There are some government officials who wonder if Henry A. Kissinger isn't still running the State Department.
The reason for the frustration among some at the Justice Department and National Archives is the latest episode in the long-running legal battle over access to the transcripts of office telephone calls made by the former secretary of state.
Just last week, a State Department briefing officer told a reporter that Kissinger had agreed to a new review of the 15,000 pages of documents to determine if any of them are needed for department files. But the agreement cuts the archives out of the review process and Kissinger's attorney and the State Department already seem to have concluded that everything the department needs is already in the files. In addition, the review will be conducted under the supervision of Philip Habib, a former high-ranking official under Kissinger.
The agreement was labeled a compromise, since the Supreme Court already had ruled that the documents weren't obtainable under the Freedom of Information Act. Kissinger had transferred the papers to the Library of Congress, which isn't covered by the act.
But the lower courts in the case also concluded that the documents were official "records" that Kissinger had illegally removed from State, and the archives and Attorney General Benjamin R. Civiletti were making noises about suing to recover them under provisions of the Federal Records Act.
In fact, Justice William H. Rehnquist all but invited a suit in his majority opinion in the case last spring.
A State Department official involved in the negotiations for the new review of the Kissinger documents denied any suggestion that the department is protecting a former secretary. He said the agreement was an honest attempt to determine which of the papers should be kept for history by cutting through "an arid legal debate" and avoiding the possibility of future litigation.
Some officials at Justice and the Archives, however, think that State is trying to avoid dealing with a far more fundamental issue: Whether a public servant can generate official documents and then walk off with the entire file.
Civiletti, for instance, has made public statements suggesting Congress should pass a law to prevent a recurrence of Kissinger's handling of the phone transcripts. He said just after the Supreme Court ruling that he was concerned about public access to "records which are kept by public officials, maintained on public time . . . and then somehow surreptitiously removed . . ."
Richard A. Jacobs, the archives official who reviewed some of the phone transcripts before the FOIA suit was filed in 1977, said Kissinger told him he didn't think he was creating an official record when he set up the practice of having a secretary listen in on his calls. "But . . . they're in existence," he said.
Kissinger also told him, Jacobs said, that he didn't want the transcripts released because it would invade the privacy of the other parties in the conversations, though Kissinger did not tell his callers someone was listening in at the time.
It also has been suggested that the bureaucratic battle over access to the Kissinger transcripts contains a sizable element at State and the archives trying to protect its turf.
The documents, for example, will be available eventually to scholars at the Library of Congress. But the archivist is not in charge there. State, on the other hand, seems intent on defending its original legal opinion that said the papers were personal, so the departing Kissinger could take them along.
Kissinger's attorney, David Ginsburg, said in a recent interview that he thought the new review would find little of lasting interest to the department. tIn his letter to Civiletti announcing the new plan last month, Secretary of State Edmund S. Muskie said, "We believe that any transactions of special significance in the notes are already reflected" in extracts compiled by Kissinger aide Lawerence Eagleburger in 1977.
Jacobs said he was puzzled by that statement because his sample found that 95 percent of the documents were official, not personal business, and that Eagleburger had made copies of only 9 percent of the sample.
Jacobs freely admits trying to protect the archives' turf. "We think the transcripts clearly are 'records' and any record created in the office of the secretary of state should be presumed to have permanent value," he said.
The problem, according to a Civiletti aide, is that the law says the agency head -- in this case Muskie -- determines what a "record" is and State persists in saying the Kissinger transcripts are not.