Information contact: Larry Siems, (212) 334-1660, ext. 105, [email protected]

New York, NY, March 7, 2002—PEN American Center has joined the legal battle to reverse President Bush’s executive order limiting access to presidential papers and to authorize the National Archives to administer the Presidential Records Act of 1978 as Congress intended.

PEN is part of a coalition of organizations representing authors, journalists, and historians led by the Association of American Publishers that has submitted an amicus brief to the U.S. District Court for the District of Columbia. The brief, filed in support of a legal challenge brought in November by the public interest group Public Citizen, cautions that the Bush order “attempts to undo the Presidential Records Act’s deliberate shift in power over presidential materials to the public by restoring such power to former presidents and their heirs and executors.”

“President Bush celebrates American freedoms when he lists the reasons that terrorists and others might hate us, but when it comes to freedom of information, he and others in his administration have shown small respect for its application to the executive branch of government,” historian and outgoing PEN American Center President Frances FitzGerald stated today in New York. “This is the second suit brought against the administration on these grounds, the first being the General Accounting Office suit requiring Vice President Cheney to reveal the names of those who attended his energy policy seminars.”

Until 1974, Presidents treated papers and records from their administrations as personal property when they left office, a tradition that began with George Washington and resulted in the loss or destruction of great quantities of potentially controversial or embarrassing materials through the first two centuries of US history. Mounting concern over the practice turned to outrage when Richard M. Nixon struck a deal shortly after his resignation that would have provided him with 42 million documents and materials related to his presidency and permitted the destruction of the Nixon tapes. Congress blocked the agreement by enacting legislation to ensure public access to Nixon’s records, and the Supreme Court turned back Nixon’s claim that executive privilege and the Constitutional separation of powers guaranteed exclusive presidential control over his records. Building on these precedents, in 1978 Congress enacted the Presidential Records Act, establishing permanent public ownership and governmental control of presidential records and setting forth procedures governing their preservation and public release 12 years after a president leaves office.

Shortly after his inauguration—and, critics have noted, just at the time when sensitive documents from the Reagan administration were to become publicly accessible—the Bush administration ordered a review of existing policy, saying it wanted to institute a more orderly review process. Nine months later, on November 1, 2001, Bush signed Executive Order 13,233, which limits access to presidential records and gives incumbent and former presidents and members of a president’s family veto power over the release of records.

Public Citizen responded with a lawsuit challenging the Bush order, and last week the coalition of historians and literary organizations submitted its brief in support of the plaintiffs’ motion for summary judgment in the case. The brief, which was written by counsel for the Association of American Publishers’ Freedom to Read Committee, argues in part that “[b]y stripping the Archivist of any means to challenge a former President’s assertion of privilege, regardless of how improper it may be, the Bush Order places the burden of challenging the former President’s claim squarely on the shoulders of the author, journalist, or historian seeking access. By shifting the burden of seeking judicial review to the public, the Bush order creates an overwhelming – and fundamentally anti-democratic – presumption in favor of secrecy.”

For PEN, the Executive Order on Presidential papers is one of a number of recent moves that raise freedom of information concerns. In recent months the Bush administration flouted both laws and conventions governing the release of information from the executive branch. For example, on October 12 Attorney General John Ashcroft sent a memo urging federal agencies to resist most Freedom of Information Act requests made by American citizens – with no qualification of relevance to the current crisis. Then, when the war in Afghanistan began, White House spokesmen effectively stopped US television networks from broadcasting videos of Osama Bin Ladin that had already been seen all over the Arab world, and US military commanders attempted to stop journalists in Afghanistan from investigating possible mistakes made by US forces. Meanwhile, some in the Pentagon conceived of creating an Office of Strategic Influence that would disseminate false information to US allies as well as foes. Most recently, according to Senate majority leader Tom Daschle, the White House failed to inform the Congress about its plan to establish a bureaucracy in hiding that might survive an attack on Washington.

“This is an ominous pattern,” Frances FitzGerald noted, “and one that has nothing to do with the effectiveness of the war against terrorism.”

PEN American Center is the largest in a global network of 131 centers around the world composing International PEN. PEN’s mission is to promote literature and protect free expression whenever writers or their work are threatened. Internationally, PEN American Center defends writers from censorship, harassment, and imprisonment, and in the United States it defends the First Amendment and protects free speech through sign-on letter campaigns, direct appeals to policy makers, participation in lawsuits and amici curiae briefs, awards for First Amendment defenders, and public events.

The full text of the amicus brief challenging the Bush order on Presidential papers can be found on the Association of American Publishers web site.

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