July 14, 1998
First of all, the distinguished Congresswoman from New York, Carolyn Maloney, the sponsor of H.R. 4007, deserves tremendous credit for introducing this bill. Opening US files on Nazi war criminals is a crucial objective. Rep. Maloney has been fighting for several years to make these files available to victims of the Holocaust, scholars, journalists and the public. Fortunately for us, she has never given up, despite all the obstacles put in her path. Everyone in this country who cares about finding out the whole story of Nazi war criminals--and our government's involvement with them--owes her an enormous debt of gratitude.
I also want to acknowledge the important role of the Chair of this Subcommittee, the Honorable Stephen Horn, who is a co-sponsor of this legislation. As a historian he knows the importance of truth to a free society. I congratulate him as well as the other members of this Subcommittee for their support of this legislation.
The genesis of my concern about this problem goes back many years to 1974, when as a member of Congress, I discovered that the US government had a list of more than fifty alleged Nazi war criminals living in the United States and was doing nothing about them. (Others later estimated that as many as ten thousand Nazi murderers came to our country.) I felt it was critical to put into place a mechanism to locate these Nazis, expel them, and bring them to justice. Our country could not be a haven for mass murderers. America fought Hitler in World War II. Tens of thousands of Americans gave their lives to defeat the Nazis; countless others were wounded in that effort. To have Hitler's henchmen living here in peace and enjoying the benefits of our society was an affront to the memory of those Americans and their families; it was also an affront to the victims of the Holocaust, and to all decent- minded Americans. How, too, could our government effectively fight for human rights if it tolerated the presence of these murderers on our shores? The message to the would-be mass murderers of the future was, in the end, the world just wouldn't care.
I spent the next seven years working to undo the situation. Our laws on deportation of Nazi war criminals were strengthened. A special unit, the Office of Special Investigations, was created and placed in the prestigious Criminal Division of the Department of Justice. OSI was charged with one mission--to track down Nazi murderers among us and see that they were brought to justice. Proper funding for OSI was put into place, at least at the outset. Under pressure from Congress, our government began to look for evidence in Nazi cases wherever it might be found, including the Soviet Union and Israel.
The results have been remarkable. Despite the fact that the murders took place so long ago and evidence is so difficult to collect, OSI has expelled more than 50 Nazi war criminals from our shores. And the "watch list" prevents others from entering. No Nazi murderer living in America today is safe.
In the 1970's we did not know how most of those Nazis got here or why they were permitted to remain. But finding the answers was a luxury we could not afford. Because of the age of these Nazi war criminals, and because time was not on our side, the first priority was to get our government moving on the issue of investigating and deporting them. Then we could get the answers to what our government's role was with regard to them. That time has long since come. But we still don't have the answers.
Over the years, there have been many indications that our own government was working with Nazi war criminals. For example, a General Accounting Office report issued in the 1970's pointed out that some twenty Nazi war criminals had been employed by US government agencies which knew the allegations against them. But the report did not disclose the names of those Nazis, the work they did, why they were hired--and it was not complete. There were hints in other cases of intelligence agency involvement. But we could never get the the whole story.
In the 1980's, the issue came up again, this time in the case of Klaus Barbie, the so called "Butcher of Lyons." An SS officer responsible for the deaths of countless Jews and French resistance fighters, Barbie, according to a Justice Department report, had been employed by the US government after World War II. US government officials spirited Barbie out of Europe to South America in order to avoid having him captured by the French who wanted to try him for war crimes. US government officials were so eager to help Barbie that they committed US crimes to do so. How many other Klaus Barbies were there that US officials employed or helped escape justice? To this day we do not know the answer.
Another case involves Kurt Waldheim, former Secretary General of the United Nations. He has been barred from entry into the United States because of information that came to light (including information in the UN's own files) showing that Waldheim may have participated in war crimes in the Balkans and Greece. Given Waldheim's background, why did the US support his becoming Secretary General? If our government truly did not know about his background, what does that say about the quality of US intelligence?
The American people are entitled to the answers to these questions about our government's involvement with Nazi war criminals after World War II.
Amazingly, our executive branch on its own has not opened its files on Nazi war criminals. Here we are, fifty-three years after the end of World War II and our own government still wants to keep us in the dark about this sorry chapter in our country's history. Ironically, the former Soviet Union has opened it archives, Eastern European countries have done so, even Argentina has begun to open its files on Nazis. Why are ours still closed?
Even the Central Intelligence Agency conceded, in theory at least, that the files should be open. In 1992, in response to a letter from me, Admiral Studeman, the deputy director of the CIA, promised that secret files on Nazi war criminals would be opened to historians' scrutiny. But six years have gone by and those files are still not open.
A little over two years ago, this Subcommittee considered the same issue. Representative Carolyn Maloney introduced H.R. 1281, the War Crimes Disclosure Act. The CIA blocked its passage.
We have all seen the extraordinary revelations about Nazi gold produced by the remarkable efforts of the Honorable Stuart Eizenstat, Undersecretary of State. I believe that a similar story lurks in our government files about Nazi war criminals, but it will only be told if this bill is adopted--and the provisions are strengthened as I suggest below. Unfortunately, my experience in the past has been that too many government agencies want to hide any information that might be embarrassing or troublesome. That has certainly been the case in this area. That is why the executive branch and particularly the intelligence agencies must be compelled to act.
I would like to point out several drafting issues that could impede the bill's effectiveness. Let me note, as well, that I stand ready to assist the subcommittee in rectifying these technical points. Here are some of the problems:
1. Members of the Interagency Group. Sec. 2 (b) (2). There should be a provision for designating the chair of the Group. Further, it is not clear whether the President must pick the Historian of the State Department, the Director of the Holocaust Museum and the Archivist of the United States as members of the Group, or whether the President may choose none, one or two of them. It is also not entirely clear whether the other three members of the group must be government employees.
2. Deadlines for the Interagency Group. The Interagency Group is created for a three-year period only, Sec.2(b)(1), but the deadline may create some serious problems. I am sympathetic to the pressure the deadline places on the Interagency Group for action and to the idea of "sunsetting" a new bureaucratic entity. But, the deadline also creates a major incentive for delay on the part of any agency wishing not to disclose any Nazi record or records. In addition, it is not clear what happens when the three-year period expires. If there are records, for example, that OSI might not need any longer, or additional documents are discovered, how are they released to the public? Further, while the Interagency Group must take certain specific actions within one year, it does not have to meet for three months after the bill takes effect Sec. 2(b) (3). I would suggest that the three-month period be cut to 30 days at the maximum, especially if the present deadlines are kept. I would also suggest that the Interagency Group be required to report to Congress at least annually throughout its existence.
3. Absence of Deadlines for Government Agency Action. While the Interagency Group must identify and recommend declassification within one year, Sec. 2 (c), there is no deadline for the agency responsible for the declassification to act on the recommendation. A deadline for agency action should be imposed. A question is raised by the absence of such a deadline and the existence of the three-year deadline on the Interagency Group--what happens if the declassification recommendation is still not acted on after three years and the Interagency Group no longer exists?
4. Lack of Power of Interagency Group to Require Declassification. It seems that even if the Interagency Group believes that the agency's request for an exemption from declassification is erroneous, it has no power to require the agency to declassify. It is not even clear that the Group will be able to see the basis for the agency's claim for an exemption. I believe that the Interagency Group should be fully apprised of the reasons and basis for any agency's exemption claim and should be empowered to challenge, and reject, the claim.
5. Nazi War Crimes Records. As drafted, Nazi war crime records include only those records naming a specific Nazi war criminal. The bill should not be limited in this way. The bill apparently would not cover, for example, any records containing government directives, policy memoranda or the like, dealing in general with former Nazi war criminals without mentioning any specific name(s). One small point, the word "classified" on p.3, line 23 should be deleted. It is confusing since Nazi war criminal records are already defined as being classified.
6. Exemptions from Public Release. Some of the exemptions are extremely broad and may provide an easy escape hatch for agencies reluctant to declassify Nazi information. This is particularly true for Sec. 3(b)(2)(G), which exempts information that would allegedly impair diplomatic interests of the United States. I would also suggest that the exemption for personal privacy, Sec.3(b)(2)(A), be available only when it applies to a third party who is not a Nazi war criminal. In addition, the exemption for intelligence sources and methods, Sec. 3(b)(2)(B), should apply only to US sources and methods, not Nazi sources and methods, or sources or methods of any other country, and only if the human source (1) is still living and disclosure would endanger his or her life, and (2) is not a Nazi war criminal. There should be a blanket exemption on methods used more than 25 years ago. As written, this exemption for intelligence sources could conceivably be used to ban disclosure of records on Klaus Barbie and Kurt Waldheim (if he had been given the US information). As such, it is an exception that could swallow up the rule.
7. The Asset Provisions. There are several issues in the drafting of Sec. 3(a)(2)(A), which pertains to assets of persecuted persons, as presently drafted. Thus, the phrase "by, under the direction of...or any nation then allied with that government" (p.5, lines 17-21) should be placed after the word "assets" on line 15. Unless that change is made, the current section might not cover assets of persecuted persons in the hands of so-called neutral countries. Furthermore, it is unclear why that phrase does not track the language of Sec. 3(a)(2) (A)-(D). Even if the foregoing changes are made, the language of the section should be closely examined to ensure that it covers assets taken from persecuted persons in the hands of neutral or non-Axis nations or institutions.
8. Funding. The Congressional Budget Office recently determined that it will cost between $2-3 million to carry out the provisions of H.R. 4007. This money must be appropriated and it should not be taken out of the Department of Justice's regular budget allocation, as I am informed is likely to be the case. If that happens, it will engender unnecessary friction between OSI and DOJ.
There can be no more secrets about Nazi war crimes and those who engaged in them. There can be no more secrets about Nazi gold or the seizure of property from persons by the Nazis. The whole truth must come out.
I urge passage of this important bill, with the strengthening provisions I proposed.