D.C. Federal District Court judge Colleen Kollar-Kotelly has struck down a narrow portion of Executive Order 13233, a 2001 directive from President Bush which sharply limited future access to presidential and vice-presidential records. The ruling [PDF] came yesterday in the case of American Historical Association et al. v. National Archives and Records Administration (NARA) and the Archivist of the United States, which has been working its way through the legal pipeline since 2004.
While Kollar-Kotelly dismissed much of the AHA's lawsuit (which is joined by other organizations, including the National Security Archive, the Organization of American Historians, Public Citizen, and the American Political Science Association) for lack of standing, she did conclude that Section 3(b) of the Executive Order violates the Presidential Records Act and its subsequent regulations. The PRA regulations state that once former presidents receive notice from NARA that records from their administration are to be released, "the Archivist shall not disclose any records covered by any notice ... for at least 30 days from receipt of the notice by the former president."
Bush's E.O., however, 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 reviews." Kollar-Kotelly agreed with plaintiffs that this conflict did not jive with the PRA regulations: "The Bush Order effectively eliminates the Archivist's discretion to release a former president's documents while such documents are pending a former president's review, which can be extended - presumably indefinitely - upon the former president's request."
The ruling continues "... Defendants seem to miss that after 30 days from a former president's receipt of notice of documents to be disclosed, the Archivist may make a discretionary decision with respect to the release of such documents though they are pending the former president's review. Accordingly, in relying on [Section] 3(b) of the Bush Order, the Archivist effectively denies himself the discretion (and accordingly the need to make reasoned, discretionary decisions with respect to the appropriate length of review) to release documents still under a former president's review as he is permitted to do ...". Kollar-Kotelly also disagreed that "removing discretion from the Archivist with respect to what constitutes a reasonable time for said review after 30 days has expired would somehow threaten a former president's ability to make privilege determinations."
Therefore, the judge "ordered the National Archives not to withhold any more documents based on that section of the executive order."
Kollar-Kotelly's ruling did not address the overarching question of whether E.O. 13233 is constitutional or whether former presidents or vice presidents can claim executive privilege as grounds for withholding documents.
White House spokeswoman "Emily Lawrimore said the White House was reviewing the opinion and considering its options." The decision could be appealed. National Security Archive general counsel Meredith Fuchs said the ruling avoided "the hard questions".
A bipartisan bill to overturn E.O. 13,233 in its entirety, H.R. 1255, passed the House in March by a vote of 333-93, and has been placed on the calendar in the Senate but faces a filibuster threat there.