In March 2001, U.S. Archivist John W. Carlin received a letter from Alberto Gonzales, then counsel to the newly inaugurated president George W. Bush. It concerned an important deadline that was looming — one that Bush owed to Richard Nixon.
In 1974, Congress ordered a lockdown on all records kept by the Nixon White House, afraid that the outgoing president would try to wipe out the paper trail of his disastrous second term and chastened by the recent destruction of decades’ worth of FBI files by the late director J. Edgar Hoover’s loyal secretary. That order was expanded four years later into a law requiring that all presidents’ papers — everything from briefings to personal notes and everyday communications between the president, vice president, and their staffers — be handed over to the National Archives twelve years after their terms ended for eventual public release. Ronald Reagan was the first chief executive to whom the Presidential Records Act applied, and his papers were due to be turned over to Carlin at the beginning of Bush’s term.
Gonzales wanted Carlin to delay the release until June. His letter didn’t say why, but Carlin agreed. Then in June, Carlin got another memo from Gonzales — Bush’s attorney now wanted until the end of August. Carlin agreed again. The extensions continued until November, when Bush issued an executive order: effective immediately, the release of presidential records would require the approval of both the sitting president and the president whose records were in question, rather than just the former. It was what open-government advocates would later describe as a two-key system: under Bush’s rule, Nixon could have buried the Watergate tapes without explaining himself to anyone.
Bush’s executive order had little to do with any concerns of Reagan himself, whose estate has since shared his papers enthusiastically. Some administration critics theorized at the time that Bush was trying to shield from scrutiny his father’s vice presidential records, which were among the Reagan White House documents — but ultimately it wasn’t really about George H. W. Bush, either. It was about the new president and vice president, and the kind of government they intended to run. Bill Clinton’s White House had been relatively obliging in matters of secrecy, handing over millions of pages of documents — down to the White House Christmas card list — when Congress demanded them. Things would be different under Bush. “I think they thought Clinton was too open, had caved in to Congress too much,” Carlin says. “It was a different philosophy.”
Gonzales’s March 2001 memo was the opening salvo in a war over information, one that began in the earliest days of the Bush administration and will continue beyond its end. The stakes, which no one could have predicted when the letter crossed Carlin’s desk, are now self-evidently enormous: when Bush hands over the keys to the White House in January, he will leave behind more unanswered questions of sweeping national importance than any modern president. We still do not know how intelligence operatives, acting in the name of the United States, have interrogated suspected terrorists, and how they are interrogating them now.
We do not know how many Americans’ phone calls and e-mails were scanned by the National Security Agency. We do not know — although we can guess — who ordered the firings of the U.S. attorneys who didn’t comply with the Bush administration’s political agenda, and we do not know who may have been wrongly prosecuted by those who did. There are large gaps in our understanding of the backstories to everything from pre-war intelligence in Iraq to the censoring of scientific opinion at the Environmental Protection Agency and the Department of the Interior. And those are the things we know we don’t know — there are also what Donald Rumsfeld might call the unknown unknowns.
The thought of revisiting this history after living through it for eight years is exhausting, and both President Barack Obama and Congress will have every political reason to just move on. But we can’t — it’s too important. Fortunately, an accounting of the Bush years is a less daunting prospect than it seems from the outset. If the new president and leaders on Capitol Hill act shrewdly, they can pull it off while successfully navigating the political realities and expectations they now face. A few key actions will take us much of the distance between what we know and what we need to know.
Three months after Bush issued his presidential records order, a Justice Department attorney named Anne Weismann stood in front of Judge Emmet Sullivan in Washington’s district court. Weismann was defending Dick Cheney’s refusal to hand over the records from the energy task force meetings he had convened the previous year, which had prompted a lawsuit by the conservative legal group Judicial Watch and the Sierra Club. Sullivan was irate. “I get the feeling the government’s underestimating the seriousness of this case,” he told Weismann.
Weismann had been a Justice lawyer for twenty years, and had appeared often in Sullivan’s court. But this case was different. “I’ve never seen him that angry — he wouldn’t even let me talk,” she recalled recently. The encounter made her rethink what she was doing. Weismann still believes that there were limited legal arguments to make in defense of keeping the energy task force records secret. But what drove Cheney was something bigger. The case would ultimately wind its way to the Supreme Court, after Cheney’s legal team claimed to Sullivan that executive privilege meant the White House didn’t have to hand over anything to the courts if he didn’t feel like it. But by the time the Supreme Court ruled in Cheney’s favor, Weismann was no longer representing the vice president. The day Sullivan read her the riot act in district court, she says, “was the point at which I said, ‘I have to stop doing this.’ ”