- The Washington Times - Thursday, January 22, 2009

Moving quickly to undo the Bush administration’s regime of secrecy, President Obama on Wednesday repealed a 2001 executive order granting former presidents, and even vice presidents, the ability to keep documents secret long past the 12 years allowed by law.

It was one of Mr. Obama’s first official acts, and was hailed as a rebuke of the past eight years. In announcing the order, Mr. Obama said it will even tie his own hands.

“Going forward, any time the American people want to know something that I or a former president wants to withhold, we will have to consult with the attorney general and the White House counsel, whose business it is to ensure compliance with the rule of law,” Mr. Obama said. “Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well-grounded in the Constitution.”

After Watergate and President Nixon’s attempts to shield presidential records, Congress passed the Presidential Records Act of 1978, which said beginning in 1981 all records produced by a president or vice president belonged to the public and must be archived. The law provided for their release 12 years after an administration ended.

But with historians hoping in 2001 to finally gain a peek at Reagan administration documents, Mr. Bush changed the rules with Executive Order 13233, which gave former presidents, relatives of deceased former presidents and even former vice presidents a veto over the release of information.

Former presidents can still exert privilege, but the new order returns the final say to the Archivist of the United States, in consultation with the current president.

An attempt to reach Mr. Bush’s office was not successful.

Scott L. Nelson, a lawyer for Public Citizen who has litigated cases against the executive order, said the new order doesn’t immediately free up a bunch of records, but “takes away the hanging threat that that veto power might be exercised.”

“It’s a strong symbolic statement, if nothing else, about this president’s desire to send a message that he is committed to openness that he’s willing to take a certain portion of his own inherent authority and say he won’t exercise it unless these other officials tell him it’s proper,” Mr. Nelson said.

Mr. Obama also moved to undo then-Attorney General John Ashcroft’s guidance in 2001 that gave government agencies new grounds to deny the release of records.

In new directives, Mr. Obama said agencies should instead presume records are open. He signed a memo requiring three senior officials to produce an “open government” action plan within 120 days.

“The mere fact you have the legal power to keep something secret does not mean you should,” Mr. Obama said, adding that he will hold himself to “a new standard of openness.”

The Bush administration was no stranger to fights over secrecy.

As vice president, Dick Cheney was in a dispute with the National Archives, arguing that he did not have to comply with rules requiring him to preserve classified information. Mr. Cheney said the Constitution didn’t place his office in the executive branch, so he wasn’t bound to rules written for the executive.

Open-government advocates who had battled the Bush administration praised Mr. Obama’s moves.

“President Obama’s actions today are a triumph for the rule of law,” said Sen. Russ Feingold, Wisconsin Democrat, calling the move “a critical step toward fixing the damage done to our Constitution over the last eight years.”

Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, said the changes signal “a new era of transparency and accountability that’s been badly missing for eight years.”

“Unlike President Bush, President Obama is not going to be reflexively supporting executive privilege claims of former presidents,” she said, adding that it’s “unprecedented.”

Mr. Obama’s memos encourage all government agencies to use “modern technology” and increase the amount of information shared with the public.

“This is an enormous opportunity to set a tone and to empower hundreds of thousands of federal employees to do the right thing,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who characterized it as a “180-degree turn” from the Bush administration.

Danielle Brien, executive director of the Project for Government Oversight, said the new disclosure rules reverse President Bush’s “presumption of secrecy, and will return us to 20th-century openness.” She said enforcement of the rules could make the Freedom of Information Act a tool of the past.

“It’s particularly important to get these reforms set in stone now before the people in power start to look longingly at the good old days of secrecy,” she said.

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