HISTORIANS ASK JUDGE TO RETHINK DISMISSAL,
PRESIDENTIAL RECORDS ACT CASE STILL NOT RESOLVED;
NEW BUSH ORDER ADDS 140 DAYS TO PROCESSING TIME;
JUDGE RECOGNIZED INJURY BUT THOUGHT IT MOOT.
Washington, D.C., April 30 - A federal judge's dismissal
last month of a landmark open government case was based on two factual
misconceptions and deserves re-opening, according to court filings
last week. The lawsuit challenges President Bush's Executive Order
13,233 that gave former Presidents and their heirs (as well as former
Vice-Presidents for the first time) indefinite authority to hold up
release of White House records.
The National Security Archive and other plaintiffs in American Historical
Association, et al. v. National Archives and Records Administration
asked Judge Colleen Kollar-Kotelly to reconsider
her March 29, 2004, opinion
dismissing the case on standing, "justiciability" and ripeness
grounds. The court's opinion mistakenly assumed that no Reagan-era
records were continuing to be processed under the order, and that
plaintiffs were not challenging the withholding of 74 specific pages
Archive director Thomas Blanton filed a declaration
with the court describing dozens of pending Archive requests at the
Reagan and Bush presidential libraries, with a specific example of
current withholding that claims the "presidential advice"
privilege created by the Bush Executive Order. Public Citizen Director
Scott Nelson, the lead attorney for the plaintiffs, filed the challenge
to the 74-page withholding and the accompanying legal
motion for reconsideration.
In the government's
response filed last Friday, the Department of Justice
admitted that the court's opinion needed to be modified, but urged
Judge Kollar-Kotelly simply to adopt the government's previous arguments
and maintain the dismissal. An associated declaration
from the Assistant Archivist for Presidential Libraries admits that
the new Bush executive order adds an average of 140 days to processing
time for Freedom of Information Act requests at the libraries, but
claimed that such a delay was not significant because requesters for
classified documents must wait four years (!) before an archivist
even takes up the request.
The Presidential Records Act of 1978 (PRA) emerged from the scandals
of the Nixon presidency to require former presidents to release their
records no later than 12 years after they leave office. Under the
PRA, as amended, the U.S. government asserts complete "ownership,
possession, and control" of all Presidential and Vice-Presidential
records. Upon conclusion of the President's term in office, the National
Archivist is required to assume custody of the records, and to make
them available to the public when permissible under the PRA. Access
to the records can be denied after the end of the 12-year embargo
only if a former or incumbent president claims an exemption based
on a "constitutionally based" executive privilege or continuing
national security concern.
On February 8, 2001, shortly after President Bush came into office,
he was notified of a scheduled release of Reagan presidential records
(68,000 pages of records). His legal counsel requested two successive
90-day extensions of time to review the records prior to their release
followed by a third request for an indefinite extension of time so
that the White House could evaluate the legal framework and process
that would govern release of the records. This was followed on November
1, 2001 with the issuance of Executive Order (E.O. 13,233) that gives
the White House and former presidents uncontrolled discretion in deciding
whether to deny the release of documents requested by journalists
On November 28, 2001, the Archive and other plaintiffs filed
suit to stop implementation of E.O. 13,233. The parties'
dispositive motions were fully briefed by March 2002. During the pendency
of the law suit, most pages of the initial 68,000 were reviewed by
the administration and released, with an additional 74 pages being
barred from release by an assertion of constitutional privilege over
those pages by the Bush Administration. But, in the intervening two
years, one of the plaintiffs in the lawsuit, Vanderbilt University
professor Hugh Davis Graham, died while waiting for access to the
Reagan era records on domestic policy.
On March 29, 2004, the court dismissed
the case on jurisdictional grounds. The District Court
mistakenly believed that the original 68,000 pages of records scheduled
for release constituted the complete collection of Reagan presidential
records subject to the Executive Order and that the plaintiffs do
not dispute the assertion of constitutional privilege over the 74
pages that continue to be withheld.
The judge recognized that "plaintiffs' past delays in access
to presidential records" constitute an "injury in fact"
and that plaintiffs "face substantially similar delays in the
future," but nevertheless found that there is no remedy for the
past injury and that the future injury is not yet ripe, i.e. is hypothetical
because it has not occurred. The court recognized that the complaint
in the case, "framed the case to generally address
any records of the Reagan presidency that were being withheld pending
a privilege review." The court mistakenly believed, however,
that all Reagan presidential records have now been processed and "there
are no presidential records currently subject to the Bush order, other
than the 74 pages over which [constitutional] privilege has been asserted."
Thomas Blanton, the Archive's Executive Director, filed a declaration
in the lawsuit describing numerous outstanding requests for records
at the Reagan Presidential Library and the Bush Presidential Library,
which holds Bush vice-presidential and presidential records. Of these,
more than a thousand pages have specifically been withheld from the
Archive under the Bush Executive Order.
In addition, the plaintiffs' filing included the administrative denial
of an appeal seeking the release of the 74 pages over
which a constitutional privilege had been asserted - which was issued
3 days after the court's dismissal order. As noted in the motion to
reconsider, the plaintiffs' judicial challenge to the withholding
could not be brought until the administrative appeal had been decided.
Among the records withheld: a six-page 8 December 1986 memo to the
President and Director of Public Affairs entitled, "Talking Points
on Iran/Contra Affairs"; a series of memos dated 22 November
and 1 December 1988 for the President entitled, "Pardon for Oliver
North, John Poindexter, and Joseph Fernandez"; and a two-page
memo for the President from the Attorney General, "Appeal of
the Decision Denying the Enforcement of the Anti-Terrorism Act of
1987." Other withheld memos relate to the release of Justice
Rehnquist's papers and materials relating to "Use of Military
Aircraft by Mrs. Reagan."
Represented by Public Citizen Litigation Group (lead attorney Scott
Nelson), the plaintiffs include the Archive, the American Historical
Association, the Organization of American Historians, University of
Wisconsin Professor Stanley Kutler, Public Citizen and the Reporters'
Committee for Freedom of the Press.
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