Faculty Senate Presses SMU President on Executive Order

Today the Associated Press has a helpful report by Angela Brown on the February 14 Faculty Senate meeting. The Senate voted to endorse the SMU historians’ statement on Executive Order 13233, and added to that statement a request that SMU president R. Gerald Turner ask President Bush to rescind the order. In another measure, it also asked for responses from Turner and the board to a series of concerns focusing on the Bush Institute and joint (or, in the new politically correct terminology, “concurrent”) appointments.

This AP report raises two interesting issues. The first is how President Turner will respond to the request re Executive Order 13233. As the report says,

Brad Cheves, SMU’s vice president for external affairs and development, said Turner would consider the resolutions carefully. Cheves said he did not know if Turner would ask Bush to rescind the order because the SMU president has not yet seen the resolution.

I’m betting that Turner won’t ask Bush to revoke the order, though maybe I understimate him. If he doesn’t, or doesn’t reply to the Faculty Senate, will the Senate try to press this issue?

The second issue relates to statements by Andy Hemming, head of SMU’s chapter of Young Conservatives of Texas (who wrote a guest blog several weeks ago). Hemming is ready to rumble with the faculty opponents of the Institute:

But student Andy Hemming said faculty who oppose the library project have changed their positions, first saying they oppose the library, then only the institute and now the executive order.

“The student body as a whole feels ignored; the faculty is going off on their own,” Hemming said Wednesday. “I think their (professors’) problem is with George Bush.”

(For the record, I think the Library is acceptable, the Institute as constituted is dangerous, and the executive order is is unacceptable). But more to the point, does this mean that Hemming likes the Library and Institute because he likes Bush? If so, who is being partisan here? Would he welcome the establishment of an ideologically driven think tank by advocates of affirmative action, with concurrent appointments in SMU departments, backed by tens of millions of dollars, that reports to a board of directors of Clinton family members and friends? Especially if the Clintons already had friends and family members on the SMU Board of Trustees?

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11 Responses to Faculty Senate Presses SMU President on Executive Order

  1. Farinata X says:

    I have a suggestion for chickenhawk Andy: join the Army, go to Iraq, get your legs blown off, then come back and tell everyone how much you love George W. Bush.

  2. Andy Hemming says:

    Just a quick comment. I’m not a huge fan of Bush, but I understand that this proposal will end up helping SMU raise itself from a great regional university to one of national promenence. I think that the attached think tank will increase the spead SMU rises up to our “benchmark schools” (schools like Duke and Georgia Tech). To tell you the truth, if an FDR or LBJ library/think tank was proposed at SMU, I would be one of the first people out there proclaiming my support of its creation. I’m afraid that people are opposed to this library/ think tank because they are oppsed to the policies of George W. Bush. Also, another think that should be noted are the reasons for having a source of knowledge such as a university in a community. I think that universties serve two purposes: 1) to teach the student body and 2) to increase the knowledge base of the world at large. The proposal currently being floated will achieve both of these goals. The library will draw in numerous visiting scholars/faculty and the think tank will bring in the top conservative political minds in the country/world. Now regardless how you feel about conservative ideology, the ideas brought forth will at the very least increase political discourse on the issues presented. If we don’t have any of these institutes (like the Hoover Inst. as well as the Carter Center) the actual amount of political knowledge currently in existence will be markedly less (Hoover even had Milton Freedman for a few years). By opposing this library/ think tank, please think of the consequences first.

  3. Andy Hemming says:

    fyi, link to ap article is down as well

  4. Editor says:

    The specific President mentioned was Clinton, Andy, not FDR or LBJ. Is there some reason you cannot respond to that particular example? Or would it reveal your own partisan bias, do you think?

  5. Andy Hemming says:

    I said FDR and LBJ because those two presidents (in my humble opinion) are more opposite of my political viewpoint than Clinton. This is because I am very fiscally conservative and believe that those two presidents did more to expand the role of the federal government than any other. I would support a Clinton think tank/ library at SMU as well. It’s not about the politics, it is about what is good for SMU. I understand that I might not agree with whatever ideas come out of the institute, but the benefit of having such an institute on campus far outweighs the potential drawbacks.

  6. Editor says:

    You think it will be “good for SMU.” Many other rational people disagree, and for reasons that go well beyond politics, or disagreement with “whatever ideas come out of the institute.” Perhaps you can address some of the specific concerns raised by the faculty regarding “concurrent appointments,” Executive Order 13233, etc. You do not appear to understand that what is being proposed is unlike any other institution of this nature in the country.

  7. Andy Hemming says:

    I know about Executive Order 13233. It is an ammendment of a previous EO (12667) which was authored by Reagan allowing release of presidential documents 12 years after leaving office. Before Executive Order 12667, there was no time frame for release of documents. Now, if my interpretation of the EO is correct, this allows the following documents to not be released without the current and former president’s consents. Here is a quote I pulled:

    “…reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisers, and to do so in a manner consistent with the Supreme Court’s decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases…”

    So, if what I understand is correct, this means that documents that pertain to: national security, communications between nations, and documents concerning attorney-client priviledge are exempt from the 12 year time frame. I’m not too concerned with this EO because (if I am correct), the reason for these executive orders was to prevent Nixon from destroying his documnets. As this does not specify and destruction of Bush’s documents, I’m not too worried. You must remember, this library will still exist once Bush dies and the rest of his exempt documents are released. Just because some documents won’t be released “on time” should not be a reason to sink this proposal.

    (and I’m not even going to bring up the fact that this argument has only been around a few weeks (where was this a few months ago) because that would be just counterproductive)

  8. heber4 says:

    Andy — You’re actually off on the Executive Order. This is entirely separate from the federal classification system (which is subject to its own abuses). See the history department statement (signed by all of the history faculty, including leading advocates of the library and institute) as well as the pieces by Hufbauer and the Dallas Morning News editorial. The sole determinant of witholding information is the former president and his/her designees and heirs, and they don’t have to give a reason, and their rights go on in perpetuity.

    You’re right that the Order has become a more prominent issue recently, but I don’t know why you have to persist in giving the most negative possible interpretation possible for those expressing their opposition to it. It’s a harder matter for SMU to address, since unlike an affiliation with the Institute, it’s outside of our control. Professional associations started lobbying SMU, and the national media picked up the issue of the Order after the initial round of publicity. I had a vague recollection of the Order and the controversy that it provoked within the historical community before January, but the rise of the debates and discussions on campus increased my knowledge and concern about it. I consider this a reflection of an open mind and an ability to learn new things and wish that you could bring yourself to consider that a possibility . . .

  9. Maarja Krusten says:

    President Bush’s executive order (13233) applies to materials which the National Archives has screened under federal law, including the separate, older orders applying to national security information, and determined under statute to be releasable. The order gives former Presidents an opportunity to look at what the Archives proposes to open for research and to exert claims of executive privilege. Of course, Presidents are more likely to name representatives to actually look at records than to do it themselves. For example, Sandy Berger reportedly was authorized by President Clinton to do Presidential communications privilege reviews at the National Archives on his behalf.

    Protecting classified records goes back a very long way, far beyond the Reagan or Bush administrations. As mentioned earlier, there is a separate executive order (12958) that covers protection of national security information. It is one of a series of such orders.

    See https://www.osti.gov/opennet/forms.jsp?formurl=od/history.html
    for a history of classification/declassification on a government website. The same article is available at
    http://www.fas.org/irp/doddir/doe/history.htm

    Experienced and specially trained government employees, including those at the National Archives and Records Administration (NARA) and its Presidential Libraries, have been protecting classified records from improper disclosure and releasing properly disclosable portions for a long time, well before Presidents Reagan and Bush issued their respective executive orders on the Presidential Records Act.

    My late twin sister, Eva Krusten, majored in history and as I did once worked as an archivist. Before her death from cancer in 2002, she worked as a Supervisory Archivist and as a Team Leader in the National Archives’ records declassification division. She specialized in screening classified State Department records in declassification reviews. For a recent article on the National Archives’ declassification work, see “How to Bury a Secret: Turn It into Paperwork,” in the Washington Post, January 16, 2007. My sister once supervised and helped train some of the good people who are named in that article. So I can recommend for an interesting view from inside NARA the article at
    http://www.washingtonpost.com/wp-dyn/content/article/2007/01/15/AR2007011501216.html?referrer=emailarticle

    or

    http://shrinkster.com/m3v

    The article is worth reading as it explains for lay people the intricacies of coordinating originating agency equities and ensuring the proper handling of historical classified information.

    Nixon’s records fall under a one-time act, the Presidential Recordings and Materials Preservation Act (1974). The privilege issue in Nixon’s records was addressed and settled in a previous lawsuit, Public Citizen v. Burke, 843 F 2d 1473 (D.C. Cir. 1988).
    President Reagan’s and President Bush’s executive orders on Presidential privilege apply to a separate act, the Presidential Records Act of 1978.

    I’m not surprised that some of the earlier news accounts I’ve read, especially in December, showed some confusion about how the National Archives and its Presidential Libraries operate. As Larry Hackman pointed out in his commentary in the Kansas City Star, they receive little attention until they pop up in news stories. People seem to be looking more closely now than in December at what is involved.

    I’m glad Dr. Johnson has welcomed people such as me to his blog. We operate in such different worlds, those of us in the government and you in academe. I’m not well positioned to speak on campus issues–I don’t know enough about their intricacies. But I’m very interested in seeing how issues related to research in government records appear to all of you.

    Submitted from home on personal time at 12:52 pm eastern time

  10. Maarja Krusten says:

    With apologies for not having linked to this earlier, as it might have helped clarify issues related to the Presidential communications privilege discussed in E.O. 13233, please see this statement in 2001 from the U.S. Archivist, John Carlin. It is his agency, the National Archives and Records Administration, which staffs and administers the Presidential Libraries. This is extracted from
    http://www.fas.org/sgp/congress/2001/110601_carlin.html .

    Note, first of all, that the U.S. Archivist states that “The PRA does not mandate the Presidential restrictions, but rather makes clear that they may be narrowed or waived any time after the President leaves office.” In other words, the PRA was designed so it could operate on its own, with information at Presidential Libraries being properly protected for national security, prviacy, etc., under exists statutes, with no involvement by a former President. (I’ve previously posted about some of the older Executive Orders and laws that have been in effect for decades.) ” Just to make it clear, there is nothing in the Presidential Records Act that states that national security information or information related to a person’s privacy (such as Social Security Numbers) would be released after 12 years. Such information continues to be protected as needed, as Carlin explains, below.

    Former Presidents do have the option of applying certain restrictions for 12 years, after which the exemptions in the Freedom of Information Act apply –, with one exception, the one covering ““communications requesting or submitting advice, between the President and his advisers, or between such advisers. Here is how Carlin explained this in 2001:

    “Public Access to Presidential Records

    Presidential records are not subject to public access requests during the President’s term of office, and may be made available only by decision of the incumbent President. After the President leaves office, the records are also not available to public access requests for five years, unless NARA has processed an integral file segment sooner than five years. This five year period was intended principally to give NARA an opportunity to organize the records and begin systematic archival processing. At the end of the five year period, all Presidential records are subject to public access requests in accordance with the FOIA. However, for a period not to exceed 12 years from when the President leaves office, the President is authorized, but not required, to impose up to six Presidential restrictions (which must be imposed before the President leaves office and which are not subject to judicial review).

    In addition, the PRA establishes that eight of the nine FOIA exemptions shall apply to Presidential records, which stay in effect after the Presidential restrictions expire. Congress specifically excluded Presidential records from the FOIA (b)(5) exemption concerning the deliberative process and other recognized privileges. Four of the six presidential restrictions are identical to corresponding FOIA exemptions: exemptions 1, for classified national security information; exemptions 3, for information protected by other statute; exemptions 4, for trade secrets and confidential business information; and exemptions 6, for unwarranted invasions of personal privacy. Presidential exemption 2 (“P2”), for “appointments to Federal office,” has no FOIA counterpart, but is subsumed, in large part, under FOIA exemption (b)(6). Presidential exemption 5 (“P5”), concerning “confidential communications requesting or submitting advice, between the President and his advisers, or between such advisers,” is similar to FOIA exemption (b)(5), and protects the disclosure of presidential communications, deliberations, and other information that could be subject to a common law or constitutionally-based privilege. ”

    Carlin also noted that “The PRA also removes the authority to withhold Presidential records under FOIA exemption (b)(5) after the expiration of the P5 exemption. The elimination of a statutory exemption in no way prevents a proper assertion of Executive privilege by the former or incumbent President. As the PRA itself notes, the incumbent and former Presidents have clear legal authority to assert an Executive privilege over the Presidential records of former Presidents: “Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.” 44 U.S.C. § 2204(c)(2). This provision reflects the holding by the Supreme Court that the constitutionally based privileges available to a President “survive[] the individual President’s tenure.” Nixon v. Administrator of General Services, 433 U.S. 425, 449 (1977). Although the Supreme Court also noted the privileges are “subject to erosion over time after an administration leaves office.” Id. at 451. ”

    Few recent news reports have looked in depth at the chronology of the Bush executive order. The White House considered for several months after January 2001 what to do with the planned release of papers from Ronald Reagan’s Presidential Library, prior to issuing E.O. 13233 in November 2001. Some of the letters sent by the White House to the National Archives between March and August 2001 (all prior to 9/11, of course) are posted at
    http://www.fas.org/sgp/news/2001/09/presrecs.html

    This article in a newsletter issued in 2002 by the Reporters Comittee for Freedom of the Press offers some viewpoints from different sides of how this played out , captured shortly after the issuance of E.O. 13233. See
    http://www.rcfp.org/news/mag/26-1/foi-historia.html

    I hope this helps further clarify the issues surrounding the Presidential Records Act of 1978 and executive orders.

  11. Andy Hemming says:

    Sorry I haven’t had a chance to post sooner, but thanks for all the information. If it wasn’t for all these pesky classes, I’d have read the articles linked sooner (and to tell yuo the truth, I’ve really only just glanced over them). Hopefully I’ll have some time in the next week to look all the information over.

    -Andy

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