In 2001, President George W. Bush issued Executive Order 13233, which took oversight of presidential records away from the National Archives and gave it to the White House. Steven Hensen, then president of the Society of American Archivists, became involved in a push to overturn that order. In March of this year, he testified before a U.S. House subcommittee considering a bill that would do just that. The bill passed the House with wide bipartisan support and now awaits action in the Senate. Here Hensen, director of technical services for Duke's Rare Book, Manuscript, and Special Collections Library, discusses presidential archives and government secrecy.
What did Executive Order 13233 do?
The Executive Order overturned key provisions of the Presidential Records Act of 1978, which was itself a response to the excesses of Watergate and the very real fear that [President Richard M.] Nixon [LL.B. '37] would completely lock up the records of his time in the White House, and there would never be any public access to it. What the act did was to establish, first of all, that the Archives of the United States had primary responsibility for presidential records. And it also set up a regular timetable under which records and presidential papers would be released, a rolling twelve years from the time of creation, except in the cases of a legitimate national-security interest or legitimate concerns of executive privilege.
The Executive Order essentially makes the point that for purposes of executive privilege and national security, the White House should have control over [all records].
The order was released soon after 9/11.
The Executive Order was released in October of 2001, and a number of people interpreted it as yet another sort of national-security thing arising from the events of 9/11. But in fact, what I've heard from people in the White House is that they were working on this Executive Order during the previous summer.
It was interesting, but perhaps just a coincidence, that the Executive Order came out at roughly the time that some of the records of the Reagan White House were getting ready to be released, which just so happened to involve people like George H.W. Bush, Dick Cheney, and others involved in Reagan's administration.
But if it's not explicitly in the interest of national security, then why the push to keep those records private?
I personally think it's part of this administration's rather more expansive view of executive power. Jack Goldsmith's book The Terror Presidency makes this point from a conservative perspective, that Dick Cheney and George Bush, supported by others in the administration, have really felt like the powers of the executive have been eroded dramatically since Watergate. And they have felt, rightly or wrongly, that the executive branch needs more power. Controlling the documentation of the administration is certainly one way to exercise that executive power.
Have any of the Reagan papers been made public?
They have been slowly released. There's a lawsuit by [the nonprofit government watchdog] Public Citizen that has been ongoing ever since before the Executive Order to speed the release of those papers.
This is related to the issue of Freedom of Information Act requests. Twelve years ago, it took maybe five or six months to satisfy an ordinary Freedom of Information Act request by a citizen for a government document. It now takes over seven years. Shortly after the Executive Order was released, [then Attorney General] John Ashcroft sent a memorandum around to all the executive-branch agencies that said, whereas under the Clinton Administration the burden of proof was on the government to explain why a request should not be fulfilled, the burden of proof is on the citizen now [to prove why it should].
What kind of value do presidential papers bring to the public once they're released?
The presidential papers are essentially the record of the activities of the White House, and in a system of accountable government, the record of the government activities is what that accountability is based upon. This is what they were afraid of with Nixon. That any sort of tampering with the record can seriously damage its credibility.
There's the historical aspect as well, and certainly the records are essential to create an accurate historical record. Historians will interpret things differently, but if the record's filtered, then getting at the truth is much more difficult.
You often hear people ranking presidents based on their accomplishments, or asking, for example, what Bush's historical legacy will be. It seems that that could depend, to some extent, on what records are available to future historians.
Absolutely. When I testified before the House subcommittee, one of the other witnesses was Robert Dallek, who's a historian. He just wrote a big book on Nixon and Henry Kissinger, but had written some really monumental works on [Lyndon Baines] Johnson as well.
Given all of the tumult surrounding the Johnson presidency, with the antiwar movement, the Kennedy assassination, and all of the conspiracy stuff that was floating around, one would think that the Johnson White House would be rather more careful in guarding the record. But it turns out that Lady Bird Johnson had all these tapes that had been kept in the White House, pretty much as they had been in the Nixon White House. There are all these sort of unbuttoned deliberations. It has not only augmented the record, but has given Johnson a kind of human dimension.
I think this is one thing that the current White House fails to grasp, assuming they're not breaking the law. If in fact their actions are reflective of deliberative policy-making, they ought to be willing to stand behind it. What you get is a sense that there's some skullduggery going on that perhaps they don't want the public to know about. But I suspect it's just this penchant for secrecy.
In Johnson's case, did those tapes ultimately help his legacy, or hurt it?
I think the more truth you know, the more positive it is. What you see is a much more nuanced picture of the person. You certainly see that with the Nixon tapes. One could argue that what we're seeing with those conversations would probably not be all that flattering. But it certainly gives you a much better sense of the person occupying the office. When that is coupled with the official record, you get what we as archivists hope is an accurate record of the activities of a given administration.
The White House argues that, with free and ready access to White House records, they are less likely to get good advice. That people will constantly be looking over their shoulder [wondering], What is posterity going to think of what I'm saying right now?
But the level of candor I've seen in records is pretty astonishing. People, certainly in the White House, are not ignorant of the fact that what they're doing is of great moment. Dallek's book on Kissinger was written using what they call telcons. Every time he was on the phone, Kissinger, with his historical ego, had a secretary sitting on another phone, writing down everything that was said. That was all sort of duly recorded. It certainly presents a very full picture of Henry Kissinger.
Have presidential libraries always been maintained by the National Archives?
The system of presidential libraries started under Franklin Delano Roosevelt's administration. The early presidents' and founding fathers' papers are at the Library of Congress. But the papers of presidents during the latter part of the nineteenth and early part of the twentieth century are often at private presidential libraries, where we have to assume that the family has heavily edited the record of their actions and accomplishments. For the longest time, there was no real sense that these things were all that important.
Besides the Johnson tapes, can you give other examples of archival material that's been released that has helped to reveal some hidden truth or context?
I spent ten years working in the manuscript division of the Library of Congress before I came to Duke. I've always thought one of the most fascinating and revealing documents that's buried within a presidential collection is Thomas Jefferson's rough draft of the Declaration of Independence. We have these epic words. We feel like they were carved in stone. But here it is, this paper, all scribbled up, with Benjamin Franklin writing some comments in the margin, other members of the Continental Congress saying, "Why don't you say it this way?" When you think of the majesty of that language, at that point it looks like some student term paper. That's one of the fascinating things about working in an archiveâ€”to see how ideas and policies develop as reflected in the record.