The chief of the National Archives said yesterday that only former president Nixon stands in the way of complying with a Senate Foreign Relations Committee subpoena asking for an index to still-secret 1973 tape recordings of conversations between Nixon and his then-White House chief of staff, Alexander M. Haig Jr.
The archivist, Robert M. Warner, told the Senate panel that he "intends" to produce those logs as soon as it is lawful for him to do so. So far, however, meetings between representatives for the archives, where the logs and tapes are stored, and lawyers for Nixon have "failed to produce an agreement," he said.
The unusual appearance of Warner, flanked by a lawyer and staff aide, at a hearing that is meant to determine Haig's suitability as President-elect Ronald Reagan's secretary of state, dramatized the increasing degree to which the retired general's confirmation process has moved to a stage where some panel members' concern about his past is overshadowing his views on U.S. foreign policy.
The tension that has developed along party lines as the Haig hearing ended its third day was reflected in a sharp exchange between Se. Richard Lugar (R-Ind.) and Sen. John Glenn (D-Ohio).
Lugar, addrssing his remarks to Haig, said that the quest for logs and eventually tapes may well involve lengthy legal battles and there "will be a temptation to prolong the confirmation of Al Haig forever, if necessary," in terms of leaving open a record for review.
Even if Haig is confirmed before Inauguaration Day, Jan. 20, as is now expected, Lugar said, there could come a time long after that when suddenly "out of the blue" the tapes are made available. The committee would come back together and start reviewing the Watergate era "and that would not be a very good prospect for the country" in terms of impact on Haig's effectiveness in office.
Lugar, saying the country does not, want a whitewash, nevertheless called the situation a major problem in which the country needs to have confidence in Haig "without a sword of Damocles" hanging over his head. He said he hoped the Democrats on the committee, who have been pushing for the logs and tapes, "will share that burden too" in avoiding such a situation.
Glenn said he resented the Democrats' being put in the dock "as though we've done something wrong. There are a lot of very serious questions here and we have been thwarted" in efforts to get information.
"we are talking about White House discussions at that time about two would be assassinated and what government would be toppled," Glenn said. "Procedures were set up and we don't know exactly" how they worked "how things were decided. Gen. Haig was right in the middle of all that. I don't know if he acted under orders . . . of ir somebody turned to him and said, 'Al, you handle that,' and he went and handled it on his own. He made decisions that might have meant people's lives . . . or other nations' rise or fall."
"Horsefeathers," concluded the former astronaut known for his use of such words rather than stronger varieties, "this is no orgy of Watergate."
The situation is, however, turning into a dilemma for the committee. Democrats as well as Republicans have repeatedly said they are aware of the hazards of hobbling Haig in office or failing to clear the air before he is installed.
Under the Presidential Recordings and Materials Preservation Act of 1974, Warner explained, Nixon would have five working days to register an objection to release of the logs and specify the basis for his objection. If Nixon does not object by next Friday, then Warner said his boss, the administrator of General Services, could release the logs before next Tuesday's inauguration.
If Nixon objects and the National Archives does not accept the objection, then Nixon, under law, would have another five days to decide whether to go to court, an action that would probably come after the inauguration and could be the start of months or years of litigation.
Warner said the logs include dates, times, participants and location of the conversations, a brief listing of the subject matter of the conversations and observations of which parts may require special protection. The requested logs cover 100 hours of 338 taped conversations between May and July 1973, and the logs alone total 680 pages. No transcripts have been made of the actual tapes, another factor which would stretch out Senate review if the tapes themselves were ever to become available.
Warner and his aides said that of 44 previous cases in which special access has been requested, including numerous court subpeonas, only a few cases resulted in providing access to some Nixon-era transcripts. Nobody has ever had access to the actual tapes, which Nixon continues to oppose in the courts, they said.
The Democrats, who are in the monority on the committee, gained Republican approval for the subpoena of at least the logs as a first step by agreeing to allow a vote on the confirmation this week even if no material is available at the time. In turn, the Republicans promised to keep the hearing officially on the books even after the inauguration so the logs could be reviewed if they ever arrived.
Some government attorneys and constitutional law professors, however, think the Democrats may be caught in a "Catch-22" situation because once Haig is confirmed the Senate will no longer be carrying out its constitutional duty to "advise and consent" on him during any subsequent investigation.
A Supreme Court decision in 1974 in a Nixon tapes case held that when the conflicting desires of two branches of government are being weighed, presidential privilege did not prevail in the face of "a primary constitutional duty" of another branch. Thus, it is possible that courts would sustain Nixon once Congress' constitutional duty is completed.
Aside from the committee subpoena, the panel's ranking minority member, Sen. Claiborne Pell (D-R.I.), had also requested material from the archives' records of the Watergate special prosecution force. Warner said he turned that material over to the Carter White House with no objection to its being released.
Last night, the White House, in turn, sent a number of these documents to the committee. Michael Cardozo, an associate White House counsel, said the material dealt largely with wiretaps on journalists and government officials in the Nixon era and the famous 18 1/2-minute gap on one of the Nixon tapes. The material, however, did not contain any White House tapes or transcripts of those tapes, he said.