[Senate Hearing 108-591]
[From the U.S. Government Publishing Office]
S. Hrg. 108-591
NOMINATION OF ALLEN WEINSTEIN
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON THE
NOMINATION OF ALLEN WEINSTEIN, OF MARYLAND, TO BE ARCHIVIST OF THE
UNITED STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
__________
JULY 22, 2004
__________
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COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Johanna L. Hardy, Senior Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Jennifer E. Hamilton, Minority Research Assistant
Amy B. Newhouse, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Collins.............................................. 1
Senator Lieberman............................................ 4
Senator Shelby............................................... 6
Senator Durbin............................................... 7
Senator Levin................................................ 7
Prepared statement:
Senator Lautenberg........................................... 25
WITNESSES
Thursday, July 22, 2004
Hon. Richard Lugar, a U.S. Senator from the State of Indiana..... 3
Allen Weinstein, to be Archivist of the United States, National
Archives and Records Administration............................ 9
Alphabetical List of Witnesses
Lugar, Hon. Richard:
Testimony.................................................... 3
Weinstein, Allen:
Testimony.................................................... 9
Prepared Statement........................................... 26
Biographical and professional information requested of
nominees................................................... 32
Pre-hearing questionnaire for the Record..................... 44
Responses to pre-hearing questionnaire for the Record........ 53
Post-hearing questions from Senators......................... 123
APPENDIX
Additional letters and prepared statements submitted for the
Record
Letter from Senator Levin to Mr. Carlin, dated July 21, 2004. 130
Letter to Senator Levin from Mr. Carlin, dated July 22, 2004. 131
Letter to the President from Mr. Carlin, dated December 19,
2003....................................................... 132
Letter to Senator Collins from Senator Hutchison, dated May
12, 2004................................................... 133
Letter to Senators Collins and Lieberman from Juanita M.
Skillman, CRM, FAI, Chairman, ARMA International, dated
April 27, 2004............................................. 134
ARMA International, prepared statement....................... 137
Society of American Archivists, prepared statement with an
attachment................................................. 143
National Coalition for History, prepared statement with
attachments................................................ 148
Letters to Senator Collins from:
Sharon Babaian, President, National Council on Public
History, dated July 16, 2004............................... 155
Barbara B. Kennelly, President and CEO, National Committee to
Preserve Social Security and Medicare, dated April 27, 2004 157
James S. Henderson, Director, Maine State Archives, dated May
13, 2004................................................... 158
Timothy J. Naftali, Associate Professor, Miller Center of
Public Affairs, University of Virginia, dated May 4, 2004.. 160
Heather Gallegos-Rex, President, New Mexico Library
Association, dated May 6, 2004............................. 162
Elspeth Davies Rostow, Stiles Professor Emerita, Lyndon B.
Johnson School of Public Affairs, University of Texas at
Austin, dated May 6, 2004.................................. 163
Thomas F. Eagleton, Thompson Coburn LLP, St. Louis, Missouri,
dated May 14, 2004......................................... 164
Daraka S. Cook, President, Maryland Library Association,
dated June 9, 2004......................................... 166
Robert L. Livingston, The Ivingston Group, LLC, dated April
13, 2004................................................... 168
Susanne Hoeber Rudolph, President, American Political Science
Association, and Michael A. Genovese, President, Presidency
Research Group, a section of the American Political Science
Association, dated July 26, 2004........................... 170
NOMINATION OF ALLEN WEINSTEIN
----------
THURSDAY, JULY 22, 2004
U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3:30 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Susan M.
Collins, Chairman of the Committee, presiding.
Present: Senators Collins, Shelby, Lieberman, Levin, and
Durbin.
OPENING STATEMENT OF CHAIRMAN COLLINS
Chairman Collins. The Committee will come to order.
This afternoon, the Committee on Governmental Affairs is
holding a hearing to consider the nomination of Allen Weinstein
to be the Archivist of the United States.
As anyone who loves history knows, the Archivist holds an
important and challenging position. As head of the National
Archives and Records Administration, the Archivist is
responsible for maintaining the historical documents of our
country and for ensuring that those and other government
records are preserved for the public. Currently, the National
Archives holds an astounding 6 billion pieces of paper, 18
million aerial photographs, 11 million still pictures, 3
million architectural and engineering plans, 2 million maps and
charts, and hundreds of thousands of motion pictures and audio
and video recordings.
The Archivist provides guidance and assistance to Federal
officials on the management of records to determine their
retention and disposition. He must decide where to place those
records with sufficient value to warrant their continued
preservation. Not surprisingly, the National Archives is
running out of storage space. However, space is one of only
many challenges facing the National Archives.
While rapidly advancing information technology has been a
boon for business and government alike, it has created a
particularly difficult problem for the Archivist. Ensuring that
electronic documents created using today's software and
computer programs will be accessible 50 or 100 years from now
creates novel technological and archival issues. The current
Archivist, Governor John Carlin, has been working on this
problem for several years and the National Archives will soon
begin the design competition phase for its electronic record
archives. Whoever replaces him must continue to make this
significant project a high priority.
The Archivist is also responsible for making grants to non-
Federal institutions to support historical documentation
through the National Historical Publications and Records
Commission. In Maine, for example, 23 museums, libraries,
colleges, State and local agencies have received more than $1
million in grants to improve the preservation of, and access
to, their historic records. It is vitally important to such
institutions throughout the Nation that the Archivist ensure
that this program is adequately funded.
The Archivist must also be able to work with key
stakeholders. Other archivists, historians, records managers,
and ordinary citizens all rely upon the National Archivist.
During our review of this important nomination, the Committee
has received a significant amount of input from organizations
such as the National Coalition for History, ARMA International,
and others including officials from the State of Maine
Archives. The Committee staff has met with and consulted
extensively with various groups and individuals and I continue
to welcome their insights and advice.
Many stakeholders expect the Archivist to be the advocate
for open access to government records. At times, this role can
prove to be difficult. The Archivist must understand the
concerns of the public, of historians and other stakeholders
and be committed to working to improve public access. The
Archivist must believe in and adhere to the core mission of the
National Archives which is to ensure ``for the citizens and the
public servant, for the President and for the Congress and for
the courts, ready access to essential evidence.''
The National Archives is a public trust that documents our
national experience and the activities of our government. Its
mission is critical to a free and open society because it
allows us another means of evaluating the actions of our
government. For these reasons, it is important that the
Archivist not only have the skills needed to manage the
National Archives but also possess a knowledge of relevant
issues such as records management, and demonstrate a commitment
to the core mission of the agency.
As a professor, scholar, and author, Professor Weinstein
has a multidimensional perspective on the importance of the
mission of the National Archives. In addition, his work with
organizations such as the Center for Democracy, and the
International Foundation for Election Systems demonstrates his
capacity to manage and address complex issues.
I look forward to hearing the professor's views on the many
issues that he would face if he is confirmed. I note that he is
accompanied today by one of our most distinguished members who
is going to introduce him. I will now turn to Senator Lugar,
for whom I have such great respect, in a moment. But first, I
would be happy to turn to the Ranking Member of the Committee,
Senator Lieberman, who managed to arrive just in time not to
hear any of my eloquent opening statement.
Senator Lieberman. I was receiving the vibrations as I
walked over here. I am going to hold and I am happy to yield to
our respected and dear colleague, Senator Lugar.
Chairman Collins. Senator Lugar, I will call on you and
then we will resume opening statements by the Committee
Members. I know that Senator Shelby is also a friend of
Professor Weinstein and is eager to make comments as well.
Senator Lugar.
TESTIMONY OF HON. RICHARD LUGAR, A U.S. SENATOR FROM THE STATE
OF INDIANA
Senator Lugar. Thank you very much, Madam Chairman and
Members of the Committee. I appreciate this opportunity. I want
to testify on behalf of my friend Allen Weinstein from a
perspective of fairly recent history, that is within the last
two decades.
I first met Professor Weinstein when he was a professor at
Boston University, but had just become the head of the Center
for Democracy in about 1985. That was a big year for me. That
was my first year as chairman of the Foreign Relations
Committee. We were already hearing from young people in the
State Department, among them Rich Armitage and Paul Wolfowitz,
other familiar names who are still on the scene, that there
were problems in terms of our relationship with President
Marcos.
Those developed further throughout the year and when I was
in Guatemala observing the election at the behest of President
Reagan I got word that on television in the United States,
President Marcos was calling a snap election in the
Philippines. But it was a challenge to our country, and he
said, in essence, and he heard a lot of criticism, but now it
was put up or shut up. He was going to win and win big. And he
invited us to come over and observe this.
Now the problem of observation was a technical one. Before
falling into this, Secretary Shultz suggested to me--and the
thought was that I would head another delegation to observe
this election--we had better find out where our footing was. So
for this I called on my good friend Professor Weinstein.
He did some reconnaissance of the Philippines election
situation which led us to ask some probing questions of the
embassy back here. Namely, how close to the polls could we get?
Who could we interview? As a matter of fact, what were the
rules of the game in terms of the election laws? And what kind
of security would our delegates have? Because the President
intended to name 30 people from business, from politics.
Senator Kerry and Senator Cochran were both parts of that
delegation and are still in the Senate, and Jack Murtha from
Pennsylvania was a part of that situation.
So we asked Allen and his group to find out for us, and
they asked the right questions so we asked the right questions.
In essence, we established a presence, we observed the
election. It was covered by enormous fraud and abuse, which we
reported before leaving the Philippines fairly abruptly
thereafter, and came directly back to report to the President,
who at first was very skeptical and said he saw fraud and abuse
on both sides.
But without relating all the problems, by Saturday the
President decided the fraud and abuse was principally on one
side and instructed his friend, Senator Paul Laxalt to give the
famous words, ``cut and cut clean,'' to Ferdinand Marcos up in
room S-407 as we all observed this.
Now at that point we asked Allen Weinstein to go back to
the Philippines for a very important scholarly reconnaissance
to find out exactly what were the voting totals, what had
occurred in all the precincts, and which anecdotally, the
people had turned over the wagons literally and come up with
scores of 400 to zero, or what have you. So that there was not
a very good historical record of physically what had occurred
in that race as well as other races on that day. He performed
in an exemplary fashion, as you might imagine.
This is all a part of history, and on the basis of this
President Reagan changed our foreign policy by saying that we
will no longer make a distinction between totalitarians on the
left and authoritarians on the right. Both are enemies of
democracy, and we will oppose both. That was a very significant
change for President Reagan and it came really out of this
experience, and out of the documentation. Not just a single
observation, but a scholarly effort of published work.
Allen helped me make certain all the recollections I have
in my book, ``Letters to the Next President,'' on the
Philippines election were right as we both understood it. So in
a contemporary way we recorded that part of American history.
Subsequently, I continued to serve on Allen's board until
it was in fact merged into IFES, as you have suggested, Madam
Chairman, and the board meetings were always stimulating. They
always brought in Members of Congress, and the academic
community. A good number of legislatures in Latin America and
elsewhere have their genesis from the beginnings of the Center
for Democracy, and the instructions, the materials, as well as
judicial conferences that Allen Weinstein sponsored with the
center here in this country as well as elsewhere each year.
So for all these reasons, you can understand the depth of
my regard and my friendship for this remarkable American. I am
most hopeful the Committee will give him very favorable
consideration.
Chairman Collins. Thank you very much, Senator Lugar, for
being here. Your recommendation means a great deal to this
Committee. I know your schedule is very busy so I am sure that
the members would join me in excusing you from listening to
their eloquent opening statements as well.
Senator Lugar. Thank you very much.
Chairman Collins. Thank you. Senator Lieberman.
OPENING STATEMENT OF SENATOR LIEBERMAN
Senator Lieberman. Thank you, Madam Chairman, both for the
introduction and that adjective eloquent. I am going to ask
that my full statement be put in the record and welcome Dr.
Weinstein.
Nine years ago when this Committee considered the
nomination of then-Governor Carlin to be Archivist the
nomination attracted what was to me at the time a surprising
amount of interest and controversy. Today we are considering
the nomination of Dr. Allen Weinstein for the same position,
and again there is some interest and some controversy.
This is actually a week in which the Archives have probably
received more attention, thanks to Sandy Berger, than they have
in a long time. So the limelight is unexpectedly on this
usually quiet and non-controversial agency of our government.
The position of Archivist is anything but ordinary, although it
is usually not in the limelight. Senator Glenn, our former
chairman and friend once said, and maybe said it best, ``that
the Archivist is the guardian of our heritage,'' our national
heritage, because the Archivist ensures the Nation's historical
records are kept safe, never altered, and certainly not
illegally destroyed.
The Archives are now in the midst of a great transition.
Along with all Federal agencies, National Archives and Records
Administration must manage a rapidly increasing volume of
electronic records. The Archives not only must preserve raw
data, they must ensure that the best methods for reading and
recalling that data are preserved as well, so that not just
next year or in 10 years, but forever the American people will
have access to their heritage.
The next Archivist will also have to deal with the
sensitive issues surrounding Executive Order 13233 issued by
President Bush in November 2001 regarding release of
presidential documents. As you know, Dr. Weinstein, the order
has drawn some criticism on the basis that it undermines the
Presidential Records Act and, among other things, diminishes,
some would say takes the Archivist out of the process of
deciding what documents should be released, and gives the
former or sitting Presidents very large sway and time to review
requests for the release of those documents. I hope that is a
subject that we can talk about today.
But I welcome Dr. Weinstein, an accomplished historian,
which incidentally is a profession several past Archivists have
shared and it certainly seems to prepare you for this position.
An author, a teacher, leader of a private non-profit
organization that helped emerging democracies around the world
foster open government. And in the spirit of full disclosure I
should add, I was privileged to be a member of the board of
that organization for some time. So I welcome you. I thank you
for your willingness to serve, and I look forward to your
testimony today.
[The prepared statement of Senator Lieberman follows:]
PREPARED OPENING STATEMENT OF SENATOR LIEBERMAN
Thank you Madam Chairman, and welcome Dr. Weinstein. We appreciate
your being with us today.
Nine years ago, when this Committee considered the nomination of
then-Governor Carlin to be Archivist, the nomination attracted a
significant amount of interest and some controversy. Today we are
considering the nomination of Allen Weinstein for the same position,
and again there is significant interest and some controversy. This
surprises people who consider the Archivist's job to be an ordinary
one, far removed from the limelight and the daily tug of current
events.
But the position of Archivist of the United States is anything but
ordinary. The Archivist safeguards the very nature of democratic
government. He works with the President, the Congress, the courts, and
all the Federal agencies to determine what government records should be
saved, who controls those records, how government can preserve them for
historical purposes, and how and when the public should gain access to
them. The Archivist, then, is our national record keeper. His is a
public trust.
Both government and the public depend on the National Archives for
a wide range of information. The National Archives preserves the
records citizens rely on to trace their families' history. It also
maintains the records historians use to evaluate the government and the
people who serve within it. From those records we judge our
predecessors, just as succeeding generations will judge us.
Former Senator Glenn may have said it best when he noted that ``the
Archivist is the guardian of our heritage.'' He ensures this nation's
historical records are kept safe, never altered or illegally destroyed.
The National Archives, however, is, in many ways, on the cusp of a
monumental transition, and the next Archivist must be prepared to lead
the agency through this transformation. Just as all Federal agencies
do, the National Archives and Records Administration (NARA) must manage
a rapidly increasing volume of electronic records. E-mails, electronic
documents, and World Wide Web site pages all present special archival
challenges because the technologies behind them are constantly
changing. The Archives not only must preserve raw data, it must ensure
the best methods for reading and recalling that data are preserved as
well, so that 10, 20, or 100 years into the future, American citizens
will still have access to their heritage.
The Archivist must also be prepared to face some of the same
management challenges other Federal agencies are confronting. He must
be able to lead a large and diverse workforce into the 21st Century. He
must also cope with the retirement of experienced personnel and be able
to recruit and retain new employees with the appropriate training.
The next Archivist will also have to wade into the sensitive issues
surrounding Executive Order 13233, issued by President Bush in November
2001, regarding release of presidential documents. the order has drawn
criticism for undermining the Presidential Records Act, which provides
for the public release of presidential records. The Executive Order,
among other things, essentially takes the Archivist out of the process
of deciding what documents should be released, gives the former and
sitting President potentially unlimited time to review requests, and
shifts the legal burden of challenging decisions to withhold documents
to the requestor of the documents. This is a subject I am sure we'll
spend some time discussing this afternoon.
Allen Weinstein is not an archivist by trade. He is an historian,
an honorable, indeed significant profession several past Archivists
have shared. He is an author and teacher, and was the leader of a
private non-profit organization that helped emerging democracies around
the world foster open government. Concerns have been raised, as you
know, in connection with Dr. Weinstein's historical pursuits.
Some have complained that the previous Archivist, John Carlin, was
pressured to resign or that Allen Weinstein was an opponent of open
access because he kept some of his own records and files closed. The
Committee has explored these issues and will continue to debate them
today.
Again, I welcome Dr. Weinstein, and look forward to his testimony
before this Committee as we consider his nomination and the
interesting, sometimes controversial issues confronting the National
Archives and the ``guardian of our heritage,'' as we enter the 21st
Century.
Chairman Collins. Thank you. Senator Shelby.
OPENING STATEMENT OF SENATOR SHELBY
Senator Shelby. Madam Chairman, I want to thank you for
holding this hearing today to consider the nomination of Dr.
Allen Weinstein to be the Archivist of the United States. Dr.
Weinstein, as you probably know, is a noted historian,
respected educator, renowned author and founder, president and
the CEO of the Center for Democracy. Dr. Weinstein has had an
outstanding career and a demonstrated record of service in non-
partisan and bipartisan organizations over the past two
decades. Throughout his career he has conducted a significant
amount of scholarly research and published a number of works
that brought him in direct contact with vast amounts of
historic documents and information.
Throughout his years, Madam Chairman, whether as a writer
or as an educator, Dr. Weinstein's reliance on historical
documents has bolstered his understanding of the importance of
maintaining the most accurate, accessible and thorough
historical records in order to connect citizens to their
government. I believe that Dr. Weinstein will serve our Nation
honorably and with the utmost respect for materials that he
will be responsible for safeguarding. These materials are
precious and irreplaceable national treasures and it is
imperative they be preserved and protected.
I thank you again for holding this hearing. I look forward
to supporting this nomination. I think it is a great
nomination.
Chairman Collins. Thank you. Senator Durbin.
OPENING STATEMENT OF SENATOR DURBIN
Senator Durbin. Thank you, Madam Chairman, and welcome, Dr.
Weinstein, to the Committee. I have to agree with Senator
Lieberman, rarely is there this much intrigue in a nomination,
particularly for someone to the Archives. Having had a chance
to sit down and speak with you, I have no question in my mind
that you are thoroughly qualified to fill the chair of
Archivist. The question in the minds of many of us is whether
that chair is empty. And if it is empty, why is it empty? What
decision was made and who made it to tell Governor Carlin it
was time to go?
I suppose you may know nothing about that and perhaps
questions in this Committee will raise that issue. But it is an
unusual circumstance and I do not know, God forbid, that
politics may be involved in it. But it does not take away from
the fact that you bring extraordinary qualifications. So I am
looking forward to the questions and your responses.
Thank you, Madam Chairman.
Chairman Collins. Thank you. Senator Levin.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Madam Chairman, thank you very much. Let me
join you and the other Members of our Committee in greeting Mr.
Weinstein here and welcoming him.
As has been stated by you, Madam Chairman, and other
Members of the Committee, and Senator Lieberman, the National
Archives are a national treasure, a repository of critical
information illuminating the Nation's development, our
understanding of our history, and our view of ourselves. The
Archives merit our full attention and protection. They were
created 20 years ago by the National Archives and Records
Administration Act of 1984. The report issued by this Committee
at the time said that if the decisions made at the Archives
were made ``arbitrarily or motivated by political rather than
professional considerations, the historical record could be
impoverished, even distorted.'' The report explained that the
law established the Archives as an independent agency in order
to ``provide the best insurance that archival and records
management decisions would be made on a professional basis
unaffected by political considerations or other extraneous
factors.''
Just as decisions at the National Archives must be based on
professional, non-political considerations, it is critically
important that the process of selecting a new Archivist follow
the same path. Some of the events leading up to the proposed
replacement for the current Archivist trouble me deeply. The
nominee, Dr. Weinstein, stated in written answers to questions
sent him by the Committee that he first met with the White
House about his possible nomination on September 23, 2003. He
stated that he was then asked by the Office of Presidential
Personnel to fill out certain forms required for the nomination
process during late November and early December 2003.
Until now, it has been unclear whether the process of
seeking out a new Archivist had been initiated by the White
House or at the suggestion of the current Archivist, John
Carlin. I recently decided just to ask Mr. Carlin directly, and
I sent him a letter asking whether he initially approached the
Administration about resigning from his position or whether the
Administration had initially approached him. Mr. Carlin
responded, ``the Administration initially approached me. On
Friday, December 5, 2003, the Counsel to the President called
me and told me the Administration would like to appoint a new
Archivist. I asked why, and there was no reason given.''
Mr. Carlin decided, obviously, to go along with the
request. Two weeks after the initial contact from the White
House, on December 19, 2003, Mr. Carlin sent a letter to the
President stating that by the Fall of 2004 he would look for
other opportunities. He stated he would submit his resignation
upon the swearing-in of his successor. I am not sure that Mr.
Carlin was aware at the time he wrote this letter his potential
replacement had already begun the paperwork needed to complete
the nomination process.
Congress intended for the Archivist to be a non-political
position. The law authorizes the Archivist to serve for an
indefinite term. If a President initiates the removal of a
sitting Archivist he is required by law to inform Congress of
the cause for removal. In this case, it was apparently the
White House who asked Mr. Carlin to remove himself and gave no
apparent reason other than wanting to name his replacement.
Mr. Carlin may be willing to leave at the request of the
White House, but we have an obligation to protect the
objectivity of the Archives and to find out why the White House
asked him to leave.
I make no suggestion, by the way, that Mr. Weinstein played
any role in the request of Mr. Carlin to resign, because I know
he did not--because he told me he did not. The issue is totally
separate from Mr. Weinstein's qualifications, which are high
qualifications, from his experience which is extensive. But it
seems to me that it is essential that this Committee now
request the White House to let us know whether in fact they
requested the resignation of Mr. Carlin, and if so, why. That
again is a separate issue from Mr. Weinstein's qualifications
and I think it is important that we talk to him about his
vision and his qualifications, but that we not simply overlook
the importance of finding out how is it and why is it that the
White House requested the current Archivist to resign.
The National Archives Vision Statement states that the
National Archives is a ``public trust on which our democracy
depends. . . . It enables officials and agencies to review
their actions and helps citizens hold them accountable.'' Part
of that accountability, it seems to me, is that we do make that
inquiry of the White House, and I will be talking to the
Chairman and to the Ranking Member about that. I just received
the letter today. I tried to get it to our Chairman this
afternoon and to the Ranking Member. I do not know even,
frankly, if they got a copy of the letter.
Chairman Collins. Just now.
Senator Levin. But in any event, it just struck me
literally yesterday, I just wanted to find out directly from
the Archivist as to was this his idea or not? And if it is not
his idea, I think we should find out the source of the idea, to
protect the objectivity and independence and integrity of the
Archives. So that is, again, a separate matter which I am happy
to keep separate from questions of Mr. Weinstein, because again
I know he should not be caught up in this issue, but it is an
issue which needs to be resolved. Again, I welcome him to the
Committee and I look forward to his answering questions about
his own views, vision, and qualifications.
Chairman Collins. Thank you.
Allen Weinstein has filed responses to a biographical and
financial questionnaire,\1\ answered pre-hearing questions
submitted by the Committee,\2\ and had his financial statements
reviewed by the Office of Government Ethics. Without objection,
this information will be made part of the hearing record with
the exception of the financial data which are on file and
available for public inspection in the Committee's offices.
---------------------------------------------------------------------------
\1\ The biographical information appears in the Appendix on page
32.
\2\ Pre-hearing questions and responses in sequential order appear
in the Appendix on pages 44 and 53 respectively.
---------------------------------------------------------------------------
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath so,
Professor, I would ask that you stand and raise your right
hand.
[Witness sworn.]
Chairman Collins. Thank you. Professor, before I ask you if
you have a statement you would like to make, I am told that you
do have members of your family here with you and I would ask
you to introduce them to the Committee.
Mr. Weinstein. I would like you to meet my wife, Adrienne
Dominguez, and my son, Andrew Weinstein.
Chairman Collins. Thank you. We welcome you here today.
Professor, you can proceed with your statement.
Mr. Weinstein. May I introduce one more person?
Chairman Collins. I am sorry. I had been told there are
just two.
Mr. Weinstein. One of your former colleagues in the
Congress and my friend, Barbara Kennelly, is here in the back.
Congresswoman Kennelly? Well, she was here in the back. I don't
know where she is now.
Chairman Collins. You should have stopped when you were
ahead. [Laughter.]
Mr. Weinstein. It has been a problem, Chairman.
Chairman Collins. Professor, proceed please.
TESTIMONY OF ALLEN WEINSTEIN,\3\ TO BE ARCHIVIST OF THE UNITED
STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Mr. Weinstein. Thank you. Chairman Collins, Senator
Lieberman, Senators on the Governmental Affairs Committee,
Committee staff, ladies and gentlemen: I am honored and humbled
by the President's nomination of me to become the next
Archivist of the United States. Should this Committee and the
full Senate confirm the nomination, I will devote all of my
effort and energy to addressing the range of responsibilities
assigned to the Archivist as the head of the National Archives
and Records Administration.
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\3\ The prepared statement of Mr. Weinstein appears in the Appendix
on page 26.
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I want to thank Senator Lugar, a friend and mentor, for
having introduced me to the Committee. I want to thank you,
Chairman Collins, and all of the Senators on the Committee,
along with your able staffs; no nominee could have been treated
with greater fairness. If confirmed, I look forward to working
with the Members and staff of this Committee in a completely
cooperative manner.
The Archivist of the United States essentially works for
the American people across partisan lines and not, regardless
of which administration nominates the person, for a particular
President or political party. Thus, the Archivist must display
at all times scrupulous independence and a devotion to the laws
and principles which govern the responsibilities of the office.
It should be of some help in this connection that for two
decades, in this city and throughout the country and the world,
I have led an independent, bipartisan existence while
developing a range of programs and initiatives with Members of
Congress, their staffs, and administration officials of both
parties. I would continue that independent and bipartisan
approach to my work as Archivist of the United States, the
designated custodian of America's essential government
``records that defy the tooth of time.'' I note with special
pride the Center for Democracy's bipartisan Board of directors
which, at various times was honored to include Senators Kay
Bailey Hutchison, John Kerry, Joseph Lieberman, Richard Lugar,
Sam Nunn, Charles Robb, and former Senator William Brock.
With the Committee's indulgence, I would like to spend a
moment reviewing in summary my qualifications for the post of
Archivist. My answers to the Committee's biographical and
policy questionnaires, which you already have and which I have
appended to this statement, expand on these comments.
First, I believe that my several careers--as a teacher and
scholar of American history, a global democracy activist for
two decades, and an NGO administrator for that same period--
constitute a varied yet significant professional background,
one capable of assuming quickly and effectively the Archivist's
roles and responsibilities.
Second, my specific activities over four decades as an
educator, historian, and writer should be noted: As the holder
of three long-term professorships--Smith College, Georgetown,
and Boston University; author or co-author of six books well
received by reviewers, of eight edited collections, and of
dozens of articles; a user of and advisor to various research
archives; and an award-winning recipient of fellowships and
lectureships.
Third, having witnessed over almost two decades as
President of the Center for Democracy in dozens of
dictatorships or transitional nations the destructive impact of
non-democratic habits of mind, history, and political behavior,
I am keenly aware of the priceless constitutional heritage
enjoyed by Americans. This awareness instills a fierce desire
to protect that heritage and, in doing so, to educate Americans
in the meaning and importance of our pivotal documents. In
short, the Archivist's role in preserving and disseminating our
Nation's ``essential evidence'' is one for which both the
global and American aspects of my past experiences have
prepared me.
Fourth and finally, the bipartisan background of my
international work during the past 20 years, first in
developing the National Endowment for Democracy and then in
creating and managing the Center for Democracy, working closely
in these decades with the U.S. Congress and administrations of
both parties, has provided a useful context for assuming
leadership and supervision of NARA's various components.
The Committee's policy questionnaire asked, among other
things, what challenge NARA would confront in the period ahead.
If confirmed as Archivist, I would undertake both an initial
set of briefings by NARA's management team and other senior
staff and another briefing by key NARA stakeholders to gain
their assessments of current systemwide challenges and
priorities. I believe this will allow a more cost-effective and
efficient use of NARA's budget. Until then, I would place the
following group of clear challenges and priorities in any list
of concern to the Archivist of the United States:
Providing effective post-September 11 security for the
documents, materials, and staff at the Washington, DC, and
College Park NARA headquarters and throughout NARA's
installations (i.e., presidential libraries, regional records
centers, et al.);
Completing the Redesign of the Federal Records Management
Initiative;
Moving forward NARA's major electronic records initiative
(i.e., Electronic Records Archive (ERA), the Electronic Records
Management (ERM), Records Lifecycle Business Process Re-
engineering (BPR), et al.);
Expanding NARA's educational and public programming not
only in Washington but throughout the regional records centers
and the presidential library system;
Supporting the National Historical Publications and Records
Commission (NHPRC) in its important work at effective budgetary
levels;
Addressing major internal administrative concerns at NARA,
including (but not limited to) the loss of experienced
personnel due to retirement, aging facilities, deteriorating
records, and administrative backlogs;
And, finally, strengthening cooperation with the
presidential library system while creating effective liaison
with State and other non-Federal archival groups.
Once fully briefed, however, undoubtedly other priorities
will join this initial list.
Chairman Collins and Members of the Committee, I want to
call to your attention the fact that several archival and
historical organizations have raised concerns regarding
insufficient consultation with their groups prior to this
nomination, concerns--they were quick to point out--more about
the process of selection itself than about the nominee. I would
mention, as a historical note, that many of these same
concerns--and others--were also expressed when President
Clinton appointed Governor Carlin as Archivist in 1995.
To address these concerns, one of my important goals, if
confirmed as Archivist, would be to maintain an open dialogue
with all of NARA's key stakeholders and partners, and since my
nomination in April, I have attempted informally but vigorously
to reach out to many of these groups. I have met with the heads
of over a dozen archival and historical organizations and with
a number of other influential figures involved in NARA-related
activities seeking not endorsements but dialogue. At these
meetings, mostly I have listened and opened lines of
communication; if confirmed, I would continue to strengthen
mechanisms of consultation with these and other stakeholding
groups. They are all valuable members of the NARA family.
Since these meetings, one of the concerned archival groups,
the important Council of State Historical Records Coordinators,
your State Archivists, unanimously endorsed my nomination as
Archivist. In short, I have been working hard and steadily to
keep open communications with the many concerned NARA
stakeholders and, as Archivist, will try to engage all segments
of NARA's constituent communities, both in and out of
government.
In closing, I want to share with the Committee two personal
stories of my encounters with the three great ``Charters of
Freedom'' housed in the National Archives Building on
Pennsylvania Avenue. The first occurred in Boston in 1987, when
I was invited to deliver the 216th annual Fourth of July
Oration at historic Faneuil Hall. I called my remarks ``The
Declaration Meets the Constitution: A Bicentennial Fourth of
July,'' and the talk concerned the efforts at Philadelphia's
Constitutional Convention--in the end successful efforts--to
avoid a deadlock in its deliberations. The ``Great Compromise''
eventually agreed upon confirmed the convergence of the 1776
and the 1787 guarantees of freedom, which even today balance in
the American Republic the rights of citizenship and its
obligations.
Three years later, in 1990, the Center for Democracy hosted
the new President of a democratic Hungary, Arpad Goncz, who
spoke in front of the Bill of Rights at the National Archives,
in a ceremony commemorating its Bicentennial, on the global
influence of that document. The Faneuil Hall talk had confirmed
for me the unbreakable links among the three great founding
documents of our ``first new nation'' in guaranteeing the
rights and responsibilities of our people. President Goncz's
remarks called attention to the ideological and geographic
reach of this country's principles, from its beginnings, in a
world filled with despots, now as then, in which ordinary
people dream of and fight for freedom, individual rights, and
the rule of law. Together, the two occasions also symbolize for
me the awesome responsibilities placed on the Archivist of the
United States as a designated custodian of America's national
memory. For the Archivist, this role is the result of his
obligation to preserve and assure timely and maximum access to
our governmental records in the evolving historical saga of the
American people.
On a personal note, as the son of pre-World War I Russian-
Jewish immigrants, if confirmed, I would view my work as
Archivist as an optimal way of giving back to this great
country a small measure of what the United States of America
has given to me and to my family.
Chairman Collins and Members of the Committee, I am keenly
aware of the responsibilities involved in the position for
which I have been nominated, and I welcome the challenge,
Senators, as I now welcome your questions and comments.
Thank you very much.
Chairman Collins. Thank you, Professor.
There are three standard questions that the Committee asks
of all nominees. First, is there anything you are aware of in
your background which might present a conflict of interest with
the duties of the office to which you have been nominated?
Mr. Weinstein. No, Chairman. Nothing that I can think of.
Chairman Collins. Second, do you know of anything, personal
or otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office?
Mr. Weinstein. No, I do not.
Chairman Collins. And, third, do you agree without
reservation to respond to any reasonable summons to appear and
testify before any duly constituted committee of Congress if
you are confirmed?
Mr. Weinstein. Absolutely.
Chairman Collins. We will now have a round of questions
limited to 6 minutes each.
Professor, in your responses to this Committee's written
questions, you cited former Senator Daniel Patrick Moynihan's
writings on the need to combat excessive government secrecy.
You also declared your lifelong commitment to what Senator
Moynihan called ``a culture of openness.'' You went on to state
that, as Archivist, it would be your duty to speak out plainly
as a primary advocate for access.
Mr. Weinstein. Right.
Chairman Collins. There are, however, some scholars who
have questioned your commitment to public access to important
records. How would you respond to their concerns? Which I know
you are aware of.
Mr. Weinstein. Well, I am aware of them. Let me take that
in two parts, if I may, and I will try to be brief. The four
most dangerous words in the English language are ``I will be
brief,'' but I will try.
First, on my record on access, back in 1972, when I sued,
with the assistance of the ACLU, the FBI for its files, this
was no easy matter, and I won't go into the details except to
say that we were very delighted when the suit was finally won
in 1975. My lawsuit opened FBI files for the first time records
of historical interest, not just to myself but to any scholar,
any researcher who wanted those records. The release set a
precedent, the FOIA release. Those files, those FBI files, are
deposited at the Harry Truman Library.
I have brought other collections to bear at two libraries,
for example, the Herbert Solow papers. I brought them from
Mexico to the Hoover Library. They are a Hiss-related
collection.
I worked with Boris Yeltsin's Commission on Archives in the
1990's to produce the first English-language translation of the
first Russian archival publication that was designed for a mass
audience. I worked with the Russian Government to try to
improve their access relationships at the time.
I have helped the Mary Baker Eddy Library in Boston open
the papers of Mrs. Eddy which had been closed for over 100
years. When the new library opened, those papers were opened to
all scholars, and I was one of the leading forces in that
process.
My commitment has been constant. I could mention other
things. I worked on seminars with my friends in the Russian
Federation at which documents were opened. There are a number
of instances I could mention of that kind.
There is one incident, one issue that critics of my record
have brought up, and that is the issue of what to do about the
fact that I have not put my personal records and my personal
memos of the Hiss case into public display.
Chairman Collins. Let me follow up with a question on that
particular case.
Mr. Weinstein. That is fine.
Chairman Collins. There has been concern expressed by some
scholars who say that you failed to make available for review
by other scholars the notes and records that you relied upon in
writing two of your well-known historical works: the
``Perjury'' book and ``The Haunted Wood'' book. You had told
the Committee staff that, in fact, you planned to donate the
notes that you relied on in writing the ``Perjury'' book,
regarding the Hiss-Chambers case, to the Hoover Institution.
Do you plan to impose restrictions that would limit public
access to those notes once they are donated.
Mr. Weinstein. No. Madam Chairman, I have signed the deed
of gift already to the Hoover Institution, and the hope is that
these papers will all be available by early next year, at the
least. I have got to get them out there. I have got to collect
them. Archivists have to process them, and then they will be
all available.
But I do want to point something out. There are two
separate instances, if I may spend a moment or two on this.
Chairman Collins. Certainly.
Mr. Weinstein. When I started my book on the Alger Hiss
case--I began thinking that Mr. Hiss may have been innocent. I
changed my mind as the case went along and as I read the FBI
files and other materials. I found no conspiracy. I found a
great deal of confusion in the FBI. But I did not find that
anyone had conspired against him to convict him. And so I wrote
the book that way.
The book was controversial. It was a very tense period. I
was sued by a gentleman who had been a former member of the
Communist Party who had been encouraged to sue me for
misstating his situation. Maybe I did, maybe I didn't, but it
was a lawsuit against myself and the New Republic magazine and
Alfred A. Knopf Publishers. It was settled out of court. But I
was threatened with other lawsuits, and on advice of counsel,
my counsel said, well, this is not a time to be giving your
papers to anyone who wants to look at your private papers.
In retrospect, I think I probably should have donated them
afterwards, because the historical verdict seemed very clear.
My book was well received, and there hasn't been another
complete book on the case in the period since 1978. There was
another edition of ``Perjury'' that came out in the late
1990's. So those are going to the Hoover Institution, every
last bit of documentation, and people can make what they want
of them.
By the way, my book was used as one of the major sources
for Sam Tanenhaus' brilliant biography of Whittaker Chambers. I
gave him total access to the papers. I have given others access
to the papers.
``The Haunted Wood,'' I still don't know to this day--
people ask me what arrangements my publisher made at the time
with the KGB's retired agents organization. There was an
arrangement to allow four Western scholars to do four books.
The KGB records had never been opened before. The authors had
no ability to tell the Soviet folks what to do with this. If we
wanted to look at the material, we had to come to a negotiated
agreement with them. We had to work with the Soviet--with
Russian authors. And basically, I think it is fair to say that
we learned a fair amount.
All of this is stated in the introduction of my book. I did
not write a check to the KGB for materials there, and all of
this material that we found will be in the Hoover Institution,
and people can make what they want of it. There were four
excellent books produced. One of my colleagues wrote a superb
book about the Cuban missile crisis, Professor Timothy Naftali,
who is in the room here, and can explain the lengths to which
all of the American authors went to try to encourage the
Russians to increase their access to the West. We failed. They
shut down after about a year. And just at that time the VENONA
Papers in Washington opened up, so we were able to confirm a
lot of the materials that we had in our book. But those were
two different stories.
Chairman Collins. Thank you. Senator Lieberman.
Senator Lieberman. Thanks, Madam Chairman.
Thanks for your answers to Senator Collins, Dr. Weinstein.
One of the matters that I wanted to take up Senator Collins has
asked and you have answered--and others may take it up again--
which is one of the points of concern expressed to us by some
has been what your policy would be on openness. I want to get
back to that in a minute.
But the second concern I think has little or nothing to do
with you, but more to do with the White House. And that concern
is deepened by the letter that Senator Levin read earlier, in
which the current Archivist, Governor Carlin, clearly says that
he was asked to resign.
I wanted to ask you, just to clarify, whether you had any
knowledge of why there was a vacancy or how the vacancy came to
be when the White House began to talk to you about whether you
were interested in being nominated for Archivist.
Mr. Weinstein. No.
Senator Lieberman. None at all?
Mr. Weinstein. No, sir. They asked me if I would be
interested in the position. Frankly, at the time, I had very
little contact with Governor Carlin. We have had a few social
contacts. We had lunch once or twice over the years. I didn't
know him very well. I assumed at the time that he was--that for
some reason or other he was leaving his post. I didn't ask,
they didn't tell. And I didn't have a job offer. They didn't
say, ``We want you to become Archivist.'' They said, ``We are
considering the possibility that you might become Archivist.
Would you be interested if the job were open?'' And, frankly,
if the job were open, I would have been interested.
Senator Lieberman. Yes. I presume--or let me ask you, have
you seen and talked to Governor Carlin since you were
nominated?
Mr. Weinstein. Once. I called Governor Carlin, I guess the
day after my nomination was announced, and suggested that we
get together. He agreed; then he cancelled the meeting. And
after that, the only person at the Archives that I had been in
touch with was Mr. Runkel, Deputy General Counsel, who helped
me fill out the financial forms that I had to fill out at the
time, and I did do that.
But I took the position that I should not be in touch with
anyone at the Archives. It was improper or inappropriate for me
to be in touch with them while Governor Carlin, as Archivist,
was still there. I didn't want any confusion about it.
Senator Lieberman. Right.
Mr. Weinstein. One instance in which somebody from the
Archives called about a particular policy matter, a relatively
minor one, and I said, ``Please don't talk to me. This is not
my business. You should talk to Governor Carlin.''
Senator Lieberman. But other than that phone call, you have
not talked to Governor Carlin?
Mr. Weinstein. No, sir.
Senator Lieberman. And in that phone call, did he raise
any--did he say anything about why the position was becoming
vacant?
Mr. Weinstein. No.
Senator Lieberman. And I presume, therefore, didn't say to
you that he had been asked to resign?
Mr. Weinstein. Senator, he didn't say anything like that,
no. We talked about the meeting.
Senator Lieberman. Who was the person at the White House
who asked you whether you might be interested in being
Archivist if there was----
Mr. Weinstein. As I said in my questionnaire, the Director
of Presidential Personnel, Dina Powell.
Senator Lieberman. Right. And in those conversations--you
see, I want to get this all out in the interest of disclosure.
I think there are some people who are maybe not doing it in
print but raising questions about whether this change is
occurring, that Governor Carlin was asked to resign, you are
coming in, in some sense to carry out a more secretive policy
at the Archives, perhaps even to protect records of this
administration or the previous Bush Administration. So I want
to ask you whether there was ever a conversation between you
and Dina Powell or anyone else at the White House along the
lines of what your decisions would be about opening up records
of the first Bush Administration or this one.
Mr. Weinstein. Absolutely not. And, Senator, may I say a
word about this? You and others on the Committee have worked
with me on different matters and I think understand that I
would not be here today under those circumstances, neither the
job, the very prestigious job of Archivist of the United States
or any other government position is worth my integrity or
anything like that. No, I would not--the Archivist's job is as
the advocate for access.
Senator Lieberman. Right.
Mr. Weinstein. And if one can't be a serious advocate for
access, then one shouldn't want to be Archivist of the United
States.
Senator Lieberman. Who else have you at any time spoken to
at the White House about this appointment?
Mr. Weinstein. Judge Gonzales once.
Senator Lieberman. Judge Gonzales? And that was at an in-
person meeting or a phone call?
Mr. Weinstein. That was an in-person meeting that was in
late November, at some point. I don't have the date in front of
me. And his deputy, whose name at the moment, forgive me,
escapes--Mr. Deutsch, I think?
Senator Lieberman. No problem. Did Judge Gonzales question
you about what your policy would be on the openness of public
records?
Mr. Weinstein. We talked generally about public records,
but did he ask me how I would behave in connection with opening
records? No.
Senator Lieberman. No? And just to----
Mr. Weinstein. But generally about the Archivist's role in
dealing with these records, right.
Senator Lieberman. Yes. And just to get it out in the open,
no specific questions about how you would deal with access to
the records of this administration?
Mr. Weinstein. Oh, no.
Senator Lieberman. Or the former Bush Administration?
Mr. Weinstein. No, absolutely not.
Senator Lieberman. OK.
Mr. Weinstein. I have only met the President, just to
complete that catalogue, if I may, I met him once in 1988 when
the President was a participant in a Center for Democracy
program.
Senator Lieberman. Right.
Mr. Weinstein. That is the only time that I met the
President of the United States.
Senator Lieberman. Thank you. My time is up.
Chairman Collins. Senator Durbin.
Senator Durbin. Mr. Weinstein, since seeing Mr. Carlin's
letter, I have to ask you a question. He says in his letter,
``We are on the verge of awarding a contract for the design of
the Electronic Records Archive, a ground-breaking system that
will allow the Government to manage and preserve any kind of
electronic records. The design is just the first step. We are
working very hard to secure support and funding for systems
development. I would like to see the budget request through to
fruition over the next 4 months.''
Are you familiar with this contract?
Mr. Weinstein. I'm familiar with the briefing materials on
it that were given to me, Senator, yes. I haven't read the
contract.
Senator Durbin. Do you know the companies involved in the
competition for the contract?
Mr. Weinstein. No, I don't.
Senator Durbin. OK. Let me go to another issue, if I might,
and I am trying to reconcile one of your responses to the
questions with some information that I have here. You have said
repeatedly in your responses to our questions that you are
committed to maximizing access to all manner of government
records, including Presidential records, in a timely manner and
to the greatest extent appropriate. And when it comes to
Presidential documents, I gather from reading the law, Chapter
22, Section 2203, that the Archivist has the responsibility to
deposit Presidential records and to decide under the law when
to release them. Is that correct, one of your legal
responsibilities would be that?
Mr. Weinstein. I would assume in general, but I'd prefer on
any legal matter to be able to amend any answer by consultation
with the general counsel over there before I would do that.
Senator Durbin. That is fair.
Mr. Weinstein. I am not a lawyer.
Senator Durbin. But I am going to go----
Mr. Weinstein. I'm married to one, but I'm not a lawyer.
Senator Durbin. Maybe you want to talk to her. [Laughter.]
Because I want to ask you about something you say here
because it doesn't square with that. And here is what it is: We
passed in 1989, 25 years ago, the Presidential Records Act
declaring Presidential papers were the property of the people
of the United States to be administered by the Archives, made
available 12 years after a President left office. President
Reagan issued an Executive Order which established how long a
President had to claim Executive privilege on these records.
Then comes President Bush, in an administration where the
availability and confidentiality of records has been a big
issue, to the point where the Vice President took a case to the
Supreme Court to avoid disclosing documents in the preparation
of his energy bill.
Mr. Weinstein. Right.
Senator Durbin. Now, President Bush, with Executive Order
13233, nullified President Reagan's order, imposing new
restrictions on the access to Presidential papers, requiring
the presumption of non-disclosure, which runs counter to your
stated purpose of being committed to maximum access.
Mr. Weinstein. Right.
Senator Durbin. Now, that is the state of play. You have a
law where you as Archivist are responsible for Presidential
records. You have a personal commitment to access. You have a
President who has issued an Executive Order reducing access.
Now, let me read you what you told the Committee about
this. There is a declaratory judgment action involved now about
this Executive Order. ``If confirmed by the Senate as
Archivist, it would be my responsibility--'' you say, ``so long
as Executive Order 13233 is in place--to oversee NARA's legal
team defending the Executive Order against court challenge.''
That seems exactly the opposite. It would seem that you would
be defending the underlying law against the new Executive Order
which restricts access to Presidential records. Why would you
be defending President Bush's Executive Order instead of the
law that creates your office?
Mr. Weinstein. Senator, may I read the remainder of that
paragraph?
Senator Durbin. Of course.
Mr. Weinstein. Because I think it explains this, and also,
as you know, the current Archivist has the responsibility and
is, in fact, defending--or the general counsel is defending
this in court.
What I said was as follows, after that, I said, ``. . . I
would respectfully defer a fuller response until I can consult
with NARA's general counsel and his staff.'' What I can state
as a private citizen at this point, however, in response to the
question of Executive Order 13233's impact on balancing the
interest of preserving confidentiality with the interest of
public disclosure is that obviously the Executive Order tilts
the balance in confidentiality's direction rather than timely
disclosure. That much is clear.
Then down further, I make my essential point: ``The pursuit
of consensus on the issues''--the lawsuit did not work, did not
get the Executive Order rescinded. ``The pursuit of consensus
on the issues raised by Executive Order 13233 surely ought to
be allowed a moment or two of dialogue and negotiation before
proceeding on the current legal and adversarial track.''
I can't say that anything will happen to that, but I can
say that if I was confirmed as Archivist, what I would like to
do would be to sit down with all the interested principals and
see if anything can be done about the problems here.
Senator Durbin. Mr. Weinstein, I hope if you are confirmed
that you can do exactly that and the lawsuit goes away. You
have stated here that you believe that as Archivist you would
be responsible for overseeing the Archives legal team defending
the Executive Order against a court challenge. Everything else
you say is fine: You need to consult with attorneys, you hope
to work this all out. But why would you start arguing from the
point that you are not defending the law that creates your
office rather than the Executive Order which diminishes the
power of your office? Did you discuss this Executive Order with
Mr. Gonzales?
Mr. Weinstein. No, not at all.
Senator Durbin. Did this ever come up?
Mr. Weinstein. It never came up.
Senator Durbin. Well, I am glad it didn't, but I really
hope that you will revisit that statement. I think that
statement is conflicting with your basic statutory
responsibility. I think you need to defend the law first,
whomever the President might be.
Mr. Weinstein. I couldn't agree more, Senator, but one
thing that I think you recognize is that the business of
restricting access conflicts with my impulses to encourage
access at all times. And in that statement, there is a
conundrum there. I don't have an easy answer for that. But I
will go back and look at it again.
Senator Durbin. I think I know where your heart is, but I
want to know where your lawyers' will be.
Mr. Weinstein. All right.
Senator Durbin. That is what this is all about. And if your
lawyers are going to be defending the restriction of access to
Presidential records, then I think you are on the wrong side.
Mr. Weinstein. You make a very good point.
Senator Durbin. Thank you.
Chairman Collins. Senator Levin.
Senator Levin. Thank you, Madam Chairman.
Was this drafted, this answer to the question, by you or by
the deputy at the White House?
Mr. Weinstein. The answer to what question?
Senator Levin. Question 42, the one you were just reading.
Mr. Weinstein. I drafted every question that was given to
me, the 46 questions that were sent by the Committee. There was
no input by anybody, as far as I know, unless--they may have
read it by now, depending on how one gets copies of these
things around town. But, no, there was no input by--and not
just in the White House. I can categorically say there was no
input by anybody in the Congress, in the White House, in the
interested groups and the stakeholders, in the Archives. This
is Allen Weinstein's answer to that question. And, as Senator
Durbin indicated, Senator Levin, I was trying to balance off a
number of different ideas in my own mind based upon what is
certainly not at this stage in the game the most informed
knowledge of where the Archives has been on this issue over the
last several years.
Senator Levin. You, in two places in your answer on
Question 42, indicate that the impact of that Executive Order
``on balancing the interest of preserving confidentiality with
the interest of public disclosure is that, obviously, the
Executive Order tilts the balance in confidentiality's
direction rather than in timely disclosure.'' And then at the
end of that answer, you say, ``As previously stated in response
to this question, it tips the balance--at least temporarily--in
favor of greater confidentiality and less public disclosure.''
So I assume from that you would believe that the Executive
Order at least contradicts the spirit of the 1978 Act?
Mr. Weinstein. It doesn't help.
Senator Levin. Now, in answer to Senator Durbin's
question--it's a good question--will you expand your answer to
that question for the record?
Mr. Weinstein. Absolutely.
Senator Levin. Are you familiar with the scheduled release
of certain records from the first Bush Administration in
January 2005?
Mr. Weinstein. Not to any great degree, Senator. Not to any
great degree, no.
Senator Levin. Well, to the degree that you are----
Mr. Weinstein. Well, that this was scheduled, yes, but I
haven't seen any literature on that.
Senator Levin. Are you prepared and willing to release on
schedule whatever records of that administration are scheduled
to be released, if you are confirmed?
Mr. Weinstein. If I'm confirmed, I'm prepared to honor the
law, whatever the law states and wherever that may take me. If
those materials are scheduled for release at that stage in the
game, then I don't see why they shouldn't be released.
But, Senator, I have not received extensive briefing
materials on that whole area.
Senator Levin. OK. Madam Chairman, I would just ask that
the letters that I made reference to before, the letter that I
wrote to Governor Carlin and his response to my letter, be made
part of the record.\1\
---------------------------------------------------------------------------
\1\ The letters referred to appear in the Appendix on page 130 and
131.
---------------------------------------------------------------------------
Chairman Collins. Without objection.
Senator Levin. And I also would ask you and the Ranking
Member, if you would at some point in the near future, to
consider requesting the White House to comment on Governor
Carlin's statement that he was asked to resign. I think it is
important that we ask the White House why it is that they asked
the current Archivist to resign. So I am not going to request
that that decision be made at this point right now, but I would
ask that you and the Ranking Member convene your great minds on
that question and hopefully ask the White House for their
comment on that statement.
Chairman Collins. I would note that the Archivist does not
have a statutory term. I mentioned to the Ranking Member that I
was surprised to learn that. So I think that is an important
point to be put into the record because this is not a case
where there is a set term.
Senator Durbin. Madam Chairman, may I ask a question? Isn't
it also a fact, though, that if an Archivist is to be removed,
there has to be a reason stated?
Senator Levin. That was the part that I read earlier.
Chairman Collins. But there was consideration to having a
10-year term for the Archivist that was not included. It may be
something that this Committee should revisit.
Senator Levin. I think that is accurate. There is no
specified term. But it is also, as Senator Durbin, and as I
said in my opening statement, that if the Archivist is to be
removed, there must be a stated reason given to the Congress, I
believe, for that. Both of those facts, assuming I stated them
correctly, are interesting and to some extent relevant. But the
issue that I am interested in here, because I think it really
goes to the question of the independence of this office, is,
if, in fact, Governor Carlin was asked to resign, as he says he
was, in effect--they said they wanted to appoint a new
Archivist. So that amounts to a request to resign. I would be
interested in giving the White House the opportunity to tell us
why it was they requested that he resign.
I think that is an important question to be answered, and I
would ask that the Committee ask the question. Obviously, if
the Committee through its Chairman and Ranking Member decide
for whatever reason not to, that is a right I will defend. But
I would then ask the question on my own as an individual Member
of the Committee. I think it would be preferable, frankly, that
it come from the Committee, if it is appropriate. But I do not
want to prejudge the appropriateness or your thought processes
on it, because I have tremendous respect for you both. And
whatever decision you make I will defend. But if the Chairman
and the Ranking Member decide for whatever reason not to
request that information from the White House, then I as an
individual Member would make that request.
Thank you.
Chairman Collins. You are welcome.
Senator Levin. Could these be made part of the record?
Chairman Collins. The letters will be made part of the
record.
I will also enter into the record Governor Carlin's letter
of resignation,\1\ which has a very different tone to it, and I
think that is important to be part of the record as well.
---------------------------------------------------------------------------
\1\ The letter referred to appears in the Appendix on page 132.
---------------------------------------------------------------------------
Senator Levin. That was part of my request.
Chairman Collins. His letter, as opposed to your letter to
and from?
Senator Levin. If I failed to say that, I made a mistake. I
should have included his letter of resignation. I thank the
Chairman for that.
Chairman Collins. Without objection.
Professor, I just want to ask you one closing question, and
that is, in view of the discussion we have just had and the
questions that Senator Levin and others have raised not about
your nomination but, rather, the circumstances surrounding your
nomination, do you believe this Committee should consider
legislation that would give the Archivist a set term, say, of
10 years? Do you have an opinion on that?
Mr. Weinstein. I would support such legislation, Chairman,
because it may do away with some of the dilemmas of archival
terms. The Archivist's terms up to now have averaged 8 or 9
years a term for the previous Archivists. However, I wouldn't
say that it was essential. I think it is essential in the
future to engage in a consultative process beyond perhaps the
one that now exists. But as far as legislation is concerned, I
would support it if the Committee and the Congress were in
favor of it.
Chairman Collins. Thank you.
Do either of my colleagues have a final question for our
witness today?
Senator Lieberman. I do not. I thank you, Dr. Weinstein.
There is this funny conundrum which I do think that Senator
Levin has amplified, which is that Governor Carlin has not been
removed from office, literally, because he submitted his
resignation. But now we find that he was asked to submit his
resignation, so that is what we are going to counsel together
on, whether we should ask the White House to explain to us why
they asked for that resignation. So the Chairman and I will sit
and reason together.
Senator Levin. Madam Chairman, just one other thing. As I
look at the letter, the resignation letter, so-called, actually
is--there is a statement that, ``I will submit my resignation
upon the confirmation and swearing-in of the ninth Archivist of
the United States.'' So, technically, I guess, he has not
resigned yet. He has been asked to submit his resignation,
which he has done conditionally.
Chairman Collins. An intention to resign, I guess would be
a more appropriate description.
Senator Levin. Right.
Senator Lieberman. Anyway, Dr. Weinstein, I would say your
testimony has been very responsive, and you do, again--you are
caught in a swirl that certainly is not of your making, but it
is around the nomination. But, you know, you do have an
extraordinary and very broadly respected record as a historian,
and that actually seems to make you qualified for this job.
Mr. Weinstein. Thank you, Senator.
Chairman Collins. You get applause. I mean, the rest of us
don't get electronic applause. [Laughter.]
Senator Lieberman. My staff does this for me, just to make
me feel good. [Laughter.]
Chairman Collins. To compensation you for no longer being
on the campaign trail.
I want to thank the professor for appearing before the
Committee today and for his cooperation throughout the process.
I personally am impressed that you on your own answered all 46
of those questions. I think there are very few nominees who
would have answered, ``Yes, I wrote those personally,'' to the
Committee's questions.
There have been several letters and statements submitted to
the Committee from a variety of organizations, scholars,
historians, archivists, and others. All of those, without
objection, will be included in the hearing record.\1\
---------------------------------------------------------------------------
\1\ The letters referred to appear in the Appendix on pages 134
through 170.
---------------------------------------------------------------------------
And also, without objection, the record will be kept open
until 5 p.m. tomorrow for the submission of any additional
materials, written questions, or statements for the record.
Again, thank you very much for being here today. You
certainly have a distinguished background, and your commitment
to openness and public access is very important to this
Committee, and we look forward to working with you in your new
position, if all goes well. Thank you.
Mr. Weinstein. Thank you, Chairman.
Chairman Collins. This hearing is now adjourned.
[Whereupon, at 4:41 p.m., the Committee was adjourned.]
A P P E N D I X
----------
PREPARED STATEMENT OF SENATOR FRANK R. LAUTENBERG
Madam Chairman: I want to welcome Professor Weinstein to today's
hearing. Professor Weinstein has done ground-breaking research to
illuminate Cold War history on such important matters as the Alger
Hiss-Whittaker Chambers case and the extent of Soviet espionage in
America from the 1930's to the early 1950's.
I intend to support Professor Weinstein's nomination to be
Archivist of the United States. But I do want to raise several concerns
about the way in which this nomination has been brought before the
Governmental Affairs Committee.
First, the current Archivist, John Carlin, had expressed his desire
to remain in the post until 2005. Then, last December, he abruptly
changed course and announced his intention to step down as soon as a
successor has been ``nominated and confirmed.''
I want to know if Governor Carlin is being forced out of his job by
the Bush Administration and, if so why.
Second, I want to know why this Committee has not conducted any
oversight hearings with regard to the National Archives and Records
Administration in over a decade.
Third, I want to know why the Bush Administration made no attempt
to ``vet'' Professor Weinstein's nomination with ``recognized
organizations of archivists and historians''--something required under
the National Archives and Records Administration Act of 1984. And I
want to know why the Committee refused to invite the heads of any of
these organizations to testify in person today.
Fourth, I hope to get Professor Weinstein's personal commitment--if
he is confirmed as our Nation's Archivist--to pursuing what our former
colleague Pat Moynihan called ``a culture of openness.''
I agree with Senator Moynihan's assessment that classifying some
six million documents each year is the most pernicious form of
government regulation since we ``don't know what we don't know.'' I'm
anxious to hear Professor Weinstein's ideas on how, as Archivist, he
will work to make our government operate in a more transparent manner
since we are, after all, a democracy.
Thank you, Madam Chairman.
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