This week, the Bush administration decided not to appeal a federal district court judge’s decision that invalidated a crucial section of Executive Order (EO) 13233, which broadened the rights of presidents and former-presidents to withhold federal records from the public for indefinite periods of time.
On October 1, Judge Colleen Kollar-Kotelly gave historians and researchers a partial, but significant victory in a lawsuit questioning the legality of the Executive Order. The judge struck down the section of the EO that allows a former president to indefinitely delay the release of their records.
However, Judge Kollar-Kotelly did not rule on the constitutionality of the Executive Order itself, narrowly crafting her decision to address only the specific provision in the order dealing with former presidents. She declined to rule on the legality of the sections of the Executive Order allowing heirs and designees of former presidents, and former vice presidents, the authority to control the release of documents, calling them “unripe” since no records have yet been withheld pursuant to those provisions. However, the judge left open the right for the plaintiffs to challenge these provisions in the future if the release of records were denied as a result of them.
The lawsuit was brought by Public Citizen soon after the Executive Order was issued in 2001 on behalf of itself, the American Historical Association (AHA), the National Security Archive, the Organization of American Historians (OAH), the Reporters Committee for Freedom of the Press, the American Political Science Association (APSA) and historian Stanley Kutler.
Legislation (H.R. 1255) to overturn Executive Order 13233 overwhelmingly passed the House by a vote of 333-93 in March. At the time the legislation was considered in the House, the Bush administration issued a threat to veto the bill, but it passed the House by a veto-proof margin. Similar legislation cleared the Senate Homeland Security and Government Affairs Committee by voice vote this summer. However, when the Democratic leadership sought to bring the bill to the floor on September 24, Senator Jim Bunning (R-KY) objected to consideration of the bill and it remains tied up in the Senate.