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Cheney's paper trail

A judge's order to preserve all of the V.P.'s records pending a lawsuit's outcome helps guard transparency.

October 05, 2008

In three months, the Bush-Cheney administration will be history. Scholars who want to study that history won an important victory last month when a federal judge ordered Vice President Dick Cheney's office and the National Archives to preserve all of Cheney's official papers pending the outcome of a lawsuit brought by a citizens' group and individual historians and archivists.

The https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1548-16, issued by District Judge Colleen Kollar-Kotelly, is just comeuppance for a vice president whose aversion to transparency is legendary. Cheney fought to keep secret the names of participants in his energy task force. His chief aide opposed involving Congress in establishing rules for the treatment of detainees at Guantanamo Bay. And Cheney and President Bush have floated the notion that, as president of the Senate, the vice president is not entirely an executive branch official -- this from the administration's foremost proponent of executive power.

The judge issued her injunction after negotiations between the parties failed to produce agreement on the scope of vice presidential documents covered by the Presidential Records Act. Lawyers for Cheney had asserted that only documents related to his executive functions -- those "specially assigned to the vice president by the president in the discharge of executive duties and responsibilities" -- should be included. Scholars fear that narrow definition would exclude records dealing with his role on the National Security Council or in lobbying Congress for presidential initiatives.

The judge also rejected the administration's contention that no injunction was necessary because Cheney's office and the National Archives would preserve the records at issue pending a trial. She noted that the defendants' proposal lacked details about how the papers would be handled. Her caution is laudable.

The Presidential Records Act does not give the public, the media or scholars immediate and unfettered access to the papers of an administration. Records are sealed for five years, and former presidents -- and vice presidents -- can object to the release of particular documents for another seven years by asserting executive privilege. But limitations on access is a different question from whether the archives should receive all of the records from Cheney's service.

Given this vice president's penchant for secrecy, the judge was wise not to take at face value the assurance that Cheney and the National Archives would safeguard documents that might later be ruled to be the property of the American people. We hope that her injunction is only the first step in securing access for future historians to the records of perhaps the most powerful vice president in history.

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