Why Twelve Years?

Congress is working on a bill to undo another of Bush's and Cheney's fetishes with secrecy--E.O. 13233--and restore the Presidential Records Act. E.O. 13233, for all the folderol embedded in it about "enhancing" and "facilitating" the PRA, turned the PRA on its head, essentially giving the Presidents, their families and the sitting President the right to ignore the Act, and further extending that privilege to Vice-Presidents with regard to their papers.

In a nutshell, the Act provides for release of all Presidential and Vice-Presidential papers twelve years after an administration leaves office, subject to review by the National Archives for still-classified information. E.O. 13233 undid the law. At the time, it seemed a bald-faced plan to prevent the release of Bush's father's Vice-Presidential papers, due for release to the public in January, 2001, and his Presidential papers, due out in January, 2005. After more than six years of Bush and Cheney, it's now very apparent that they were thinking ahead about their own papers, as well.

Congress ought to undo this rather obvious--and egregious--misuse of the executive order to undo law. But, they ought to think hard (and abandon any thought of partisan interest in doing so), about modifying the limiting term. Why? Because twelve years safely puts any President or Vice-President and their advisors well beyond likely prosecution for all crimes but those relating to international war crimes.

The law establishes those papers as public property, rather than the private papers of elected officials, and, in essence, legally makes the work product of the administration state's evidence--but only after the administration is long gone, and, after twelve years, virtually unprosecutable for crimes committed while in office. While the administration is in office, it is generally protected by either arbitrary classification of documentation, or by assertions of executive privilege, neither of which conditions can be promptly addressed through the courts or FOIA.

After Nixon's Watergate misdeeds, Reagan's Iran-Contra illegalities and the Bush/Cheney junta's manufactured wars and bureaucratic indifferences to Executive Branch obligations such as disaster management and fulfilling the intent of the Civil Rights and Voting Rights Acts, removing the time limit on the release of Presidential and Vice-Presidential papers may be the only deterrent to law-breaking on the part of rogue executives.

The Republicans have successfully made impeachment and conviction in the Senate an impossibility in contemporary times through their wholly political impeachment of Clinton in his second term. For years to come, that action will taint any attempt, however reasonable and deserved, to impeach a sitting President or Vice-President as politically motivated. Despite the assertion by some that impeachment is always political, that certainly was not the intent of the Framers. It was intended to be an administrative function available to an independent branch to remove anyone in government using their office to break the law, and, it's worth noting, was written before the advent of political parties in the country. It became political because of political parties, rather than in spite of them.

Given current circumstances, the people are left with no effective means of challenging corruption in government. The politicization of the Justice Department by the Bush administration, combined with the politicization of the impeachment process, renders the mechanisms available unworkable.

If Presidents and Vice-Presidents knew that their papers, their now-secret memoranda, were to be revealed upon departing office, it might make it more difficult for them to direct others to break the law. It might also deter sitting Presidents and Vice-Presidents from evading their responsibilities to prosecute public corruption.

There's not any great doubt that a better President than Bush will revoke E.O. 13233 upon entering office, but, there's no guarantee of that. There must be some effective means of holding those in government accountable for their actions, as removed from politics as is humanly possible. Returning the Justice Department to some semblance of independence from political influence would help, but there's no guarantee what's happened in the Bush administration cannot happen again. Given the success they've had in doing so, someone equally unscrupulous will try to do the same in the future. Until Congress is populated by people who feel more strongly about the integrity of the government than party power, we can't depend upon the stringent application of impeachment and conviction to correct abuses in and of government.

With what are the people left to deter governmental wrongdoing, or punish it when exposed? Yes, we can vote the bastards out. That didn't work too well in 2004, and until we have a voting system with built-in integrity (and a news media collectively willing to find fact, rather than balance lies with truth), that avenue is choked off, too.

One has no choice but to take a hard look at what's happened in just over six years, and realize that the prime movers of all that destruction are going to get off scot-free. They won't be removed from office (as they should have been, long ago), since even the opposing party has removed impeachment from consideration--and the President's party would never, given politics today, even consider bringing Bush and Cheney to justice. They could eat live babies on the Truman balcony at high noon on Easter, and senators of McConnell's ilk would say, "maybe they were hungry." Their own Justice Department, regardless of the evidence, has been so perversely corrupted that it will never charge them while in office. They still have roughly nineteen months in office, able to continue as they have by virtue of the power of the Executive. Anyone who thinks they won't do their best to manufacture evidence to justify another war hasn't been paying attention.

Would they have done what they've done, or contemplate new crimes, if they knew their papers (barring deservedly classified information) would be released to the public with plenty of time for prosecution for their actions?

So, why twelve years?

(Yes, I know, the statute of limitations begins upon discovery of a crime, not when the crime was committed, but what prosecutor has had the nerve to try a public corruption case fifteen years after the fact? Not many, if any at all. Will any, fifteen years from now, bring the rotting-from-within eighty-one-year-old hulk of Cheney to trial if the documents indicate that he was in collusion with the oil companies to invade Iraq, or that his office was instrumental in covering up his influence in providing Halliburton and KBR no-bid, cost-plus contracts, and then in trying to thwart investigations of their misdeeds in carrying out those contracts? I doubt it. More to the point, can the nation continue to stand in the face of the sort of secrecy in government which partisanship and totalitarian inclinations have created without any effective means of deterrence? And, yes, such a law might well encourage further law-breaking such as industrial-scale document-shredding before leaving office. Still, the question remains: Can the nation stand if it does not address serious law-breaking by its chief executive officers, if it is reduced to considering such acts only in an historical context?)