Congressional Record: November 5, 1997 (Senate)
Page S11764-S11778
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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
occurring.
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
information.
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
Asia.
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,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Nazi War Crimes Disclosure
Act".
SEC. 2. REQUIREMENT OF DISCLOSURE UNDER FREEDOM OF
INFORMATION REGARDING PERSONS WHO COMMITTED
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
privacy;
"(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
system;
"(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
agreement.
"(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
jurisdiction.
"(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
office.".
(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.".
SEC. 3. INTERAGENCY INVENTORY OF NAZI WAR CRIMINAL RECORDS.
(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
section.
(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.
SEC. 4. EXPEDITED PROCESSING OF REQUESTS FOR NAZI WAR
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.
SEC. 5. EFFECTIVE DATE.
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
ago:
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
more.
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
proud.
______