From the Fall 2001 issue of The News Media & The Law, page 34.
By Phillip Taylor
Thousands of Ronald Reagan’s White House records, due for release to the public last January, remained sealed in late October after the Bush administration — for a third time — extended a delay in which to consider their release.
The papers, some 68,000 pages comprising discussions among Reagan and his advisors, were to come out in January. But with the White House requests for delays and, more recently, an impending response to the Sept. 11 terrorist attacks on New York City and Washington, D.C., the records may stay sealed indefinitely.
Harry Hammitt, publisher of Access Reports, a newsletter tracking government-access issues, said federal law requires the release of the records. He hoped the records see light soon.
“It’s something to be concerned about, but, unfortunately, it’s something that is not going to get the attention it deserves or needs at this time because of the crisis,” Hammitt said. “I think the only way to go about it is for somebody to go to court.”
The records fall under the Presidential Records Act of 1978, a post-Watergate measure that became law after former President Richard Nixon attempted to hold onto his papers and tape recordings as personal property. This act made presidential records, starting with Reagan’s, government property.
The law keeps records containing “confidential communications requesting or submitting advice between the president and his advisors, or between such advisors” sealed for 12 years. After 12 years, the documents may no longer be kept secret.
Although not bound to the law, both Presidents Ford and Carter willingly released their presidential papers after 12 years had passed.
The 12-year period for the Reagan papers expired in January. But the law requires the National Archives to notify the current president about the records. In February, the National Archives gave Bush the required 30-day notification.
The White House followed with a request in March for a June 21 deadline but amended that in June with another extension to Aug. 31. The most recent request asked for an indefinite deadline, one that is likely months away given the recent terrorist attacks.
In an Aug. 31 letter to National Archivist John Carlin, the Bush administration didn’t offer a specific deadline for the third extension. White House counsel Alberto Gonzales said the administration would need “several weeks” to review the records and to consult with advisors of former Presidents Reagan, George Bush and Bill Clinton.
As in previous letters, Gonzales wrote that the extension “has been necessary for this Administration to review the many constitutional and legal questions raised by the potential release of sensitive and confidential presidential records and to decide the proper legal framework and process to employ in reviewing such records.”
Susan Cooper, a spokeswoman for the National Archives, said the Bush administration most recently asked for a small sample of the records, which were delivered on Sept. 10, the day before the attacks.
Calls to the White House counsel’s office were not returned.
Some historians and open-government advocates say Bush might have cause for worry because some of his top aides and his father, then vice president, all worked under Reagan. These aides include Secretary of State Colin Powell, Budget Director Mitchell Daniels Jr., Defense Secretary Donald Rumsfeld, White House Chief of Staff Andrew Card and several others.
Historians, in particular, say they are frustrated with the delays.
“I think what Bush is doing is protecting the people who were in the Reagan administration and his father’s administration who are still around,” American University historian Anna Nelson told Newsday. “I think this is part of that everlasting fear that somebody did something in the past that they can’t remember.”
Hugh Graham, an historian at Vanderbilt University, said the extension could continue indefinitely.
“The natural instinct of the presidency,” Graham said, “is to keep these things as closed as they can. My fear is that it may work.”
But Thomas Blanton, director of the National Security Archive at George Washington University, said he’s not convinced that the delay is meant to protect Bush staffers. Blanton said millions of pages of formerly classified documents are open for review at the Ronald Reagan Presidential Library in Simi Valley, Calif., some likely much more sensitive than any of the pages still sealed.
“Why exactly this particular batch was seized upon, I don’t know,” Blanton said.
Blanton figures the White House’s interest has little to do with the content of the papers and much to do with the necessity of the law. When the opportunity came up to examine the law, the White House counsel jumped.
Hammitt of Access Reports said there remains the concern that Bush might set a wrong precedent about not releasing records in due time. While the law allows the sitting president to review the records, it does not allow him to hold them up indefinitely.
“This doesn’t mean to imply that there is skulduggery going on,” he said. “But certainly one can draw that inference.”