By George Lardner Jr.
Washington Post Staff Writer
Tuesday, February 24, 1998; Page A22

A panel of three federal judges made clear yesterday that they think former president Richard M. Nixon's estate should have sole custody of 819 hours of "personal" conversations from his White House tapes even if the original recordings have to be mangled in the process.

The three appeals court judges have yet to issue a formal ruling, but at a half-hour hearing yesterday they repeatedly criticized the Justice Department's contention that the 1974 law confiscating the tapes did not require the government to cut up the fragile originals in order to return the personal snippets to the Nixon estate.

Officials at the National Archives, which contends that important historical material will be destroyed as a result, said yesterday that some 17,000 "edits" will be required on the 3,700 hours of original tapes.

At issue is a ruling last March by U.S. District Judge Norma Holloway Johnson ordering the Archives to return all "personal and private" conversations on the original tapes to the president's estate "forthwith." She stayed the order pending appeal of the decision, which lawyers at Justice said would jeopardize "virtually all" of the 950 reels of tape from the Nixon presidency that Congress confiscated by law in 1974 to keep Nixon from destroying them.

But Chief Judge Harry T. Edwards said yesterday he saw no reason to be alarmed over the damage that might be done to the originals because the Archives has digital copies that have already been carefully edited to remove the personal fragments. "The record's clear. There's nothing lost," Edwards said. "If that's the case, it seems to me the district court was flat right."

Speaking for the National Archives, Justice Department lawyer Freddi Lipstein said that new technology may make it possible to decipher extensive portions of the originals that are now simply labeled "unintelligible."

Edwards dismissed that suggestion, saying it amounted to arguing that "there might be some technology 30 years from now which might make it possible to hear someone breathing heavily."

However, Archives officials said after the hearing that they acquired a new system in November incorporating "artificial intelligence" that can distinguish between noise and speech. But for "optimum enhancement," they said, the system needs "raw, unprocessed incoming signals, which in our case would be the original tapes." They estimated that perhaps 50 to 60 hours on those tapes are now classified as "unintelligible."

Edwards and his colleagues, Judges David B. Sentelle and Douglas H. Ginsburg, said they felt the law was on Nixon's side, requiring the return of private conversations. If some material is lost as a result, Edwards said at one point, "So what?"

Scott Nelson, the lawyer for the Nixon estate, began by observing, "The court has already stolen my thunder." He argued that the private portions of the originals must be returned to the estate under a provision of the 1974 law calling for adoption of regulations providing for public access to the tapes but respecting "the need" to give Nixon or his heirs "sole custody and use" of the personal segments.

Talk of "future technology" extracting more items of historical importance, Nelson said, was "speculation by the government" that had not been raised before yesterday's hearing. He said the 1974 law leaves the Archives with "no choice" but to "return the private materials."

Some of the "private" materials are purely personal conversations, such as Nixon talking with family members, but most of the 819 hours are "private/political" discussions, dealing for instance with Nixon's decision in 1974 to get rid of then-Sen. Robert J. Dole (Kan.) as Republican national chairman. Such materials have been deemed "private/political" because Nixon was acting not as president but as head of the Republican Party.