Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, September 7, 1994 TAG: 9409210016
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: By PHILIP G. SCHRAG
DATELINE: LENGTH: Medium
In general, Congress, the National Archives and associations of historians have favored keeping all such records for posterity. But successive administrations have preferred to limit the requirements that they hold on to their records and to give themselves discretion to keep or destroy them.
The latest battle in this war is the five-year-long litigation over preservation of the electronic-mail records of the National Security Council during the Reagan and Bush years.
The U.S. Court of Appeals for the District of Columbia Circuit ruled last year that electronic mail, like paper records, was subject to records-preservation legislation. Historians believed, therefore, that those records (which might show, for example, the full extent of U.S. support for Iraq before the Gulf war) would be preserved and eventually opened for public inspection.
Late in March, however, the Clinton administration changed the government's longstanding view that the National Security Council was a federal ``agency'' subject to record-preservation laws that are applicable throughout the government.
Instead, the administration filed court papers asserting that the NSC's only function is to advise the president and that it therefore is not subject to most of the federal records laws.
Apparently, the White House is worried about eventual public access, through the Freedom of Information Act, to NSC documents. If upheld, however, its claim to special status for the NSC would have a consequence going far beyond public access.
Courts have held that they can only enforce the document-preservation laws that are applicable to ``agencies.'' Therefore, designating the NSC as something other than an ``agency'' would make it possible for an administration to shred sensitive NSC records rather than preserve them for eventual historical research, or for use by future grand juries or congressional committees investigating possible wrongdoing.
The Clinton administration is undoubtedly confident that its officials would never engage in such shredding. But if it succeeds in its new legal claim, it may lay the groundwork for shredding by one of its successors.
Instead of claiming an NSC exemption from the laws, the administration should distinguish between preserving documents and permitting public access to them.
It should recognize that the NSC, like all federal agencies, must preserve its documents for history and for use by official investigators. (NSC documents were crucial in all of the investigations of the Iran-Contra affair.)
Instead of seeking an exemption from the preservation laws, it could ask Congress to mandate a specified period of years before NSC documents - even unclassified ones - have to be released to the public.
In this way, President Clinton could protect NSC documents from premature public scrutiny without excessively undermining an administration's accountability for its acts.
Philip G. Schrag is a professor of law at Georgetown University in Washington, D.C.
The Washington Post
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