Executive Order 13233
& The Undermining
Of The US Constitution
By Greg Burnham

A five-page executive order was signed by President Bush on Thursday that allows history to virtually be kept hidden from the public. The order allows a sitting president to deny the release of a former president's records even if the former president has agreed to make them public.
Rep. Stephen Horn (R-Long Beach) will chair a meeting of a governmental reform subcommittee to look into the president's action. Hopefully this will be the first step in reversing the Executive Order and not just a pseudo-watch dog commitee whose real agenda is nothing more than feigning an objection, only later to actually endorse that which they had originally appeared to challenge.
In 1974 Congress placed Richard Nixon's records in federal custody to prevent him from destroying them. This action promoted an environment of reduced secrecy and allowed historians to do their job without undue burden. The Presidential Records Act of 1978 mandated that the records of a former president become the property of the federal government upon his leaving the White House, and were to be transferred to the Archivist of the United States, where they would be made available to the public after no more than 12 years. The intent of the law was clearly to discourage, if not prevent, the abuse of power by the nation's Chief Executive [in the first case, NIXON] through removing the comfort afforded future prsidents by the veil of secrecy.
White House counsel, Alberto R. Gonzales, drafted the Executive Order. According to him, this : "simply implemented an orderly process" for dealing with past presidential records. But that innocuous depiction is not truly representative of the order's scope. The EO permits a former president (or if he is deceased, his family) or a sitting president to withhold records INDEFINITELY.
Which records? Any records claimed to be state secrets, "deliberative process" materials, confidential communications or attorney-client communications could be withheld under the order unless the person seeking the documents demonstrated a "specific need" for them to be released. However, this EO contradicts the letter and intent of the law. For example, the Presidential Records Act specifically states that the deliberative process exemption of the Freedom of Information Act cannot be used as a reason to withhold Presidential records after the 12-year period has passed.
Finally, upon first glance the most alarming revelation can be found in Section 7 of the Executive Order, which reads:
"Sec. 7. No Effect on Right to Withhold Records.
"This order does not limit the former President's or the incumbent President's right to withhold records on any ground supplied by the Constitution, statute, or regulation...."
My initial reaction to this was one of great dismay. I thought: What??? The US Constitution has been relegated to a position of inferiority??? What??? How??? And by "what authority" is such relegation justified??? Talk about Un-Constitutional for the love of God! This is BLATANTLY, (and in the wording of the section it is actually delineated as): UN-CONSTITUTIONAL, by definition!!!! As such, it is wholly unacceptable.
However, upon revisiting the verbage used in Section 7 of Executive Order 13233, I realized a different interpretaion exists separate from that to which I earlier responded.
The sentence: "This order does not limit the former President's or the incumbent President's right to withhold records on any ground supplied by the Constitution, statute, or regulation..." -- probably means that any Constitutionally granted presidential "right" to withhold documents which "pre-existed" this order, are NOT limited by it. My initial interpretation of the section may have been flawed but only because the ambiguity contained therein is problematic. That said, still the US Constitution never mentions "a president's right to withhold anything" (including records) in the entire document. Therefore, how could this section be interpreted to mean that the order "does not limit grounds already supplied by the Constitution giving a president the right to withhold records..." --when such a "right" is never mentioned anywhere in the Constitution in this context or in any other context??? So much for legal-ease, I suppose. Read the entire Executive Order at:


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