Academic journal article Presidential Studies Quarterly

Executive Order 13233 Further Implementation of the Presidential Records Act. (Features)

Academic journal article Presidential Studies Quarterly

Executive Order 13233 Further Implementation of the Presidential Records Act. (Features)

Article excerpt

On November 1, 2001, President Bush signed Executive Order 13233, allowing for the release of a select category of records only after the incumbent and former presidents agree on their release. In addition, the order rescinded Executive Order 12667 signed by President Reagan in 1989, which established procedures for the incumbent and former president to review certain presidential records twelve years after the chief executive left office and to block release of documents based on a claim of executive privilege. The Bush executive order was triggered by a group of presidential documents coming to the White House from the Reagan Library under the terms of the Presidential Records Act of 1978 and the regulations provided for in Executive Order 12667. The first group of records released under the order became available to the public a month and a half after the order was issued.

The reaction to the order from scholars and organizations with members using records was immediate and critical. Although the president and his staff view the order in terms of the procedures it establishes and, thus, the efficiency it brings to the records review process, others do not. Critics consider the order to be an impediment to the release of records rather than facilitating their release. The president and his staff describe Executive Order 13233 as a procedural one carrying out the requirements of the Presidential Records Act of 1978 relating to a group of confidential advice records scheduled to become available beginning in January 2001. President Bush said,

   We responded to a new law written by Congress that lays out a procedure
   that I think is fair for past Presidents. And it is a process that I think
   will enable historians to do their job, and at the same time protect state
   secrets. That's why I did what I did. (1)

A common criticism expressed on editorial pages, stated by scholars, and related by organizations is the restrictive impact of the order on the traditional access of the public to information generated by its government. In addition to organizations and users of records, Bruce Lindsey, former president Clinton's representative, expressed concern over the impact of the Bush executive order. In a letter to the White House cited in an article in the Washington Post, Lindsey, who represents the former president in records matters, expressed the need to make public the decision-making process. "A government's legitimacy is based on the trust of its people, and when decisions are made on behalf of the American people, citizens eventually have to be able to see the process of how those decisions came to be," he said. (2)

The members of Congress who have publicly commented on the order have been critical of it, including members in the president's party. In hearings conducted by Representative Stephen Horn, chairman of the Subcommittee on Government Efficiency of the House Government Reform Committee, committee member Doug Ose (R-CA) commented,

   The bottom line is that the new order appears to violate not only the
   spirit but also the letter of the Presidential Records Act. In 1978,
   Congress very clearly expressed its intent to make presidential records
   available for congressional investigations and then for the public after a
   12-year period. This new order undercuts the public's right to be fully
   informed about how this government, the people's government, operated in
   the past. (3)

Representative Horn called on the administration to revisit the order. "We must insure that the spirit of this law, the Presidential Records Act, needs to be upheld. And in light of the issues raised today and research conducted by the subcommittee staff, the administration should revisit the issue." (4) Democratic subcommittee members Reps. Henry Waxman (D-CA) and Janice Schakowsky (D-IL) released a joint statement calling on the president to rescind the order because it "violates the intent of Congress and keeps the public in the dark. …

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