November 24, 2014
The National Archivist gets superpowers
by Sal Robinson
David Ferriero, 10th Archivist of the United States, is on the verge of getting a crucial new power. And it’s not the power to say snarky things about Bigfoot to Nicholas Cage, so don’t even ask about that.
No, it’s the power to determine what is and what isn’t a government record “appropriate for preservation,” as laid out in the bill H.R. 1233, the Presidential and Federal Records Act Amendments of 2014 (full text available here), which has passed Congress and now just awaits the President’s signature.
The reason this is crucial is that, in the past, the ability to determine what was “appropriate for preservation” was left up to government agencies, and they naturally had lots of reasons for determining that, ahem, say, those tapes of CIA agents waterboarding al Qaeda suspects, weren’t important to keep around. (Imagined conversation in CIA office in November 2005: “Just tape over them, dude, if Porter J. Goss misses the new episodes of “The King of Queens” he gets pissy.”)
This was all a little tricky, too, because what was “appropriate for preservation” and what was officially a “record” were all tangled up in each other. The definition of a “record” is, according to Douglas Cox’s highly informative post on the blog Document Exploitation about this whole issue, “broad and expansive and includes all documentary material made or received by an agency that is preserved or ‘appropriate for preservation.’” As Cox describes it, leaving the determination of what was “appropriate for preservation” up to the agencies meant that they could “simply decide that material such as videotapes depicting the torture of detainees are nevertheless not ‘appropriate for preservation,’ ergo they are not records, ergo the federal records laws do not apply to them, ergo the agency can destroy them at its discretion.”
The new bill does not cut that particular Gordian knot, just shifts responsibility over to the Archivist. Nor is it without its problems—Cox points out that Ferriero and the National Archives and Records Administration that he heads won’t necessarily be able to enforce their new power.
But it may indeed help with preserving files and documents that are highly sensitive, very important for the American public to be aware of, and consequently, definitely something someone wants to keep secret, like the memoranda that came out of the Panetta Review, Leon Panetta’s investigation into Bush-era interrogation programs, whose existence was only made public last year after the Senate Intelligence Committee essentially stole them from the CIA, in order, they said, to keep the CIA from destroying them. Which, yes, they probably would have. (Though, when it comes to secrecy vs. the fat wads of cash that can be made on political memoirs, Panetta wasn’t all that interested in being held to the same standards that other CIA employees are, as MobyLives wrote about earlier this year.)
Still, the new arrangement means we have to have a lot of confidence in our National Archivist. So is David Ferriero worthy of it? His approach to the inauguration of current CIA chief John Brennan suggests we can rest easy. From a profile of Ferriero by Sarah Thomas in the Beverly Citizen:
“Brennan wanted to take his oath of office on the original U.S. Constitution, but I wouldn’t allow it,” said David Ferriero, the Beverly native who currently serves as the Archivist of the United States, or AOTUS if you like acronyms. “So instead, I allowed him to use a later copy annotated by George Washington.”
Sal Robinson is an editor at Melville House. She's also the co-founder of the Bridge Series, a reading series focused on translation.