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Executive Order 13233

Executive Order 13233

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Executive Order 13233 limited access to the records of former United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

s. It was drafted by then White House Counsel
White House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...

 Alberto Gonzales
Alberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...

 and issued by George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 on November 1, 2001. Section 13 of Order 13233 revoked which was issued by Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....

 on January 18, 1989.

The Order was partially struck down in October 2007, and Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...

 completely revoked it, by on January 21, 2009, his first full day in office. However, as long as no bill is passed by Congress with regard to this issue, any future president is free to issue yet another order to take the place of the revoked order 13233, just as Order 13233 revoked Order 12667
Executive Order 12667
Executive Order 12667 established a procedure for former United States Presidents to limit access to certain records which would otherwise have been released by the National Archives and Records Administration under the Presidential Records Act of 1978...

.

Background


In 1974, Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 passed the Presidential Recordings and Materials Preservation Act
Presidential Recordings and Materials Preservation Act
The Presidential Recordings and Materials Preservation Act of 1974 is an act of Congress enacted in the wake of the August 1974 resignation of President Richard M. Nixon. It placed Nixon's presidential records into federal custody to prevent their destruction...

 of 1974, placing the presidential records of Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

 in federal custody to prevent their destruction. The legislative action was intended to reduce secrecy, while allowing historian
Historian
A historian is a person who studies and writes about the past and is regarded as an authority on it. Historians are concerned with the continuous, methodical narrative and research of past events as relating to the human race; as well as the study of all history in time. If the individual is...

s to perform their responsibilities. In 1972, decades worth of official and unofficial Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...

 records had been destroyed, upon the death of J. Edgar Hoover
J. Edgar Hoover
John Edgar Hoover was the first Director of the Federal Bureau of Investigation of the United States. Appointed director of the Bureau of Investigation—predecessor to the FBI—in 1924, he was instrumental in founding the FBI in 1935, where he remained director until his death in 1972...

, by his longtime secretary. The Presidential Records Act
Presidential Records Act
The Presidential Records Act of 1978, , is an Act of Congress of the United States governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential records...

 of 1978 expanded such protection of historical records, by mandating that the records of former presidents would automatically become the property of the federal government upon his leaving the Oval Office
Oval Office
The Oval Office, located in the West Wing of the White House, is the official office of the President of the United States.The room features three large south-facing windows behind the president's desk, and a fireplace at the north end...

, and then transferred to the Archivist of the United States
Archivist of the United States
The Archivist of the United States is the chief official overseeing the operation of the National Archives and Records Administration. The first Archivist, R.D.W. Connor, began serving in 1934, when the National Archives was established as an independent federal agency by Congress...

, thereafter to be made available to the public after no more than 12 years.

Thus, the presidential papers of Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....

 were due to be made public when George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 took office in January 2001. However, in a White House
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...

 memo dated March 23, 2001, the Counsel to the President conveyed the following to U.S Archivist
Archivist of the United States
The Archivist of the United States is the chief official overseeing the operation of the National Archives and Records Administration. The first Archivist, R.D.W. Connor, began serving in 1934, when the National Archives was established as an independent federal agency by Congress...

 John W. Carlin
John W. Carlin
John William Carlin served as fortieth Governor of Kansas from 1979 to 1987, and Archivist of the United States from May 30, 1995, to February 15, 2005.-Biography:...

:

Section 2(b) of Executive Order 12667, issued by former President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....

 on January 16, 1989, requires the Archivist of the United States to delay release of Presidential records at the instruction of the current President. On behalf of the President, I instruct you to extend for 90 days (until June 21, 2001) the time in which President Bush may claim a constitutionally based privilege over the Presidential records that former President Reagan, acting under Section 2204(a) of Title 4, has protected from disclosure for the 12 years since the end of his Presidency. This directive applies as well to the Vice Presidential
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...

 records of former Vice President George H.W. Bush.


This instruction was repeated on June 6, 2001, before the 90 days had elapsed, giving a new deadline of August 31, 2001. On the day of this deadline, Alberto Gonzales instructed the Archivist to wait a few additional weeks. On November 1, 2001, Bush issued Executive Order 13233, limiting the access to the records of former U.S. Presidents
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

:
...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...

Criticism


The Society of American Archivists
Society of American Archivists
The Society of American Archivists is the oldest and largest archivist association in North America, serving the educational and informational needs of more than 5,000 individual and institutional members...

 and the American Library Association
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....

 were critical of the president's exercise of executive power by issuing EO 13233. They claimed that the action "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in ," noting that the order "potentially threatens to undermine one of the very foundations of our nation."

John Wertman, a member of former President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

's White House staff, wrote an op-ed
Op-ed
An op-ed, abbreviated from opposite the editorial page , is a newspaper article that expresses the opinions of a named writer who is usually unaffiliated with the newspaper's editorial board...

 piece critical of the executive order that appeared in The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...

 on February 26, 2006. Wertman asserted that Order 13233 "represents a wholesale change in the way the federal government preserves and promotes our national public memory." He also included a quote from former President Gerald Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...

 on the topic: "I firmly believe that after X period of time, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public, and the sooner the better."

Response


There have been three separate attempts to repeal Order 13233, the latest of which, while still ongoing, is now moot. In 2002, shortly after Order 13233 went into effect, a bipartisan group of U.S. House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 members, led by Stephen Horn (R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

-CA
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

), Dan Burton
Dan Burton
Danny "Dan" Lee Burton is the U.S. Representative for , and previously the , serving since 1983. He is a member of the Republican Party....

 (R-IN
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...

), Jan Schakowsky
Jan Schakowsky
Janice D. "Jan" Schakowsky is the U.S. Representative for , serving since 1999. She is a member of the Democratic Party.The district includes many of Chicago's northern suburbs, including Evanston, Skokie, Wilmette, Park Ridge, Des Plaines and Rosemont...

 (D
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

-IL
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...

), and Henry Waxman
Henry Waxman
Henry Arnold Waxman is the U.S. Representative for , serving in Congress since 1975. He is a member of the Democratic Party. He is considered to be one of the most influential liberal members of Congress...

 (D-CA) wrote and debated a bill aimed at repealing Order 13233, thereby restoring Order 12667 to full force and effect. The bill passed the House Committee on Oversight and Government Reform, which was chaired by Burton at the time, but never saw floor action.

On March 1, 2007, a subcommittee of the Committee on Government Reform held a hearing on bill , the Presidential Records Act Amendments of 2007. This bill was also introduced by Waxman, and its goal was again to void Order 13233. At the hearing, several historians argued that Order 13233 has severely curtailed public access to presidential records and added to delays in obtaining materials from presidential libraries. The bill was reported favorably by the full committee, and on March 14, 2007, the House passed the bill in an overwhelmingly bipartisan vote of 333-93. The bill also passed on June 13, 2007 in a Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 committee, but was never brought to the floor for a vote, reportedly due to a hold placed on the measure by Senator Jim Bunning
Jim Bunning
James Paul David "Jim" Bunning is an American former Major League Baseball pitcher and politician.During a 17-year baseball career, he pitched from 1955 to 1971, most notably with the Detroit Tigers and the Philadelphia Phillies. When he retired, he had the second-highest total of career...

 (R-KY
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...

). As a result, the bill died when the 110th Congress ended.

On January 7, 2009, the House of the 111th Congress passed , introduced by Edolphus Towns (D-NY
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

), section 3 of which would, if enacted, negate Order 13233. The bill was co-sponsored by Dan Burton
Dan Burton
Danny "Dan" Lee Burton is the U.S. Representative for , and previously the , serving since 1983. He is a member of the Republican Party....

 (R-IN), Darrell Issa
Darrell Issa
Darrell Edward Issa is the U.S. Representative for , and previously the 48th, serving since 2001. He is a member of the Republican Party. He was formerly a CEO of Directed Electronics, the Vista, California-based manufacturer of automobile security and convenience products...

 (R-CA), Henry Waxman
Henry Waxman
Henry Arnold Waxman is the U.S. Representative for , serving in Congress since 1975. He is a member of the Democratic Party. He is considered to be one of the most influential liberal members of Congress...

 (D-CA), William Clay
William Lacy Clay, Jr.
William Lacy Clay, Jr., usually known as Lacy Clay is the U.S. Representative for , serving since 2001. He is a member of the Democratic Party....

 (D-MO]], and Brad Sherman
Brad Sherman
Bradley J. "Brad" Sherman is an American politician. He has been a Democratic member of the United States House of Representatives since 1997, representing ....

 (D-CA). The bill died in the Senate Committee on Homeland Security and Governmental Affairs.

Lawsuit


In November 2001, the National Security Archive
National Security Archive
The National Security Archive is a 501 non-governmental, non-profit research and archival institution located in the George Washington University in Washington, D.C.. Founded in 1985 by Scott Armstrong, it archives and publishes declassified U.S. government files concerning selected topics of US...

, the American Historical Association
American Historical Association
The American Historical Association is the oldest and largest society of historians and professors of history in the United States. Founded in 1884, the association promotes historical studies, the teaching of history, and the preservation of and access to historical materials...

 and other plaintiffs filed a lawsuit in the D.C. District Court against the National Archives and Records Administration
National Archives and Records Administration
The National Archives and Records Administration is an independent agency of the United States government charged with preserving and documenting government and historical records and with increasing public access to those documents, which comprise the National Archives...

 and the Archivist, claiming constitutional problems with the order, and pointing out that "access to materials may be delayed for an unlimited period of time after the expiration of the 12-year restriction period while a former president and the incumbent president ‘review’ materials proposed for release", because of § 3(b) of the order, which states
After receiving the records he requests, the former President shall review those
records as expeditiously as possible, and for no longer than 90 days for requests that are
not unduly burdensome. The Archivist shall not permit access to the records by a
requester during this period of review or when requested by the former President to
extend the time for review.

While most of the lawsuit was found to be unjusticiable
Justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...

 at this time due to lack of ripeness
Ripeness
In United States law, ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." For example, if a law of ambiguous quality has been enacted but never...

, in October 2007 the Court held that "the Archivist’s reliance on § 3(b) of Executive Order 13,233 is arbitrary, capricious, an abuse of
discretion, and not in accordance with law in violation of the Administrative Procedure Act
Administrative Procedure Act
The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...

" and enjoined "the Archivist from further relying on § 3(b) of Executive Order 13,233". The rest of the lawsuit was dismissed without prejudice.

Revocation


On January 21, 2009, Executive Order 13233 was revoked by executive order of President Barack Obama. Obama essentially restored the wording of Executive Order 12667, by repeating most of the text of that order with minor changes. One notable change is that vice presidential records are explicitly covered by his new order.

See also

  • Freedom of Information Act (United States)
    Freedom of Information Act (United States)
    The Freedom of Information Act is a federal freedom of information law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. The Act defines agency records subject to disclosure, outlines mandatory disclosure...

  • U.S. reclassification program
    U.S. reclassification program
    The U.S. intelligence community's secret historical document reclassification program is a project to reclassify certain documents that have already been declassified and released to the public through the National Archives and Records Administration ....

  • Presidential Records Act
    Presidential Records Act
    The Presidential Records Act of 1978, , is an Act of Congress of the United States governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential records...


External links

  • Executive Order 13233 - Further Implementation of the Presidential Records Act, (November 5, 2001): Full text of Executive Order 13233
  • ALA.org - 'Executive Order 13233', American Library Association
    American Library Association
    The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....

  • Archivists.org - 'Society of American Archivists
    Society of American Archivists
    The Society of American Archivists is the oldest and largest archivist association in North America, serving the educational and informational needs of more than 5,000 individual and institutional members...

     responds to Executive Order 13233 on Presidential Papers' (November 6, 2001)
  • Archivists.org - 'Call to Action on Executive Order 13233: A Message from President Steve Hensen', Society of American Archivists (November 15, 2001)
  • ARL.org - 'Serious concerns with Executive Order 13233 on Further Implementation of the Presidential Records Act' (Letter to Representative Stephen Horn), American Association of Law Libraries
    American Association of Law Libraries
    The American Association of Law Libraries "is a nonprofit educational organization with over 5,000 members nationwide. AALL's mission is to promote and enhance the value of law libraries to the legal and public communities, to foster the profession of law librarianship, and to provide leadership in...

    , American Library Association
    American Library Association
    The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....

    , Association of Research Libraries
    Association of Research Libraries
    The Association of Research Libraries is an organization of the leading research libraries in North America. As of October 2006, it comprises 123 libraries at comprehensive, research-intensive institutions in the US and Canada that share similar missions, aspirations, and achievements...

    , National Humanities Alliance
  • FindArticles.com - 'American Political Science Association response to Executive Order 13233' (Letter to Representative Stephen Horn), Robert D. Putnam, Presidential Studies Quarterly (March, 2002)
  • MUOhio.edu - Draft Presidential Records Act Executive Order: A "Disaster" for History', Bruce Craig, National Coordinating Committee for the Promotion of History (November 1, 2001)
  • ProjectCensored.org - 'Top 25 Censored
    Censorship
    thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...

     Stories of 2005: #1 Bush Administration
    George W. Bush administration
    The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...

     Moves to Eliminate Open Government', Project Censored
    Project Censored
    Project Censored is a non-profit, media criticism and investigative journalism project within the Sonoma State University Foundation. It is managed through the School of Social Sciences at the university....

     (January, 2006)
  • http://www.law.nyu.edu/journals/lawreview/issues/vol79/no4/NYU407.pdf - 'The Imperial Presidency Strikes Back: Executive Order 13,233, the National Archives, and the Capture of Presidential History,' Stephen H. Yuhan, New York University Law Review (October, 2004)