George W. Bush surprises on White House records - Josh Gerstein - - FACTOIDS
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George W. Bush surprises on White House records - Josh Gerstein -

President George W. Bush, whose White House was legendary for its secrecy, seems to have turned over a new leaf in his post-presidency.

A previously undisclosed directive Bush signed almost two years after leaving office could result in many of his official records becoming public faster than those of his predecessor, President Bill Clinton, experts say — a move that’s drawing praise from unlikely quarters.

Bush’s letter to the National Archives about his presidential records, obtained by POLITICO under the Freedom of Information Act, establishes nine categories of documents cleared for release to the public. They include memoranda and reports provided to Bush and his aides that are “purely informational or factual in content,” talking points on policy decisions, scheduling files and recommendations about whether to sign legislation, while still allowing for withholding of some details of sensitive policy debates.

(LETTER: Read Bush’s letter on presidential records)

The relatively expansive directive stands in contrast to Bush’s approach to the public’s right to know while he was in office, when his administration battled to the Supreme Court to keep secret the work of Vice President Dick Cheney’s Energy task force and reversed a Clinton-era presumption favoring disclosure in Freedom of Information Act cases. The Bush order also sets his approach apart from Clinton’s instructions for his White House records — a process that led to about 33,000 pages being held back for more than 12 years after the 42nd president left office.

On Friday, the latest batch of about 7,300 pages of those Clinton-era records emerged from the Clinton Library, revealing the scramble to lay political blame for the failure of the Clinton health care reform drive and how the president was advised to tackle questions during a trip to Vietnam about his avoidance of the Vietnam War draft.

While Bush’s letter was signed about 3½ years ago, its true test has just gotten under way. That’s because, by law, White House records become subject to Freedom of Information Act requests from the public five years after a president leaves office. That window opened at the Bush Library in January of this year. In the first week, it was open to FOIAs, the Bush Library received more than 200 requests from journalists, scholars and activists.

A close observer of White House operations, Towson University political science professor Martha Kumar, said Bush likely views himself as having little to lose and something to gain by being open with his official files.

“He left the presidency very comfortable with his record. I think that’ll carry through into the release of information from it,” Kumar said. “I think he believes his actions were justified and that the records will demonstrate that.”

A parallel letter Bill Clinton signed in 2002 took a different approach, appearing to lift the legal restrictions on all confidential advice unless it was covered by certain exceptions. However, experts and former National Archives officials say that the outlines of those exceptions were so unclear that even mundane records were often withheld.

(LETTER: Read Clinton’s letter on presidential records)

“In general, I would say that the Bush letter is more helpful and concrete than the Clinton one,” said Scott Nelson of Public Citizen, an attorney who has fought for broader public access under the Presidential Records Act. “On its face, the Bush letter appears to do more to ‘ease’ the restrictions than the Clinton one did, and to empower the Archives to make its own decisions about releasing materials as to which the restrictions have been ‘eased.’”

“Bush chose to delineate categories in which he was waiving restrictions,” said Sharon Fawcett, who retired in 2011 as director of the Archives’ presidential libraries division. “He operated more from: ‘This is what you should open. This is what you must close….’ That helps to speed up the review, rather than saying, ‘I’m mostly willing to open confidential advice, but I want to look at it first.’”

That extra step, said Fawcett, means “great quantities of materials have to go through the eyeballs of the [president’s] personal representative to identify material everyone is comfortable with.” That’s what happened following Clinton’s 2002 directive, she said.

The high marks Bush is receiving for his letter are startling, since historians and a media coalition complained loudly and bitterly in 2001 about an executive order he issued ceding additional power to former presidents to prevent disclosure of their records. A judge struck down part of the order in 2007.

In a measure of liberal disdain for Bush’s action, the first executive order President Barack Obama signed after taking office revoked the earlier order.

Bush’s post-presidential directive is careful to preserve his ability to hold back what many researchers would consider the crown jewels: the most sensitive memos and emails created during his eight years in the White House. Departing from Clinton’s letter, Bush’s order seeks to give special protection to communications involving his most senior advisers by designating senior staff memos for possible withholding.

“I further request that the NARA staff pay particular attention to, and appropriately consult with, my designated representatives regarding confidential communication, including electronic communications, containing substantive advice or recommendations involving White House staff serving as Assistants to the President,” Bush wrote in the Nov. 15, 2010, letter.

As with Clinton’s letter, Bush’s also lays out categories of greater sensitivity, including “confidential communications on a national security or foreign policy topic,” “substantive policy communications to or from the President,” and communications with the vice president or first lady.

Here, too, there are nuanced differences. Bush’s letter says he’s considering easing even those restrictions and appears to give his representative authority to do so. Clinton’s urges that the restrictions be interpreted “as narrowly as possible,” but doesn’t appear to give the go-ahead to disclose any of the information in the categories deemed most sensitive.

“The Clinton letter didn’t clearly specify anything that would definitely be subject to release,” Nelson said.

“This is a very generous sounding letter,” Fawcett said of Clinton’s instructions. “But there were these restrictions.”

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