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For release 30 April 2004

For further information:
Thomas Blanton/Meredith Fuchs - 202/994-7000
Scott Nelson - 202/588-1000

ARCHIVE, HISTORIANS ASK JUDGE TO RETHINK DISMISSAL,
PRESIDENTIAL RECORDS ACT CASE STILL NOT RESOLVED;
NEW BUSH ORDER ADDS 140 DAYS TO PROCESSING TIME;
JUDGE RECOGNIZED INJURY BUT THOUGHT IT MOOT.

Washington, D.C., April 30 - A federal judge's dismissal last month of a landmark open government case was based on two factual misconceptions and deserves re-opening, according to court filings last week. The lawsuit 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.

The National Security Archive and other plaintiffs in American Historical Association, et al. v. National Archives and Records Administration asked Judge Colleen Kollar-Kotelly to reconsider her March 29, 2004, opinion dismissing the case on standing, "justiciability" and ripeness grounds. The court's opinion mistakenly assumed that no Reagan-era records were continuing to be processed under the order, and that plaintiffs were not challenging the withholding of 74 specific pages of records.

Archive director Thomas Blanton filed a declaration with the court describing dozens of pending Archive requests at the Reagan and Bush presidential libraries, with a specific example of current withholding that claims the "presidential advice" privilege created by the Bush Executive Order. Public Citizen Director Scott Nelson, the lead attorney for the plaintiffs, filed the challenge to the 74-page withholding and the accompanying legal motion for reconsideration.

In the government's response filed last Friday, the Department of Justice admitted that the court's opinion needed to be modified, but urged Judge Kollar-Kotelly simply to adopt the government's previous arguments and maintain the dismissal. An associated declaration from the Assistant Archivist for Presidential Libraries admits that the new Bush executive order adds an average of 140 days to processing time for Freedom of Information Act requests at the libraries, but claimed that such a delay was not significant because requesters for classified documents must wait four years (!) before an archivist even takes up the request.

Background

The Presidential Records Act of 1978 (PRA) emerged from the scandals of the Nixon presidency to require former presidents to release their records no later than 12 years after they leave office. Under the PRA, as amended, the U.S. government asserts complete "ownership, possession, and control" of all Presidential and Vice-Presidential records. Upon conclusion of the President's term in office, the National Archivist is required to assume custody of the records, and to make them available to the public when permissible under the PRA. Access to the records can be denied after the end of the 12-year embargo only if a former or incumbent president claims an exemption based on a "constitutionally based" executive privilege or continuing national security concern.

On February 8, 2001, shortly after President Bush came into office, he was notified of a scheduled release of Reagan presidential records (68,000 pages of records). His legal counsel requested two successive 90-day extensions of time to review the records prior to their release followed by a third request for an indefinite extension of time so that the White House could evaluate the legal framework and process that would govern release of the records. This was followed on November 1, 2001 with the issuance of Executive Order (E.O. 13,233) that gives the White House and former presidents uncontrolled discretion in deciding whether to deny the release of documents requested by journalists and scholars.

On November 28, 2001, the Archive and other plaintiffs filed suit to stop implementation of E.O. 13,233. The parties' dispositive motions were fully briefed by March 2002. During the pendency of the law suit, most pages of the initial 68,000 were reviewed by the administration and released, with an additional 74 pages being barred from release by an assertion of constitutional privilege over those pages by the Bush Administration. But, in the intervening two years, one of the plaintiffs in the lawsuit, Vanderbilt University professor Hugh Davis Graham, died while waiting for access to the Reagan era records on domestic policy.

On March 29, 2004, the court dismissed the case on jurisdictional grounds. The District Court mistakenly believed that the original 68,000 pages of records scheduled for release constituted the complete collection of Reagan presidential records subject to the Executive Order and that the plaintiffs do not dispute the assertion of constitutional privilege over the 74 pages that continue to be withheld.

The judge recognized that "plaintiffs' past delays in access to presidential records" constitute an "injury in fact" and that plaintiffs "face substantially similar delays in the future," but nevertheless found that there is no remedy for the past injury and that the future injury is not yet ripe, i.e. is hypothetical because it has not occurred. The court recognized that the complaint in the case, "framed the case to generally address any records of the Reagan presidency that were being withheld pending a privilege review." The court mistakenly believed, however, that all Reagan presidential records have now been processed and "there are no presidential records currently subject to the Bush order, other than the 74 pages over which [constitutional] privilege has been asserted."

Thomas Blanton, the Archive's Executive Director, filed a declaration in the lawsuit describing numerous outstanding requests for records at the Reagan Presidential Library and the Bush Presidential Library, which holds Bush vice-presidential and presidential records. Of these, more than a thousand pages have specifically been withheld from the Archive under the Bush Executive Order.

In addition, the plaintiffs' filing included the administrative denial of an appeal seeking the release of the 74 pages over which a constitutional privilege had been asserted - which was issued 3 days after the court's dismissal order. As noted in the motion to reconsider, the plaintiffs' judicial challenge to the withholding could not be brought until the administrative appeal had been decided.

Among the records withheld: a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, "Talking Points on Iran/Contra Affairs"; a series of memos dated 22 November and 1 December 1988 for the President entitled, "Pardon for Oliver North, John Poindexter, and Joseph Fernandez"; and a two-page memo for the President from the Attorney General, "Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987." Other withheld memos relate to the release of Justice Rehnquist's papers and materials relating to "Use of Military Aircraft by Mrs. Reagan."

Represented by Public Citizen Litigation Group (lead attorney Scott Nelson), the plaintiffs include the Archive, the American Historical Association, the Organization of American Historians, University of Wisconsin Professor Stanley Kutler, Public Citizen and the Reporters' Committee for Freedom of the Press.

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