President Obama's New Presidential Records Order
[Lot of things going on this afternoon. I know this has been the buzz of many of you, well here it is. Note "Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked".
You all are bloggers on the issue, take this sucker apart and report your conclusions for one and all in comments. Citizen journalism! Hooray! – bmaz]
For Immediate Release January 21, 2009
EXECUTIVE ORDER
– – – – – – –
……………………………………….PRESIDENTIAL RECORDS……………………………………………………………
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) "Archivist" refers to the Archivist of the United States or his designee.
(b) "NARA" refers to the National Archives and Records Administration.
(c) "Presidential Records Act" refers to the Presidential Records Act, 44 U.S.C. 2201-2207.
(d) "NARA regulations" refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.
(e) "Presidential records" refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.
(f) "Former President" refers to the former President during whose term or terms of office particular Presidential records were created.
(g) A "substantial question of executive privilege" exists if NARA’s disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.
(h) A "final court order" is a court order from which no appeal may be taken.
Sec. 2. Notice of Intent to Disclose Presidential Records. (a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice. If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.
Sec. 3. Claim of Executive Privilege by Incumbent President. (a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified.
(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive privilege is not justified. The Archivist shall be notified promptly of any such determination.
(c) If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.
(d) If the President decides to invoke executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.
Sec. 4. Claim of Executive Privilege by Former President. (a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.
(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked.
BARACK OBAMA
THE WHITE HOUSE,
January 21, 2009.
I don’t see any teeth in this order. If Cheney tells the Archivist to go Cheney himself, is there any penalty for non-compliance?
Bob in HI
The EO specifies that the VP records fall under the law and do not constitute a “fourth branch.”
It also appears (though IANAL) that the decision for release resides with the incumbent president and not with the former holder(s) of the office. Assuming the archivist agrees with the release.
So (again assuming and this is a big one) that Dick did not destroy all the records, they have to be available to the archivist and eventually to the public.
I’m sure bmaz or some of the other lawyers will correct my errors in reasoning and/or reading.
“have to be available”? Yeah, and so what’s the penalty for non-compliance? Unless it’s a felony, Darth Dick would just sneer and slam the door.
We’ve already seen in the past year a lot of laws that mandated this and that, but BushCo has simply ignored orders to produce. It has even ignored subpoenas. The problem with the existing PRA is that it has no teeth.
I think maybe the problem is not with this executive order (can an executive order identify any behavior as felonious unless it has a law to cite?), but with the PRA itself. Congress needs to put some teeth into it.
Bob in HI
I dunno but I do doubt that Darth has the records under his physical control at his new residence in DC.
And if the records are not under his physical control, I don’t see him slamming the door in anyone’s face.
I dunno, either. But did anyone check that wheelchair for a false bottom? hollow handles?
[The secret service had my grandmother take apart her aluminum walking cane for inspection upon our entering the WH for a tour (years ago) so the thought comes quickly to mind].
Being Darth, why wouldn’t he have the records under his physical control, legal or not? I’m not being a smart ass, really. It fits his patterns. Like his making up the “treat as secret” status, no?
Everyone that thinks the big shredder truck outside the Navel Observitory was there to mix margaritas raise your hands… No one? Hell yeah, Dick destroyed the records. That’s why they call him Dick.
Big props to whomever gets the obscure movie reference.
birds and cold weather statues, bro
Late to get back, but how bout you and your bad self!
For those of you in the weeds “birds and cold weather statues” = “The Falcon and the Snowman”
I’m impressed.
Hard to screw up when you’ve seen it about 20 times.
Obama to Cheney: “Dick? Chomp. On. This.”
And with a sinister stroke, pixie dust no more.
Is Obama a southpaw? I didn’t know that.
Indeed he is.
That one line seems as important to righting the ship as almost any other I could imagine.
Dugg this one, but confused on how you guys know he’s a southpaw.
There is video of him signing something yesterday.
I saw a book signing ages ago that showed he was a cuddy-wifter, with the hook grip. Takes practice to use a fountain pen without smudging.
Well, I didn’t, but drational said he did this with a sinister stroke. Me, I’m dexter. The sinisters puzzle me deeply, and the ambi-s even more so.
dexter = right
sinister = left
Latin.
I am latin AND I am sinister
gaDAYAMMM
I know that. That’s why I said I’m Dexter. Sheesh: a few threads ago, I was Flower. I am having an identity crisis. (Please excuse the drift, bmaz.)
There is a classic Wayne and Shuster sketch with a column of Roman Legionnaires with the sergeant-major yelling “Sinister, Dexter, Sinister, Dexter ……”
lol. I don’t remember that one, although I can recite patches of “Rinse the Blood off My Toga.”
Obama is one of six southpaw presidents since World War II: Truman, Ford, Reagan, George H. W. Bush, Clinton, and now Obama. Hoover and Garfield were also lefties, according to InfoPlease.
Sinister is from a Latin word meaning ‘left’ or ‘from the left’. In a sword fight, it was considered a dirty trick to strike with your left hand, hence the ‘evil’ connotation the word has today. The phrase ‘And with a sinister stroke’ is darn near poetic in this context, substituting the pen for the sword and all.
drational, if you made that up, I bow before your mastery of the language. If you borrowed it from somebody, you get the Shakespeare award (if you’re gonna steal something steal from the best, that’s what Will did).
Who knew? Man, I am SO going to use that at parties!~
Because we’ve seen pix of him signing documents.
Bob in HI
I am a lefty too
you know, most lefties know the historical lefties of our time, what we fail to recognize are the legions of historical righties
being left handed I am one happy fellow bush is not
Not only is he a leftie, he’s the least common kind — the specific term escapes me at the moment, but basically his elbow is up farther from his body with his wrist pointing back toward him. Researchers have been intrigued with a pattern between this kind of handedness and the way that people process auditory information — this type of leftiness is associated with musical/auditory acuity. (The brain scans suggested that people with this kind of leftiness process language in both hemispheres, rather than left dominance IIRC, but I don’t have a citation handy to back me up.)
Perhaps it helps explain why Obama really is gifted with the kind of hearing that musicians possess, and (like Lincoln) he ‘hears the music in words’. I bought “Dreams of My Father” on CD-Rom, and listening to him mimic his Kenyan relatives, and his grandfather telling tales about his father, he really has ‘a storyteller’s ear’ and knack for mimicry.
For which, let us all give grateful thanks.
And FWIW, look up the words to the music at the inaugural played by Yo-Yo Ma and others: Gentle Words, a Shaker hymn about the power of words to hurt, but also to heal (i.e., words as a kind of medicine).
Anyone with the sense of history that Barak Obama exhibits in his personal history would probably understand the value of archives, of passing information across generations. The word comes from the Greek: an ‘archon’ was, after all, a leader of the people. ‘Archive’ is related. Words and writing were ‘holy things’, regarded as a kind of magic, prior to around 800 BC. The act of storing and caring for written tablets and papyri appears to have been highly respected and highly regarded throughout the Near East and Egypt.
I agree with your interpretation and diasagree with perris’ view, which seems to have parsed out how claims of executive privilege by former Presidents are to be adjudicated. Seems that the Archivist has last say, barring a court-ordered subpoena.
As well, In think that the removal of Executive records are violations of the law…even copies of them. Recall the “Sandy Berger” incident in which removal of documents occurred which ultimately had no bearing on any legal case, nor impacted the archiving function (since they were copies).
This order mainly affects records earlier than the Bush Administration, Reagan and G.H.W. Bush, it also might affect some records of the Clinton Administration which had less than 12 year “freezes”. And it seems to remove the idea that the VP has equitable protection of “Executive Privilege” although that could be fought that discussions between a VP and his staff, are equivalent to the VP and the President. But if that’s true then the chain of Executive advice extends well beyond the stipulated Presidential-VP expansion made by Bush by Executive Order.
Thanks bmaz.
Thanks to PhilPerspective for opening the digg
This EO doesn’t change the PRA, including this bit:
My Reading: Bush can ask for executive privilege, but it’s Obama’s decision as to if it’s granted. Bush can challenge that determination in court.
Boxturtle (There’s a lot of legalese, but I think that’s the bottom line)
Open the floodgates.
Won’t the immediate affect of this be that certain records that have been held back by Poppy and Clinton could be released shortly after a short review?
More sunlight please!
Oh and Thank you Mr. President Obama. Our democracy is safely in your hands.
Please note this and tell me it ain’t so:
From Huffington Post, 01/19/2009 10:55 p.m. EST
‘Breaking: Bush Pardons Osama bin Laden’
This article does not appear to be any kind of a joke.
You made me look.
skdadl, is it not true? I could find no sign that it is other than a bone fide news article.
This reads like it came from the Onion. I wouldn’t regard this as true any more than I’d think that Bob Dylan has perfect pitch.
Bob in HI
Thanks, Bob. If this is snark, Huffpo should indicate that somewhere. I’m very sceptical, but Bush is just crazy enough to do that.
I just searched for David Rees – found that he is a political cartoonist; so I must conclude this is satire. I still find no tag which indicates that it is satire.
I apologize for any tom-foolery. I honestly did not know. Just call me gullible.
BMAZ:
It invites you to file a FOIA request seeking access to all documents, notes, records, charts, e-mails, appointment calendars, voice mails, phone records, correspondence, etc. of any and all oil/energy industry executives who met with Dick Cheney’s Energy Task Force in the months prior to 9/11.
Energy Task Force:
http://www.sourcewatch.org/ind…..Task_Force
http://www.halliburtonwatch.or…..rgytf.html
me no likey;
errrr…that’s saying bush can call anything and everything he doesn’t want us to see an “executive privilege”, I don’t see any two ways to interperate that
ianal
Yes, but it looks like it leaves the final decision to the incumbent president (by setting new policy) and the archivist.
Boxturtle (Obama, could set a policy to release ALL Bush’s records. But it would be rude)
Appropriate, but rude. Republicans are rude all the time, don’t we get to be rude, once in a while?
Obama’s address to his staff rebroadcast on CNN right now
4b (re: release of docs of former pres that are under claim of privilege) seems to be a longwinded way of saying that the archivist WILL do what the incumbent says, unless he gets a court order to the contrary.
I disagree, I think it only says that if you read it out of context and I believe in context it says the reverse, first from 4a;
combine that with;
sorry, I just see this as saying;
“presidents preserve their rights of executive priviledge and while I am not a lawyer I am pretty sure I got this right
I’m surprised to meet a group of people who know the definition of sinister
but I am surprised that some here didn’t know Obama’s a lefty
for extra credit, what’s the opposite of sinister ???
banister?
Don’t go off the rails !
See Skdadl @ 13 … the opposite of sinister is dexter
Favre!
I will resist “canister” and go for “virtuous”
Fwiw, I was struck by the notion that this was the first order by Obama (we believe), and that the Obama Administration ensured that it was publicized.
I think there is a deliberate rationale behind its production.
To me, it says that the Obama Administration is not going to be a party to Junya and Deadeye’s coverups, and that while the Obama Administration may itself not rip the covers off the coverups, everybody else is free to do so.
Congress, FOIA requests by CREW and the National Security Archive, TradMed, etc.
To me, this order says “Have at it folks! It’s now open season on Bush/Cheney, so let the hounds loose!”
Above (66) is for you, reply not working well.
If Skdadl is around, have a gander at this – Canadians prefer Iggy to Harpuh
Hopefully this gives Iggy some spine to bring Harpuh next week.
edit: ‘ … to bring Harpuh down next week.”
Lord help me, that I should have to feel cheerful about Michael “empire-lite, torture-lite” Ignatieff.
But there might be more of a point in publishing our criticisms at Iggy. Harper is just impervious.
Iggy will have to deal with Layton and Duceppe so he can’t go right. This pleases me no end !
This appears to be a revocation of EO 13233(from Wiki):
On November 1, 2001, Bush issued Executive Order 13233, limiting the access to the records of former U.S. Presidents:
…reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisers, and to do so in a manner consistent with the Supreme Court’s decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases…
O. is returning to original writing of EO, overturning Bush’s EO 13233. This opens Reagans and Papa Bush’ records too.
Totally OT – From the Wired blog:
Junya’s Last Gasp filing here.
Yeah, that is an interlocutory appeal I think (haven’t read it yet) and likely isn’t going anywhere. There is still a lot to play out in Walker’s court before the thing is in an appeal posture if you ask me.
I’m curious if the Obama DOJ will pull it back on Friday.
This is interesting. I hadn’t noticed before this particular argument:
[My bold and ital.]
That sounds almost like a game of Clue – the interception was done:
On a wire
In the U.S.
Without a warrant
by Col. Mustard….
And the Judge’s response ought to be:
“You got a warrant? Show me the warrant and we’re done. If not, you in deep trouble bro.”
According to the people that I have spoken with, they got the government cold if the evidence is properly considered.
So, yeah it’s the mustard.
Thumbs his nose Freeps way…
OT: Breaking – NY Post is reporting that Caroline Kennedy has pulled the plug on her Senate bid.
Off topic:
I was looking at the weblog awards site and was amazed that Wonkette and a website called Confluence got more votes that Unclaimed Territory for best “liberal blog” I never heard of Confluence so I went to their site and found this from the person running the blog:
Politically, I am a lifelong Democrat who leans to the moderate side. I prefer to call myself a “rational” Democrat.
How can someone who leans to the moderate side be in contention for the best liberal blog? And how did Wonkette get on there? Are these awards just a joke?
In the same way that Net-based polls are a joke?
Yes.
Thanks. What a relief. lol
^ sinister.
latin and heraldry
sinister = left
dexter = right
most people don’t understand when I say I’m ambi-sinister
most people don’t get much beyond spraycan heraldry in my neck of the woods
Hey guys, I’m on a roll. Just got a draft copy of the Gitmo Executive Order. Will be posting it up in a bit, maybe half hour or so.
What fun eh?
The ACLU beat you to it…
http://www.aclu.org/safefree/d…..90121.html
Oops, wrong link, try this one:
http://www.aclu.org/pdfs/safef….._order.pdf
Greetings from EPUville. “This says to me:…let the hounds loose”.
Maybe this is a way of getting around the problem of not wanting to appear to be on a partisan witch-hunt. Simply, in the name of transparancy, let the info be available, and like FDR said,’Make me do it”.
Hopefully the TradMed folks aren’t too dumb to take the hint, but on second thought, I’d better not hold my breath.
This part could get complicated:
Obama Gitmo Draft Executive Order Working Thread
WOW!!! Sounds like these legal strategists have been working on this a while. Those hacks that wrote their own laws for Bush/Cheney must be sweating blood about now.
Read somewhere a few days ago that Paraguay had passed an extradition law. I’ll search for a link.
Keep rollin’ bmaz, William Ocham, MadDog, and anyone I’ve left out.
This is fantastic!
The way that I read Section 4, it’s great news.
Implied: it’s the job of the Archivist to watch over archives, which are public records.
New Clarity: Any former Pres can ask for Exec Privilege. The Archivist decides whether to honor that request. In arriving at his/her decision, the Archivist can ask the AG, the OLC, or any other agencies for input regarding the request.
So now, Bushes and Cheneys need to figure out how to ensure that NARA Archivists are butt-covering weenies who will cave to their demands. Good luck with that! In my experience, every archive is unique and distinctive in specific ways. It’s the job of the archivist to make sure that researchers can access what they’re looking for, and can use what they need (often under special permissions, and sometimes requiring the use of white gloves to protect the materials being examined).
Shorter: decisions now reside with the Archivist, not the Ex-Pres who wants to cover his hindside.
In other words, a sinister stroke of the pen to those who prefer secrets.
Excuse me while I break for a short, wild Snoopy Dance!