The first attempt to nullify the act came in 1985, when Reagan officials directed the U.S. archivist to bow to any claims of executive privilege by Nixon -- in violation of the 1974 law that allowed the Nixon materials to be seized and made available at the earliest reasonable date.
With this order, Reagan officials aimed to lay the foundation for Reagan and his presidential successors to exercise maximum discretion over their own presidential records. The directive, however, was overturned by the U.S. Court of Appeals for the D.C. Circuit on grounds that the U.S. archivist was not "constitutionally compelled" to obey a former president's claim of privilege.
The next major attempt to erode the act came in the waning hours of the George H.W. Bush presidency. Close to midnight, on Jan. 19, 1993, then-U.S. archivist Don W. Wilson signed an agreement giving the elder Bush exclusive control over the computerized records of his presidency. According to this agreement, Bush could even order the U.S. archivist to destroy computer tapes and hard drives, the kind of material that had proved critical to the Tower Commission's investigation of the Iran-contra affair during the second Reagan administration. Following this subversion of the PRA, Wilson was appointed director of the George Bush Center at Texas A&M University.
The incoming Clinton administration adopted the Bush-Wilson agreement for the protection of its own historical legacy. In February 1995, however, a federal judge in Washington voided the agreement as a violation of the PRA, ruling again in favor of the people's right to know.
Now, George W. Bush's Executive Order 13233 has effectively eviscerated the PRA altogether. What the father failed to obtain with the overturned Bush-Wilson agreement, his son has won by presidential decree. The order allows former presidents and vice presidents, as well as their designated representatives or surviving families and heirs, to withhold materials by asserting executive privilege -- no matter how arbitrary the claim.
As a result, the order strips the U.S. archivist of his affirmative responsibilities under the PRA to carry out the systematic and timely release of presidential records to the public. The recent release of 9,700 pages of records involving communications with advisers in the first Bush administration suggests compliance with the PRA, except that the materials were first screened (under E.O. 13233) by representatives of former President Bush and incumbent President Bush, who chose -- this time -- not to assert any privilege claims.
Nixon, who fought a 20-year legal battle (with the complicity of senior Archives officials) to keep his records and tapes under wraps, would have admired the sheer sweep of E.O. 13233. By sharply diminishing the public's right of access, it sends the question of who owns the history of the U.S. government back to square one. It requires scholars, journalists and others both to receive the permission of former and sitting presidents and to demonstrate a specific "need to know" when requesting documents regarding all presidencies from Reagan onward.
E.O. 13233 prompted the conservative Dan Burton, then the chairman of the House Committee on Government Reform and Oversight, to lash out at the president. Burton, an Indiana Republican, said, "for the White House to block historical documents that Congress has a right to is just insane."
If Bush and his predecessors take full advantage of this order, historians may not be able to fully reconstruct the past. The losers in this? The public, policymakers and future presidents, who need unvarnished studies to help them understand previous White House successes and failures.
In the final analysis, the onus for assuring the public's right of access to the nation's present and future historical record lies with Congress, which has twice tried and failed to nullify the Bush order. Congress should not allow the new U.S. archivist to be caught in the untenable position of being compelled to enforce an executive order over an act of Congress. Unless Congress is content to leave our governmental history in the hands of former presidents and their heirs -- private citizens, in other words -- it must renew bipartisan efforts to overturn Executive Order No. 13233. After all, whose history is it?
Bruce Montgomery is an associate professor and faculty director of archives at the University of Colorado. His writing on presidential papers has appeared in Presidential Studies Quarterly and the American Archivist.