You raise some interesting points, Peter.  I agree with you that we don't yet know everything that transpired.  I have no reason to disbelieve John Carlin when he says he was shocked to read about the classified agreement in the NYT this year.  On the other hand, the NYT reports that Michael Kurtz says he briefed him.  I suppose it is possible that a briefing occurred and that Mr. Carlin heard Mr. Kurtz describing something similar to the DOE Kyl-Lott review whereas Mr. Kurtz thought he was providing his boss sufficient detail to differentiate between the DOE and the MOU party review.  We've all seen scenarios in the office and at home where someone says, "but I told you" and the other person said, "no, I never knew this," and in a sense, both are correct.  I'm just speculating here about a possible breakdwon in communications, of course, I have no inside info on this.

 

I don't really buy your "negotiating with donors" analogy because, unlike in the private sector, we're dealing with statutory authorities.  Also, the core problem lies in the statement in the MOU that "It is in the interest of both (unnamed agency) and the National Archives and Records Administration (NARA) to avoid the attention and researcher complaints that may arise from removing material that has already been available publicly from the open shelves for extended periods of time,' the agreement said." "It is in the interest of both(unnamed agency) and the National Archives and Records Administration (NARA) to avoid the attention and researcher complaints that may arise from removing material
that has already been available publicly from the open shelves for extended periods
of time." 

 

That is antithetical to the way NARA operates or is supposed to operate because it expresses an underlyig contempt for the American public.  The same issue lay at the heart of the Nixon tape deletion controversy.  In neither instance was anyone arguing with the third party's right to request that something be withheld; however, in both instances (Nixon's records and the MOU) the public deserved to know what role that third party played. 

 

There obviously is a huge potential difference between the way a player such as Nixon might view his records and the way objective archivists might view them.  The same is true with the Federal records such as those that may fall under the two MOUs.  The MOUs cover records including those of the Department of the Air Force which is a DOD component.  There are areas where DOD is well positioned to voice its concerns about what should be released.  But there also are areas where it may not be able to act objectively and in the public interest.   Bill Leonard mentioned his concern about possible improper classification of materials related to Abu Ghraib by other DOD components in the speech I linked to yesterday. 

 

Here's an example of where the integrity of evidence became an issue.  You've seen recent press reports about the efforts of Pat Tillman's family to find out more about the circumstances surrounding his death in Afghanistan.  Friendly fire incidents always are difficult for DOD to deal with.   They clearly are painful for everyone involved.  Take a look at http://www.gao.gov/archive/1995/os95010.pdfhttp://www.gao.gov/archive/1995/os95010.pdf for example.

 

In that report about Operation Desert Storm, GAO noted that "Within hours, the 3rd ACR began an AR 15-6 investigation. By regulation,such investigations are to be thorough and impartial and make recommendations as warranted by the facts. The first Investigating
Officer, in his investigation and reinvestigation, found that all personnel had acted responsibly and recommended that all be absolved of any criminal or administrative responsibility for the incident. Among other shortcomings, the first Investigating Officer overlooked numerous documents and other information, including an audio tape recording of the incident that GAO located.Within hours, the 3rd ACR began an AR 15-6 investigation. By regulation, such investigations are to be thorough and impartial and make
recommendations as warranted by the facts. The first Investigating Officer, in his investigation and reinvestigation, found that all personnel had acted responsibly and recommended that all be absolved of any criminal or administrative responsibility for the incident. Among other shortcomings, the first Investigating Officer overlooked numerous
documents and other information, including an audio tape recording of the incident that GAO located."

 

As GAO recounted in its report, there were problems with subsequent DOD investigations, as well.  GAO concluded that "the investigations’ conclusions and recommendations were not supported by the evidence available to the Army investigators." 

 

Just one example, but it illustrates how it can be very, very hard for players with a vested interest in the outcome of an issue to handle documentary evidence properly.  When you're negotiating with a donor in the private sector, there is much less at stake than there is in records dealing with governmental actions.   The fact that citizens (voters, tax payers) are involved, both in being the potential subjects of and requestors of records, places a different perspective on the matter.  Someone has to represent their interests in the proper handling of government records.  Since they can't "sit at the table" when NARA is discussing matters with record creating agencies, it is up to NARA to keep their interests in mind.  The underlying contempt for the public in the statement about researchers suggests that this was not done sufficiently in the case of the MOUs.

 

Maarja