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Congressional Record: November 5, 1997 (Senate)
Page S11764-S11778
      By Mr. DeWINE (for himself, Mr. Moynihan, Mr. Hatch, Mr. D'Amato, 
        Mr. Dodd, Mr. Kohl, Mr. Coverdell, Mr. Kennedy, Mr. Inouye, Mr. 
        Lieberman, Ms. Snowe, Mr. Hutchinson, Mr. Thurmond, Mr. McCain, 
        Mr. Shelby, Mr. Campbell, and Mr. Wyden):
  S. 1379. A bill to amend section 552 of title 5, United States Code, 
and the National Security Act of 1947 to require disclosure under the 
Freedom of Information Act regarding certain persons, disclose Nazi war 
criminal records without impairing any investigation or prosecution 
conducted by the Department of Justice or certain intelligence matters, 
and for other purposes; to the Committee on the Judiciary.

                   The Nazi war crimes disclosure act

  Mr. DeWINE. Mr. President, I am pleased to be part of a bipartisan 
group of Senators, led by my friend from New York, Senator Moynihan, to 
introduce the Nazi War Crimes Disclosure Act. Passage of this 
legislation will lift the last remaining veils of secrecy on one of the 
darkest periods in human history.
  the Nazi War Crimes Disclosure Act represents what I hope will be the 
culmination of work begun in the last Congress to release U.S. 
Government-held records of Nazi war criminals, the Nazi Holocaust, and 
the trafficking of Nazi-held assets.
  Just 2 years ago, we celebrated the 50th anniversary of the end of 
the Second World War, and with it, the Nazis' death grip on an entire 
continent. Since that time, searingly detailed accounts of the Nazi 
Holocaust have come to our attention.
  We have learned so much. Yet, if the last few years are any 
indication, we still have so much more to learn.
  After the fall of Communist rule, Russia and several former Soviet-
bloc nations opened volumes of secret files on Nazi war crimes. 
Argentina has cooperated in the public release of its files. British 
Government records are being declassified and made available for public 
scrutiny. And over the past year, Swiss banks and the Swiss Government 
have been under intense international pressure to make a full 
accounting of unclaimed funds belonging to Holocaust victims, as well 
as Nazi assets that may have once belonged to Holocaust victims.
  Mr. President, here at home, our own Government has been gradually 
making records available about what it knew of Nazi-related activities 
and atrocities. Earlier this year, a Government-conducted study 
revealed new information about what the U.S. Government knew regarding 
the transfer and flow of funds held by Nazi officials. This report 
found that the U.S. Government was aware that the Nazi mint took gold 
stolen from European central banks and melted it together with gold 
obtained in horrible fashion--from tooth-fillings, wedding bands and 
other items seized from death camp victims. Last Sunday's New York 
Times detailed newly released Government documents that described how 
the Federal Reserve Bank of New York had melted down and recast 
hundreds of Nazi-held gold bars. According to the released records, the 
U.S. Government knew that a good portion of this gold had been looted 
from the Netherlands and Belgium. It is not known if any of these bars 
contained gold from Holocaust victims, or to what extent the U.S. 
Government knew it.
  Mr. President, earlier today, at a press conference to announce the 
introduction of this legislation, I had on display several aerial U.S. 
intelligence photographs taken in 1944. The pictures were of Auschwitz, 
with prisoners being led to the gas chambers. These pictures were 
discovered by photo analysts from the Central Intelligence Agency in 
1978. They confirm what we had heard from the Polish underground that a 
death camp did in fact exist at Auschwitz. They also demonstrated that 
our Government had photographs of these camps as these atrocities were 
  These pictures tell a grisly story. How many more exist? With our 
legislation, we intend to answer that question.
  So, the fact is, the dark tragedy of the Nazi Holocaust, which ended 
more than 60 years ago, has been unfolding long after these tragic 
events occurred and is still unfolding with each new release of 
  Both Congress and the President have taken action to promote the 
release of Government-held records during this tragic era. On April 17, 
1995, the President issued an Executive order calling for the release 
of national security data and information older than 25 years. Last 
year, thanks to the tireless efforts of my friend from New York, 
Senator Moynihan and Representative Carolyn Maloney and several others, 
Congress passed a sense-of-the-Congress resolution, which stated that 
any U.S. Government agencies should make public any records in its 
possession about individuals who are alleged to have committed Nazi war 
crimes. The President agreed, noting that learning the remaining 
secrets about the Holocaust are in the clear public interest.

  The Nazi War Crimes Disclosure Act is designed to put the concerns 
expressed by the last Congress into strong action. What our bill would 
do is amend the Freedom of Information Act to establish a presumption 
that Nazi war criminal records are to be made available to the public. 
This means that all materials would be required to be released in their 
entirety unless a Federal agency head concludes

[[Page S11773]]

that the release of all or part of these records would compromise 
privacy or national security interests. The agency head must notify 
Congress of any determination to not release records.
  To facilitate this process, the bill would establish the Nazi War 
Criminal Records Interagency Working Group. This working group would to 
the greatest extent possible locate, identify, inventory, declassify, 
and make available for the public all Nazi war records held by the 
United States.
  This pro-active search is necessary because a full Government search 
and inventory has never been completed. For example, some documents 
that surfaced this spring were found in holdings related to Southeast 
  Our bill would be targeted toward two classes of Nazi-related 
materials: First, war crimes information regarding Nazi persecutions; 
and second, any information related to transactions involving assets of 
Holocaust and other Nazi victims.
  In summary, what we are trying to do with this bill is strike a clear 
balance between our Government's legitimate privacy and national 
security interests and the people's desire to know the truth about Nazi 
atrocities. These records, once released, will be held in a repository 
at the National Archives.
  This bill is a bipartisan effort to ensure the Federal Government has 
done all it can to ensure Holocaust victims and their families can 
obtain the answers they need.
  Again, this bill is the culmination of years of tireless work by a 
number of leaders. First, I want to pay special tribute to the Senators 
from New York--both have worked tirelessly on Holocaust related 
legislation for years. Senator Moynihan has been a leader in the drive 
to declassify U.S. Government records and a well-respected historian. 
He championed the release of the so-called VENONA cables that confirmed 
that the Soviet Union had an active spy network that had penetrated our 
Government. I am pleased to be working with Senator Moynihan on a 
similar endeavor--the cataloging and declassification of as many World 
War II documents on the Holocaust as possible.
  Senator D'Amato has worked to make public scores of Swiss bank 
records and lost accounts of Holocaust victims. His efforts inspired us 
to redraft our legislation to ensure the Federal Government releases 
records related to the trafficking of Nazi-held assets.
  This bill has the support of the chairmen of the Judiciary and 
Intelligence Committees--respectively, my friend from Utah, Senator 
Hatch, and my friend from Alabama, Senator Shelby.
  Mr. President, I also would be remiss if I did not mention my friend 
from Wisconsin, Senator Kohl, who serves with me on the Antitrust 
Subcommittee on the Judiciary Committee. He has brought insight on this 
issue that none of us has.
  Together, with this kind of bipartisan support, I am hopeful we can 
move this legislation quickly through Congress and to the President 
early next year. As a member of the Intelligence Committee, I intend to 
make this a priority issue--so that people from my State and across our 
Nation can have access to the most complete inventory of U.S. 
Government records on the Holocaust. The clock is running, and time is 
running out for so many victims of the Holocaust. They, and history 
itself, deserve to know as much as possible about this tragic chapter 
in the story of humanity.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1379

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the "Nazi War Crimes Disclosure 

                   NAZI WAR CRIMES.

       (a) In General.--Section 552 of title 5, United States 
     Code, is amended--
       (1) in subsection (a)(4)(B) in the second sentence, by 
     inserting "or subsection (h)" after "subsection (b)"; and
       (2) by inserting after subsection (g) the following:
       "(h)(1) For the purposes of this subsection, the term 
     `Nazi war criminal records' means records or portions of 
     records that--
       "(A) pertain to any person as to whom the United States 
     Government, in its sole discretion, has determined there 
     exists reasonable grounds to believe that such person, during 
     the period beginning on March 23, 1933, and ending on May 8, 
     1945, under the direction of, or in association with--
       "(i) the Nazi government of Germany;
       "(ii) any government in any area occupied by the military 
     forces of the Nazi government of Germany;
       "(iii) any government established with the assistance or 
     cooperation of the Nazi government of Germany; or
       "(iv) any government which was an ally of the Nazi 
     government of Germany,

     ordered, incited, assisted, or otherwise participated in the 
     persecution of any person because of race, religion, national 
     origin, or political opinion; or
       "(B) pertain to any transaction as to which the United 
     States Government, in its sole discretion, has determined 
     there exists reasonable grounds to believe--
       "(i) involved assets taken from persecuted persons during 
     the period beginning on March 23, 1933, and ending on May 8, 
     1945, by, under the direction of, on behalf of, or under 
     authority granted by the Nazi government of Germany or any 
     nation then allied with that government; and
       "(ii) such transaction was completed without the assent of 
     the owners of those assets or their heirs or assigns or other 
     legitimate representatives.
       "(2)(A) Notwithstanding subsection (b), this subsection 
     shall apply to Nazi war criminal records.
       "(B) Subject to subparagraphs (C), (D), and (E), Nazi war 
     criminal records that are responsive to a request for records 
     made in accordance with subsection (a) shall be released in 
     their entirety.
       "(C) An agency head may exempt from release under 
     subparagraph (B) specific information, the release of which 
     should be expected to--
       "(i) constitute a clearly unwarranted invasion of personal 
       "(ii) reveal the identity of a confidential human source, 
     or reveal information about the application of an 
     intelligence source or method, or reveal the identity of a 
     human intelligence source when the unauthorized disclosure of 
     that source would clearly and demonstrably damage the 
     national security interests of the United States;
       "(iii) reveal information that would assist in the 
     development or use of weapons of mass destruction;
       "(iv) reveal information that would impair United States 
     cryptologic systems or activities;
       "(v) reveal information that would impair the application 
     of state-of-the-art technology within a United States weapon 
       "(vi) reveal actual United States military war plans that 
     remain in effect;
       "(vii) reveal information that would seriously and 
     demonstrably impair relations between the United States and a 
     foreign government, or seriously and demonstrably undermine 
     ongoing diplomatic activities of the United States;
       "(viii) reveal information that would clearly and 
     demonstrably impair the current ability of United States 
     Government officials to protect the President, Vice 
     President, and other officials for whom protection services, 
     in the interest of national security, are authorized;
       "(ix) reveal information that would seriously and 
     demonstrably impair current national security emergency 
     preparedness plans; or
       "(x) violate a statute, treaty, or international 
       "(D) In applying exemptions (ii) through (x) of 
     subparagraph (C), there shall be a presumption that the 
     public interest in the release of Nazi war criminal records 
     outweighs the damage to national security that might 
     reasonably be expected to result from disclosure. The agency 
     head, as an exercise of discretion, may rebut this 
     presumption with respect to a Nazi war criminal record, or 
     portion thereof, based on an exemption listed in subparagraph 
     (C). The exercise of this discretion shall be promptly 
     reported to the committees of Congress with appropriate 
       "(E) This subsection shall not apply to records--
       "(i) related to or supporting any active or inactive 
     investigation, inquiry, or prosecution by the Office of 
     Special Investigations of the Department of Justice; or
       "(ii) in the possession, custody or control of that 
       (b) Inapplicability of National Security Act of 1947 
     Exemption.--Section 701 of the National Security Act of 1947 
     (50 U.S.C. 431) is amended--
       (1) by redesignating subsections (e) and (f) as subsections 
     (f) and (g), respectively; and
       (2) by inserting after subsection (d) the following:
       "(e) Subsection (a) shall not apply to any operational 
     file, or any portion of any operational file, that 
     constitutes a Nazi war criminal record under section 552(h) 
     of title 5, United States Code.".


       (a) Definitions.--In this section the term--
       (1) "agency" has the meaning given such term under 
     section 551 of title 5, United States Code;

[[Page S11774]]

       (2) "Interagency Group" means the Nazi War Criminal 
     Records Interagency Working Group established under 
     subsection (b);
       (3) "Nazi war criminal records" has the meaning given 
     such term under section 552(h)(1) of title 5, United States 
     Code (as added by section 2(a)(2) of this Act); and
       (4) "record" means a Nazi war criminal record.
       (b) Establishment of Interagency Group.--
       (1) In general.--Not later than 30 days after the date of 
     enactment of this Act, the President shall establish the Nazi 
     War Criminal Records Interagency Working Group.
       (2) Membership.--The President shall appoint to the 
     Interagency Group the heads of agencies who the President 
     determines will most completely and effectively carry out the 
     functions of the Interagency Group within the time 
     limitations provided in this section. The head of an agency 
     appointed by the President may designate an appropriate 
     officer to serve on the Interagency Group in lieu of the head 
     of such agency.
       (3) Initial meeting.--Not later than 90 days after the date 
     of enactment of this Act, the Interagency Group shall hold an 
     initial meeting and begin the functions required under this 
       (c) Functions.--Not later than 1 year after the date of 
     enactment of this Act, the Interagency Group shall, to the 
     greatest extent possible consistent with section 552(h)(2) of 
     title 5, United States Code (as added by section 2(a)(2) of 
     this Act)--
       (1) locate, identify, inventory, recommend for 
     declassification, and make available to the public at the 
     National Archives and Records Administration, all Nazi war 
     criminal records of the United States;
       (2) coordinate with agencies and take such actions as 
     necessary to expedite the release of such records to the 
     public; and
       (3) submit a report to Congress describing all such 
     records, the disposition of such records, and the activities 
     of the Interagency Group and agencies under this section.

                   CRIMINAL RECORDS.

       (a) Definitions.--In this section, the term--
       (1) "Nazi war criminal record" has the meaning given the 
     term under section 552(h)(1) of title 5, United States Code 
     (as added by section 2(a)(2) of this Act); and
       (2) "requester" means any person who was persecuted in 
     the manner described under section 552(h)(1)(A) of title 5, 
     United States Code (as added by section 2(a)(2) of this Act), 
     who requests a Nazi war criminal record.
       (b) Expedited Processing.--For purposes of expedited 
     processing under section 552(a)(6)(E) of title 5, United 
     States Code, any requester of a Nazi war criminal record 
     shall be deemed to have a compelling need for such record.


       The amendments made by this Act shall apply to requests 
     under section 552 of title 5, United States Code (known as 
     Freedom of Information Act requests) received by an agency 
     after the expiration of the 90-day period beginning on the 
     date of enactment of this Act.

  Mr. MOYNIHAN. Mr. President, today we introduce a revised War Crimes 
Disclosure Act which Senators D'Amato, Dodd and I originally sponsored 
in the 104th Congress as a companion to a measure introduced by 
Representative Maloney.
  The measure is a simple one. It requires the disclosure of 
information under the Freedom of Information Act regarding individuals 
who participated in Nazi war crimes. This bill, which Senator DeWine 
has carefully crafted, builds on our original measure by expanding its 
scope to include information regarding stolen assets of the victims of 
Nazi war crimes, and by requiring a Governmentwide search of records to 
ensure the release of as many relevant documents as possible. A similar 
search for information regarding Nazi assets was recently conducted 
under the direction of Stuart Eizenstat, with significant results.
  Ideally, documents regarding Nazi war crimes would be made available 
to the public without further legislation and without having to go 
through the slow process involved in getting information through the 
Freedom of Information Act [FOIA]. Unfortunately, this is not the case. 
Researchers seeking information on Nazi war criminals are denied access 
to relevant materials in the possession of the United States 
Government, even when the disclosure of these documents no longer poses 
a threat to national security--if indeed such disclosure ever did.
  Perhaps the most important provision contained in the legislation is 
the balancing test. This requires that "there shall be a presumption 
that the public interest in the release of Nazi war criminal records 
outweighs the damage to national security that might reasonably be 
expected to result from disclosure." The provision is in keeping with 
the report of the Commission on Protecting and Reducing Government 
Secrecy which recommended that such a balancing test be applied in all 
classification decisions.
  The Commission on Protecting and Reducing Government Secrecy was the 
second statutory examination of Government secrecy. I was honored to 
Chair the Commission; Representative Combest served as vice-chairman. 
Also serving on the Commission were John Deutch, Martin Faga, John 
Podesta, and Samuel Huntington. We presented our report to the 
President in March, and the congressional members of the Commission 
introduced legislation to implement the recommendations of the 
Commission in May.
  We have welcomed the many editorials and feature articles supporting 
our efforts as, in the words of the Sacramento Bee, a "sensible, much-
needed proposal for reforming runaway classification of secrets by the 
federal government." And Albany's Times Union assessment that our bill 
represents a "bipartisan effort * * * to make more government 
documents accessible to the public and, in the process, make government 
more accountable."
  Our's is a report that, I believe, sets out a new framework for how 
to think about Government secrecy. Beginning with the concept that 
secrecy should be understood as a form of Government regulation. In the 
words of the German sociologist Max Weber, writing some eight decades 

       Every bureaucracy seeks to increase the superiority of the 
     professionally informed by keeping their knowledge and 
     intentions secret. Bureaucratic administration always tends 
     to be an administration of "secret sessions"; in so far as 
     it can, it hides its knowledge and action from criticism.
       The pure interest of the bureaucracy in power, however, is 
     efficacious far beyond those areas where purely functional 
     interests make for secrecy. The concept of the "official 
     secret" is the specific invention of bureaucracy, and 
     nothing is so fanatically defended by the bureaucracy as this 
     attitude, which cannot be substantially defended beyond these 
     specifically qualified areas.

  What we traditionally think of in this country as regulation concerns 
how citizens are to behave. Whereas public regulation involves what the 
citizen may do, secrecy concerns what that citizen may know. And the 
citizen does not know what may not be known. As our Commission stated: 
"Americans are familiar with the tendency to overregulate in other 
areas. What is different with secrecy is that the public cannot know 
the extent or the content of the regulation."
  Thus, secrecy in the ultimate mode of regulation; the citizen does 
not even know that he or she is being regulated. It is a parallel 
regulatory regime with a far greater potential for damage if it 
malfunctions. In our democracy, where the free exchange of ideas is so 
essential, it can be suffocating.
  We must develop what might be termed a competing "culture of 
openness" fully consistent with our interests in protecting national 
security, but in which power and authority are no longer derived 
primarily from one's ability to withhold information from others in 
Government and the public at large.
  The Nazi War Crimes Disclosure Act is in keeping with the work of the 
Commission on Protecting and Reducing Government Secrecy. With the 
passing of time it becomes ever more important to document Nazi war 
crimes, lest the enormity of those crimes be lost to history. The 
greater access which this legislation provides will add clarity to this 
important effort. I applaud those researchers who continue to pursue 
this important work.
  I would like to thank Representative Maloney for her original work on 
this subject in the House of Representatives and I would also thank 
Senator DeWine for joining me in this effort here in the Senate.
  Mr. KOHL. Mr. President, I am pleased to be an original cosponsor of 
the Nazi War Crimes Disclosure Act. I want to thank Senator DeWine and 
commend him for taking the lead on this important issue.
  This bill demonstrates America's commitment to the same historical 
honesty that we are demanding of Switzerland and other countries only 
now facing their role in the atrocities of World War II. It is not 
enough for us to talk about disclosure by others. We need to practice 
it too. If there are secrets relating to the presence of Nazi war 
criminals in the United States, or

[[Page S11775]]

if there is information that will be helpful in identifying assets of 
Holocaust victims, or even evidence of other governments collaborating 
with the Nazis, let's open these files and reveal these secrets before 
an entire generation of survivors is gone.
  This bill creates a presumption in favor of the public interest in 
learning all there is to learn about Nazi war crimes and requires a 
proactive searching of Government files for relevant documents. We have 
an obligation to find this information and to disseminate it. Although 
the Holocaust happened more than 50 years ago, we are now seeing 
countries and individuals caught up in the maelstrom of World War II 
grappling with this difficult past. Much of the debate on these issues 
has been triggered by recently released information from Government and 
other archives.
  For survivors, there is no legislation that can erase the suffering 
they endured at the hands of the Nazis. As we go about our day-to-day 
business, it is easy to forget the horrific details of what happened in 
Europe: the gruesome torture and deaths, the systematic extermination 
of people. However, for those of us who were directly touched by the 
Holocaust, history is very real. I grew up in the shadow of this 
tragedy. When I was a child, my family worried daily about family 
members left behind in Europe during the war. We constantly discussed 
what was or wasn't happening, and when the truth finally emerged, and 
all Americans realized the extent of the tragedy, it touched us even 

  It is only natural for American survivors and their families to 
expect the American Government to be as forthcoming as possible. 
Although many survivors have gone on to live productive lives here in 
the United States, and around the world, they can never forget. Nor 
should we.
  Many emerging democracies are now facing their pasts--through truth 
commissions and the like. It is tempting to want to look forward and to 
forget events of long ago. But for these fragile democracies, reckoning 
with the past is the key to ensuring a secure future. We too must 
recognize that the openness prescribed by this legislation only makes 
our democracy stronger.
  This legislation maintains protections for individuals from the 
unwarranted invasion of their personal privacy, and it continues to 
provide exceptions for the most urgent national security and foreign 
policy interests. The difference between this bill and existing FOIA 
protections is that this bill firmly sets into law the public's right 
to know about Nazi war crimes and the disposition of Nazi assets, and 
if there is information that agencies insist on keeping secret, the 
relevant congressional committees must be informed. This will give us 
the opportunity to determine whether information dating so far back 
should remain classified. Finally, the bill provides that if an agency 
head exercises his or her authority to block the release of 
information, the decision is subject to judicial review.
  It is difficult to imagine what knowledge would be subject to these 
protections so many years after the fact. Yes, there may be information 
which makes us feel uncomfortable. There is already information about 
the extent to which the U.S. Government knew about what was going on 
during the war in the Nazi death camps. We must not be afraid of what 
we may learn. The only ones who need fear are the perpetrators of these 
vicious acts who have escaped scrutiny until now, for there are still 
Nazi war criminals at large in this country and abroad. Armed with new 
information, much like the information which may be available in our 
own files, courts around the world are compelling them to answer for 
their despicable acts.
  This legislation is targeted to information solely related to Nazi 
war crimes and to transactions involving Nazi victims, yet it sets an 
important precedent in codifying a more narrow set of privacy and 
national security exceptions for the release of Government information 
through the Freedom of Information Act. These exceptions are based on 
Executive Order 12958 which set the criteria for the release of 
information more than 25 years old. Unfortunately, we still have a long 
way to go in ensuring that this more open standard is uniformly applied 
to the release of Government information.
  I am pleased that Senator Moynihan is one of the lead sponsors of 
this bill because he has been such an eloquent spokesman against 
excessive secrecy. His work with the Commission on Protecting and 
Reducing Government Secrecy is truly commendable and I am pleased that 
this legislation is consistent with the findings of the Commission. 
Beyond shedding light on a difficult chapter in the history of 
humanity, this legislation can help foster a greater openness in the 
handling of Government information.
  If we succeed, we will have left a legacy of which we can all be 

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