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George W. Bush
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at home.
The American Spark
Court Rules Bush Executive Order On Presidential Papers Illegal

By Cliff Montgomery - Oct. 2nd, 2007

The U.S. District Court for the District of Columbia ruled yesterday that parts of a Bush Executive Order issued
in 2001, which greatly slowed--and in some cases directly prevented--the public release of past presidential
records, are illegal.

U.S. District Judge Colleen Kollar-Kotelly ruled that the U.S. Archivist's use of the controversial Executive Order
to withhold the White House records of former presidents "is arbitrary, capricious," creates "an abuse of
discretion," and is "not in accordance with law."

On November 1st, 2001, George W. Bush issued Executive Order 13,233, a presidential directive that
empowers current and former presidents--as well as their families--with unlimited power to decide whether to
release the papers of past presidents to scholars, journalists, and the public.

Plaintiffs who filed the First Amended Complaint on July 2nd, 2004, include the American Historical
Association; Stanley Kutler, Professor Emeritus of History and Law at the University of Wisconsin; the National
Security Archive, a non-governmental research institute and library; Public Citizen, Inc.; and the Reporters
Committee for Freedom of the Press.

But don't cheer the D.C. District Court too quickly. Judge Kollar-Kotelly failed to answer the legal question of
whether George W. Bush may rightly claim the authority to hand over publication rights of presidential papers
to the heirs of former presidents and former vice presidents.

“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,”
National Security Archive General Counsel Meredith Fuchs told reporters.

“Unless the Executive Order is reversed or withdrawn, decisions about the release of records from this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,” noted Fuchs.

The legal answer would appear to be a foregone conclusion. The Presidential Records Act of 1978 (PRA) was
a direct result of the infamous Nixon Administration scandals of the early 1970s. The PRA requires former
presidents to open their White House records to the public within 12 years of leaving office.

Under the amended PRA, absolute "ownership, possession, and control" of  White House papers belongs to
the American people.

So how do we know that some shady president or vice president won't edit or destroy their records after
leaving office in an effort to hide their sins? U.S. law states that at the end of a President's term, the National
Archives and Records Administration (NARA) is charged with assuming custody of all presidential records.

NARA also is charged with releasing the records to the public under PRA guidelines.

After the 12-year embargo, record access may only be denied if a current or former president  proves a
"constitutionally based" claim of executive privilege, or cites an open national security concern.

The district court ruling comes just as a congressional bill which would make null and void Executive Order
13,233 has ground to a halt in the Senate--due, many say, to a hold on the bill by Senator Jim Bunning (R-KY).

A House version of the bill was easily approved in the House of Representatives by a 333-93 vote on March
14th, 2007.  

The Bush Administration has vowed to veto the legislation if it is approved by the Senate.

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