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THE NATION

Suit seeks to save Cheney files

Litigants fear that the vice president could destroy his records as personal property.

September 08, 2008|Christopher Lee | Washington Post

WASHINGTON — Historians and open-government advocates are concerned that Vice President Dick Cheney, who has long bristled at requirements to disclose his records, will destroy or withhold key documents that illustrate his role in forming U.S. policy for the last 7 1/2 years.

In a preemptive move, several of them have agreed to join the advocacy group Citizens for Responsibility and Ethics in Washington in asking a federal judge to declare that Cheney's records are covered by the Presidential Records Act of 1978 and cannot be destroyed, taken or withheld without proper review.

The group expects to file the lawsuit today in the U.S. District Court for the District of Columbia. It will name Cheney, the executive offices of the president and vice president, and the National Archives and chief archivist Allen Weinstein as defendants.

The goal, they say, is to protect a trove of information about national security, the wars in Iraq and Afghanistan, domestic wiretapping, energy policy and other major issues that could be hidden from the public if Cheney adheres to his view that he is not part of the executive branch and is not required to make his papers public after leaving office.

Access to the documents is crucial because he is widely considered to be the most influential vice president in U.S. history, they say.

Congress passed the law after the Watergate scandal to ensure that the country's highest elected officials preserve their papers for public review.

"I'm concerned that they may not be preserved. Whether they've been zapped already, we don't know," said Stanley I. Kutler, an emeritus professor and constitutional scholar at the University of Wisconsin Law School.

Cheney has not disclosed his plans for his papers, nor has he argued publicly that any are exempt from the 1978 law.

"The Office of the Vice President currently follows the Presidential Records Act and will continue to follow the requirements of the law, which includes turning over vice presidential records to the National Archives at the end of the term," Cheney spokesman Jamie Hennigan said.

Kutler and others, including the American Historical Assn. and the Society of American Archivists, are not reassured. Their lawsuit contends that President Bush sought to improperly narrow the scope of the records law in a 2001 executive order that declares, in part, that the statute "applies to the executive records of the vice president."

Scholars describe "executive records" as a term that is not found in the original act and that seemingly opens the door to withholding some documents on the grounds that they are "nonexecutive" records -- legislative records, for instance.

It raised red flags because Cheney has argued that his office is not part of the executive branch but rather is "attached" to the legislative branch by virtue of the vice president's role as president of the Senate.

The group wants the Archives to abandon its interpretation that legislative records of vice presidents are personal property and not covered by the presidential records law.

Martin J. Sherwin, a history professor at George Mason University and a plaintiff in the case, said it would be impossible to measure Cheney's influence without access to the records. "It horrifies me as a citizen to think our government can operate in total secrecy during the administration and then, after the administration, remain in secrecy."

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