Saturday, April 19, 2014
Inquirer Daily News

Sunlight over secrecy

Obama's nixing of a kingly Bush decree

Sunlight over secrecy




Elections do matter. Voting does make a difference. Case in point:

When George W. Bush was in office, secrecy trumped sunlight. Today, with Barack Obama in office, sunlight trumps secrecy.

On his first working day as president, Obama erased a key element of Bush’s secrecy ethos with a stroke of a pen. His action on Wednesday didn’t get much public attention; the issue at hand wasn’t nearly as sexy a subject as the return of American Idol. Nor did his action get much press attention, since it was soon overshadowed by a more visceral story, the Obama executive order decreeing the closing of Guantanamo. Nor will his action get much attention today, since everybody seems far more interested in whether Caroline Kennedy scrapped her Senate bid because of tax problems or illegal nanny problems or maybe because she realized she just had nothing to say, beyond “you know.”

In any event, in defense of boring substance, here’s what Obama did the other day: He scrapped a Bush executive order that had made it abundantly easy for ex-presidents and ex-veeps to shield their White House papers and documents from public scrutiny. The Bush order had basically violated the letter and spirit of a 1978 law requiring that presidential records belonged to the public. Obama, in his own executive order, put that law back in business.

The law, enacted in the aftermath of Watergate, sought to tip the scales toward sunlight. It mandated that presidential records be open to public view, but did not rush the process. Ex-presidents were given a 12-year grace period before their work had to go public, and they were permitted to withhold some materials for privacy and national security reasons.

But Bush, in his November ‘01 order, tipped the scales toward secrecy. (I know, you’re shocked.) He created a slew of loopholes that allowed ex-presidents to bust the 12-year deadline (with no subsequent time limit), and to withhold a far broader range of materials, simply by claiming executive privilege. Bush also extended these benefits to ex-vice presidents (Dick Cheney), and he even decreed that, once the ex-presidents and ex-veeps were dead, their heirs were empowered to keep the records under wraps. Bush also stipulated that, as long as any of these parties insisted on secrecy, the National Archives was powerless to compel release.

It’s no surprise that historians and archivists were ticked off by Bush’s action; as Seven Hansen, a former leader of the Society of American Archivists subsequently testified on Capitol Hill, “Access to the records of public officials is essential to accountability and rule of law.” And Thomas Blanton, a prominent Washington archivist, said that the 1978 law had been designed to fulfill “a core motivation of our constitutional system, that of preventing our presidents from becoming, or acting like, kings.”

More surprising, perhaps, was that even some congressional Republicans were appalled by Bush’s secrecy order. Dan Burton, an Indiana conservative, said a few years ago that the Bush order was “just insane” – and this is the same guy who once shot a watermelon in his backyard, as a ballistic experiment, in a futile bid to prove that the suicide of Clinton aide Vince Foster had actually been a murder.  It says a lot about Bush’s order that Dan Burton tried to get his congressional colleagues to overrride it via legislation. That effort, which dragged on for years, did not succeed.

Obama wiped out the Bush directive in seconds. Most importantly, his order specifies that only living ex-presidents can request that some materials be withheld, and that if their requests are ultimately turned down by the government, they are compelled to comply.

Obviously this issue may seem a tad abstract, particularly when compared to the job crises of the moment, and clearly it’s easier for Obama to strike a quick blow for the principle of transparency than to chart an economic recovery. But the ownership of presidential papers is no mere academic exercise. It’s basically about whether we can govern most effectively, learning from past mistakes, if we don’t have sufficient access to our own history.

Or figure it this way: “A nation…must believe in the future. It must, above all, believe in the capacity of its own people to learn from the past so that they can gain in judgment.” So said Franklin D. Roosevelt, in 1941 at the dedication of his own future library. What Obama did on Wednesday, in that spirit, was to free up our access to the past, by nixing a kingly decree.
 
Dick Polman Inquirer National Political Columnist
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Dick Polman Inquirer National Political Columnist
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