Congress responded to the outrage over the Watergate scandal with the Presidential Records Act of 1978 (PRA) — an attempt to rein in the president by increasing oversight over the office of the president by declaring that presidential records are the property of the people.

The thinking behind the PRA was that because the office of the president would be more transparent, a sitting president might be more likely to be a better public servant — i.e., presidents are concerned about their legacy and if their records are subject to public scrutiny, they are more likely to act in the best interests of the country.

Interestingly enough, going back to George Washington, former presidents retained personal control of all the records created during their administration by simply taking their records with them, doing as they pleased.

But President Bush, in November 2001, decided that transparency wasn't good for sitting presidents, or vice presidents, and through Executive Order 13,233 instantly gave both the former president and vice president the ability to make a claim of executive privilege over documents that they do not want to be released to the public. In fact, the order also gave the former president and vice president the ability to appoint someone to make this decision for them, long past their own deaths.

Translation: If you have ever wondered if President Reagan lied to the American people about the "unauthorized" transfer of arms for hostages, you are probably never going to find out.

If you ever thought the Sept. 11 terrorist attacks are the fault of the Clinton administration, good luck getting your hands on the evidence.

Want to lay the blame on the current White House for not doing more after the terrorist attacks on Sept. 11, or for the ensuing madness in New Orleans after Katrina? If President Bush doesn't want to turn over the evidence, he doesn't have to.

Under PRA, records created, starting with the sitting president in 1981, are to be made available to the public within a reasonable period of time 12 years after the president leaves office. PRA defines presidential records as documents created by the president or by his advisors "in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the president."

Of course no law is ever that simple, and Congress, for good and bad, made sure PRA would not be any different. So, under PRA, the president was given the ability to exempt from public access for up to 12 years any record dealing with materials that are classified, related to appointments to public office, exempted by statute from disclosure, trade secrets and confidential commercial or financial information, confidential communications between the president and others, or personnel and medical files.

For example, President Reagan restricted access to his records dealing with all the above categories for the entire 12 years, so that in January 2001, these restrictions disappeared, and the records then became subject to the Freedom of Information Act (FOIA).

Like PRA, FOIA also has numerous exemptions, nine in all, including all PRA exemptions minus the P-5 category, which involves confidential communications between the president and his advisors — arguably the most interesting of the PRA exemptions.

So, though we are never going to know what really went on inside the minds of these presidents, we should be able to know what their advisors were telling them and what advice they were getting. Paper trails from these administrations go on and on — the memos and briefing papers that the president got everyday from his advisors that told the president what was going on and what course of action they recommend might number in the millions of pages alone.

So, the trail is there, but President Bush doesn't want it to be followed. He wants to be able to control what information the public gets and when they get it.

I wonder what James Madison would think about this. After all, he wrote: "Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." Access to presidential records might just be one step, but it's a big step, because without it there might not be another way to hold a president accountable for his decisions, right or wrong.

Jason S. Ebin ([email protected]) is a third-year law student.