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New White House Order on Secrecy of Historical Presidential Records Is Unlawful

by Public Citizen Friday, Nov. 09, 2001 at 3:09 AM

Public Citizen issued the following three press releases today:

Nov. 5, 2001

Public Citizen issued the following three press releases today:

New White House Order on Secrecy of Historical Presidential Records Is Unlawful

Bush Administration Officials Should Be Made to Explain Actions to Congress,
 Public Citizen Says

WASHINGTON, D.C. - When Bush administration officials testify before lawmakers tomorrow, they should be made to explain how an executive order issued last week extending the secrecy of presidential documents is legal, Public Citizen said today. Public Citizen contends that the order is not legal.

In a letter sent to Rep. Stephen Horn (R-Calif.), Public Citizen cited judicial decisions apparently ignored by the White House when it promulgated the order. The order will be the subject of oversight hearings to be held Tuesday by the House Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, which Horn chairs.

Issued last week by the Bush White House, the executive order violates applicable provisions of federal law by extending the secrecy of presidential documents from past administrations. The order applies to records of presidents from Ronald Reagan forward, which are governed by the Presidential Records Act, a 1978 law passed in the wake of Watergate to assure public control over and access to presidential documents. The executive order attempts to give both the sitting president and former presidents the power to prevent the National Archives from releasing documents that the act requires to be made public.

Fifteen years ago, the Reagan Justice Department issued a virtually identical order that required the Archivist to abide by assertions of executive privilege by former President Nixon. Public Citizen sued in federal court to block implementation of that order and prevailed.

That lawsuit,  Public Citizen v. Burke, required nearly two years of effort but ultimately resulted in a 1988 opinion by the U.S. Court of Appeals for the D.C. Circuit repudiating the Reagan administration's position.  The opinion, written by Judge Laurence Silberman, a conservative appointed by President Reagan, held that the Archivist of the United States, who runs the National Archives, could not be required to defer to a former president's claim of executive privilege.

"Public Citizen fought this very same battle before and won," said Scott Nelson, attorney with the Public Citizen Litigation Group.  "We're fully prepared to fight it and win it again."

Under the Presidential Records Act, an outgoing president can impose a 12-year restriction on public access to documents that involve confidential communications between the president and his advisers - communications subject to the so-called "executive privilege."  After the 12 years are up, the law provides that such documents be made available to members of the public upon request. 

The 12-year restriction on Reagan presidential documents housed at the National Archives' Reagan Presidential Library expired earlier this year.  When the Archives informed the White House that it intended to release the documents to the public, the White House first directed the Archives to wait eight months while it studied the issue, and then promulgated the new executive order.

Under the new executive order, both a former president and the incumbent president have an unlimited amount of time to review any documents the Archives proposes to release after the 12-year restriction period expires.  If the former president objects to the release of any materials, the executive order provides that the incumbent president will concur with the former president's wishes unless there are "compelling circumstances" that favor disclosure.  But even if the sitting president finds that there are "compelling circumstances" and disagrees with the former president, the order requires that the Archives abide by the direction of the former president and keep the documents secret.

At the same time, the order provides that even if the former president agrees that materials can be released, they will be kept secret if the sitting president wants them to remain under wraps.  Before the Archivist can release any documents, both the former president and the incumbent must agree.

The order turns the Presidential Records Act's presumption that materials are to be released after 12 years on its head.  By requiring the Archivist to bow to the direction of a former president that documents not be released, the order also violates the fundamental principle that executive branch officials must follow the law, not the personal wishes of former officeholders.

According to Nelson, assertions by the Bush White House that the new executive order is necessary for reasons of national security are only attempts to confuse the issue.  Other provisions of the Presidential Records Act already forbid the release of any classified information that would damage national security.  This order applies to documents that are subject to release under the Act because they do not involve national security. The order would permit a former president (or the incumbent) to bar disclosure of communications with presidential advisers simply because their release would be embarrassing.

"This order has nothing to do with national security," Nelson said.  "It reflects the current administration's desire to have secrecy merely to avoid embarrassment - and that desire is contrary to federal law. We are confident that this order can't withstand judicial scrutiny."

A copy of Public Citizen's letter is available at http://www.citizen.org/litigation/briefs/FOIAGovtSec/articles.cfm?ID=6418

###

Energy Insecurity: Corporations Receive Special Treatment to Prop Up Dangerous Nuclear Power Without Safety Commitments

WASHINGTON, DC.- Public Citizen today joins a broad coalition of consumer and environmental groups denouncing energy policies that subsidize nuclear power without securing any commitments from the industry to improve plant security. The inability to secure nuclear power from terrorist attacks places millions of Americans needlessly at risk. Public Citizen calls for an end to the billions of dollars in subsidies that prop up the industry and demands immediate regulatory improvements to protect Americans from the threat of nuclear catastrophe.

"Federal regulators, consumer groups and even the nuclear power industry acknowledge that nuclear power plants are not prepared to withstand a terrorist attack from land, sea or air," said Joan Claybrook, Public Citizen president.  "In a decade of testing for mock land-based assaults, the security provided by the nuclear industry failed to stop intruders 47 percent of the time."

Recent efforts to beef up security at the nation's 103 operating nuclear reactors, including ringing plants with National Guard troops, cannot guarantee the reactors' safety because nuclear reactors are not designed to withstand the impact of a commercial jetliner. Public Citizen urges the establishment of a more comprehensive regulatory framework to force the nuclear power industry to figure out how to deal with a terrorist assault. Public Citizen also calls for an immediate moratorium on the approval of new power plants until the security of Americans can be guaranteed.

"The risk of a Chernobyl-style catastrophe at an American nuclear power plant is real," said Tyson Slocum, research director for Public Citizen's Critical Mass Energy and Environment Program. "At a minimum, the regulations covering safety at nuclear power plants must be upgraded in response to Sept. 11. But instead of asking the nuclear power industry to improve safety, the Nuclear Regulatory Commission has continued relicensing procedures for reactors without holding these plants to higher standards in exchange for allowing them to operate for another 20 years."

Congress, too, has sacrificed public safety by continuing to promote subsidies for the nuclear power industry. Reauthorization of the Price Anderson Act - legislation that forces taxpayers to cover most of the estimated costs of a nuclear power catastrophe and allows the nuclear power industry to save an estimated billion annually on insurance premiums - appears certain.

Although the U.S. House of Representatives passed its energy bill in August, the Senate has been embroiled in a procedural battle to rush a vote on the House legislation. Sen. James Inhofe (R-Okla.)gaining concessions to force a vote soon by attaching the entire House bill as an amendment to the Defense authorization bill. The House legislation provides billions of dollars in taxpayer giveaways to the nuclear industry, including millions of dollars to recruit students to work in the commercial nuclear industry and millions more to subsidize every kilowatt hour of electricity generated by nuclear power.

"Billions of dollars of taxpayer subsidies to the nuclear power industry won't buy Americans the safety and security they demand," Slocum said.

###
 
Australian Officials Urged to Reject
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WASHINGTON, D.C.
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