Lt. Col. Dr. David Earl-Graeff Letter — Ledger Inquirer — Daily Beast — Executive Order 13489/12667/13233


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I-5 Los Angeles

As I stated in my post (The “Natural Born Citizenship” Problem Is Not Going Away) last week, “I don’t know what to believe”.  I was in the military during the Carter Administration and I know first hand the harm that was caused to the leadership in the rank and file.

It is only a matter of time when an aircrew will refuse their orders to fly into a combat mission or a group of Army soldiers will disobey orders using this “birth certificate” issue as their justification.  I’m from the “old school” and believe our military members should not be involved in such actions.  I raised my right hand to serve my country and to follow all “lawful” orders.  If the below article is correct, and 170 military members are now joining in this action, we have far more serious situation than the media would like us to believe.


Dr. Orly Taitz Esquire

Defend Our Freedoms Foundation 26302 La Paz ste 211, Mission Viejo CA 92691 Copyright 2009

drorlytaitzesq-02A letter to Secretary of Defense Robert Gates written by one of my plaintiffs

Flight Surgeon, Lt. Col. Dr. David Earl-Graeff

July 19th, 2009

Orly,

As I told my commander I am concerned that this issue is much more prevalent in our military than one might think. Like an illness that is wide spread but is only manifesting itself by few subtle signs or symptoms. A good analogy is like a extensive lung cancer that initially presents with the patient complaining only of a persistent hoarse voice. This is because many are still afraid to say anything out of fear of repercussions as Maj. Cook has now been the subject of. My concern is for the well being and moral of our fighting forces and their fitness for duty and my own obligations which are now and remain conflicted. This is part and parcel of the duty of  Flight Surgeon as I was trained to do in the Air Force. I understand  that this is not the customary path to address this issue but the normal channels to get this issue resolved, although not the fault of my immediate commander, I am convinced are broken. It is in my opinion part of the illness. We must get this resolved and use  everything in our power to do so given the gravity of the situation.

David

Honorable Robert M. Gates, 3 Mar. 2009

Enough is enough! You must be aware at this point of the tempest brewing among the Rank and File. I am writing you in an effort to appeal to your sense of concern for the Military; a concern we share not only for the Military as a whole but for each and every individual who wears the Uniform in the Service of our Country. I am in this regard specifically asking you for your help. I implore you to not wait until the “pot boils over” and we find ourselves in total disarray.

I am convinced, beyond any doubt, that the moral well being and efficiency of our fighting forces to defend our Country is soon to be hanging in a precarious balance if not already. In my humble estimation this is NOT a theoretical possibility to construct a thesis or a contingency plan about. It is a reality and is happening right now. Resolution of this issue must be accomplished in the most expeditious manner available at your disposal to gain immediate relief to those of us who are struggling to fully comply with our sworn Oath to the Constitution while being conflicted by questions relating to the qualifications of the POTUS to hold the office in full and absolute compliance with the Natural Born Citizen Clause.

Regardless of differences in the color of our uniforms, the color of our skin, religion or gender WE are Brothers and Sisters in Arms and our family is being torn apart. Are you not looking and listening to what is happening around you? How can anyone of good conscious stand by and let this happen to us? I for one cannot! You must care enough to intercede to stop this. Is this not within your power to do so? Why have you not acted already? What is it that you are waiting for?

If you have any doubts of what I am saying is true you need look no further than the comments made on the Military.com site regarding the actions of Lt. Scott Easterling who in my opinion is an absolutely courageous young Army Officer. Irrespective of your personal opinion of his actions, one thing is abundantly clear; the horrible, hateful and demeaning things that were being said about him and one to the other among my Brothers and Sisters in Arms were things that I have NEVER experienced in ALL my years of military service. It is no less than gut retching to see this happening. The wounds that are being inflicted will NOT be healed by any Medicine I have at my disposal. There is nothing I learned in Medical School or in my training as a Flight Surgeon that can fix this; save the absolute power of Truth. The POTUS must stop concealing the documents once and for all and the issue of his qualifications must be addressed. Make no mistake; any adverse consequences to the troops as a result of your failure to act responsibly will be in large part directly on your head.

Have you considered the legal ramifications for our fighting forces if for any reason the POTUS is not qualified. Are they in Iraq illegally? If so does this make them terrorists under International law as the Islamic radical elements have been calling them? Have they given up their Geneva protections and do not even know this? If so when captured can they be killed or tortured without International legal ramifications? Have they been stripped of the legal protections by the Soldiers and Sailors Civil Relief act? Are you willing to allow this risk to them when they are fighting for us?

Once again I find myself at a loss of words to try to explain the abject and total dismay I have at the administration to include the Chief Justice of the Supreme Court to allow the painful division now occurring in our military to proceed unabated. I hope that do not need to remind you that you as well took an Oath to support and defend the Constitution. As a point of honor you are either willing to do this or you are not. If you are not then preserve your honor, resign and let someone who cares more about us than that do what is right.

I again respectfully implore you to act within your powers and help us. It is absolutely true and is my Prayer to my Creator to allow me to suffer the slings and arrows of being thought a fool rather than to have my convictions realized that persons of responsibility have allowed through negligence to have the Office of the President of the United States to be USURPED; it is self evident however, that whatever the outcome we must know the truth.

V/R

Lt Col David A. Earl-Graef USAFR MC


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Support of general added to Obama presidential eligibility suit disputed

By Lily Gordon – lgordon@ledger-enquirer.com

Friday, Jul. 17, 2009

An e-mail purporting to be from the two-star general listed as a plaintiff in the controversial federal lawsuit questioning Barack Obama’s eligibility as president says he never agreed to be a party to the suit.

On Wednesday night, the Ledger-Enquirer received an e-mail from a person identifying himself as Maj. Gen. (Ret.) Carroll D. Childers.

“You have bad information,” the e-mail says. “I have not joined the lawsuit brought by Maj. Cook. Please retract that information and do not print it again.”

In the story that first appeared Wednesday on ledger-enquirer.com, then later in Thursday’s print edition of the Ledger-Enquirer, Cook’s attorney filed a revised pleading after the revocation of Cook’s orders, which continued to push for a preliminary injunction. The revision also introduced two additional plaintiffs: Childers and Lt. Col. David Earl Graeff…

… The suit said in part: “Major General Carol (sic) Dean Childers retired but subject to lifetime recall, and Lt. Col. David Earl Graeff – Medical Surgeon in U.S. Airforce (sic) Active Reserves, subject to recall any day, join in this Application for Preliminary Injunction because it is a matter of unparalleled public interest and importance and because it is clearly a matter arising from issues of a recurring nature that will escape review unless the Court exercises its discretionary jurisdiction.”

Reached for comment on her cell phone Thursday afternoon, the plaintiffs’ California-based attorney, Orly Taitz, said she had a signed consent form from Childers. “Probably it’s some kind of mistake,” Taitz said. “I don’t know what happened.”

Later Thursday afternoon, the person identifying himself as Childers in an e-mail said several months ago he signed a “motion” Taitz filed requesting that a judge unseal specific personnel records, which Taitz thinks will either verify or disprove Obama’s status as a natural born citizen of the United States.

“Not being a lawyer, I was not aware that other subsequent court filings, in such cases as Major Cook, might also tie me to such subsequent cases,” the e-mail said. “I have notified Dr. Taitz that I am no longer a plaintiff in any motion she might process.”

Lt. Col. Maria Quon, a public affairs officer with the U.S. Army Human Resources Command-St. Louis, said Thursday afternoon that according to the Army records, Maj. Gen. Carroll Dean Childers retired from the Army National Guard in 1999.


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The Obama Haters’ Next Move

Crackpot anti-Obama conspiracy theorists now include congressmen, a former GOP presidential candidate and an Army major. John Avlon on the “Birthers” attempts to pass federal legislation, and their new claims 170 soldiers will refuse to serve the president.

Last week, a U.S. Army major named Stefan Frederick Cook made news when he refused deployment to Afghanistan on the grounds that President Barack Obama might not be a natural-born citizen and therefore is constitutionally ineligible to give orders as commander in chief. Now Cook’s lawyer says she has 170 more soldiers willing to file similar protests against the president.

Welcome to the world of the “Birthers”—right-wing conspiracy theorists committed to undoing the 2008 presidential election by trying to prove that Barack Obama was not born in the United States. The movement is evidence that Obama Derangement Syndrome is going viral from the far right, proliferating beyond fringe-festival Internet sites. It’s in danger of a quiet mainstreaming along partisan lines—reaching into talk radio, cable news, the armed services, and even the halls of Congress.

The 170 number thrown out by Cook’s lawyer has the feel of Joe McCarthy’s claim that he had a list of 205 communists working in Harry Truman’s State Department—i.e. pseudo-specific, intentionally inflammatory, and ultimately bogus. But what’s not in question is the nine Republican congressmen who have co-sponsored a bill that, in response to this much-debunked conspiracy theory, would require presidential campaigns to provide “a copy of the candidate’s birth certificate.”

Asked whether Obama “is a U.S. citizen,” bill co-sponsor Randy Neugebauer, a Texas Republican, replied: “I don’t know. I’ve never seen him produce documents that would say one way or another.”

Major Cook—a distinguished combat veteran—appears to have been a willing pawn in the Birthers’ efforts to bring attention to their cause. He re-enlisted as a reservist in May, with the apparent intention of carrying out this political performance-art litigation. When the military shrugged and said he didn’t have to go to AfPak (issuing a statement saying, “This in no way validates any of the outlandish claims made by Major Cook”) and a judge threw out the case, Cook’s legal team celebrated it as a smoking-gun victory. WorldNetDaily—whose editor and CEO has been a major supporter of Birther petition efforts and roadside billboards—trumpeted it as “Bombshell: Orders Revoked for Soldier Challenging Prez.”

In the wake of this “success,” Cook’s lawyer, Dr. Orly Taitz, and her frequent plaintiff, Ambassador Alan Keyes, appeared on CNN to debate the issue. I’d hit the Birthers in my “Wingnut Watch” segment on the Campbell Brown show earlier in the week and was asked to counter their claims alongside New York Daily News columnist Errol Louis.

Before going on air, Keyes had his eyes closed as if in prayer while Taitz was jumpy and pie-eyed, like a patient off her meds. Anchor Kitty Pilgrim then went through a thorough 3-1/2 minute dismantling of the Birther arguments, including the long-ago issuance of Obama’s August 1961 certificate of live birth, its validation by Hawaii’s Republican Gov. Linda Lingle, and two birth announcements published in Honolulu papers. (Both FactCheck.org and Snopes have published detailed investigations and refutations of the non-scandal.) …



Executive Order 13489: Presidential Records
Barack Obama’s Executive Orders
Signed on 21 January 2009.  Federal Register page and date: 74 Fed. Reg. 4669 26 January 2009.Restores the wording of Executive Order 12667, and revokes the Bush administration replacement Executive Order 13233.

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) “Archivist” refers to the Archivist of the United States or his designee.

(b) “NARA” refers to the National Archives and Records Administration.

(c) “Presidential Records Act” refers to the Presidential Records Act, 44 U.S.C. 22012207.

(d) “NARA regulations” refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.

(e) “Presidential records” refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.

(f) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.

(g) A “substantial question of executive privilege” exists if NARA’s disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.

(h) A “final court order” is a court order from which no appeal may be taken.

Sec. 2. Notice of Intent to Disclose Presidential Records.

(a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of executive privilege. However, nothing in this order is intended to affect the right of the incumbent or former Presidents to invoke executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.

(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period for a time certain and with reason for the extension of time provided in the notice. If a shorter period of time is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.

Sec. 3. Claim of Executive Privilege by Incumbent President.

(a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified.

(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive privilege is not justified. The Archivist shall be notified promptly of any such determination.

(c) If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.

(d) If the President decides to invoke executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.

Sec. 4. Claim of Executive Privilege by Former President.

(a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.

Sec. 5. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked.

THE WHITE HOUSE,

January 21, 2009

—————-

Executive Order 13233
by George W. Bush
Further Implementation of the Presidential Records Act
Delivered on 1 November 2001.

FURTHER IMPLEMENTATION OF THE PRESIDENTIAL RECORDS ACT

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures implementing section 2204 of title 44 of the United States Code with respect to constitutionally based privileges, including those that apply to Presidential records reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisors, and to do so in a manner consistent with the Supreme Court’s decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases, it is hereby ordered as follows:

Section 1. Definitions.

For purposes of this order:

(a) “Archivist” refers to the Archivist of the United States or his designee.

(b) “Presidential records” refers to those documentary materials maintained by the National Archives and Records Administration pursuant to the Presidential Records Act, 44 U.S.C. 2201-2207.

(c) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.

Sec. 2. Constitutional and Legal Background.

(a) For a period not to exceed 12 years after the conclusion of a Presidency, the Archivist administers records in accordance with the limitations on access imposed by section 2204 of title 44. After expiration of that period, section 2204(c) of title 44 directs that the Archivist administer Presidential records in accordance with section 552 of title 5, the Freedom of Information Act, including by withholding, as appropriate, records subject to exemptions (b)(1), (b)(2), (b)(3), (b)(4), (b)(6), (b)(7), (b)(8), and (b)(9) of section 552. Section 2204(c)(1) of title 44 provides that exemption (b)(5) of section 552 is not available to the Archivist as a basis for withholding records, but section 2204(c)(2) recognizes that the former President or the incumbent President may assert any constitutionally based privileges, including those ordinarily encompassed within exemption (b)(5) of section 552. The President’s constitutionally based privileges subsume privileges for records that reflect: military, diplomatic, or national security secrets (the state secrets privilege); communications of the President or his advisors (the presidential communications privilege); legal advice or legal work (the attorney-client or attorney work product privileges); and the deliberative processes of the President or his advisors (the deliberative process privilege).

(b) In Nixon v. Administrator of General Services, the Supreme Court set forth the constitutional basis for the President’s privileges for confidential communications: “Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends.” 433 U.S. at 448-49. The Court cited the precedent of the Constitutional Convention, the records of which were “sealed for more than 30 years after the Convention.” Id. at 447 n.11. Based on those precedents and principles, the Court ruled that constitutionally based privileges available to a President “survive[] the individual President’s tenure.” Id. at 449. The Court also held that a former President, although no longer a Government official, may assert constitutionally based privileges with respect to his Administration’s Presidential records, and expressly rejected the argument that “only an incumbent President can assert the privilege of the Presidency.” Id. at 448.

(c) The Supreme Court has held that a party seeking to overcome the constitutionally based privileges that apply to Presidential records must establish at least a “demonstrated, specific need” for particular records, a standard that turns on the nature of the proceeding and the importance of the information to that proceeding. See United States v. Nixon, 418 U.S. 683, 713 (1974). Notwithstanding the constitutionally based privileges that apply to Presidential records, many former Presidents have authorized access, after what they considered an appropriate period of repose, to those records or categories of records (including otherwise privileged records) to which the former Presidents or their representatives in their discretion decided to authorize access. See Nixon v. Administrator of General Services, 433 U.S. at 450-51.

Sec. 3. Procedure for Administering Privileged Presidential Records.

Consistent with the requirements of the Constitution and the Presidential Records Act, the Archivist shall administer Presidential records under section 2204(c) of title 44 in the following manner:

(a) At an appropriate time after the Archivist receives a request for access to Presidential records under section 2204(c)(1), the Archivist shall provide notice to the former President and the incumbent President and, as soon as practicable, shall provide the former President and the incumbent President copies of any records that the former President and the incumbent President request to review.

(b) After receiving the records he requests, the former President shall review those records as expeditiously as possible, and for no longer than 90 days for requests that are not unduly burdensome. The Archivist shall not permit access to the records by a requester during this period of review or when requested by the former President to extend the time for review.

(c) After review of the records in question, or of any other potentially privileged records reviewed by the former President, the former President shall indicate to the Archivist whether the former President requests withholding of or authorizes access to any privileged records.

(d) Concurrent with or after the former President’s review of the records, the incumbent President or his designee may also review the records in question, or may utilize whatever other procedures the incumbent President deems appropriate to decide whether to concur in the former President’s decision to request withholding of or authorize access to the records.

(1) When the former President has requested withholding of the records:

(i) If under the standard set forth in section 4 below, the incumbent President concurs in the former President’s decision to request withholding of records as privileged, the incumbent President shall so inform the former President and the Archivist. The Archivist shall not permit access to those records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

(ii) If under the standard set forth in section 4 below, the incumbent President does not concur in the former President’s decision to request withholding of the records as privileged, the incumbent President shall so inform the former President and the Archivist. Because the former President independently retains the right to assert constitutionally based privileges, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

(2) When the former President has authorized access to the records:

(i) If under the standard set forth in section 4 below, the incumbent President concurs in the former President’s decision to authorize access to the records, the Archivist shall permit access to the records by the requester.

(ii) If under the standard set forth in section 4 below, the incumbent President does not concur in the former President’s decision to authorize access to the records, the incumbent President may independently order the Archivist to withhold privileged records. In that instance, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

Sec. 4. Concurrence by Incumbent President.

Absent compelling circumstances, the incumbent President will concur in the privilege decision of the former President in response to a request for access under section 2204(c)(1). When the incumbent President concurs in the decision of the former President to request withholding of records within the scope of a constitutionally based privilege, the incumbent President will support that privilege claim in any forum in which the privilege claim is challenged.

Sec. 5. Incumbent President’s Right to Obtain Access.

This order does not expand or limit the incumbent President’s right to obtain access to the records of a former President pursuant to section 2205(2)(B).

Sec. 6. Right of Congress and Courts to Obtain Access.

This order does not expand or limit the rights of a court, House of Congress, or authorized committee or subcommittee of Congress to obtain access to the records of a former President pursuant to section 2205(2)(A) or section 2205(2)(C). With respect to such requests, the former President shall review the records in question and, within 21 days of receiving notice from the Archivist, indicate to the Archivist his decision with respect to any privilege. The incumbent President shall indicate his decision with respect to any privilege within 21 days after the former President has indicated his decision. Those periods may be extended by the former President or the incumbent President for requests that are burdensome. The Archivist shall not permit access to the records unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

Sec. 7. No Effect on Right to Withhold Records.

This order does not limit the former President’s or the incumbent President’s right to withhold records on any ground supplied by the Constitution, statute, or regulation.

Sec. 8. Withholding of Privileged Records During 12-Year Period.

In the period not to exceed 12 years after the conclusion of a Presidency during which section 2204(a) and section 2204(b) of title 44 apply, a former President or the incumbent President may request withholding of any privileged records not already protected from disclosure under section 2204. If the former President or the incumbent President so requests, the Archivist shall not permit access to any such privileged records unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

Sec. 9. Establishment of Procedures.

This order is not intended to indicate whether and under what circumstances a former President should assert or waive any privilege. The order is intended to establish procedures for former and incumbent Presidents to make privilege determinations.

Sec. 10. Designation of Representative.

The former President may designate a representative (or series or group of alternative representatives, as the former President in his discretion may determine) to act on his behalf for purposes of the Presidential Records Act and this order. Upon the death or disability of a former President, the former President’s designated representative shall act on his behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges. In the absence of any designated representative after the former President’s death or disability, the family of the former President may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges.

Sec. 11. Vice Presidential Records.

(a) Pursuant to section 2207 of title 44 of the United States Code, the Presidential Records Act applies to the executive records of the Vice President. Subject to subsections (b) and (c), this order shall also apply with respect to any such records that are subject to any constitutionally based privilege that the former Vice President may be entitled to invoke, but in the administration of this order with respect to such records, references in this order to a former President shall be deemed also to be references to the relevant former Vice President.

(b) Subsection (a) shall not be deemed to authorize a Vice President or former Vice President to invoke any constitutional privilege of a President or former President except as authorized by that President or former President.

(c) Nothing in this section shall be construed to grant, limit, or otherwise affect any privilege of a President, Vice President, former President, or former Vice President.

Sec. 12. Judicial Review.

This order is intended to improve the internal management of the executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party, other than a former President or his designated representative, against the United States, its agencies, its officers, or any person.

Sec. 13. Revocation.

Executive Order 12667 of January 18, 1989, is revoked.

GEORGE W. BUSH

THE WHITE HOUSE,
November 1, 2001.

—————–

Executive Order 12667
by Ronald Reagan
Presidential Records
Delivered on 18 January 1989
Revoked by Executive Order 13233, 1 November 2001. Restored by Barack Obama on 21 January 2009.

By virtue of the authority vested in me as President by the Constitution and laws of the United States of America, and in order to establish policies and procedures governing the assertion of Executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:

Section 1. Definitions.

For purposes of this Order:

(a) “Archivist” refers to the Archivist of the United States or his designee.

(b) “NARA” refers to the National Archives and Records Administration.

(c) “Presidential Records Act” refers to the Presidential Records Act of 1978 (Pub. L. No. 95-591, 92 Stat. 2523-27, as amended by Pub. L. No. 98-497, 98 Stat. 2287), codified at 44 U.S.C. 2201-2207.

(d) “NARA regulations” refers to the NARA regulations implementing the Presidential Records Act. 53 Fed. Reg. 50404 (1988), codified at 36 C.F.R. Part 1270.

(e) “Presidential records” refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act and the NARA regulations.

(f) “Former President” refers to the former President during whose term or terms of office particular Presidential records were created.

(g) A “substantial question of Executive privilege” exists if NARA’s disclosure of Presidential records might impair the national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the Executive branch.

(h) A “final court order” is a court order from which no appeal may be taken.

Sec. 2. Notice of Intent to Disclose Presidential Records.

(a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of the NARA regulations, the Archivist, utilizing any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the disclosure of which he believes may raise a substantial question of Executive privilege. However, nothing in this Order is intended to affect the right of the incumbent or former Presidents to invoke Executive privilege with respect to materials not identified by the Archivist. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.

(b) Upon the passage of 30 days after receipt by the incumbent and former Presidents of a notice of intent to disclose Presidential records, the Archivist may disclose the records covered by the notice, unless during that time period the Archivist has received a claim of Executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period. If a shorter time period is required under the circumstances set forth in section 1270.44 of the NARA regulations, the Archivist shall so indicate in the notice.

Sec. 3. Claim of Executive Privilege by Incumbent President.

(a) Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other Federal agencies as they deem appropriate concerning whether invocation of Executive privilege is justified.

(b) The Attorney General and the Counsel to the President, in the exercise of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of Executive privilege is not justified. The Archivist shall be promptly notified of any such determination.

(c) If after appropriate review and consultation under subsection (a) of this section, either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of Executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.

(d) If the President decides to invoke Executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.

Sec. 4. Claim of Executive Privilege by Former President.

(a) Upon receipt of a claim of Executive privilege by a former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other Federal agencies as he deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this Order that Executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.

Sec. 5. Judicial Review. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

RONALD REAGAN
The White House,
January 18, 1989.

[Filed with the Office of the Federal Register, 11:07 a. m., January 19, 1989]


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