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Former presidents can't withhold records, court says

By The Associated Press

WASHINGTON — Presidents don’t have indefinite veto power over which records are made public after they’ve left office, a federal judge ruled yesterday.

In a narrowly crafted ruling in American Historical Association v. National Archives and Records Administration, U.S. District Judge Colleen Kollar-Kotelly invalidated part of President Bush’s 2001 executive order, which allowed former presidents and vice presidents to review executive records before they are released under the Freedom of Information Act.

By law, the National Archives has the final say over the release of presidential records and Kollar-Kotelly ruled that Bush’s executive order “effectively eliminates” that discretion. It allows former presidents to delay the release of records “presumably indefinitely,” she said.

The judge ordered the National Archives not to withhold any more documents based on that section of the executive order.

The ruling was made in a lawsuit filed by the consumer-advocacy group Public Citizen, which argued that Bush’s Executive Order 13,233 was an “impermissible exercise of the executive power.”

The judge dismissed most of the claims and sidestepped some of the loftier questions, such as whether the entire order was unconstitutional or whether former presidents can claim executive privilege as grounds for withholding documents.

Spokeswoman Emily Lawrimore said the White House was reviewing the opinion and considering its options.

Some historians and researchers said the executive order delayed access to historical documents. The National Security Archive, a private group advocating public disclosure of government secrets, is awaiting the release of records that are being reviewed by former President Reagan’s representatives. The average delay caused by a former president’s review is nearly six months.

“The court is enforcing procedural standards, but has avoided the hard questions about the role former presidents, former vice presidents, and their heirs can play when it comes to disclosure of presidential records,” said Meredith Fuchs, the counsel for the National Security Archive. “Unless the executive order is reversed or withdrawn, decisions about the release of records from this administration may ultimately be made by the Bush daughters.”

Public Citizen filed the lawsuit on behalf of itself, the American Historical Association, the National Security Archive, the Organization of American Historians, the Reporters Committee for Freedom of the Press, the American Political Science Association and historian Stanley Kutler.

A bill (H.R. 1255) that would overturn the executive order passed the House in March and is pending in the Senate.

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