View source for Executive Order 13233

{{Short description|2001 United States executive order}}
{{Use American English|date=January 2025}}
{{Use mdy dates|date=July 2015}}
{{Infobox U.S. Presidential Document
| longtitle        = Further Implementation of the Presidential Records Act
| depiction        = View_of_the_Reagan_Library_from_the_south.jpg
| depictioncaption = The Executive Order limited access to records of former U.S. Presidents ([[Ronald Reagan Presidential Library]] pictured)
| depictionalt     = A complex of buildings is in the middle ground. Behind it, a view of a valley.
| documentimage    = 
| documentcaption  = 
| type             = executive order
| summary          = Limited access to the records of former [[President of the United States|Presidents of the United States]].
}}
{{Wikisource}}

'''Executive Order 13233'''<ref>''Executive Order no. 13233, Further Implementation of the Presidential Records Act'', {{Federal Register|66|56025}} (November 5, 2001)</ref> limited access to the records of former [[United States]] [[President of the United States|President]]s to a higher degree than the previous [[Executive Order 12667|Order 12667]], which it superseded. It was drafted by then [[White House Counsel]] [[Alberto Gonzales]] and issued by [[George W. Bush]] on November 1, 2001.  Section 13 of Order 13233 revoked {{ExecutiveOrder|12667}}, which was issued by [[Ronald Reagan]] on January 18, 1989.

{{ExecutiveOrder|13233}} was partially struck down in October 2007. The order was revoked on January 21, 2009, by [[Barack Obama]]'s {{Executive Order|13489}},<ref>''Executive Order no. 13489, Presidential Records'', {{Federal Register|74|4669}} (January 21, 2009)</ref> which essentially restored most of the wording of [[Executive Order 12667|Order 12667]] with some modifications.

==Background==

In 1974, [[United States Congress|Congress]] passed the [[Presidential Recordings and Materials Preservation Act]] of 1974, placing the presidential records of [[Richard Nixon]] in federal custody to prevent their destruction.<ref>Presidential Recordings and Materials Preservation Act (PRMPA) of 1974, {{uspl|93|526}}, title I, §§ 101–106, December 19, 1974, codified at 44 U.S.C. § 2111, [https://www.law.cornell.edu/uscode/text/44/2111- note].</ref><ref>[https://www.archives.gov/presidential-libraries/laws/1974-act.html ''Presidential Recordings and Materials Preservation Act (PRMPA) of 1974''] at the U.S. National Archives</ref>  The legislative action was intended to reduce secrecy, while allowing [[historian]]s to perform their responsibilities.  In 1972, decades worth of official and unofficial [[Federal Bureau of Investigation]] records had been destroyed, upon the death of [[J. Edgar Hoover]], by his longtime secretary, [[Helen Gandy]].  The [[Presidential Records Act]] of 1978 expanded such protection of historical records, by mandating that the records of former presidents would automatically become the property of the federal government upon their departures from the [[Oval Office]], and then transferred to the [[Archivist of the United States]], thereafter to be made available to the public after no more than 12 years.

Thus, the presidential papers of [[Ronald Reagan]] were due to be made public when [[George W. Bush]] took office in January 2001. However, in a [[White House]] memo<ref name=WHmemo>{{cite web |url=http://www.fas.org/sgp/news/2001/09/presrecs.html |title=White House Blocks Release of Reagan-Era Presidential Records |accessdate=September 6, 2008 }}</ref> dated March 23, 2001, the Counsel to the President conveyed the following to [[Archivist of the United States|U.S Archivist]] [[John W. Carlin]]:

<blockquote>Section 2(b) of Executive Order 12667, issued by former President [[Ronald Reagan]] on January 16, 1989, requires the Archivist of the United States to delay release of Presidential records at the instruction of the current President.  On behalf of the President, I instruct you to extend for 90 days (until June 21, 2001) the time in which President Bush may claim a constitutionally based privilege over the Presidential records that former President Reagan, acting under Section 2204(a) of Title 4, has protected from disclosure for the 12 years since the end of his presidency.  This directive applies as well to the [[Vice President of the United States|Vice Presidential]] records of former Vice President [[George H. W. Bush]].</blockquote>

This instruction was repeated on June 6, 2001,<ref name=WHmemo/> before the 90 days had elapsed, giving a new deadline of August 31, 2001.  On the day of this deadline, Alberto Gonzales instructed the Archivist to wait a few additional weeks.<ref name=WHmemo/> On November 1, 2001, Bush issued Executive Order 13233, limiting the access to the records of former [[President of the United States|U.S. Presidents]]:
<blockquote>...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 [[United States Supreme Court|Supreme Court]]'s decisions in ''Nixon v. Administrator of General Services'', 433 U.S. 425 (1977), and other cases...</blockquote>

==Criticism==

The [[Society of American Archivists]]<ref>{{cite web |url=http://www.archivists.org/news/actnow.asp |title=Call to Action on Executive Order 13233 |accessdate=February 14, 2007 |author=Society of American Archivists |date=November 15, 2001 |archive-url=https://web.archive.org/web/20170226060549/http://www.archivists.org/news/actnow.asp |archive-date=February 26, 2017 |url-status=dead }}</ref> and the [[American Library Association]]<ref>{{cite web |url=http://www.ala.org/ala/godort/godortresolutions/20020121269.htm |title=Resolution Concerning Executive Order 13,233, Further Implementation of the Presidential Records Act |accessdate=February 14, 2007 |author=American Library Association (Government Documents Roundtable) |date=January 21, 2002 |url-status=dead |archiveurl=https://web.archive.org/web/20061205193841/http://www.ala.org/ala/godort/godortresolutions/20020121269.htm |archivedate=December 5, 2006 |df=mdy-all }}</ref> were critical of the president's exercise of executive power by issuing EO 13233. They claimed that the action "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in {{USC|44|2201|2207}}," noting that the order "potentially threatens to undermine one of the very foundations of our nation."

John Wertman, a member of former President [[Bill Clinton]]'s White House staff, wrote an [[op-ed]] piece critical of the executive order that appeared in ''[[The Washington Post]]'' on February 26, 2006.<ref>[https://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022401805.html John Wertman editorial] in the Washington Post</ref>  Wertman asserted that Order 13233 "represents a wholesale change in the way the federal government preserves and promotes our national public memory."  He also included a quote from former President [[Gerald Ford]] on the topic: "I firmly believe that after X period of time, presidential papers, except for the most highly sensitive documents involving our national security, should be made available to the public, and the sooner the better."

==Response==

Before January 21, 2009, there were three separate attempts to repeal Order 13233.  In 2002, shortly after Order 13233 went into effect, a [[bipartisan]] group of [[United States House of Representatives|U.S. House of Representatives]] members, led by [[Stephen Horn]] ([[Republican Party (United States)|R]]-[[California|CA]]), [[Dan Burton]] (R-[[Indiana|IN]]), [[Jan Schakowsky]] ([[Democratic Party (United States)|D]]-[[Illinois|IL]]), and [[Henry Waxman]] (D-CA) wrote and debated a bill aimed at repealing Order 13233, thereby restoring Order 12667 to full force and effect.  The bill passed the [[United States House Committee on Oversight and Government Reform|House Committee on Oversight and Government Reform]], which was chaired by Burton at the time, but never saw floor action.

On March 1, 2007, a subcommittee of the Committee on Government Reform held a hearing on bill {{USBill|110|H.R.|1255}}, the Presidential Records Act Amendments of 2007. This bill was also introduced by Waxman, and its goal was again to void Order 13233.<ref>[{{cite web | title=H.R. 1255: The Presidential Records Act Amendments of 2007 :: Committee on Oversight and Government Reform :: United States House of Representatives | website=oversight.house.gov | date=2007-03-22 | url=http://oversight.house.gov/story.asp?ID=1193 | archive-url=https://web.archive.org/web/20070322171750/http://oversight.house.gov/story.asp?ID=1193 | archive-date=2007-03-22 | url-status=dead | access-date=2020-06-22}}]</ref> At the hearing, several historians argued that Order 13233 has severely curtailed public access to presidential records and added to delays in obtaining materials from presidential libraries.  The bill was reported favorably by the full committee, and on March 14, 2007, the House passed the bill in an overwhelmingly bipartisan vote of 333–93.<ref>{{cite web|url=http://www.govtrack.us/congress/bill.xpd?bill=h110-1255|title=Presidential Records Act Amendments of 2007 (2007 - H.R. 1255)|publisher=}}</ref>  The bill also passed on June 13, 2007, in a [[United States Senate|Senate]] committee, but was never brought to the floor for a vote,<ref>{{Cite web |url=http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.01255: |title=Search Results - THOMAS (Library of Congress) |access-date=January 13, 2009 |archive-url=https://web.archive.org/web/20081126213443/http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.01255: |archive-date=November 26, 2008 |url-status=dead |df=mdy-all }}</ref> reportedly due to a hold placed on the measure by Senator [[Jim Bunning]] (R-[[Kentucky|KY]]).<ref>{{cite web|url=http://www.gwu.edu/~nsarchiv/news/20071001/index.htm|title=Court Rules Delay in Release of Presidential Papers is Illegal|publisher=}}</ref>  As a result, the bill died when the [[110th Congress]] ended.

On January 7, 2009, the House of the [[111th Congress]] passed {{USBill|111|HR|35}}, introduced by [[Edolphus Towns]] (D-[[New York (state)|NY]]),<ref>{{USCongRec|2009|H45}}</ref> section 3 of which would, if enacted, negate Order 13233.<ref>"Executive Order No. 13233, dated November 1, 2001 (66 [[Federal Register|Fed.Reg.]] [http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2001_register&position=all&page=56025 56025]), shall have no force or effect." {{USBill|111|HR|35}} ([http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h35eh.txt.pdf bill text]), § 3.</ref>  The bill was co-sponsored by [[Dan Burton]] (R-IN), [[Darrell Issa]] (R-CA), [[Henry Waxman]] (D-CA), [[William Lacy Clay, Jr.|William Clay]] (D-MO), and [[Brad Sherman]] (D-CA).  The bill died in the Senate [[Committee on Homeland Security and Governmental Affairs]].<ref name=HR35>[http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.35: H.R. 35] {{Webarchive|url=https://web.archive.org/web/20090808193644/http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.35: |date=August 8, 2009 }}, Library of Congress</ref>

==Lawsuit==

In November 2001, the [[National Security Archive]], the [[American Historical Association]] and other plaintiffs filed a lawsuit in the D.C. District Court against the [[National Archives and Records Administration]] and the Archivist, claiming [[U.S. Constitution|constitutional]] problems with the order, and pointing out that "access to materials may be delayed for an unlimited period of time after the expiration of the 12-year restriction period while a former president and the incumbent president ‘review’ materials proposed for release", because of § 3(b) of the order, which states
<blockquote>After receiving the records he requests, the former President shall review those records as expeditiously as possible, and for no longer than 90 days for requests that are not unduly burdensome. The Archivist shall not permit access to the records by a requester during this period of review or when requested by the former President to extend the time for review.</blockquote>
While most of the lawsuit was found to be [[Justiciability|nonjusticiable]] at this time due to lack of [[ripeness]], in October 2007 the Court held that "the Archivist’s reliance on § 3(b) of Executive Order 13,233 is arbitrary, capricious, an abuse of
discretion, and not in accordance with law in violation of the [[Administrative Procedure Act (United States)|Administrative Procedure Act]]" and enjoined "the Archivist from further relying on § 3(b) of Executive Order 13,233".<ref>{{cite web |url=http://www.gwu.edu/~nsarchiv/news/20071001/PRAdecision.pdf |title=Opinion of the D.C. District Court |date=October 1, 2007 |accessdate=June 18, 2008}}</ref> The rest of the lawsuit was dismissed [[Prejudice (legal procedure)|without prejudice]].

==Revocation==
On January 21, 2009, Executive Order 13233 was revoked by executive order of President Barack Obama.<ref>{{cite web|url=https://www.whitehouse.gov/the_press_office/ExecutiveOrderPresidentialRecords/ |title=Executive Order -- Presidential Records |accessdate=January 22, 2009 |url-status=dead |archiveurl=https://web.archive.org/web/20090122234307/http://www.whitehouse.gov/the_press_office/ExecutiveOrderPresidentialRecords/ |archivedate=January 22, 2009 }}</ref> Obama essentially restored the wording of Executive Order 12667, by repeating most of the text of that order with minor changes. One notable change is that vice presidential records are explicitly covered by his new order.

==See also==
* [[Freedom of Information Act (United States)]]
* [[U.S. reclassification program]]
* [[Presidential Records Act]]
* [[Communications Over Various Feeds Electronically for Engagement Act]]

==References==
{{reflist}}
{{refbegin}}
* [https://www.archives.gov/presidential-libraries/laws/access/pra-1978.html Archives.gov] - 'Statement by [[John W. Carlin]] [[Archivist of the United States]] to the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations of the Committee on Government Reform House of Representatives Congress of the United States: On the Implementation and Effectiveness of the Presidential Records Act of 1978' (November 6, 2001)
* [https://www.archives.gov/presidential-libraries/laws/access/complaint.txt Archives.gov] - [[American Historical Association]], [[Hugh Davis Graham]], [[Stanley I. Kutler]], [[The National Security Archive|National Security Archive]], [[Organization of American Historians]], [[Public Citizen|Public Citizen, Inc.]], and [[Reporters Committee for Freedom of the Press|The Reporters Committee for Freedom of the Press]], Plaintiffs, v. [[National Archives and Records Administration|The National Archives and Records Administration]], and [[John W. Carlin]], Archivist of the United States, Defendants. Complaint for Declaratory, Injunctive and Mandamus Relief (November 28, 2001)
* [http://www.fas.org/sgp/news/2001/11/eo-pra.html FAS.org] - 'Executive Order 13233 Further Implementation of the Presidential Records Act' (text of EO 13233), [[George W. Bush]], (November 1, 2001)
{{refend}}

==External links==
* [https://www.archives.gov/about/laws/appendix/13233.html Executive Order 13233 - Further Implementation of the Presidential Records Act], {{Federal Register|66|56025}} (November 5, 2001): Full text of Executive Order 13233
* [http://www.ala.org/Template.cfm?Section=Intellectual_Freedom_Issues&Template=/ContentManagement/ContentDisplay.cfm&ContentID=2417 ALA.org] - 'Executive Order 13233', [[American Library Association]]
* [http://www.archivists.org/statements/stephenhorn.asp Archivists.org] - "[[Society of American Archivists]] responds to Executive Order 13233 on Presidential Papers" (November 6, 2001)
* [https://web.archive.org/web/20170226060549/http://www.archivists.org/news/actnow.asp Archivists.org] - "Call to Action on Executive Order 13233: A Message from President Steve Hensen", Society of American Archivists (November 15, 2001)
* [http://www.arl.org/info/frn/gov/hornletter.html ARL.org]; {{Webarchive|url=https://web.archive.org/web/20070927010302/http://www.arl.org/info/frn/gov/hornletter.html |date=September 27, 2007 }} - "Serious concerns with Executive Order 13233 on Further Implementation of the Presidential Records Act" (Letter to Representative [[Stephen Horn]]), [[American Association of Law Libraries]], [[American Library Association]], [[Association of Research Libraries]], [[National Humanities Alliance]]
* [http://www.findarticles.com/p/articles/mi_go2158/is_200203/ai_n6772820 FindArticles.com] - "American Political Science Association response to Executive Order 13233" (Letter to Representative Stephen Horn), Robert D. Putnam, ''[[Presidential Studies Quarterly]]'' (March 2002)
* [http://listserv.muohio.edu/SCRIPTS/WA.EXE?A2=ind0111a&L=archives&F=&S=&P=3914 MUOhio.edu] - "Draft Presidential Records Act Executive Order: A 'Disaster' for History", Bruce Craig, [[National Coordinating Committee for the Promotion of History]] (November 1, 2001)
* [https://web.archive.org/web/20120204072013/http://www.law.nyu.edu/journals/lawreview/issues/vol79/no4/NYU407.pdf "The Imperial Presidency Strikes Back:  Executive Order 13,233, the National Archives, and the Capture of Presidential History"], Stephen H. Yuhan, ''[[New York University Law Review]] (October 2004)

[[Category:2001 in American law]]
[[Category:2001 in American politics]]
[[Category:Censorship in the United States]]
[[Category:Dismissal of U.S. attorneys controversy]]
[[Category:Executive orders of George W. Bush|13233]]