Why is it that archivists and records managers rarely discuss important
aspects of the highest-ranking recordkeeping job in any country? There are
plenty of issues about what is or should be one of the most critical positions
in any democratic society, whether at the national, state/provincial or local
government level, worthy and in need of open discussion and debate within
the professional community and more broadly in the public domain. Using the
controversial, ongoing case of President Bush’s nomination of a new Archivist
of the US, this essay focuses on some of these issues.
Largely out of sight or earshot of the American public, United States
historians, archivists, librarians and information managers have united in
community force to challenge President George W. Bush’s nomination of historian
Professor Allen Weinstein as the next Archivist of the United States.
The dispute highlights changing thinking about what constitutes proper
selection process and qualifications for national archivists that could
stimulate professional debate worldwide.
The “Personnel Announcements” containing
President Bush’s nomination for a new US Archivist was published with little
fanfare in a routine White House website press release on April 8, 2004[1]. It came as the President was
preparing his campaign for a second term in the White House and only months
before the last batch of records from the first George Bush ‘senior’ presidency
was due to be become publicly accessible in 2005[2]. The choice of this nominee,
without professional consultation, the timing and manner in which the incumbent
US Archivist, John W. Carlin, subsequently announced his plans to leave the job
were seen by many as bold and pre-emptive steps politicising the archives.
Professor Weinstein is an eminent US historian and the founder, President and Chief Executive of the right-wing, non-profit foundation, the US Center for Democracy, whose directors include former Presidential aide, Dr Henry Kissinger. According to some Washington watchers, the Professor has close ties with Republicans in the US Congress.
Nowhere is it articulated that a historian de facto fails the professional qualifications test. But Professor Weinstein has a controversial record in the historian community involving charges of excessive secrecy and ethical violations. The challenges centred on issues involving access to research materials he used to write two books about Soviet spying in the USA and about the accuracy of his writings that have been challenged by his co-author of one of them, The Haunted Wood: Soviet Espionage in America – The Stalin Era. Other historians have not been permitted to see his interview notes and other documents, a sanction that violates the professional standards of the American Historical Association (AHA) and the Society of American Archivists (SAA) commitment to open records[3]. Both societies were leading protagonists in the nomination row.
Unanswered questions have also been raised about what person or organization contributed US$2.9 million toward the funding of the Center for Democracy. Additional related concern surrounds President Bush ‘junior’s’ November 1, 2001 Executive Order 13233 (EO 13233) that, contrary to the 1978 Presidential Records Act (PRA), would give past presidents and their families the authority to withhold presidential papers, even those concerning national security affairs[4]. A lawsuit by the Public Citizen Litigation Group is pending to obtain access to 74 pages[5] of records of President Reagan and Vice-President Bush (senior) that have been withheld under 13233.
Some question whether EO 13233 was executed to prevent the National
Archives and Records Administration (NARA), the US national archives, from
releasing Ronald Reagan administration records that might contain damaging
information on his and Vice-President Bush’s role in matters such as the Iran-Contra
arms affair. Critics suggest that the
George W, Bush White House may now be attempting to nominate a ‘friendly'
Archivist more amenable to further PRA suppression demands from the Chief
Executive.
Another high-profile
drama further enriched the controversy’s heady mix … the reaction to the nomination by John Carlin. After April’s announcement, Carlin pointedly
told the White House he would resign … if and when the US Congress had
confirmed Professor Weinstein’s nomination. In a message to NARA staff, he said: “I will continue to serve as
Archivist while the Senate undertakes the confirmation process. I will
submit my resignation to the President effective upon the confirmation and
swearing in of the Ninth Archivist of the United States.”[6]
This was an extraordinary way … perhaps a first … for the Archivist of
the US to resign. It was obviously conditional on prior appointment of a
replacement. The question quickly became raised in the heritage community: Was
Carlin fired? If so: why?
The statement was silent on whether Carlin was acting unilaterally or
responding to a request. However, he had earlier advised that he planned to
remain in the post until at least end-May 2005, which would mark his 10th
anniversary on the job.
History professor Jon Wiener summarised the whole row in the New York
magazine The Nation, thus: “Many
speculate that George W. Bush, as well as his father, thinks the younger Bush
may lose the election, and they want their man in control of their archives
before that happens.”[7] Unfortunately, the White House has been silent publicly on this and
other concerns expressed by the professional community and others.
Many of these issues
came together on July 22, 2004, when the Senate Governmental Affairs Committee
held confirmation hearings on the Weinstein nomination.
The process for
confirming the Archivist’s nomination, briefly stated, is that the President,
after supposedly consulting with the professional community, nominates the Archivist.
The nomination is reviewed by a Senate Committee on Governmental Affairs that,
if necessary, hold hearings and makes recommendations to the Senate which
confirms the nomination.
The SAA[8], for example, decided
to limit its reaction to the nomination processes. It took the view that, not
having had the opportunity to interview the candidate, it could neither support
nor reject the nomination on qualification grounds but thought the nomination
process violated both the letter and the spirit of the
law. The National Association of
Government Archivists and Records Administrators (NAGARA), on the other hand,
declared Dr Weinstein to be well-respected and credentialed with an
appreciation of the challenges that the National Archives and Records
Administration (NARA) faced. But it
nonetheless considered that a fuller vetting of the candidate would have
allowed for a more complete recommendation.
Only after the nomination objections, representatives of a few of the
protesting groups were invited to meet Senate Committee staff and communicate their
concerns. But even then they were not
allowed to testify at the Committee hearing.
Some of their concerns were put to the nominee by Committee members.
Despite all of this,
insider expectations were that after receiving reassurances from Weinstein the
Senate Committee would approve him without making ‘above the fold’ news. It didn’t turn out quite like that.
According to a National Coalition for History (NCH) Special Report on the hearings, Professor Weinstein’s statement to the Senate Committee was fulsome and robust. He proclaimed bipartisan independence and expressed support for NARA priorities on several fronts. He wished to move ahead with NARA’s electronic records initiatives and attempted to deflect earlier criticisms regarding information sources for his publications, indicating they would be opened “by early next year”.[10] Under questioning, he said he did not know the reasons for Carlin’s December 19, 2003, letter indicating his intent to resign.
Describing his own
nomination, Weinstein said he had been contacted about the possibility by an
Assistant to the President in late September 2003. He had completed various personal information forms in November
and was informed that he would be the nominee in early January 2004. He said there had never been any discussion
about presidential records.
In prior written
responses to Committee questions, Weinstein had said "it would be my
responsibility – so long as E.O. 13233 is in place – to oversee NARA's legal
team in defending the Executive Order against court challenge".[11] Asked during the hearings why, as Archivist,
he would defend EO 13233 rather than the PRA, Weinstein replied that, as a
private citizen he viewed the EO as "tilt[ing] the balance in
confidentiality direction rather than timely disclosure".[12] He would, he said, seek a "dialogue and
negotiation"[13] before proceeding on that track.
At this point in the
hearings, according to the NCH Report, Senator Carl Levin (Democrat, Michigan)
dropped a bombshell … a July 21, 2004,
letter from John Carlin responding to one from Senator Levin asking how the
resignation was initiated. Carlin had stated:
“[T]he Administration initially approached me.
On Friday, December 5, 2003, the Counsel to the President [Alberto
Gonzales[14]] called me and told me
the Administration would like to appoint a new Archivist. I asked why and there was no reason
given."[15]
Levin suggested to
Committee Chair Senator Susan Collins (Republican-Maine) that, because of
"the independence of the Archivist's office,”[16] the committee ask the
President for an explanation of why Carlin was being asked to resign, as required
by law. If the committee declined to do so, Levin said he would do so
independently. Significantly, the
hearing closed without a vote on Weinstein’s nomination.
While the next action of
the Committee will depend on the White House response to its request for an
explanation over Carlin’s resignation, the reality is that Congress adjourned
on October 8 until after the Presidential elections. According to NCH, “While
the White House has responded to the request of the committee to explain the
administrations motivation behind asking Carlin to step down in favor of
Weinstein, certain questions regarding the nomination remain unresolved. At least one Democratic senator has again
written the White House asking for a clarification of why Carlin’s resignation
was requested.”[17]
The US Archivist post is open ended. Unlike most politically-appointed officers, the directors of the Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI) and the US Archivist are not expected automatically to resign with a change in White House administration. Such posts are excluded specifically to help shield them from inappropriate political pressure and influence.
A candidate with important political connections would not in itself be
precedent setting or disqualifying. It
could even be an asset if used to promote the national archives agenda as part
of the broader heritage (archives, libraries, museums) agenda. However, it
would be another matter if the nominee’s political connections were closely
tied to a president or political party with expressed views on tightening
access to public records in general and control of presidential records in particular.
The Archivist of the US is the country’s national archivist and serves
as the chief executive of the NARA, head of the federal records centre
programme, as governed by the Federal Records Act (FRA, US Code Title 44, Chapter 31—Records
Management by Federal Agencies) and Chairman of the National Historical
Publications and Research Commission (NHPRC), the outreach arm of the National
Archives and makes grants to U.S. organizations to promote the
preservation and use of America's documentary heritage, increasingly including
electronic records research. Because US law requires that papers
of the head of state be treated as public records, the Archivist is also, very
importantly, head of the Presidential Library system that includes all
Presidential and Vice Presidential records in accordance with the PRA. Unlike the British Commonwealth system, the US Archivist is nominated by
and reports directly to the head of state, although it is doubtful if the
incumbent actually gets much ‘face time’ with the President. More likely, a senior White House official
is the contact point, but it doesn’t get much more political than that.
This always leaves open a potential for real or perceived political
interference in the management of the nation’s archives and especially ready
public access to its presidential records.
In 1995, District Court Judge Charles R. Richey eloquently stated the
Archivist’s reporting relationship and tenure in American Historical Association v. Trudy Peterson (Feb 22, 1995).
The case concerned the legality of an agreement made between the first
President Bush and the then US Archivist, Don Wilson. The agreement, made just
hours before he left office, gave Bush authority over National Security Council
(NSC) e-mail records, authority that he argued should continue even under
succeeding President Clinton and Acting Archivist Trudy Huskamp Peterson.
Bush’s lawyers argued on the grounds that NSC e-mail records should be
treated as presidential records not agency records, making them subject to the
Presidential Records Act rather than the Federal Records Act. Judge Richey said: “Who is the Archivist's
boss? Clinton is her boss and Bush doesn't have a thing to do with it
anymore." Raising his voice,
Richey said to Richard Lepley, the Government’s attorney: “He is out of office, the King is dead, the
Bush-Wilson agreement is dead."[18]
April’s nomination was not the first time that the heritage community
has been upset with a Presidential appointment to the post of Archivist of the
United States. John Carlin’s
appointment itself raised heritage hackles when he was nominated for the post
by Democrat
President Bill Clinton in 1995.
At
that time, concerns centred mainly on professional qualifications. With
Weinstein, the nomination was announced without prior warning. Before Carlin
nomination, several possible nominees were floated before the professional
community. While the process was flawed to the extent that there was no formal
consultation by the White House, at least SAA was tipped off and able to
interview several candidates, including Carlin, a former Democrat Governor of
the State of Kansas with no archives or records management background.
At Carlin’s Senate hearings, professional associations were not allowed
to ask questions but some were allowed to testify. The SAA opposed the Carlin
nomination, while NAGARA supported it.
Despite these early concerns and some criticism of Carlin in his role as
NARA CEO — e.g., some have felt that Carlin placed too much priority on
electronic records — most professionals now believe that Carlin used his
background to the significant overall advantage of NARA and its mission. Even
the 1993 SAA “Joint
Statement on Selection Criteria for Archivist of the United States” has been
revised by SAA in the light of a convincing performance. They see how his political skills have contributed to more sympathetic
treatment of NARA by the US Congress and an improved profile for NARA, and how much has been accomplished on his watch.
There has been an impressive array of achievements under Carlin’s
leadership; all with strong linkages to NARA’s guiding principle, “ready access
to essential evidence”.[20] Initially he concentrated on high-level strategic planning and related
funding; but in due course his own fingerprints were on several initiatives.
Tim Ericson, recently
put it this way: “I think the best evidence of how we have changed our
perspective is in the statement of qualifications that the SAA and NAGARA
drafted pre-Carlin [March 1, 1993] and the statement we just drafted this past
year. A lot has changed. For example, we no longer insisted that the
[Archivist of the US] be an archivist or have archival experience. These
changes, I think, come from our experience with Carlin who showed us the value
of some administrative experience at a high level and some political
experience. The changes are quite striking.”[22]
The SAA and others in
the heritage community have always wanted to be consulted on and interview the
nominee before Congress approves the appointment. This is not just because they consider it appropriate for the
government to recognize their status as the key professional groups in the area
covered by NARA’s mission, but because they want to get the nominee to go on
record with his or her views in advance of confirmation.
Moreover,
in 1984, Congress (House) Report 98-707 noted, “The committee expects that
[determining professional qualifications] will be achieved through consultation
with recognized organizations of archivists and historians.” The law also
states that when the Archivist is replaced, the President ’shall communicate
the reasons for such removal to each House of Congress‘.”[23] [Post-publication postscript: The original paper should
have clarified that HR Report 98-707, does not enjoy the status of law. It is
not uncommon for Congress to issue a “Report” such as this that is associated
with a law to express the intent of Congress in passing the law. Thus, while it
would not be correct to state that failure to consult professional associations
in the nomination process constituted a breach of law, it would be correct to
state that doing so would violate the expressed intent of the law.]
It can seem sad that these exchanges can only take place in the
confrontational setting of Congressional hearings. Any newly-appointed Archivist would want to come to the job with
at least a cordial working relationship with the profession of which he or she
was titular national leader and traditionally a key speaker at professional
association annual conferences.
Likewise, any national professional association would want the Archivist
position to be valued as a national leader, seen as the epitome of professional
achievement, and would want good access to the Archivist. Clearly the two would have to work together
in future if the Senate approved the appointment. Being placed in such a situation obviously makes it harder for a
new Archivist and the professionals to get off to a good start with one
another.
Ideally, there should be consultation of heritage community
representatives before announcing a nominee. But, there is also great merit in
a ‘consultation’ process taking place in a Senate hearing room. The two
processes are not mutually exclusive. In the US, like many other countries
where the critical role of the national archivist is faintly, if at all, on the
public radar screen, public hearings in the nation’s highest legislative forum
may be one of the few opportunities to raise media and public awareness to the
importance of this position.
Finally, of course, the
process is of great importance to the large and highly professional staff of
NARA, an important consideration. How career NARA staff read the value system
of the new Archivist can have substantial impact on their morale and job
commitment and ability of NARA in attracting and keeping the best people
possible to staff matters of such significant national consequence. Of course, NARA does not get to interview
its new bosses. The only way staff can get their concerns registered is through
their personal membership of professional associations, in which many are
members and leaders. Even though NARA employees typically recuse themselves
when it comes to formal discussions of nominees to the Archivist post, their
concerns obviously become well known to others who do undertake these
discussions. Similarly, the reputation of sitting Archivists and their senior staff
also become well known to the broader professional community.
The concern of the professional community with Presidential appointees
has typically centred on professional credentials and the approach to executing
laws governing public records, but in 2004, the broader issue of the nominee’s
views on the openness of government records has also become central. The
National Archives and Records Administration Act of 1984 (US Public Law 98-497),
signed by President Ronald Reagan, clearly states that, "The Archivist
shall be appointed without regard to political affiliations and solely on the
basis of the professional qualifications required to perform the duties and
responsibilities of the office of Archivist."[24] It
does not specify what constitute “professional qualifications” in terms of
educational degree or professional experience as archivist or historian.
This raises an interesting series of questions:
In light of several successions in national archivists in other countries in recent years, these issues are obviously not limited to the US.
With a few notable
exceptions, including some state archivists and second-tier NARA managers, the
archives profession is not one with a reputation for producing strong public
exponents and communicators promoting the interests and importance of public
records. It may not be accidental that
in recent history several people from other professions have been placed into
the position of national archivist—for example, John Carlin (political
careerist and public administrator), former National Archivist of Canada,
Jean-Pierre Wallot (historian), UK National Archivist Sarah Tyacke (librarian)
and former Director of the National Archives of Australia, George Nichols
(public administrator).Recent history also has
taught the heritage community that strong professional credentials are no
guarantee of a happy outcome for a nominee’s appointment.
Don Wilson was the
Seventh Archivist under the first President Bush. He came to the job with
considerable professional credentials in history and archives, including
management of a state archives institution. Nonetheless, in the view of many
heritage professionals and others, he left under a cloud over the same major
concern now plaguing his colleague Weinstein[25]: public access to
public Presidential records in accordance with the PRA sections 2201-2207,
legislated in the wake of the Watergate affair. The PRA governs the official
records of Presidents and Vice Presidents created or received after January 20,
1981. With certain exceptions, it clearly establishes the papers of the
President as public archival records.
The PRA changed the legal ownership of the official records of the
Presidents and Vice Presidents from private to public.
Up to its final days in office, the first Bush administration wrestled
with the courts to protect itself from having to treat certain records as Presidential
Records, especially its e-mail records.
Further, under an agreement between the outgoing President and
then-Archivist Don Wilson, it sought to give the President authority to
determine the disposition of certain National Security Council records.
Many professionals believe that Wilson had allowed political pressure to
interfere with public access to essential records. He was subsequently
appointed as Executive Director of the Bush Presidential Library Center. The
courts decided that White House e-mails were records and subject to the PRA and
that the agreement between the Archivist and President Bush was invalid upon
assumption of the Clinton Administration.
Thus, the second issue: What would be the nominee’s attitude toward
executing the PRA, and especially its Section 2203 – “Management and custody of
Presidential records”? Most particularly, how would he interpret its
Sub-Section (e) the Archivist may choose to exercise:
“The Archivist shall request the advice of the Committee on Rules and
Administration and the Committee on Governmental Affairs of the Senate and the
Committee on House Oversight and the Committee on Government Operations of the
House of Representatives with respect to any proposed disposal of Presidential
records whenever he considers that -
1. These particular records may be of special interest to the Congress; or
2. Consultation with the Congress regarding the disposal of these
particular records is in the public interest.” [26]
The professional community wants to know in advance how Allen Weinstein interprets this Act and Section, and wants the public to know. Will his presumption be in the direction of preserving such records or not? Many in the professional community believe that this is a major reason why the SAA and others in the heritage community were not invited to raise these questions in advance of the nomination.
There is another issue—another line of questioning—that is becoming
increasingly important to the heritage community internationally and should be
of no less concern in the US: how does the nominee see public records in the
broader context of national heritage assets?
This issue embraces a nation’s management of its treasured heritage
objects in the form of public records, books, other publications, art work and
other physical treasures normally managed independently by its national
archives, national library and national museum organizations. With increasing digitisation of such objects,
opportunities for improved international World Wide Web access to them and
growing pressure on national budgets, more attention is being given to
improving integration of and access to these national riches.
In recent years, this issue has become the subject of considerable
debate in Canada, New Zealand and the UK. Most discussion agrees that there is
need for greater integration at least to ease public access to all heritage
resources. The nature and degree of integration depends on country-specific
situations and bureaucracies and, where organizational integration has been
undertaken, it has not been without controversy:
What is the nominee’s record in working with his own and other
components of the heritage community and what is his vision of how national archives
fit into the nation’s larger heritage fabric?
Election Postscript
With the re-election of President Bush, confirmation seems probable,
since Republicans will continue to control the new Congress, including the
Senate. The 108th Congress adjourned sine die December 8, without acting on the Weinstein nomination,
meaning that the matter will be carried over to the 109th
Congress that convenes January 4, 2005.
The principal scenarios are:
· The President makes a recess appointment in the weeks between the 108th
and 109th Congress, with or without communicating the legally
required explanation for firing the incumbent, thus making it possible for the
nominee to take office before the new Congress convenes, but subject to Senate
approval thereafter;
· The Senate makes public the President’s reasons for asking John Carlin
to step down and seeks to confirm Weinstein in the new Congress in January
2005, despite the controversy surrounding his nomination;
· The President, with his second term assured and with his eye on his own
legacy could see this as an opportunity to reach out to his critics and
withdraw the current nomination, leave the incumbent in office until his stated
preferred retirement date, and restart the nomination process with a fresh
slate.
The President’s previous actions toward generally limiting access to
public records either will be reinforced to include more strongly controlling
access to Presidential Records, or will be tempered toward a more
open-government position. The American public, heritage community professions
and the international community of NARA users deserve a better understanding of
the President’s and next Archivist’s stand on this and other important issues
raised here.
International
Implications
On the international scene, what has been playing out in the US creates
an opportunity for other countries and their professional communities to
consider these issues as they might apply in their own countries. Does the
national archivist have sufficient legal mandate to fully carry out the
national archives mandate? At what level of government and with what status
should the post of national archivist be established? How can it be maintained
at a level sufficient to ensure effective operation of government
recordkeeping? How can this be achieved while protecting the national archivist
and related organization from improper political interference and maximizing
the inviolability of public records? What constitutes the best qualifications
for candidates to such posts? What lessons can be applied at the international,
regional, state/provincial and local levels of government?
Democratic societies operate under the rule of law. They shelter public
records to protect human rights, ensure accountability of government, and
preserve truth and reconciliation in facing their national pasts. The best
interests of those societies demand that appropriate laws, organizational
arrangements, qualifications and nomination processes for national archivists
are part of a highly visible public debate. These, in turn, require a much
elevated public awareness concerning: the importance of the role of the
national archivist[27] in ensuring open, easy and continuing access to public records; the
extent to which such posts are politically or independently appointed; and how
(if) they are shielded from improper political interference.
_________
For additional references see:
[i] This paper was written prior to the February 2005 full-Senate confirmation of Dr. Allen Weinstein’s appointment as the Ninth Archivist of the US. It was originally published in the Records Management Journal, V15 no 1, February 2005, published Emerald Group Publishing Limited, in association with the UK-based Aslib, Association for Information Management, and is republished here with the kind permission of RMJ and Emerald. Rick Barry is Principal of Barry Associates and Cofounder of the Open Reader Consortium. Michael Steemson is Principal, The Caldeson Consultancy, Wellington, New Zealand and former journalist and Chairman of the UK Records Management Society.
[1] White House’s 8 April, 2004, Personnel Announcement.
[2] Under the Presidential Records Act (PRA), Presidential presidential records became the property of the American people, the declassified documents being available to citizens 12 years after completion of the administration. Many of President George H. W. Bush have been made public under that law. However, Executive Order 13233, signed by President George W. Bush in November 2001, permits presidents, vice presidents and their families or other representatives to review any papers before releasing them and at their discretion to designate them as privileged, thus placing the Archivist and staff of the National Archives and Records Administration in the untenable position of having to decide between the PRA and EO 13233. There is speculation that this kind of tension may have contributed to the President's request to John Carlin to step down. [N.B. This is a correction and update of this footnote since the original publication of this paper in the RMJ. RB.]
[
3] Among
the job qualifications listed in the Society of American
Archivists, “Joint
Statement on Selection Criteria for the Archivist of the United States,” April
26, 2004, was: “Unquestioned commitment to open and equal access to
governmental records by all citizens, in accordance with all governmental
regulations and in compliance with privacy protections for individuals.”
[4] Executive
Order 13233, Further Implementation of the Presidential Records Act,
November 1, 2000, signed by President George W. Bush.
[5] The disputed records include a six-page 8 December 1986 memo to the President and Director
of Public Affairs entitled, "Talking Points on Iran/Contra Affairs"; a series of memos dated 22 November and 1 December 1988 for the President entitled, "Pardon for Oliver North, John Poindexter, and Joseph Fernandez"; and a two-page memo for the President from the Attorney General "Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987." Others relate to the extension of claims of Executive Privilege over the release of Justice Rehnquist's papers and materials relating to "Use of Military Aircraft by Mrs. Reagan."