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and those involved in th passage of the Presidential Libraries Act of 1955 had considered these awful possibilities."
The Presidential Libraries, however, originated not in response to abstract constitutional concepts but, rather, out of the desire of one man to give the American people a record of his career as President. That man, of course, was Franklin Delano Roosevelt. In 1938 he begin to make provisions for a library for his papers, and the institution that developed at Hyde Park served in many ways as the model for those libraries which followed. Herman Kahn, who became director of the library in 1948, faced enormous practical problems and every archivist can take pride in the superb way he carried out his duties. Within a few years the vast bulk of the FDR papers was open for scholarly research and every effort has been made to serve historians of the period. Without doubt the incredible volume of archival material which had to be processed made it difficult to worry about the possibility of unhappy constitutional precedents being established. Kahn and his staff had to operate the Library in a manner that would satisfy future presidents if the National Archives were to have any hope of additional libraries being established.
Although FDR expressed much concern about preserving the historical record of his administrations, he also believed strongly in the necessity of confidentiality between himself and his advisors. For example, he wrote a memo to the Secretary of State in 1943 objecting to notes being prepared at diplomatic conferences. "Four people cannot be conversationally frank with each other if somebody is taking down notes for future publication. I feel very strongly about this.” Perhaps historiography does not unduly suffer from a government' passion for confidentiality if the entire record is utlimately made available, but a fully informed citizenry is impossible under such conditions. Historian Howard K. Beale commented on this problem in an address before the luncheon meeting of the old Mississippi Valley Historical Association. He quoted FDR's memo and then observed “many officials ... do not comprehend why in a democracy it is important to give the people and their historians full knowledge of what has been done in the past.” In this case, Roosevelt wanted to stop the publication of the record of a conference following the end of World War II.20
The next year Herman Kahn addressed the AHA and he criticized Beale's position. Kahn asserted that "historians will never persuade high public officials that the first and most important responsibility of statesman is to produce rich, full documentation in order that good history may be written." 27 He asserted "the quality of this byproduct will be high only if we are able to allay the fears felt about its use by such men as ... Roosevelt." ** Kahn only spoke to half of Beale's observation; granted historians may have to expect delay and suspicion when they want to work with government records. But what about the people's right to know—long before an historian may research the topic—what their government is doing?
Because archivists and historians are such an important conduit between the public official and the public it behooves us not to place ourselves solely at the service of officials who are reluctant to fully inform the public. Kahn insists that "if this attitude by government officials is ever to be overcome, we must assure them that there will be no unseemly violations of the confidentiality of their conversations and messages.” ** This attitude strikes me as rather a cozy arrangement for a democracy. Though presidents have abused the practice, some measure of confidentiality regarding presidential records is probably required during the administration's term in office. But why should a practice necessary for diplomatic negotiations, for example, be extended to former chief execu
85 Chicago Sun-Times, August 22, 1974; New York Times, January 18, 1974, p. 1; Wisconsin State Journal, May 25, 1973, p. 19; Chicago Sun-Times, August 9, 1974, p. 48; Waldo Gifford Leland, "The Creation of the Franklin D. Roosevelt Library : A Personal Narrative." American Archivist 18 (January, 1955): 11-29; Leland, "The Story of the Franklin D. Roosevelt," Archivi d'Italia e Rassegna Internazionale Degli Archivi, Series II, 18 (1951): 47-52; Kahn. "World War II and Its Background: Research Materials at the Franklin D. Roosevelt Library and Policies Concerning Their Use." American Archivist 17 (April, 1954): 149-162: Fred W. Shipman, "The Roosevelt Papers, "Quarterly Journal of Speech 34 (April, 1948): 137-42; Milwaukee Journal, August 18, 1974, p. 3; New York Times, April 1, 1974, p. 1; Capital Times, April 4, 1974, p. 1; Wisconsin State Journal. April 10. 1974. p. 10 and April 11, 1974, p. 2.
30 Howard K. Beale. "The Professional Historian : His Theory and His Practice," Pacifio Historical Review 22 (August, 1953): 238-9.
57 Kahn, "World War II and Its Background," American Archivist 17 (April, 1954) : 162. 28 Ibid. * Ibid., p. 161.
tives? Surely the public has a greater equity than ex-presidents in the determination of proper access policy. A desire to avoid embarrassing former officials by revealing frank discussions of political advisors can in no way be equated to the right of the public to have exposed examples of corruption or bad decisions. Acquiescence by archivists in a policy of restricted access that hides past errors in policy may lead to similar mistakes being made in the future simply through ignorance of past decisions. Thus, we are made colleagues of the undertaker who quietly buried the doctor's mistakes. The power of a president throughout his life to control access to his files is sufficient without our excessive cooperation. In fact, this power extends beyond the grave. FDR died before some 2,500 cubic feet of his files had been transferred to Hyde Park, and it took until 1947 for a decision by a New York Surrogate Court that Roosevelt's will did not include these papers as part of his personal property before the legal transfer to the Library could be made. 40
The efforts of Kahn and his successors have been successful beyond any question. The Presidential Library system is a glorious achievement of the archival profession. With justifiable pride Kahn could write the AHA-OAH committee investigating the charges of Prof. Francis L. Lowenheim against the FDR Library that “it is taken for granted that no president will ever again take his papers home with him when he leaves the White House." 41 Things "taken for granted" have a way of falling apart when attacked. Can the Presidential Libraries overcome the threat the Nixon presidency may present? Surely, we cannot as a profession rest on our past successes.
It is hard to argue with success and certainly the Presidential Libraries have successfully preserved the documentation of the careers of the last half dozen presidents. Read James O'Neill's article: "Will Success Spoil the Presidential Libraries?”' for a fine account of what has been accomplished and what problems must be faced. O'Neill, who served as director of the FDR Library from 1969 to 1971, is optimistic about the future of the system. The title of the article, however, is misleading. Success will not spoil the Libraries. If they are spoiled it will not be because of their great contributions to historical scholarship under the direction of outstanding archivists such as Kahn and O'Neill. Rather, failure will come because archivists and politicians unsuccessfully met the people's right to own the nation's records. After reciting the traditional view of the president's right to ownership he concludes : "Whether one regards this as a suitable and constitutionally sound position or as the unfortunate result of neglect and legal malaise, it is, nonetheless, the case."
If O'Neill's view is, in fact, “the case,” what can archivists do about it? How can we save our profession from the dilemma it faces? Officeholders may refuse to declare their records to be public property. H. G. Jones urges in Records of a Nation that each president issue an executive order declaring that the papers of that administration are to be public property. As he points out, such an order would quickly become a new “tradition" morally binding on future chief executives. Once the new custom became established, the Executive Department might well find its past concerns about secrecy and confidentiality unnecessary for the proper functioning of government. In light of Watergate, however, moral suasion would seem a poor substitute for strong legislation. Because there is no law specifically declaring Presidential papers to be public, the courts may well rule in the cases that have recently been filed under the Freedom of Information Act that the records are private.“
Should the Executive and Judicial branches fail to serve the people's interests, the one recourse left is the Congress. Senator Birch Bayh (Dennocrat, Indiana) has introduced a bill this session that every archivist should seriously consider
40 Leland, "The Creation of the Franklin D. Roosevelt Library," American Archivist, 18 (January, 1955): 27–28 ; "In re Roosevelt's Will," Surrogate's Court, Dutchess County, July 21, 1947, 73 N.Y.S. 20 821.
di Final Report of the Joint AHA-QAH Ad Hoc Committee to Investigate the Charges Against the Franklin D. Roosevelt Library and Related Matters, (Washington : American Historical Association, 1970), p. 420.
12 James E. O'Neill, "Will Success Spoil the Presidential Libraries ?," American Archivist 36 (July, 1973): 344. 19 Jones. Records of a Nation, pp. 168–170.
44 New York Times, December 29, 1973, p. 10; Washington Post, December 29, 1973, p. A12. See also James Nathan Miller, “This Law Could Give Us Back Our Government." Reader's Digest (April, 1974): 109–113.
supporting. 45 Senate bill 2951 would require every elected Federal official to turn over all papers created during his or her tenure to the National Archives or an agency designated by NARS within 180 days of leaving office. (The effect of this provision on collecting policies of state and regional manuscript depositories needs to be clarified.) The official is not required by this measure to create any specific records, but “materials which were prepared by or for any elected federal officeholder, which involve public business, and which would not have been prepared if the individual had not held public office shall be turned over.” Access limitations "for specific periods” and “specific reasons" would remain legal under the bill's provisions.
Approval of this legislation would finally remove one barrier to our profession's development. No longer would our work be regarded as an optional service whose use depended on the personal wishes of our elected leaders. Perhaps, our profession would be strengthened if we did not have to work in the President's shadow. The long-term effect on the conduct of government might be equally salutary if officeholders became convinced that the very nature of the gigantic volume of records created by a president and his administration make them public." While it must be acknowledged that some officials long used to secrecy and the "right" of confidentiality might illegally destroy their files rather than turn them over to archivists for preservation, this practice should die out if the law were vigorously enforced and severe penalties were added for violation. Gradually public officials would learn to live with the act's provisions and, hopefully, even learn to govern more responsibly because they realize that their activities and policies would soon face public scrutiny. The necessity for preserve ing the confidentiality of some records for a set period would remain, but the cry of “national security" must not be used for personal or partisan purposes.
To arguments that such a proposal is naive, ignores "human nature," or would end confidential advise by destroying the opportunity for candid assessments of policy and personnel, one need look no further than the illegal bombing in Cambodia, the controversy surrounding the “Pentagon Papers,” the break-in into Watergate, and the campaign practices in 1972 of CREEP to see where the current policy has gotten us. It is time to try, really try, to have “open covenants, openly arrived at.” Archivists, in so far as they are known to the general public at all, are probably best known for the preservation of famous documents such as the Declaration of Independence. If we, as a profession, could help return government to the control of the people, perhaps we would be remembered as having contributed, at least in some small way, to the preservation of independence.
Mr. BRADEMAS. The Chair would also announce that further hearings on these related bills will be held at 9 o'clock in this room, 2175 of the Rayburn House Office Building, on Friday of this week, October 4, 1974.
The subcommittee is in recess.
45 F. Gerald Ham, "Public Ownership of the Papers of Public Officials,” American Ar. chivist 37 (April, 1974): 357-360 ; Congressional Record-Senate, April 30, 1974, S6564-7; Newsday, April 14, 1974 ; James Reston column, New York Times, August 18, 1974; Gary Wills column, Washington Star-News, August 20, 1974; Milwaukee Journal, September 5, 1974, Section 5, p. 2; Christian Science Monitor, August 20, 1974, p. 20 ; Trials. Taxes Tangle Nixon's Papers," Washington Post, September 3, 1974; Capital 'Times, September 19. 1974, editorial page.
48 The question of copyrighting public documents should concern every archivist because it is a further example of abuse of power by public officials, frequently interferes with photocopying for scholarly purposes, and exposes archivists and librarians to legal suits by copyright holders. M. B. Schnapper, editor of Public Affairs Press, has long opposed both the private ownership of documents created at public expense and the efforts of public officials to copyright material repared in the course of their official duties. Lately, he has devoted much time to an examination of Nixon's donation of his Vice Presidential papers and this paper is much indebted to Schnapper's bibliographical citations and advice. See Schnapper's book Constraint by Copyright (Washington: Public Affairs Press, 1961) for an account of his struggle to compel Admiral Hyman G. Rickover to allow Schnapper to reprint some of the Admiral's speeches. Schnapper eventually lost the fight in court over a technicalitySee also: "Twisting. Our Copyright Law," Washington Post, May 4, 1969, Book World Section, p. 6; Devisions of the United States Courts Involving Copyright, 1971-72, Copyright Office Bulletin No. 38. (1974): "The Government Copyright Racket, Saturday Review (August 11, 1962) : _36-7; Congressional Record, 1962, pp. A5295, 16050-2, 17648-9 and 23632; Hearings Before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, U.S. Senate, Ninetieth Congress, 1967; Library of Congress Information Bulletin, December 14, 1973, pp. 440-1 ; Karyl Winn, "Common Law Copyright and the Archivist,” American Archivist 37 (July, 1974) 375–386.
THE PUBLIC DOCUMENTS ACT
FRIDAY, OCTOBER 4, 1974
SUBCOMMITTEE ON PRINTING
Washington, D.C. The subcommittee met, pursuant to notice, at 9:10 a.m., in room 2175, Rayburn House Office Building, Hon. John Brademas (chairman of the subcommittee), presiding,
Present: Representatives Brademas (presiding), Gettys and Hansen.
Also present: Bill Sudow, counsel, and Ralph Murphy, assistant minority clerk.
Mr. BRADEMAS. The Subcommittee on Printing of the Committee on House Administration will come to order for the purpose of further hearings on H.R. 16902, which I introduced September 24, 1974, with the gentleman from Idaho, Mr. Hansen, that would establish a special commission to undertake a comprehensive study of the disposition of records and documents of both elected and appointed officials of the Federal Government. Other bills have been introduced with respect to this general subject and have been referred to this subcommittee. The Senate will be voting today on legislation which would provide that the Government retain custody of the tapes and papers of former President Nixon, So, the matter before us has special timeliness.
We are pleased to have with us today, as our first witness, the Honorable John Eisenhower, former Ambassador from the United States to Belgium. Mr. Eisenhower has continuing responsibility for disposition and preservation of documents and papers of his distinguished father, Dwight D. Eisenhower. He will be followed by our distinguished colleague, John Seiberling. Mr. Seiberling will be followed by representatives from the Library of Congress; and, then, by Mr. Herman Khan, associate librarian for manuscripts and archives, Yale University Library; and Prof. Arthur Miller, George Washington Law School.
Mr. Eisenhower, we are grateful to have you here today to share with us your experience.
STATEMENT OF JOHN EISENHOWER, FORMER AMBASSADOR TO
Mr. EISENHOWER. Thank you, Mr. Chairman. I might say at the outset that I am quite honored and complimented that you thought I might have something to add to the discussion here. As an approach, I thought I would outline our experiences in handling the papers of the late President Eisenhower, my father, then, if you desire me to, I
would like to make a comment or two on H.R. 16902 and especially H.R. 16954.
From October of 1958 to January 20, 1961, I served as a member of the White House staff while in uniform. At the end of the Eisenhower administration I was scheduled to go to Gettysburg, on leave without pay from the Army, and remain with President Eisenhower for the duration of the time he was writing his memoirs. As such, I was the only one known to be planning to remain on board after the administration was over. Therefore, it fell into my lap to take care of the President's papers. Another reason why I got this; there were only three persons in the White House that had the same clearances for highly classified things such as the U-2 situation, Gen. Andrew Goodpaster, Hon. Gordon Gray, and myself. However, of these three, I was the only one who was going to stay.
In that situation, of course, we were able to make an orderly plan for transition, which has not been the privilege of all Presidents. I think maybe the magnitude of our task is about the same as you would expect from the other Presidents in this half century. I do not know whether we ground out more paperwork in the White House than other administrations, but President Eisenhower was the only President since World War I, except President Roosevelt, who filled out an entire 8-year term; so I guess our problem was about of the same magnitude as everybody else's.
I think it quite pertinent to consider the size and category of papers that we dealt with. There were three categories. The first were the papers written and signed by members of the White House staff—Mr. Brice Harlowe was one. No use to go down the list of former White House staff; but those papers were considered Presidential papers and, therefore, Presidential property even though signed by someone else. Whether any individual would take his own copies of those papers with him when he left the White House is something I do not know. But the volume of those papers put out by the staff and not signed by the President and in most cases not seen by the President, I was trying to calculate before the beginning of this meeting. I think if you would take this room and multiply it by four or six and fill it up with four drawer safes, that would be about the size and volume of these papers that were put out by the staff, not the President. Dr. Rhoades, of course, can give you counts on the number of documents.
These papers were cleared up very early and sent to the Eisenhower Library at Abilene, Kans. I think I should say that in preparation for this movement of papers an exchange of letters was required between President Eisenhower and the then Administrator of GSA, Mr. Franklin Floete. The exchange took place April 13, 1960, the requirement being, that letters had to sit before the Congress for 6 working months before the end of the administration so the Congress could act on them or not, as they saw fit. Of course, if it was not acted, on the exchange of letters would stand. This was accomplished and, I believe Mr. Chairman, you have a copy of that exchange of letters. If not, I can leave this one with you, but it is in the volume of the papers of Dwight D. Eisenhower.
Mr. BRADEMAS. I would be very glad, Mr. Eisenhower, if we could have it and, without objection, it will be inserted at this point.
[The letter referred to appears on p. 133.]