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Taking Secrecy One Step Too Far
May 5, 2004
By Tab Julius

A quiet yet disturbing event happened recently in Washington. It has received precious little coverage, mainly a short report by NPR on Weekend Edition and an article by the Associated Press.

It may be that compared to all the horrific fighting in Iraq, prisoner treatment scandals, kidnappings and more, news about a newly appointed National Archivist seems boring by comparison. Even on a quiet news day, it might be seemingly too mundane to put anywhere near the front page. Most people don't know what a national archivist is, much less why this particular change is newsworthy.

On the face of it, the national archivist is the keeper of the nation's records - the archives. The National Archives control what information gets released to the public - and what does not. Normally the National Archivist is an honorable position held by honorable people, usually those who have earned the highest esteem of their peers.

It's entirely possible, though, that were an administration unusually preoccupied with secrecy to appoint an archivist of their own choosing, then the public's ability to know what goes on in their government would be severely limited.

It is for this reason that a National Archivist serves a ten-year term - far beyond any one presidency. It is for this reason of necessary transparency and public responsibility that the National Archives was made an independent agency in 1984. It is for this reason that a president may not remove an archivist arbitrarily. And it is for this reason that Congress wrote that it expects the appointment of a new National Archivist to be made in consultation with recognized organizations of professional archivists and historians.

To do anything less would be to risk having one party keep political control over this country's history.

As is clear by now, the Bush administration has a demonstrated penchant for secrecy. And that is why the recent news about the resigning of the current archivist and Bush's appointment of a new one is making many who are watching increasingly uncomfortable about this administration's reluctance to be open and transparent.

John Carlin is the current archivist. A Democrat, he has been in the post for 9 years, and had indicated he intended to stay through to the end of his term in 2005, which happened to roughly coincide with his 65th birthday. Were this to happen, and should Bush secure a second term, Bush would be within his rights to appoint a successor, provided Bush was in keeping with the wishes of Congress to find a highly respected archivist/historian to appoint to this honorable position.

Oddly enough though, a few months ago Carlin submitted a letter stating his intent to resign this coming fall, before his term was up, just as soon as the Senate can confirm a new Archivist. Even more unusual, Carlin is refusing to comment as to whether or not he is leaving voluntarily. The obvious speculation then is that the White House Bush has managed to oust Carlin from his position prematurely.

This speculation has not been helped by the fact that the Bush White House has turned around and nominated Allen Weinstein for the position, one who is held in dubious esteem at best, who has been criticized for having a penchant for privacy not becoming a National Archivist and, to the surprise of many, was nominated without any consultation with outside experts - the first such time ever since 1984, and in direct contravention with the wishes of Congress as expressed in the House report accompanying the law that made the Archives independent.

Now, failing to consult with outside agencies is disturbing enough, but it's also against the law for a president to remove a national archivist without giving a reason, and presumably a good reason at that, to Congress. There is no apparent personal reason for Carlin's sudden resignation, and his refusal to state his resignation is voluntary can only lead one to assume that it is involuntary. If so, then not only has the White House gone against the law in ousting the Archivist, but also against the wishes of Congress by privately installing their own.

To add another dimension to all this, one has to consider the Presidential Records Act. The Presidential Records Act serves to keep presidential records confidential for the first twelve years after a president leaves office. The intention here is to balance a president's need for objective and confidential advice with the public's right to know. The twelve year period is long enough to let most bygones be bygones, and yet short enough to let the public view an administration's papers while they may still have direct relevance to current events.

Now, the potential issue here is not so much George W. Bush's records - Bush has twelve years before they would be released, if they would be released at all (more on that in a second), but rather George Herbert Walker Bush's records - the first President Bush. His records come up for release in January. Had John Carlin been able to complete his term as planned, he would still have been National Archivist in January. But by his premature leaving, the Bush administration is able to have an Archivist of their choice in position in January, to not only have a say over the release of the Bush I records, but also control for the next ten years of the historical recording of the Bush II administration.

Congress wanted the National Archives to be an independent agency with a peer-approved archivist for a reason - because failure to do so could strip away the last protection against any one administration's desire for secrecy.

In his first year in office, George W. Bush took preliminary steps to keep records secret, and not only that, but to make the secrecy retroactive. Specifically, his Executive Order issued November 1, 2001, attempted to amend the Presidential Records Act such that if records of a prior president (or vice-president) were requested, they could not be released if that previous president objected OR if the current president objected. The executive order does not overturn the Presidential Records Act per se - it is still technically possible to have records released - but it puts many hurdles, presumably time-consuming ones, in the way; specifically they don't have to be released until ordered to do so by "a final and nonappealable court order." Of course, there is only one court in the land that can issue a "final and nonappealable court order," that being the Supreme Court of the United States.

The executive order change of November 1, 2001 was disturbing to say the least, but in the immediate aftermath of September 11, 2001 it managed to slip by with only a modicum of controversy - it wasn't high on everyone's radar screen, given all that was going on. The current allegations that the Bush administration was hot for Iraq from the get-go puts the executive order in new light, because the order easily reaches back to the first Bush administration, and helps to cover the current administration in secrecy.

The real nail in the coffin, though, should the administration be able to get away with it, is the seemingly mundane, boring, yet abrupt, change in the National Archivist. As with the presidency itself, in the right hands, it's an honored and noble position. However if the person holding that position has some other agenda, if they don't unquestionably have the utmost intention of protecting our country's integrity, then the potential damage is frightening indeed. People would be right to be very concerned.

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