April 12, 1996
National Archives and Records Administration Announces Agreement to Accelerate Release of Nixon Tapes
Notice, October 26, 1999: The agreement may be read at Appendix A of public access regulations (36 CFR 1275)
Washington, DC . . . Archivist of the United States John W. Carlin today announced an agreement designed to lift legal obstacles to the release of "Watergate"-related Nixon White House tape recordings never before heard by the public.
Under the agreement, Carlin said, tapes related to what the law calls "abuses of governmental power" during the Presidency of the late Richard M. Nixon could become publicly available within the current year. The agreement further provides a process through which additional Nixon tapes may be released.
The National Archives and Records Administration (NARA) reached the agreement with three other parties to litigation over the Nixon tapes: advocacy group Public Citizen, history professor Stanley Kutler, and the estate of Richard Nixon. Since 1993, release of Nixon tapes had been held up pending resolution of litigation. Now, all parties have reached an agreement designed to facilitate review and release of the Nixon recordings.
"As the representative of one of those parties," said Archivist Carlin, "I wish to express gratitude to all the others for this resolution of our differences. The National Archives and Records Administration is eager to make public all material that the law allows to be released to document the Nixon Presidency. But we also are sensitive to the concerns of the Nixon family about material that is legally personal and private, and we recognize the need to treat materials not related to 'abuses of power' as we would treat materials of any other President in our Presidential library system, consistent with the law that specifically governs the Nixon materials. We believe that this agreement protects both the Nixon privacy rights and the public interest as defined by law."
With one exception, the agreement settles a lawsuit brought by Professor Kutler and Public Citizen to accelerate the release by the National Archives and Records Administration of approximately 3,700 hours of White House tapes recorded during the presidency of Richard Nixon. The agreement also allows the lifting of an injunction, granted by the court to former President Nixon, prohibiting tape releases by NARA.
The case was filed against NARA in March 1992 because only 63 hours of the White House tapes had been made available to the public since 1974, when Congress passed a law requiring review and release of Watergate materials and Nixon presidential historical materials. Former President Nixon intervened, arguing that NARA should give priority to returning all private conversations on the tapes to him. In August 1993, former President Nixon obtained a court order forbidding any further releases until NARA had completed its review of all of the tape recordings and returned all private or personal materials. As a result, there have been no subsequent releases of any of the remaining tapes, including any of the 201 hours that NARA has concluded demonstrate Watergate "abuses of governmental power."
Under the terms of the settlement, the parties have agreed to a schedule for processing of the remaining hours of the tapes and a process for objections by the Nixon estate and others whose voices are heard or whose names are mentioned. Regarding the abuses of governmental power materials, the Nixon estate has agreed to waive objections to specific items, and to allow the release to go forward unless it objects by October 1, 1996, and a panel of archivists from three Presidential libraries then concludes that the designation is "clearly inconsistent with the definition of the term 'abuses of governmental power'," as defined in applicable law and regulations. Unless the Nixon estate finds problems and the special panel agrees, or there are objections from other parties, the tapes should be available as early as November 1996, followed by release no later than April 1998 of the Cabinet Room tapes, which cover about 278 hours before possible deletions for national security and other matters listed in the Presidential Recordings and Materials Preservation Act of 1974. The agreement also provides for release of the remaining 2,338 hours in five segments over the next several years.
With each release of tapes, NARA will also make public the corresponding portion of its detailed, updated 27,000-page tape log and other finding aids that will help researchers and reporters locate conversations of particular interest. Unlike the earlier releases, for which transcripts had been made by the Watergate Special Prosecutor's Office, there are no transcripts. Former President Nixon had previously insisted that transcripts were required prior to any releases, but that demand has now been withdrawn by his estate.
Another delicate issue was the availability of copies of the public tapes. The Nixon estate wanted to preserve the current regulations, which do not provide for making copies. Under the compromise reached, copies can be made only after all of the releases have occurred, but if that does not occur by the end of 1999, then copies of the Watergate abuse-of-governmental-power tape segments will be available for the public, followed three years later by other publicly available tapes if the releases have not yet been completed.
Under the agreement, only one issue will remain in litigation - the question of the Archivist's retention and maintenance of the original tape recordings in their entirety, including those segments deemed to be private or personal to former President Nixon, along with the master preservation copy. The Government believes that it is complying with the Presidential Recordings and Materials Preservation Act by retaining the original tapes and a preservation copy. Under existing law it cannot open to the public material on those tapes deemed personal and returnable. But to ensure protection of Nixon rights to keep that material private, the Nixon estate takes the position, with which Public Citizen and Professor Kutler agree, that NARA is not legally entitled to retain the personal and returnable portions of the originals, nor a preservation copy, once reviews are completed and public material is released. All three parties have agreed to submit this issue to court resolution.
The agreement was reached after nearly 14 months of efforts by the parties under the mediation program of the United States District Court. Clifford Hendler, of the Washington law firm of Crowell & Morning, served as mediator without compensation, and the parties expressed their great appreciation for his tireless efforts and his insights that made settlement possible.
Archivist Carlin, who became head of the National Archives and Records Administration in 1995 in the midst of the litigation, expressed personal gratitude for the agreement. "It gives me an opportunity," he declared, "to push forward the emphasis on open records to which I am committed in my administration of NARA. Our mission is to provide ready access to essential evidence documenting the rights of citizens, the actions of federal officials, and the national experience. The historic Nixon tapes obviously contain documentation of exceptional value; increasing access to information in them of public value is important in itself. But providing access to such records is also important because of the currently prevailing public skepticism about government institutions. NARA must play a role in promoting open government. And all of us who are parties to this agreement intend it to accelerate public access to important information."
For additional PRESS information, please contact the National Archives Public Affairs staff at (301) 837-1700 or by e-mail. Visit the National Archives Home Page on the World Wide Web at http://www.archives.gov/.