Court Rules Delay in Release of Presidential Papers is Illegal

Published on NSArchive – The National Security Archive, October 1, 2007, For Immediate Release.

Fails to Address Authority of Former Vice Presidents to Hold Up Disclosure of Papers

(For more information contact: Meredith Fuchs, 202/994-7000)

Washington DC, October 1, 2007 – A District Court in the District of Columbia has ruled that an Executive Order issued by President George W. Bush in 2001, which severely slowed or prevented the release of historic presidential papers is, in part, invalid. In a carefully constructed decision, the court held that the Archivist of the United States acts arbitrarily, capriciously, and contrary to law by relying on the Executive Order to delay release of the records of former presidents. The court did not reach the issue of whether it was permissible for President Bush to extend the authority over disclosure of presidential papers to a former president’s heirs or to former vice presidents.

The underlying lawsuit, which was filed in November 2001 by the National Security Archive and other plaintiffs, 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. In finding that the plaintiffs have standing to pursue the claim, the court specifically referenced the delays experienced by the National Security Archive for requests pending at the Ronald Reagan Presidential Library. As the Archive’s Director Thomas Blanton testified in Congress this past March, those delays have grown from 18 months in 2001 to “an estimate of 78 months (six and a half years!) [in 2007].”

Archive General Counsel Meredith Fuchs commented, “The court is enforcing procedural standards, but has avoided the hard questions about the role former presidents, former vice presidents, and their heirs can play when it comes to disclosure of presidential records.” She noted, “Unless the Executive Order is reversed or withdrawn, decisions about the release of records from this administration may ultimately be made by the Bush daughters.”

The decision comes at a time when a bill that would overturn Executive Order 13,233 is stalled in the U.S. Senate, reportedly due to a hold placed on the measure by Senator Jim Bunning (R-KY). The bill, H.R. 1255, was approved in the U.S. House of Representatives on March 14, 2007 by a vote of 333-93. The White House has threatened to veto the bill if it is passed in the Senate.

BACKGROUND: … (full text).

Link: Statement by Thomas S. Blanton, NSArchive, GWUni, March 2, 2005, Hearing on Emerging Threats, Overclassification and Pseudo-classification.

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