Presidential Privacy


March 1, 2002


BROOKE GLADSTONE: We're back with On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. Historians will note: November first, 2001 - a day that will live in infamy. Not for the public, really. Just for historians. On that day George W. Bush signed executive order 13233, effectively bypassing the presidential record acts of 1978 and denying scholarly access to 68,000 pages of the Ronald Reagan archive. The order says that a document can be withheld from the historical record if it is a violation of confidentiality. Who gets to make that judgment? Any of the following parties: the president in question, the president's vice president, the current president and any family member that the former president designates in the event of his death or incapacity. Earlier this week On the Media's Mike Pesca attended a conference at New York University where historians and archivists discussed the effect of the Bush executive order.

MIKE PESCA: Bush's order wasn't the kind of action that will get the public to take to the streets, but it was enough for historians to take to the op-ed pages. In the New York Times historian Richard Reeves said that with the stroke of a pen President Bush has stabbed history in the back and blocked Americans' right to know how presidents have made decisions. But before we discuss how the law affects history, it's instructive to consider how history affected the law. For 22 years John Brademas served South Bend, Indiana as a Democrat in the U.S. Congress.

JOHN BRADEMAS: Well in 1978 we were following up the Presidential Recordings and Materials Preservation Act which was a response to the arrangement by President Ford, newly installed in the White House, to turn over to Richard Nixon all the papers and tape recordings of his administration and make a bonfire of them.

MIKE PESCA: As chairman of the subcommittee on Printing of House Administration which he calls the most inconsequential subcommittee in the U.S. House of Representatives, Brademas was instrumental in creating the Presidential Records Act. He blocked ex-president Nixon's plan in 1974 to destroy files including the famous audio recordings of the Oval Office. Washington lawyer and former Nixon counsel Leonard Garment says that Nixon wound up being embarrassed by the tapes not only for what was said but how it was said.

LEONARD GARMENT: Private conversations are very, very different from public statements full of unpleasant, nasty jokes-- unpleasant language, epithets--racial humor - I mean it, it-- a lot of the debate in the upper reaches of political activity could be monstrously embarrassing [LAUGHS] if made known.

MIKE PESCA: As Garment sees it, the quality of advice that the president gets will be jeopardized if all his advisors sense that their characters in future textbooks and dramatizations--

LEONARD GARMENT: I mean if, if everyone involved in the governmency or around the president are on a constant virtual reality West Wing television show and whatever they say is known or can be made known, there's bound to be a completely false performance! People really can't ventilate their views, and it would be-- a joke!

MIKE PESCA: That's one of the arguments President Bush gives for not only withholding Reagans' records but also for not releasing the list of energy companies which advised Vice President Dick Cheney. He also cites a loss of privacy and threat to national security. Speaking at the NYU conference, John Brademas said that national security is always the first argument against releasing documents.

JOHN BRADEMAS: The War in Afghanistan, the War Against Terrorism will be used by the White House as a cloak to say we don't want any of these records made public because that would endanger national security. These are very familiar arguments.

MIKE PESCA: He also notes that security concerns are taken seriously by archivists. In fact, Columbia University professor and historian Alan Brinkley says that there are still documents in the FDR archive that are unavailable because of national security. As for giving up privacy, which Bush has called "the biggest sacrifice of his tenure," Brinkley's sympathetic up to a point.

ALAN BRINKLEY: I think if a president writes, you know, a handwritten note to his daughter, there's no legitimate reason why that has to become part of the public record. When a president sends e-mails out over White House computers, however, who is to determine what's private and what's public? And I, I just don't think there's any existing mechanism that's adequate to protect the public's right to accessed information that actually is public.

MIKE PESCA: If laws don't force archives open, the public will have to rely on the good will of ex-politicians to determine what's appropriate for the public to see. That's fine with Saul Cohen who is the president of the Rudolph W. Giuliani Center for Public Affairs, the first ever attempt by a New York mayor to establish a private archive. Opponents of the proposed Giuliani Archive ask why we should trust Giuliani or the current New York Mayor Michael Bloomberg who also has oversight to go through the boxes and remove certain documents before professional archivists get a crack at them. Saul Cohen dismisses those concerns.

SAUL COHEN: Yeah, I think that's very much a red herring. Our principal critic has told me he thought the amount of documents that might have a privacy aspect is going to be very small, would fit in one folder, etc. If by any chance there's the mayor's son's report card or something of that nature, my understanding from the archivists is they routinely determine the difference between private and public. So I think this is a really non-issue except by people who have axes to grind.

MIKE PESCA: In New York it will likely be a matter for the courts to settle. In Washington the issue will probably be decided by Congress. Already in committee hearings, even staunch Republicans have joined Democrats in expressing displeasure with the Bush order. This isn't exactly a triumph of bipartisanship. The Republicans know if the Bush order stands they'll never get a crack at the Clinton Archive. For On the Media, I'm Mike Pesca.