Court Upholds Order on Tapes for Nixon Estate

In a sharply worded ruling that accused the government of acting "in flat defiance" of Supreme Court pronouncements more than 20 years old, a federal appeals court yesterday ordered the National Archives to give former president Richard M. Nixon's estate all the "personal and private" conversations scattered through his original White House tapes.

The three-judge court said that under the privacy protections set down in the 1974 law that confiscated Nixon's records, Archivist of the United States John W. Carlin "must return to the estate all existing tapes and copies of conversations that do not shed light upon the Watergate affair and lack `general historical significance.' "

Archives officials have estimated that it could take five years to snip out segments -- generally less than a minute long -- from tapes that can run up to 6 1/2 hours.

The opinion, written by Chief Judge T. Harry Edwards, drew no distinction between the "private/political" discussions that take up most of the 819 hours to be returned and the purely personal conversations Nixon had with family and others. Under rules adopted by archivists years ago, political discussions such as Nixon's remarks about a "southern strategy" for the GOP were designated as "private" on the premise that he was acting not as president but as head of the Republican Party.

Experts for the Archives have protested that editing the 3,700 hours of original tapes to extract the private conversations will result in irreversible damage to adjoining, historically important material. The court said this would not matter because "copies of this adjacent material" would still exist.

The court also dismissed the government's contentions at oral argument last month that new technology might make the "the actual original tapes indispensable for some sort of archaeological project of sound enhancement." Edwards called the claim "belated and wholly unsupported" and said it came too late since it was not raised in the lower court, which ruled in the estate's favor last year.

Archives officials said after the hearing that promising new technology which can distinguish between noise and speech might be able to extract important material from some 60 hours on tapes now classified as "unintelligible."

The Supreme Court upheld the seizure law in 1977, but in doing so noted that Nixon was entitled to the return of all materials that are "personal and private in nature." The appeals court said in 1982 that this should be done "immediately."