Obama Started Out On the Wrong Foot | United States |Axisoflogic.com

Editor's Note: In this informative article, Axis of Logic Columnist, Arthur Shaw digs deep to get to the bottom of Obama's executive order regarding executive privilege on the release of presidential records.

- Les Blough, Editor

President Barack Obama meets with White House Chief of Staff Rahm Emanuel in the Oval Office at the White House on his first day at his new office. (White House photo by Pete Souza / January 21, 2009)

On Jan. 21, Barack Obama's first act as president was to sign an executive order governing the assertion of executive privilege by incumbent and former presidents in connection with the release of presidential records kept by the National Archives and Records Administration (the "NARA").

For most US presidents, executive privilege is only the power to hide from the US people the truth about what the bourgeois regime in Washington is doing and has done. To George W. Bush however executive privilege was a lot more than the mere power to hide things; executive privilege was to Bush Jr. the power to openly disobey the US Constitution and US law and tell the US people to go and shove it up theirs, not his.

The National Archives and Records Administration is an agency of the bourgeois US regime in Washington and the agency is charged with preserving many of the regime's current and historical records and, also charged by law, with increasing public access to those documents. MOST of the documents in the care of NARA are in the public domain, as the works of the US government are excluded from copyright protection. NARA however also stores SOME classified documents and NARA's Information Security Oversight Office sets policy for the whole U.S. government's security classification system.

The NARA, a little-known agency, has a lively history. In March 2006, the Archivist of the United States Allen Weinstein ... the boss of the NARA, appointed Feb. 2005 and resigned Dec. 2008 ... revealed during a congressional hearing that a memorandum of understanding between NARA and various government agencies existed to "reclassify", i.e., withdraw from public access, certain documents in the name of "national security," and to do so in a manner such that researchers would not be likely to discover the process. In 2004, Sandy Berger, national security advisor to former President Clinton, pled guilty to theft of NARA records ... by stuffing documents down his pants while in the restroom. Berger was fined $50,000, lost his law license, sentenced to two years of probation and 100 hours of community service. In 1973, during the Nixon regime in Washington, a fire destroyed 18 million NARA documents, mostly "national security" related. The cause of the fire has never been determined.

Technically, the "former presidents" referred to in Obama's executive order are of course the two Bushes; Bill Clinton, the husband of the incumbent secretary of state; and Jimmy Carter. Substantively, the "former presidents" in only one guy, George W.Bush. It is widely believed that contrary to US law, George W. Bush destroyed a lot of his records before he turned the White House over to Obama to minimize Bush's subsequent problems with the NARA. But the fact that Bush was so attentive to the NARA issue during his last days in office suggests that the NARA still has a lot of beans to spill on George W. Bush.

The issue that underlies the Obama's Jan 21 order is whether Obama will spill the beans kept by NARA on himself or the beans kept by the same agency on his living and dead predecessors. During the 2008 primary and general election campaigns and even during his inaugural ceremony, Obama made lofty promises about the "transparency" his regime will introduce.

Section 2 of Obama's order requires the NARA to provide notice to incumbent and former presidents of NARA's intent to disclose presidential records, the order says the NARA, "using any guidelines provided by the incumbent and former presidents" shall identify any specific materials, the disclosure of which NARA believes may raise a substantial question of executive privilege. However, nothing in this order, the order itself says, is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the NARA for disclosure.

"Using any guidelines provided by the incumbent and former presidents!"

Can you believe that?

The quoted language above suggests that Bush doesn't trust Obama's guidelines for running this federal agency, so Bush demanded and got the authority to set his own guidelines for the agency even though Bush isn't president. Further, if there is a difference or conflict between Obama's guidelines and Bush's guidelines, the NARA can use the guidelines of the former president as well as those of the incumbent.

[Section 1 which contains definitions for key terms in Obama's order defines "substantial question of executive privilege" as one in which the NARA's disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch. In most cases, if the US people knew what politicians were up to, the public knowledge would not "impair" the three listed functions. Rather public knowledge would rectify the performance of the functions.]

Section 2 of the Obama order extends the power of George W. Bush ... effectively identified in the order as so-called "former presidents" ... over the NARA activities of the Obama regime by requiring the NARA to follow disclosure guidelines provided by Bush, the "former presidents," as well as the sitting president on the identification and notification of documents before their disclosure.

What disclosures are Bush worried about? What does he most want to cover up?

Among others, these possible disclosures:

disclosures from the US Department of Defense's records of the number of Iraqis who perished during the six years of US aggression and occupation. We know the number of Iraqi death casualties reached 1,000,000 by Sept. 2007 and are either near or over 2,000,000 today. The DOD also knows how these people died.
disclosures dealing with the bourgeois US regime as early as December 2001 opening a network of concentration camps around the globe where according to a US Justice Department, Office of legal Counsel, in a 2002 56-page legal memorandum leaked to the Wall Street Journal, the "commander-in-chief" of the USA had the authority to order anybody in the world "abducted," "tortured" or "murdered." The repressive US concentration camp network is believed to contain over a 100 US concentration camps with over 500,000 political prisoners on Jan. 20, 2009, the day Bush, the fiend, left office and the day before Obama signed the executive order protecting fiend.
disclosures about secret USA Patriot Act proceedings, the former US Attorney General John Ashcroft and, his immediate successor Alberto Gonzales promiscuously certified hundreds of US citizens as either engaged in terrorist activities or a supporters of terrorist actions, especially fundraisers and organizers of Palestinian and Arab charities. These US citizens were arrested without charge or counsel, imprisoned indefinitely without trial, some extradited to Israel where they tortured or murdered. Nobody who in anyway participated, even a mere store clerk or librarian incidental to the repressive proceedings under the despicable USA Patriot Act, can without written consent of the US Justice Department inform anybody about these repressive activities of the reactionary bourgeois US regime under Bush without committing a felony, punishable by fine and years of imprisonment. Israel handed Bush a laundry lists of suspects and got all of them. How many of these US citizens were murdered or tortured over there. How many of the US citizens, victims of repression, are still serving indefinite sentences of imprisonment within the USA for offenses they have not been charged or tried under a blanket of officially-imposed secrecy.

As a consequence of the Presidential Records Act of 1978, documents pertaining to all of these matters and others are presently at the NARA under various security classifications which can be "reclassified," depending on the intensity of the class struggle either way, toward more secrecy or less.

The Obama's executive order effectively renews and extends over the Obama regime the provisions of executive order No. 13233 signed by George W. Bush on Nov. 1, 2001, six days after Bush signed the USA Patriot Act, which completely trashes the constitution and the rule of law in the USA. Sec. 6 of the Obama's order however pretends to revoke the 2001 Bush order.

What is most striking about Section 2 is that is both reactive and proactive in operation. Bush isn't taking any chances. Bush, the "former presidents," can use his bogus executive privilege claim reactively against

documents the NARA intends to disclose and
proactvely against "materials not identified by the NARA for disclosure." Thus, if a former president asserts his phony executive privilege against materials which the NARA has no intent to disclose at a given time, the assertion of the fake privilege of the past president will likely suppress the documents until past president dies or is declared incompetent like Ronald Reagan.

During the transition from the Bush to the Obama regime, Obama on a number of occasions publicly visited the White House for talks with Bush. The US capitalist media took pictures of the two men, walking around the inertia or exterior of the White House, deep in discussion. Now, we can surmise at least one of things they discussed.

"Obama, don't tell nobody what I've done. Obama, listen to me, if they find out what I've done, they can find out what you're doing, too. Don't worry about the constitution. Remember what I said in 2003 'The US Constitution is nothing but a Goddamn piece of paper' "

Obama, the day after his inauguration, was quick to take and act on the "sage" advice from Bush. It's unclear what, if anything, Obama got out of the deal.

Executive privilege is a power claimed by a sitting president to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The privilege is not a power exercised jointly by a sitting president and a has-been, used-to-be or wannabe who once sat in the Oval Office. It is true that the Presidential Records Act of 1978 bans NARA from spilling SOME, but not all, of the beans of a former president for 12 years after he leaves office. But this prohibition on spilling SOME of the beans of a former president by NARA has nothing or very little to do with executive privilege because the 1978 Act does not create a privilege which a former president can either assert or waive. Rather the 1978 Act imposes a separate duty on NARA not to spill some of the beans for 12 years, regardless of the wishes of the former president. Both Bush Sr. and Jimmy Carter have been out for more than 12 years. Bill Clinton's 12 years ends in 2013. Bush Jr's 12 years are up in 2021.

For excellent discussion of executive privilege, especially as it applies to former presidents, see a 2001 piece by the former White House counsel John Dean HIDING PAST AND PRESENT PRESIDENCIES:The Problems With Bush's Executive Order Burying Presidential Records.

Section 3 of the Obama order says that after the NARA notifies the executive branch and Bush Jr of the NARA's intent to disclose presidential documents, the attorney general [that is, Eric Holder] and the White House Counsel [that is, Greg Craig] will get together and talk it over to decide whether they want the specific beans mentioned in the NARA's notice to be spilled and whether US people have a right to know what is going on or what has gone on. The attorney general and the White House counsel can decide to let the NARA spill the beans mentioned in its notice or continue to hide the beans. But if the attorney general and the White House can't agree on what the NARA should do, then they must run the matter by the Obama who will decide and the NARA must do what Obama decides.

Section 3 doesn't seem as offensive or as repugnant to the US Constitution as Section 2 which empowers former presidents to dictate "guidelines" for NARA operations. For some time, former presidents were, as a matter of courtesy, entitled to notification even before the Bush Jr. regime, but they couldn't dictate guidelines on the disclosure of their papers for the NARA to follow. Reading Section 2 and Section 3 together, we see that the key man in the suspicious process is the Archivist of the United States, the NARA boss, who identifies "any specific materials, the disclosure of which NARA believes may raise a substantial question of executive privilege." If Obama appoints some obsequious hack as the NARA boss rather than an eminent historian or the like, then Obama, the attorney general, White House counsel, and Bush won't have anything to worry about.

Perhaps, Obama and Bush Jr made a deal about who will get the NARA job.

Section 4 of Obama's order says "Upon receipt of a claim of executive privilege by a living former President," the NARA boss must consult with the attorney general and the White House counsel about the "claim of executive privilege" by the former president. In cases where that Obama himself has decided under Section 3 that executive privilege DOES NOT apply, meaning that the documents should be disclosed, Obama's decision "shall not prejudice" the decision of NARA boss with respect to the former president's claim of privilege. "Shall not prejudice" is legal jargon that means shall not adversely affect something else. In other words, this little bureaucrat at the NARA can ignore Obama and do what Bush tells him.

Section 4 of Obama's order is repugnant to Section 1 of Article II of the US Constitution which says " The executive power shall be vested in the president of the United States of America," not in some bureaucrat at the NARA who colludes with a former president. Obama's executive order itself quotes Section 1 of Article II of the US Constitution in the preamble of the order.

How is such a travesty possible?

For purposes of Section 4 of Obama's order, the NARA suddenly becomes an "independent agency" of the bourgeois US regime even though Obama's order says that a decision of the president is mandatory on the NARA for purposes of Section 3.

Section 4 tries to stretch itself to create a semblance of compliance with the constitution when the Section says "In making the determination referred to in ... this section, the Archivist [the NARA boss] shall abide by any instructions given him by the incumbent President." This jargon means that NARA boss can ignore the initial Obama order finding that executive privilege DOES NOT apply to a proposed disclosure because the initial order "shall not prejudice" the Archivist as long as the NARA boss doesn't get from Obama another order called an "instruction" which affirms the initial decision in the face of the phony claim of executive privilege from a former president. If the NARA boss doesn't get the second order or "instruction" from Obama, the NARA boss is free to do whatever Bush tells him and claim that the NARA boss runs an "independent agency" if somebody asks any questions. But even the subsequent "instruction" from Obama shows that the NARA is not an "independent agency."

Again, Section 6 pretends Obama's order revokes Bush's order. There are indeed some constitutionally repulsive features in the Bush's order that are not found in Obama's. But Bush still got what he most wanted as well as most of what he wanted out of Obama even though Obama's order still leaves barely enough wiggle room to get Bush for his horrendous crimes against humanity if the US people are disposed to go after the slimy monster from Texas who has brought ruin and disgrace on US people and horrifying persecution on others.

Jesus Rivas says "The best is the enemy of the good" rather than the best is the lessor of two evils.

I consider myself an optimist about Obama, but Obama's order seems to me more like the lessor of two evils than the good which is not quite the best. If I'm wrong and if Obama's order is the best, then to be the "best" isn't saying much in this case.

I'm not so sanguine about Obama's character and abilities that I expect him to take on all of his foes or even just the strongest ones during his first month in office.

The majority of US citizens seem to know that the denial of public access to information about what the capitalist or "cappie" regime in Washington is doing on the grounds that dissemination of the information will "impair national security, law enforcement, and the deliberative process of the executive branch" is nothing but self-serving bullshit.

After all, what passes for "the deliberative process of the executive branch" should be impaired.

CONCLUSION

Obama ran for the White House on the theme of change.

Some of us assumed, perhaps incorrectly, Obama wanted to change Bush policies.

One of Bush policies most in need of change is the policy of concealment and lying.

To change Bush policies, including concealment and lying, Obama will have to be forthcoming about Bush policies, because Obama's truthfulness and the good will of the US people that Obama's truthfulness helps to engender are his main allies in the movement for change.

Obama won't have the good will of the US people for long if they discover Obama hides the truth or misrepresents it, as Bush often did, most especially the truth about the Middle East, which voraciously drains the US Treasury.

As long as Bush can "provide guidelines" for what, if anything, can be disclosed about Bush policies, Obama has little room to be forthcoming.

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*Read Arthur Shaw's bio and his essays on Axis of Logic