Transparency, Executive Privilege, and History

Incoming presidents often announce bold changes in policy and constitutional direction by the issuance of executive orders--those rules and regulations that provide for the execution of laws and give direction to federal agencies. In his first week in office, Obama has issued executive orders that have halted the military prosecutions of Guantanamo prisoners, closed that infamous base, repudiated torture and reasserted the primacy of the Geneva Conventions, and lifted the ban on directing money to international agencies that fund abortions. This should surprise no one.

One such constitutional order has not yet received a lot of attention, but is worth noting. Obama has made presidential records easier to obtain. This move towards transparency has long been a concern for historians, charged as we are professionally with the accurate reading of our documentary past.

Obama's order reverses a little-known Bush policy. Back in November of 2001, George W. Bush signed executive order 13233. The law added additional regulations to the National Archives's ability to release presidential records. The rule had hitherto been that presidential records would be sealed for twelve years after the close of an administration. After that time, any request for presidential records not yet catalogued and available to the general public would first be cleared through the sitting president, who might claim executive privilege. Given that ongoing diplomatic efforts might be harmed by the release of certain records, this seems a perfectly reasonable regulation. Bush's order 13233 added this requirement: all such requests now had to be cleared by the sitting president AND the former president. (Former president meaning the president whose records were being requested).

Bush's executive order grounded itself in the idea that executive privilege outlasted the office--that is, the former president still retained privilege over documents produced by his office. This is a dubious principle, although one tentatively supported by the Supreme Court in Nixon v. Administrator of Public Services (1977). I should note here that the decision in Nixon was divided--the justices wrote seriatim--and Bush's executive order cited the solicitor general's brief rather than the opinion of the justice.

Bush issued the executive order just as former president Ronald Reagan's records were to become available, the requisite 12 years after the end of his administration having lapsed. Many have speculated that he was protecting (among other people) his father, whose role in the Iran-Contra affair has never been fully disclosed. The records Reagan sealed when he left office should have been opened eight years ago. But the lawsuit filed by the American Historical Association moved slowly, and never did get the results they wanted.

Historians have a reason to celebrate now. And, of course, a reason to get to work.