a year, and that is just the direct delay. In my testimony I 
have direct quotes from the professional Archivist at the Bush 
Library, who over the phone to me said, well, it was cleared 
for release in November 2005. Now, these are documents that 
Gorbachev has already published in Russian. I am just asking 
for the American versions of them. Right? It makes us look 
pretty bad if we can't produce the transcript of the Malta 
    Well, the Bush Library says, well, we sent it off to the 
White House in November 2005, and there is no limit, as you 
know, there is no deadline, so we have no idea when it will 
come back. Under the old system, under President Reagan's 
Executive order, I would have had that material in December 
2005. OK?
    But it is not all Executive order, because there are huge 
resource problems at the National Archives, and it doesn't help 
when their basement floods, and they have to use up their 
contingency funds. They have hiring freezes, staff problems, 
vacancies. You heard from Ms. Fawcett about how they are even 
having problems staffing up now. You have a totally broken 
declassification system, so you have hundreds of millions of 
pages that are ready for the public to see, that they don't 
have the staff to put on the shelves.
    Then you have agencies like the CIA and the Air Force going 
back in to the public stuff and taking it back, sticking the 
toothpaste in the tube. That is what was exposed last year, 
thousands and thousands of pages. You have an endless daisy 
chain of agencies that all insist on having their piece of that 
document. If my cabinet secretary was at the National Security 
Council meeting, by gosh, I get a chance to review that 
document. I have an equity in that document. This is insane. It 
is no way to run a system.
    So what do we do to fix it? One, take out those worst parts 
of the Executive order, that lack of a deadline, the expansion 
of privilege for the Vice President, the provision that gives 
Julie Nixon Eisenhower and her kids the right to assert 
Executive privilege. I didn't see that in my copy of the 
Constitution, Mr. Chairman.
    You can do that, and that would send a signal to the rest 
of the agencies that you have to respond. You have to process 
this stuff. The Freedom of Information Act says 20 working 
days, 20 working days, or 78 months. So the legislation being 
introduced today is a great first step. It will have a 
psychological impact on the bureaucracy.
    What you also have to do is make sure the National Archives 
has the resources to deal with that huge backlog, and to staff 
up so they can take this on.
    Third, they have to get ahead of the curve on the 
electronic records. They have a backlog of paper stuff, and 
they have tens and hundreds of millions of e-mail coming into 
the system. Some of that is my fault. My organization brought 
the lawsuit that saved the White House e-mail. I plead guilty, 
Mr. Chairman, but I think that is important for accountability 
and for history, that their e-mail gets preserved.
    What else can we do about it? We can clean up the 
classification system. There are some bills to stop the 
agencies from stamping these sensitive but unclassified marks 
all over the place, with no limits, not even counting how many 
times that has happened. They have to stop that.
    We have to set up a declassification center out at National 
Archives to cutoff this daisy chain, so the agencies don't just 
send those files around and around and around and around. Like, 
what was that Charlie who gets on the MTA and will never 
return? No, he never returns; his fate is still unknown. That 
is what happens today.
    So, Mr. Chairman, this hearing and the legislation being 
introduced today is a great first step. I commend you for your 
attention to this problem, because it is a crisis. History is 
the worse for it. Accountability is the worst for it. Our 
constitutional framework is the worse for it. I really applaud 
your attention to this crisis.
    Thank you.
    [The prepared statement of Mr. Blanton follows:]
    Mr. Clay. Thank you so much, Mr. Blanton, for your 
testimony and your enthusiasm for this subject. It is somewhat 
comic relief. [Laughter.]
    Let me go out of order here. I want to recognize Dr. 
Dallek. I understand you are under a pretty tight schedule, so 
we will come back to Mr. Nelson, but you may proceed, Doctor.


    Mr. Dallek. Thank you very much, Mr. Chairman, and thank 
you for inviting me today.
    Let me begin by just asking the question: Does it matter 
that we get at these records? Is it useful to the national well 
being? Access to the fullest possible records in the service of 
reconstructing the most substantial and honest history of 
Presidencies is not some academic exercise that should be 
confined to university history departments.
    Rather, it can make a significant difference in shaping the 
national well being. As John Dos Passos stated it, ``In times 
of change and danger, when there is a quicksand of fear under 
men's reasoning, a sense of continuity with generations gone 
before can stretch like a lifeline across the scary present.''
    What we learn from the opening of records is so 
instrumental in helping the Nation address serious questions. 
The fact recently that Admiral Grayson's papers, Woodrow 
Wilson's personal physician--the Grayson family released new 
materials that never had been seen by historians and scholars 
before. What they demonstrated was that Woodrow Wilson was a 
much sicker man than we even knew. If this material had come to 
hand decades ago, it seems to me that it would have been 
instrumental in advancing the discussion, the debate, about 
having a 25th amendment to the Constitution about Presidential 
    I found in my work on John F. Kennedy medical records, that 
happily were opened to me, that President Kennedy had serious 
medical issues. Now, happily, he was able to surmount these, 
especially during the Cuban missile crisis. But it is the 
public's right to know.
    I have just finished a big book about Nixon and Kissinger, 
under the heading of advertisements for myself. I had access to 
20,000 pages of Henry Kissinger's telephone transcripts. This 
material had been closed by Dr. Kissinger until 5 years after 
his death. He was prodded into opening it by the Historical 
Division of the Department of State. It is such a rich and 
important body of material, as the Nixon tapes are, as the 
Nixon national security files are, as Al Haig's chron files 
are. They tell us so much more about what the public should 
have known at the time about Vietnam, about the Indo-Pakistan 
War, about Chile, about a host of foreign policy issues that 
were vital to the well being of this Nation.
    And 35 years later, I am grateful that we are able to get 
at this material, that we can then turn it into hopefully 
readable accounts of what went on in this significant 
Presidential administration. But we need access, and Bush's 
Executive order carries the possibility that we will lose this 
access because reasons don't have to be advanced, a timetable 
doesn't have to be offered. They can hold back on this material 
in perpetuity.
    Abraham Lincoln's papers did not come to hand until 1947. 
What a loss for the country until we were able to finally get 
these papers so that we could study the Lincoln Presidency to 
the extent that it deserved to be studied.
    Let me stop here. I think my message is clear enough.
    [The prepared statement of Mr. Dallek follows:]
    Mr. Clay. Yes, sir, it is very clear. Thank you for your 
    I will go back to Mr. Nelson. Please proceed.

                   STATEMENT OF SCOTT NELSON

    Mr. Nelson. Thank you, Mr. Chairman.
    I provided my testimony in writing at great, and perhaps 
excessive, length. So I will also try to be brief.
    First, I want to emphasize, as others have, that the PRA's 
intention was to expand access and make records available at 
the earliest possible time. That is language that we heard the 
Archivist himself invoke. To that end, it allowed a former 
President the categorical ability to restrict access to his 
materials only for 12 years.
    Now, the act recognized the theoretical possibility that 
after that time, there might be a basis for a constitutional 
claim of Executive privilege. But it requires that in the 
absence of a valid constitutional claim, materials must be 
released upon request once that 12 year period has passed.
    Now, prior to Executive Order 13233, the Archives had 
promulgated regulations and President Reagan had issued an 
Executive order that implemented a former President's ability 
to make a claim of constitutional Executive privilege, if he 
had one, but that properly provided there would be limited 
amounts of time for review and that if the Archivist determined 
that the claim was unfounded, the materials would be released 
as required by law.
    The Executive order that President Bush issued in November 
2001 turns that scheme upside down by providing that simply by 
claiming Executive privilege, a former President can direct the 
Archivist to withhold materials from the public, unless and 
until someone from the public who has requested them is able to 
go and get a court order requiring access.
    It further gives the right to direct the Archivist, not 
only to a former President, but to representatives appointed by 
the former President's family, even after his death. It even 
gives the same privilege to a former Vice President, despite 
the absence of any constitutional basis for a Vice Presidential 
    And finally, as Mr. Blanton has explained, perhaps as 
significant as all these, it gives the former President the 
unlimited ability to extend the time for his review, so that 
materials can keep being withheld from the public simply by 
virtue of the fact that the former President has not completed 
his review and has not yet authorized access.
    We filed a lawsuit challenging this order shortly after it 
was released in 2001. Throughout the history of that lawsuit, 
which remains pending to this day, it has been interesting that 
the government of the United States in defending the Executive 
order has principally tried to argue that the court shouldn't 
hear the case because, in their view, no one has been injured 
unless and until some former President claims privilege and 
documents are withheld, notwithstanding the lengthy delays in 
access that the order is already causing.
    But the one thing that they have not done throughout the 
history of the lawsuit is argue that any of the features that 
we principally object to, namely the grant to a former 
President of a veto power over releases of his material, the 
grant of a similar power to representatives of former 
Presidents, the grant of that same veto power to a Vice 
President, or the grant of unlimited review time--none of that 
have they ever argued is actually required by the Constitution.
    That leads me to the conclusion that legislation 
overturning those features of the order is undoubtedly 
constitutional and within the power of Congress that the 
Supreme Court recognized in upholding the Nixon legislation to 
provide for procedures for access to the materials of a former 
    Having had the opportunity to review the legislation 
introduced today, it appears to me that it does overturn those 
features of the order that I have pointed to as being the most 
suspect constitutionally and legally, and that it would be 
undoubtedly constitutional.
    Now, the best that we have heard in defense of the order 
today from the Archivist is that it has not been invoked yet; 
that the former Presidents have not vetoed the release of 
materials. They have only claimed privilege as to nine 
documents or 60 pages of material which leads me to the 
question: Why do we have these lengthy delays that have been 
associated with these reviews, if the end result is that, at 
the end of the day, claims of privilege are not even being 
    Second, what assurance do we have that in the future a 
future President, a former President once he leaves office, 
would not take advantage of this ability to veto the release of 
his materials, even if, under the pressure of litigation, it 
hasn't yet been exercised over the past 5 years of the history 
of this order?
    If the best that can be said about this order is that it 
hasn't frequently been invoked, there seems to me to be little 
reason for the Congress to shrink from setting it aside.
    [The prepared statement of Mr. Nelson follows:]
    Mr. Clay. Thank you for that summarized testimony, Mr. 
    Dr. Nelson, we will go to you. Are you ready?

                  STATEMENT OF ANNA K. NELSON

    Ms. Nelson. The problem, of course, is that being No. 4, I 
am going to reiterate and try not to repeat.
    I am Anna K. Nelson, and I am the distinguished historian 
in residence at American University. I have done research in 
five Presidential libraries and the Nixon Presidential papers, 
as well as the National Archives. I would like to add that I 
was also a staff member of the Public Documents Commission, 
which was formed after Watergate. It was a commission to study 
what should happen to the records of government. The 
Presidential Records Act emerged from that Public Documents 
Commission the following year. I guess that means I have been 
in it a long time.
    Today, I would also like to represent a group that uses the 
Archives and Presidential libraries more than almost any other 
group, and that is the Society for Historians of American 
Foreign Relations. We are big users of the Archives and 
Presidential papers.
    Mr. Chairman, it was no accident that Roosevelt established 
both the first Presidential library and the Executive Office of 
the President. The proliferation of New Deal and World War II 
agencies moved the records of the President from a collection 
of personal letters, such as those found in the Library of 
Congress, to a unique set of government records, no longer all 
seen by the President.
    It took about three decades for the Congress to respond to 
this increasingly dramatic change, because Presidents willingly 
donated their records. It was Richard Nixon's attempt to hide 
and control his records, then, that finally brought into 
existence the PRA.
    Now, I agree with everyone that the two most important 
provisions of the act were to ensure the protection of the 
records and to ensure that the records would be open to the 
public in a reasonably short period of time. Equally important 
to the PRA was that it removed the decision of access from the 
heirs of the Presidents and gave it to the Archivist of the 
United States.
    In establishing a time for disclosure, Congress gave the 
President 12 years before his records were available. There are 
a lot of other safeguards, national security safeguards, 
personnel, privacy etc. With these exemptions, Congress I think 
thought that it had duly protected the former Presidents, but 
obviously President Reagan and President Bush did not agree and 
decided the records needed additional protection.
    The revision of the original Reagan amendment to the PRA 
did not come to public notice until 12 years after the Reagan 
Presidency, because of course the records were still tied up. 
When the Bush administration, however, took 9 months to make 
their decision on the Reagan records and continued to delay 
their release, why, it certainly came to our attention. Their 
solution to the Reagan issues was to issue their own revision, 
Executive Order 13233, which simply instituted more 
restrictions and also more delays.
    They gave back to the heirs of the Presidents the right to 
make decisions on access. The defenders of the Bush Executive 
order note that, except for an original delay, the Reagan 
records are being released. The Archivist told us that this 
morning, but that is entirely beside the point. Presidential 
records are now vast collections. We have heard that. They have 
grown exponentially with each President. There were 27 million 
pieces of paper in the Reagan Library; 64 million in the 
Clinton Library, of which 12 million are classified. This is a 
veritable tsunami of paper, and it must be processed and opened 
by understaffed libraries.
    It will take far more than 25 years for all the records to 
be released. In 2030, if the President is no longer alive, 
should Presidential families or executors of his estate make 
decisions about releasing government records, records that 
illustrate public policy that are paid for by taxpayers? Should 
the incumbent President in 2030 have the authority to close or 
release the papers of a former President? This was clearly 
expressed in a headline in the Washington Post recently: 
``Clinton papers release to be Bush's decision.'' Supporters of 
the Executive order argue that it is merely procedural, but it 
is far more than that.
    I would like to expand just a minute, foreclosing on 
something that Dr. Dallek said, and that is the importance of 
records. Why should we find it important? Being a country at 
war with major issues, I think we need to think of Presidential 
papers as raw material, like iron ore, for the specialized 
books and articles of the researchers. These ideas and 
conclusions, then, are refined and become subjects of very 
influential books and articles that the public reads, and in 
that way trickles into the public view of where we are, iron to 
steel, perhaps.
    Ultimately, these items enter textbooks. So it doesn't 
matter how few the researchers; the books are important that 
are written from these papers. You can just start to, and yes, 
I could spend 5 minutes, which I won't, on listing them, but 
the American Library Association has 43 books on their list 
that would be actually harmed by this provision if the 
provision had been in effect.
    And it is not difficult, I think, to discern that through 
this Executive order Bush can not only control his own papers, 
but the records of his father and also the Reagan 
    The United States is now a global power. The records 
produced by the White House have become more important to 
American history than ever before. Congress passed this 
Presidential Records act so the American people could learn 
about their past and Congress acted very wisely. Executive 
Order 13233 should not be allowed to nullify that act.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Nelson follows:]
    Mr. Clay. Thank you so much for your testimony.
    Mr. Hensen, finally, you may proceed.


    Mr. Hensen. Thank you, Mr. Chairman.
    Happily, I think that my remarks will echo much of what has 
been said here. It is nice to know the Archivists are pretty 
much in agreement with historians.
    My name is Steven Hensen. I have been an Archivist and 
librarian for more than 35 years. I have worked at the State 
Historical Society of Wisconsin, Yale University, the Library 
of Congress, the Research Libraries Group, and for the past 20 
years at Duke University.
    Today, I am representing the Society of American 
Archivists, the world's largest organization of professional 
Archivists, with more than 4,800 members throughout the United 
States and more than 20 countries. I have been a member of that 
society since 1971, and I served as its President in 2001 and 
    Those of us who labor in the Nation's archives are 
entrusted with ensuring that citizens, scholars and students 
have access to the records of human society and culture. We are 
professionals who serve a vital role as gatekeepers to the 
history of our civilization through responsible keeping of the 
public record. The records we preserve make the government more 
accountable and responsive to its citizens. And in democracies 
like our own, at least, reasonable public access to the records 
of government help to ensure that we remain a Nation of laws, 
and not of men.
    In keeping with our principles, including our commitment to 
the integrity of records and their accessibility, and in light 
of the ethical consequences stemming from them, the Society of 
American Archivists has spoken out frequently when public 
officials have sought to delay or deny access to the records. 
It is particularly troubling, then, when the highest officer in 
our government, the President, attempts to exert improper and 
illegal control over access to his records.
    In November 2001, the White House issued Executive Order 
13233. What was immediately clear to us Archivists is that the 
order does not in fact further implement the act as its title 
said. Rather, it abrogates the core principles of the act and 
violates both its spirit and letter. Where the Presidential 
Records Act provides for the orderly and archivally sound 
management of Presidential records, with the final authority 
residing appropriately with the Archivist of the United States, 
the President's order places ultimate responsibility for 
decisions regarding access with the President and, indeed, with 
any sitting President in the future, and most egregiously with 
ex-Presidents and members of an ex-President's family.
    The written testimony that we have submitted explains this 
more fully, as testimony from the other panelists has 
    Although the White House has argued that this order was 
needed to address concerns about national security issues and 
Executive privilege with respect to Presidential papers, this 
is simply not true. The fact is that all such matters are more 
than adequately addressed in the Presidential Records Act. The 
professional staff of the National Archives has long experience 
working with sensitive records and is well qualified to manage 
these things in a thoroughly professional and independent 
manner. I dare say there are members of the National Archives 
staff that have higher security clearances than most of the 
people in the White House.
    The casual assumptions that underlie this Executive order 
are profoundly contrary to fundamental archival principles and 
responsibilities, and they could imperil the evidentiary values 
that are at the heart of our work. More important, the accuracy 
of the documentary record is at the core of good government, 
and more generally, at the heart of the human search for truth.
    Although Congress will certainly have a keener sense of 
these things than I do, I have a hard time understanding how an 
Executive order can be allowed to override statutory law. This 
is especially so in a law that is fully consistent with the 
requirements of both archival principle and good government, 
and when the order erects unnecessary obstacles to government 
accountability for the people.
    We therefore respectfully urge Congress to take appropriate 
action and overturn this dangerous and misguided Executive 
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Hensen follows:]
    Mr. Clay. Thank you very much for your testimony.
    I also thank the entire panel for their testimony today.
    Let me throw a question out to the entire panel. I would 
like for each of you, if you care, to take a stab at it. It 
seems to me that granting a former President a right to appoint 
a representative to assert privileges over Presidential records 
following his death will potentially restrict access to 
numerous records for an indeterminate period of time. Would 
anyone care to speak about the constitutional issues and 
practical problems that this would create?
    Also, let me get your reaction on the day in November 2001 
when the Executive order was issued. What was your initial 
reaction to it?
    We will start here, Mr. Blanton, and we will just go down 
the table.
    Mr. Blanton. Thank you, Mr. Chairman. I will defer to my 
expert legal adviser here. We are co-plaintiff in this lawsuit 
on the constitutional and legal issues, because my expertise is 
the practical ones, how does it actually work. I don't think 
any of us has to be an expert in organizational process to 
understand it.
    If Julie Nixon Eisenhower's kids get to exercise this 
privilege, we are in for a delay. It just doesn't make any 
sense, just from a practical point of view. At some point, the 
Supreme Court held that privilege erodes over time, and surely 
at the time it gets to the kids, it should be gone. That is 
just practical.
    In November 2001, what I love the most, Mr. Chairman, and I 
put those quotes in my testimony, were the predictions made 
about the Executive order by the President. He said this is a 
fair and reasonable set of procedures; by Ari Fleischer, in the 
White House press room, who said that, oh, this is more 
information that is going to come out and it is going to come 
out in a more orderly process. And then before this committee 
of the House, by the Acting Assistant Attorney General who said 
that, oh, this is just a clear, sensible and workable procedure 
for administering the act.
    Well, we had a fair, reasonable, workable, sensible, clear, 
orderly process producing millions of records before this 
Executive order, and we have not had it since. We know enough 
to know every one of those quotes was not true.
    Thank you.
    Mr. Clay. Thank you. Thank you for that response.
    Dr. Dallek, yes?
    Mr. Dallek. If I may interject, I echo Tom Blanton's 
comments. As someone who has worked on a number of Presidential 
administrations, what I know is that every one of them, 
regardless of their party affiliation, Democrat or Republican, 
they want the public to think they walk on water; that they are 
without error, without sin. What I find in my research is that 
there is always a public face and a private face. And that if 
the heirs to that administration, if the children, if the 
representatives of a Presidential administration, of a 
President, have control of materials, they are going to 
sanitize, weed out material that will make the President look 
less than spectacular or successful. John Quincy Adams said 
that the historian's principal religion is getting at the 
truth, speaking the truth.
    I don't want to be too self-righteous and too cynical here, 
but my experience in 43 years of writing history about 
Presidents and politics, and it is quite human, people want to 
be seen in history as successful, as wise, as sensible, and of 
course, they are always less than that, but the public is well 
served by knowing what they were doing in the fullest possible 
    Mr. Clay. Thank you for that response.
    Dr. Nelson, go ahead.
    Ms. Nelson. Let me add to that, if I may. I think that we 
have a lot of evidence in the papers of the Presidents, the 
Presidential papers that were donated to the government, 
because almost all of those have provisions for the heirs to 
examine. To finally talk about access in the long run when the 
President is dead, we have consistently found that the 
Presidential families, they vary, some more than others, but 
evidence is held back.
    Now, there is a difference between the fact that Margaret 
Truman did not release the letters her father sent to her 
mother until her mother died, that is perhaps a matter of 
privacy, but it goes so much farther than that in that we have 
situations where families won't even give documents to the 
government, but will let them sit in Presidential libraries, 
but they are not accessioned to the government. We just have 
constant interference. We have that record. We know that 
actually exists.
    Mr. Clay. Thank you for that.
    Mr. Hensen or Mr. Nelson. He will pass. OK.
    Mr. Nelson. I would let Mr. Hensen go first, but I do have 
some answers myself.
    Mr. Clay. Go ahead, Mr. Hensen.
    Mr. Hensen. Well, I just wanted to respond to your last 
question as to how we felt on that fateful day. I think the 
others have certainly spoken to the practical aspects of this. 
My testimony reflects, I think, the sort of philosophical 
underpinnings with which we approach our work. For us, the 
Executive order seemed like such a breathtaking departure.
    There are two sort of famous quotations that relate to our 
work. The first is, you shall know the truth and the truth 
shall set you free. And then the carving in front of the 
National Archives, the past is prologue. We do not learn 
anything from the past unless that past is reflected 
accurately. Everything about this Executive order threw up red 
flags in terms of maintaining the authenticity of the record. 
We have been very much involved in it ever since.
    Mr. Clay. Thank you.
    Mr. Nelson, would you speak to the constitutional issue?
    Mr. Nelson. Yes, being a lawyer and having my perceptions 
and reactions skewed by that fact, I will address your 
questions as a lawyer. The Presidential privilege, the Supreme 
Court has emphasized, is something that belongs to the 
executive branch, to the government. It does not belong to any 
individual person. Its primary custodian is the President, the 
incumbent President, but the Supreme Court did recognize that a 
former President, due to his unique relationship to the office 
that he held, can at least make a claim of Executive privilege, 
not one that is being on the sitting President or the sitting 
members of the executive branch, but he at least has authority 
to claim it.
    But what authority does a private person designated as a 
representative by other private persons, namely the family of a 
deceased or incapacitated former President, have to assert this 
privilege that belongs to the executive branch of the U.S. 
Government? None at all. What expertise or knowledge does that 
individual have that would even serve as a basis for a rational 
exercise of the government's privilege? None at all.
    We saw this to a limited extent when President Reagan's 
representative asserted privilege as to 11 documents. We don't 
really know anything about who this representative is or what 
her qualifications were, but the documents chosen appeared to 
be purely arbitrary. They were similar in character to the 
subjects of documents that had been produced. In one case, the 
document had actually been previously cleared for production by 
President Reagan's representatives several months earlier, and 
they simply just happened to claim privilege as to a second 
copy of it; and another that's subject was Nancy Reagan's use 
of military aircraft.
    In addition to the legal and constitutional problems, and 
of course the problems that have been alluded to before of 
whitewashing reputations, there is just a question of when you 
assign this task to a representative who has no qualifications 
for it, what is the outcome going to be? At best, 
arbitrariness; at worst, the possibility for coverup and 
actions taken to protect the reputations of those that the 
representative has been appointed to represent.
    Now, I will also respond as a lawyer to your second 
question, which was how did I feel when I read the order. I 
remember that very distinctly because the very first case that 
I worked on in private practice was a case called Public 
Citizen v. Burke where the Reagan Justice Department had issued 
an order that purported to direct the Archivist to defer to any 
claim of privilege made by former President Nixon. As one of 
former President Nixon's lawyers at that time, we intervened to 
help defend that Reagan Justice Department directive.
    We lost that case. It was not only the first case I ever 
worked on, but one of the rare and first cases that I lost. And 
the D.C. Circuit said this is just ridiculous. You can't give a 
former officeholder the power to direct the actions of 
incumbent members of the executive branch. That is an 
abdication of the Executive's authority to take care of the 
laws we faithfully exercise. So when I read that order, it was 
deja vu all over again, and my reaction was, wait a second, I 
lost this case already. How could they try this again? I am 
still wondering that. [Laughter.]
    Mr. Clay. We will do your testimony you are preparing for 
another trial. [Laughter.]
    Mr. Dallek. Mr. Chairman, just a final word that when that 
Executive order was issued it put me in mind that what the 
German philosopher Hegel said, that the only thing we ever 
learn from history is that we never learn.
    Mr. Clay. That's right. Dr. Dallek, on that note, let me 
ask you, can you share with us, and I heard some of it in your 
testimony already, give us some examples of Presidential 
records of research that would not have been possible if access 
to privileged information had not been granted.
    Mr. Dallek. Sure. Well, we were talking earlier about Henry 
Kissinger's telephone transcripts. Mr. Chairman, I can assure 
you that they are highly revealing of a variety of things, not 
only about the interactions of the personalities of the 
President and his, first, National Security Adviser and then 
Secretary of State, but also on larger policy questions about 
Vietnam, about the Middle East. It is, I find, so timely to 
read these materials now because they are so revealing as to 
dilemmas that we continue to confront and need to address.
    Now, Dr. Kissinger wanted these materials closed until 5 
years after his death, and then they were supposed to be a 
committee that would vet the requests of people to gain access 
to those materials. But as Tom Blanton pointed out to me, he 
was part of an effort to get these materials open. I must tell 
you, I am very excited about bringing out this book in less 
than 2 months because I think it is so revelatory as to the 
realities that went on behind the scenes.
    Again, the public face and the private face, I think it 
will be highly instructive to the public to see the kinds of 
things, and I won't enter into the expletives deleted, but they 
are there in the book. It is amazing the way these men would 
speak, the things they would say about all sorts of people, 
about foreign countries, about what they knew as to the limits 
of what they were doing in relation, for example, to Vietnam. I 
think there are such lessons to be seen from that in relation 
to the current war in Iraq.
    Mr. Clay. Thank you for that response.
    Dr. Nelson, in your work with Presidential records in the 
past, which categories of records are the most difficult to 
receive? And have past Presidents, meaning those not subject to 
PRA, been willing to waive privileges or ownership of records 
containing confidential advice or appointments information?
    Ms. Nelson. It is very spotty. The Johnson Library, the 
Johnson records, for example, have always been more available 
to historians than the Kennedy records. A large part depends on 
the families, once the President dies. But I have to say that I 
agree with Dr. Dallek in that when you do get the confidential 
records, these are really records of the staff advisers.
    There are really two kinds of Presidential records. Some 
the President never sees, and then there are those the ones we 
want, that the President does see, actually works with, and 
where his advisers are very important to him. In most of my 
research, unfortunately, has been on foreign policy, so I get 
caught up in the security classification business, too. But 
when you reach those records and you see how the White House 
works from those records, I agree, you are seeing a totally 
different face.
    I will give you an example, back to the Eisenhower Library. 
When Eisenhower was President, he told the world that he never 
read newspapers. He was often thought of as a man who was not 
very perceptive, you know, and kind of muddled his press 
releases. He would stand in front of the press and muddle up. 
When you go back and look at the documents, you will hear him 
say to his press officer, ``Well, I don't want to directly 
answer that, so I will muddle it.'' So he knew exactly what he 
was doing. And furthermore, he and his secretary would discuss 
that he read five papers every morning. But if he told the 
would he hadn't read the papers, the reporters wouldn't ask him 
about it.
    So what you got was a totally different view of Eisenhower 
as President, but he was much more in control than the public 
knew at the time. That is the kind of insight you get to people 
when you get into those kinds, and where you learn those in the 
Eisenhower Library is from his so-called diary which was kept 
by his secretary. Actually he would in the evening dictate, and 
those were his personal thoughts and his ideas, and a lot of 
the memos that went back and forth.
    So this definitely would be a category of confidential 
records that, under this Executive order, would be regarded as 
something to watch out for.
    Mr. Clay. That is quite insightful. Thank you.
    And Mr. Hensen, are you aware of any circumstances where 
the reclassification of government records has caused certain 
Presidential records to be reclassified?
    Mr. Hensen. Well, I mean, there has certainly been a lot of 
things in the press lately about that. I confess my own 
experience has been working entirely in the private manuscript 
collections, and I have no personal experience in working with 
government records myself, so everything I know is simply sort 
of from a higher professional level and from working with my 
colleagues. But the recent attempt to reclassify documents that 
had been previously declassified again just struck the archival 
community as a breathtaking assault on the fundamental 
principles under which we try to operate.
    Mr. Clay. Thank you for that.
    Mr. Blanton, has the administration set aside extra 
resources for lawyers or staff to undertake these new document 
review requirements?
    Mr. Blanton. It is a puzzle to me, Mr. Chairman. I have 
this vision of the White House counsel's office and these desks 
down the hallway, in the cramped east wing, just lined with 
boxes from the Reagan Library, just waiting for the White House 
counsel to go leap through them. Surely, there are better 
things for those folks to be doing in our national interest. It 
is a terrible nightmare, actually.
    But there are some examples, on your previous question, 
from the Presidential libraries, where the reclassification can 
put stuff back in the toothpaste tube. I would be glad to have 
a couple of our expert folks at the National Security Archive, 
who will be glad to provide some examples to you of that kind 
of experience.
    Mr. Clay. We would love to see that.
    Mr. Blanton. It is the message and the psychology that the 
Executive order gives to the Presidential libraries that opens 
the door to that kind of absurd behavior. You get the 
psychology going in the wrong direction. When you put that on 
top of the normal bureaucratic imperative to cover your rear, 
you have problems right here in River City.
    Mr. Clay. Mr. Blanton, in your testimony you cite the sharp 
increase in the time it takes the Reagan Library to respond to 
FOIA and mandatory declassification requests. You state that 
since 2001, it has gone from an average of 18 months to 6\1/2\ 
years. Is the increase primarily due to the Bush Executive 
order's requirement of unlimited Presidential review, or are 
other factors contributing to this delay?
    Mr. Blanton. I would say not primarily, Mr. Chairman, but 
in real significant part, which is to say the National 
Archives, and you already heard from Archivist Weinstein today, 
there is an average of direct delay caused by the Executive 
order of 210 days. Now, they used to say it was 90 days, and it 
is just going up. That is a bad track to be on. Delay is just 
    The message that Executive order sends adds to the further 
delay, because it gives that delay in the agencies. It opens 
room for them to delay. Then you add that all on top of the 
resource problems and the incoming wave of electronic records. 
What you have created is a crisis in the system.
    But I want to go back to your previous question, because 
you asked about on that day, how did people feel. I was struck 
when I prepared for this hearing. I went back to a hearing that 
this committee held on November 6, 2001. One of the statements 
in that hearing was by one of your former colleagues, a 
Republican Congressman from Sacramento. He said the problem 
with this Executive order, this is Doug Ose, and I don't know 
if that is the right pronunciation of his name, but he said the 
problem with this Executive order is that I wouldn't have been 
able to investigate the gifts given to President Clinton at the 
end of his term. The problem with this Executive order is that 
it would take one of the words out of the title of this 
committee, and that word is ``oversight.''
    Mr. Clay. Thank you for that response.
    Mr. Nelson, can you explain how constitutional privilege 
works with respect to Presidential records, and how the courts 
have treated the issue up to this point? You also mentioned the 
Reagan Executive order versus the Bush Executive order. The 
Reagan Executive order allowed for appeals. It is my 
understanding the Bush order does not. Can you try to tackle 
those two issues?
    Mr. Nelson. Yes. To begin with, as to the Presidential 
privilege issues, it is really surprising in some sense how 
little law there is on this point, but the recognition of the 
Presidential Executive privilege was really first fully 
articulated in the Nixon tapes case in 1974, and then in a 
followup case called Nixon v. Administrator of General 
Services, which concerned the constitutionality of the Nixon 
Materials Act. The Supreme Court held that a former President 
can assert a constitutional privilege over that small subset of 
records that reflect his direct communications with his 
advisers, but that privilege is not an absolute privilege. It 
is a qualified privilege. It can be overcome by various public 
needs. The court also said that it erodes over time, and that 
after the passage of some years, most Presidents had recognized 
that even those materials that reflected their confidential 
communications with advisers would ultimately be made public. 
So it is something that gradually loses its force as the years 
pass after an administration leaves office.
    Now, in litigation over Presidential privilege issues there 
have been a number of cases, the Nixon tapes cases being one, 
but also some cases that came out of various investigations of 
the Clinton administration, that concerned access to materials 
of a sitting President. In those cases, the privilege is 
stronger than that of a former President, as a requirement in 
those cases of a specifically demonstrated need for access to 
overcome the privilege, such as the need for grand jury 
    It is my view, though, that what the Supreme Court's 
opinions on the subject reflect is that with the passage of 
time after the departure of an administration, a more 
generalized public interest in access to materials of 
historical significant should be sufficient to overcome a claim 
of privilege.
    So that if a former President claims privilege, it is a 
fundamental inversion of that principle of the privilege 
eroding over time to say, as this Executive order does, that 
the Archivist must automatically defer to that claim of 
privilege. Instead, what I think should happen is that there 
should be a determination made of whether there is something 
extraordinarily sensitive or significant about this particular 
record that would overturn the usual presumption that should 
apply under the Presidential Records Act that once a 12 year 
period specified by Congress has elapsed, the material really 
should no longer be subject to protection.
    Now, as to the, and I am sorry, I got so caught up in my 
answer to the first part of the question----
    Mr. Clay. I was just curious as to how the Reagan Executive 
order compared with the Bush one, and was the Reagan Executive 
order the start of the erosion to the access, or did it go that 
    Mr. Nelson. I think that the Reagan Executive order is much 
more balanced than the Bush Executive order because it does not 
grant the former President the ability, merely by making an 
assertion of privilege, to direct the Archivist to withhold 
materials. What it provides instead is that the former 
President has a period of time for review, a limited period. 
The former President could make a claim, and then the Archivist 
in effect, with guidance from the incumbent President, which I 
think in the area of Presidential privilege would have to be 
expected, basically would sit in judgment on that claim. If 
they determined that the claim was not valid, was not an 
appropriate claim of privilege, the material would be slated 
for release, and it would be up to the former President if he 
wanted to say, ``No, I have a constitutional claim that this 
material must not be released.'' He has to go to court and back 
that up.
    I think that is much more consistent with the design of the 
PRA. The draft legislation that is introduced today I think 
would return to that model, which seems to me to be a much more 
appropriate way of balancing the theoretical existence of a 
constitutional claim of privilege by a former President, with 
the PRA's mandate of access to materials as to which there is 
no valid claim of constitutional privilege.
    Mr. Clay. Thank you for that response.
    Before we adjourn, I will allow any witness on this panel 
to make concluding remarks in regard to the PRA.
    Dr. Dallek.
    Mr. Dallek. Can I be excused? I have an appointment I must 
    Mr. Clay. You certainly may. We were just about to adjourn. 
You may be excused. Thank you for your attendance today.
    Mr. Dallek. Thank you.
    Mr. Clay. Mr. Hensen.
    Mr. Hensen. Mr. Chairman, I would just like to, since it 
has not come up, to give my recollection, in the course of 
these hearings. I just wanted to point out that the whole issue 
of the Executive order is particularly interesting right now in 
connection with the debates going on at Southern Methodist 
University and the proposed Bush Library there. As a member of 
the staff of Duke University, where there was debate took place 
30 or 40 years with respect to President Nixon's papers, it is 
particularly interesting.
    But I think with respect to the Executive order, we have to 
ask ourselves whether a Presidential library existing under 
this order at SMU or wherever it ends up, is the issue of what 
a library should be. That although there might be papers in 
such a library, if they are embargoed indefinitely by Mrs. Bush 
or Jenna or any other members of the family, what are those 
papers but mockeries of accountability? I just wanted to make 
that point.
    Mr. Clay. Thank you very much for that.
    Dr. Hensen, any concluding remarks?
    Ms. Nelson. And actually it often is not even family. There 
are one or two libraries, they have executives who are friends, 
who worked with the Presidents. You never know who is going to 
be there to make that judgment over time.
    Mr. Clay. For lack of knowledge, has George Bush, Sr., 
established a Presidential library yet?
    Ms. Nelson. Oh, yes. It is at Texas A&M. We will now have 
three Presidential libraries in Texas, when George W's library 
is there.
    Mr. Hensen. And interestingly, President Bush tried to 
place the records of himself as Governor of Texas in the 
Presidential library, totally contrary to Texas State records 
    Mr. Clay. Thank you for that.
    Mr. Nelson, any concluding remarks?
    Mr. Nelson. I think I have said plenty, but I would like to 
thank you, Mr. Chairman and the committee, for hearing us out 
today. I think this is a very important issue. It is one that 
all of us at this table have been working on for many years, 
and we are very encouraged to see this subcommittee taking it 
    Mr. Clay. Thank you for that.
    Mr. Blanton.
    Mr. Blanton. Mr. Chairman, I would just echo those remarks. 
This law, the Presidential Records Act, is a real flagship of 
American democracy. It fulfills one of the aspirations we, as 
Americans, have tried to rise up to over 200 years. To see it 
in the broken down state that it is in is a sad commentary. To 
turn President Kennedy's admonition on its head, he said 
something like, after the Bay of Pigs disaster, he said, ``You 
know, victory has 100 parents, but defeat is an orphan.''
    Well, there are a lot of people that sort of would want to 
say we are at fault for this crisis in this defeat of the 
Presidential Records Act, but I think this subcommittee is 
taking a big step forward, a small step for the subcommittee, 
giantly for the Presidential Records Act.
    Thank you.
    Mr. Clay. Thank you for that.
    I thank the entire panel for their testimony today. It is 
apparent that it is a testament from the witnesses on this 
panel and the previous panel that the Presidential Records Act 
is needed more than ever at this time. You will see action on 
that piece of legislation.
    Thank you all, and this committee is adjourned.
    [Whereupon, at 5:05 p.m. the subcommittee was adjourned.]
    [Additional information submitted for the hearing record