Source Material: Sequestered from the Court of History: The Kissinger Transcripts

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On February 11, 2002, after nearly 30 years, Henry Kissinger agreed to release 20,000 pages of transcripts of his telephone diplomacy with foreign leaders made between 1969 and September 1973 when he was special assistant to the president for national security affairs in the Nixon administration. This disclosure followed his agreement just months earlier in August 2001 to turn over to the State Department 10,000 pages of his telephone transcripts made from 1973 to 1977 during his time as secretary of state under the presidencies of Nixon and Ford. Kissinger had his secretaries tape the calls or listen and take shorthand on what was said, then type summaries, sometimes verbatim transcripts, of the conversations. (1) Upon leaving office with the 1976 presidential victory of Jimmy Carter, Kissinger donated the documents to the Library of Congress as his private property under restrictive terms that effectively sealed them until after his death. He argued from the beginning that the transcripts and summaries were his personal property and not government records or Nixon historical materials as others claimed. Nonetheless, his shrewd evasion of federal records laws with the aim of exercising unfettered control over the materials argued otherwise. Indeed, Kissinger's determination to conceal the documents and monopolize the history of his deeds after leaving office matched the urgency and secrecy with which he directed the affairs of state during the Nixon and Ford administrations. Against those who claimed the materials were public documents subject to disclosure under the Freedom of Information Act (FOIA), Kissinger fought a dogged and ultimately successful legal campaign all the way to the U.S. Supreme Court to ensure his unbridled discretion over access to the transcripts and summaries.

Nonetheless, his victory before the Supreme Court provided little protection from claims that the transcripts and summaries from January 1969 until August 1974 were Nixon presidential records under the 1974 Presidential Records and Materials Preservation Act, which Congress passed to seize the former president's White House tapes and records for the continuing Watergate trials and investigations. Because Nixon's presidential materials contained Kissinger's national security and state department files and because these transcripts and summaries appeared to come under the purview of the Act, Nixon's subsequent constitutional challenges to the statute significantly helped Kissinger's own campaign to keep the full record of his activities under wraps. No doubt, Kissinger had concerns about potentially embarrassing revelations concerning his most controversial dealings with foreign governments. At the time, Kissinger was making extensive use of the transcripts and summaries to write his massive two-volume chronicle of his diplomacy during the Nixon years--a work evidently written with great care to his place in history and to perpetuating his image as the consummate strategic thinker who executed sweeping and highly successful radical shifts in American foreign policy: the opening of China, detente with the Soviet Union, extrication from the war in Southeast Asia, the establishment of a new foundation for Middle East dialogue, and other dramatic breakthroughs that set the global stage for the monumental changes to come in succeeding decades. In assiduously developing this self-portrait through his memoirs and other writings, speeches, and public persona, (2) it seemed imperative for Kissinger to control access to the very same documents that perhaps could support an alternative assessment of his diplomatic accomplishments. His efforts to close the most detailed record of his activities were therefore carefully calculated to give the facade of legitimacy, while knowingly sidestepping federal statutes and regulations. Years later in January 1999, not long before finally agreeing to release the transcripts, he stated in an interview with a CNN international reporter that "I am not trying to hide government documents. That's the government's job, whether to release or not to release." (3) But this statement was an equivocation at best. Indeed, Kissinger not only sought to keep the documents away from public scrutiny, but did so largely by personally reclassifying and donating them as his private property. Nothing less than his reputation was at stake.

Kissinger's Penchant for Secrecy after Leaving Office

During his years at the White House and State Department, Kissinger vigorously safeguarded executive secrecy and worked to centralize authority over foreign policy in his own hands. He exhibited an abiding determination to control classified information whose creation he supervised, "whether back-channel messages to the president or memoranda of conversations with presidents and foreign leaders." (4) But there was purpose to this strategy. His management of classified information and secret communications with foreign governments was calculated to wield maximum power, to gain advantage in diplomacy, to veil his internal bureaucratic maneuvers, and to assure his control over policy against rivals. He furiously endeavored to stop unauthorized leaks to the press and to identify and punish those who betrayed his code of secrecy by authorizing wiretaps of journalists and subordinate officials. In trying to stem leaks and further strengthen control over White House policy, Kissinger also had his staff routinely prepare versions of sanitized memoranda of presidential discussions for distribution to executive branch agencies. (5)

While in the Nixon administration, Kissinger largely predicated his pursuit of foreign policy objectives on centralizing virtually all information and authority under his purview, ignoring qualified experts and bureaucrats in the State Department, and excluding other agencies and offices constitutionally mandated under federal law to assist in the formulation of American foreign policy. (6) Before becoming secretary of state, his mistrust of the State Department's bureaucracy extended to excluding its linguists from attending and providing translations of high-level meetings with Chinese and Soviet officials. In their meetings with Mao Zedong or Leonid Brezhnev during the early 1970s, for example, Nixon and Kissinger relied on Chinese and Soviet interpreters to translate and compile transcripts of their discussions. As a result, there could be no certainty that the conversations had been translated accurately, that the transcripts had not been altered to the advantage of their interlocutors, or that the nuances of the discussions had been accurately captured in the record. (7) Kissinger apparently distrusted the State Department's bureaucracy far more than he did his diplomatic adversaries, and was unwilling to take the "risk of a transcript falling into the hands of bureaucratic rivals." (8) But Kissinger was not alone in his contempt for the State Department's bureaucracy. Nixon shared Kissinger's penchant for secrecy, and together they crafted a foreign policy involving "secret maneuvers, dramatic surprises, and a desire for the White House" to get credit for diplomatic breakthroughs rather than the State Department. Kissinger, moreover, created a complex system of back-channel operations and communications with foreign governments with the aim of circumventing the State Department's bureaucracy as well as those of other agencies. (9) The Nixon-Kissinger passion for secrecy--so at odds with the traditional rules of American diplomacy--appeared to stem from a disdain for open discussion and debate, a conspiratorial mindset, and an acute distrust of those around them.

For the most part, Kissinger proved remarkably effective at concealing his executive activities and protecting sensitive records from disclosure. There were notable exceptions, especially the notorious revelations concerning his role in the wiretaps of his National Security Council aides. (10) Kissinger's penchant for secrecy, however, did not end with President Ford's 1976 defeat. He remained determined to exercise unfettered control over access to what he deemed to be his personal papers after he left office. Thus, his resolve to shield his materials from public view and protect his reputation matched the determination with which he controlled information while in office. He evidently considered his alleged personal papers in the same light as highly classified information and acted to assure that the documents would remain sealed and under his explicit control until after his death. As a result, on October 29, 1976, Kissinger moved to circumvent federal records statutes by first transferring them to the private New York estate of Nelson Rockefeller, and then by donating them to the Library of Congress as personal papers under restrictive provisions that assured his continuing control over the materials. Before removing the unexpurgated transcripts and summaries, Kissinger secured a legal opinion from the State Department's legal advisor, declaring them to be his personal property. This legal opinion proved to be highly convenient. By obtaining the opinion from the agency's in-house legal advisor, who served under Kissinger and was therefore inclined to favor his request, Kissinger shrewdly, albeit unlawfully, evaded federal records statutes and regulations that required him to consult with the State Department's Foreign Affairs Document and Reference Center and the Administrator of General Services prior to removing the materials. (11)

Kissinger's control of the documents closed an enormous cache of government documents concerning American diplomacy during the Nixon and Ford presidencies to researchers. Nonetheless, while Kissinger could shield the documents he removed from the government from public disclosure, he had no control over other records documenting his activities that were held by the National Archives, the Gerald Ford Library, and the State Department. The National Archives, under the General Services Administration (GSA) until it became an independent agency in 1985, had custody over Nixon's presidential materials after they were seized by Congress in 1974 under the Presidential Recordings and Materials Preservation Act. Nixon's Oval Office records also included Kissinger's National Security office files, which duplicated portions of his personal collection and which eventually would be declassified and opened to the public along with Nixon's other presidential records and those of his aides according to the provisions of the Materials Act. The State Department also held many documents detailing Kissinger's conversations and communications, but at the time--with the Cold War still raging--he could rest assured that these materials would remain classified in the agency's files far into the future. No doubt, then, that the Materials Act posed the greater threat to Kissinger's determination to maintain the secrecy of his confidential conversations and communications with President Nixon, top-level aides, and foreign leaders. The Act provided for regulations to be issued governing access to Nixon's presidential materials, but also raised the obvious question of whether Kissinger's personal collection pertaining to his tenure in the Nixon administration fell under the purview of the statute.

Kissinger was acutely aware of the controversy surrounding the Nixon presidential materials. As president, Richard Nixon's penchant for executive secrecy in the Watergate scandals precipitated his fall from grace. While in office, Nixon used the constitutional cloak of the separation of powers and the presidential prerogative of executive privilege to deny Congress and the special Watergate prosecutor selected tapes and records needed for the Watergate investigations and trials. As Kissinger later recalled in his book, Years of Upheaval, when Alexander Butterfield, a former White House staffer, revealed the existence of an Oval Office taping system, Watergate was "transformed into a bitter contest between the President on the one side and the Congressional investigating committees on the other, as Nixon sought to keep exclusive control over the tapes by invoking the separation of powers." (12) Kissinger further recounted that disclosure of the taping system "necessarily placed Nixon in the position of withholding information that on the face of it could settle the various allegations once and for all." (13) Although Nixon furiously fought to protect his reputation and retain his office, the Supreme Court in a unanimous 8-0 ruling in United States v. Nixon finally ordered the president to turn over the requested tapes and documents, one of which turned out to be the "smoking gun" that destroyed his presidency. (14)

The public storm surrounding the disposition of Nixon's White House materials, however, signified only the …