Congressional Record: June 19, 1998 (Senate)
Page S6724-S6730
NAZI WAR CRIMES DISCLOSURE ACT
Mr. WARNER. I ask unanimous consent that the Senate now proceed to
the consideration of Calendar No. 323, S. 1379.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The legislative clerk read as follows:
A bill (S. 1379) to amend section 552 of title V, 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.
There being no objection, the Senate proceeded to consider the
bill which had been reported from the Committee on the Judiciary, with
an amendment to strike all after the enacting clause and inserting in
lieu thereof the following:
[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.]
SECTION 1. SHORT TITLE.
This Act may be cited as the "Nazi War Crimes Disclosure
Act".
SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS
INTERAGENCY WORKING GROUP.
(a) Definitions.--In this section the term--
(1) "agency" has the meaning given such term under
section 551 of title 5, United States Code;
(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 3 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 3 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. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING
PERSONS WHO COMMITTED NAZI WAR CRIMES.
(a) Nazi War Criminal Records.--For purposes of this Act,
the term "Nazi war criminal records" means records or
portions of records that--
(1) pertain to the activities of any person with respect to
which the United States Government, in its sole discretion,
has grounds to believe--
(A) occurred, 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; and
(B) involved the ordering, incitement, assistance, or other
participation in the persecution of any person because of
race, religion, national origin, or political opinion; or
(2) pertain to any transaction as to which the United
States Government, in its sole discretion, has grounds to
believe--
(A) 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
(B) such transaction was completed without the assent of
the owners of those assets or their
[[Page S6725]]
heirs or assigns or other legitimate representatives.
(b) Release of Records.--
(1) In general.--Subject to paragraphs (2), (3), and (4),
the Nazi War Criminal Records Interagency Working Group shall
release in their entirety Nazi war criminal records that are
described in subsection (a).
(2) Exception for privacy, etc.--An agency head may exempt
from release under paragraph (1) specific information, that
would--
(A) constitute a clearly unwarranted invasion of personal
privacy;
(B) 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;
(C) reveal information that would assist in the development
or use of weapons of mass destruction;
(D) reveal information that would impair United States
cryptologic systems or activities;
(E) reveal information that would impair the application of
state-of-the-art technology within a United States weapon
system;
(F) reveal actual United States military war plans that
remain in effect;
(G) 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;
(H) 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;
(I) reveal information that would seriously and
demonstrably impair current national security emergency
preparedness plans; or
(J) violate a statute, treaty, or international agreement.
(3) Application of exemptions.--In applying the exemptions
listed in subparagraphs (B) through (J) of paragraph (2),
there shall be a presumption that the public interest in the
release of Nazi war criminal records will be served by
disclosure and release of the records. Assertion of such
exemption may only be made when the agency head determines
that disclosure and release would be harmful to a specific
interest identified in the exemption. An agency head who
makes such a determination shall promptly report it to the
committees of Congress with appropriate jurisdiction,
including the Senate Committee on the Judiciary.
(4) Limitation on application.--This subsection shall not
apply to records--
(A) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of
Special Investigations of the Department of Justice; or
(B) solely in the possession, custody, or control of that
office.
(c) 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 3 of the
Nazi War Crimes Disclosure Act.".
SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR
CRIMINAL RECORDS.
(a) 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.
(b) Requester.--For purposes of this section, the term
"requester" means any person who was persecuted in the
manner described under section 3(a)(1)(B) of this Act who
requests a Nazi war criminal record.
SEC. 5. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take
effect on the date that is 90 days after the date of
enactment of this Act.
Amendment No. 2782
Mr. WARNER. Senator DeWine and Senator Leahy have a substitute
amendment at the desk. I ask for its consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia [Mr. Warner], for Mr. DeWine, for
himself and Mr. Leahy, proposes an amendment numbered 2782.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Nazi War Crimes Disclosure
Act".
SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS
INTERAGENCY WORKING GROUP.
(a) Definitions.--In this section the term--
(1) "agency" has the meaning given such term under
section 551 of title 5, United States Code;
(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 3 of this Act; and
(4) "record" means a Nazi war criminal record.
(b) Establishment of Interagency Group.--
(1) In general.--Not later than 60 days after the date of
enactment of this Act, the President shall establish the Nazi
War Criminal Records Interagency Working Group, which shall
remain in existence for 3 years after the date the
Interagency Group is established.
(2) Membership.--The President shall appoint to the
Interagency Group individuals whom the President determines
will most completely and effectively carry out the functions
of the Interagency Group within the time limitations provided
in this section, including the Director of the Holocaust
Museum, the Historian of the Department of State, the
Archivist of the United States, the head of any other agency
the President considers appropriate, and no more than 3 other
persons. 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 3 of this
Act--
(1) locate, identify, inventory, recommend for
declassification, and make available to the public at the
National Archives and Records Administration, all classified
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, including the Committee on
the Judiciary of the Senate and the Committee on Government
Reform and Oversight of the House of Representatives,
describing all such records, the disposition of such records,
and the activities of the Interagency Group and agencies
under this section.
(d) Funding.--There are authorized to be appropriated such
sums as may be necessary to carry out the provisions of this
Act.
SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING
PERSONS WHO COMMITTED NAZI WAR CRIMES.
(a) Nazi War Criminal Records.--For purposes of this Act,
the term "Nazi war criminal records" means classified
records or portions of records that--
(1) pertain to any person with respect to whom the United
States Government, in its sole discretion, has grounds to
believe ordered, incited, assisted, or otherwise participated
in the persecution of any person because of race, religion,
national origin, or political opinion, during the period
beginning on March 23, 1933, and ending on May 8, 1945, under
the direction of, or in association with--
(A) the Nazi government of Germany;
(B) any government in any area occupied by the military
forces of the Nazi government of Germany;
(C) any government established with the assistance or
cooperation of the Nazi government of Germany; or
(D) any government which was an ally of the Nazi government
of Germany; or
(2) pertain to any transaction as to which the United
States Government, in its sole discretion, has grounds to
believe--
(A) 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
(B) such transaction was completed without the assent of
the owners of those assets or their heirs or assigns or other
legitimate representatives.
(b) Release of Records.--
(1) In general.--Subject to paragraphs (2), (3), and (4),
the Nazi War Criminal Records Interagency Working Group shall
release in their entirety Nazi war criminal records that are
described in subsection (a).
(2) Exception for privacy, etc.--An agency head may exempt
from release under paragraph (1) specific information, that
would--
(A) constitute a clearly unwarranted invasion of personal
privacy;
(B) 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;
(C) reveal information that would assist in the development
or use of weapons of mass destruction;
(D) reveal information that would impair United States
cryptologic systems or activities;
(E) reveal information that would impair the application of
state-of-the-art technology within a United States weapon
system;
(F) reveal actual United States military war plans that
remain in effect;
[[Page S6726]]
(G) 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;
(H) 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;
(I) reveal information that would seriously and
demonstrably impair current national security emergency
preparedness plans; or
(J) violate a treaty or international agreement.
(3) Application of exemptions.--
(A) In general.--In applying the exemptions listed in
subparagraphs (B) through (J) of paragraph (2), there shall
be a presumption that the public interest in the release of
Nazi war criminal records will be served by disclosure and
release of the records. Assertion of such exemption may only
be made when the agency head determines that disclosure and
release would be harmful to a specific interest identified in
the exemption. An agency head who makes such a determination
shall promptly report it to the committees of Congress with
appropriate jurisdiction, including the Committee on the
Judiciary of the Senate and the Committee on Government
Reform and Oversight of the House of Representatives. The
exemptions set forth in paragraph (2) shall constitute the
only authority pursuant to which an agency head may exempt
records otherwise subject to release under paragraph (1).
(B) Application of title 5.--A determination by an agency
head to apply an exemption listed in subparagraphs (B)
through (I) of paragraph (2) shall be subject to the same
standard of review that applies in the case of records
withheld under section 552(b)(1) of title 5, United States
Code.
(4) Limitation on application.--This subsection shall not
apply to records--
(A) related to or supporting any active or inactive
investigation, inquiry, or prosecution by the Office of
Special Investigations of the Department of Justice; or
(B) solely in the possession, custody, or control of that
office.
(c) Inapplicability of National Security Act of 1947
Exemption.--Section 701(a) of the National Security Act of
1947 (50 U.S.C. 431) shall not apply to any operational file,
or any portion of any operational file, that constitutes a
Nazi war criminal record under section 3 of this Act.
SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR
CRIMINAL RECORDS.
(a) 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.
(b) Requester.--For purposes of this section, the term
"requester" means any person who was persecuted in the
manner described under section 3(a)(1) of this Act who
requests a Nazi war criminal record.
SEC. 5. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take
effect on the date that is 90 days after the date of
enactment of this Act.
Mr. DeWINE. Mr. President, I am very pleased that the Senate is about
to pass S. 1379, the Nazi War Crimes Disclosure Act. I introduced this
legislation along with my friend from New York, Senator Moynihan, and
fifteen of my colleagues on November 5 of last year. Our Judiciary
Committee Chairman, Senator Hatch, and the Ranking Member, Senator
Leahy, strongly support this bill. Indeed, I want to thank Senator
Leahy and his staff for their tireless work in helping to bring this
legislation to the floor. As an authority on the Freedom of Information
Act, or "FOIA" (pronounced FOYA), Senator Leahy has made very useful
suggestions that I have incorporated into the substitute. These changes
satisfy privacy concerns raised by FOIA and Privacy Act professionals.
Finally, I want to underscore that we would not be here today without
Senator Moynihan and his staff. He has brought to our work the unique
insights on the classification system that he gained as chairman of the
Commission on Protecting and Reducing Government Secrecy
Classification.
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 two years ago, we celebrated the 50th anniversary of the end of
the Second World War, and with it, the end of the Nazis' death grip on
an entire continent. Since that time, searingly detailed accounts of
the Nazi Holocaust have provided more and more evidence of the true
magnitude of the atrocities that were committed.
We have learned so much. Yet, if the last few years are any
indication, we still have a great deal 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 course of last 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. Last 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--gold obtained from tooth-fillings, wedding bands and
other items seized from death-camp victims.
Mr. Chairman, the photos I have on display are several aerial U.S.
intelligence photographs taken in 1944 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 such pictures or
documents exist? With the legislation before us, we intend to answer
that question.
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. Late in
the 104th Congress, thanks to the tireless efforts of my friend from
New York, Senator Moynihan, and Representative Carolyn Maloney and
several others, we passed a sense of the Congress resolution, which
stated that all 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 is clearly in the public
interest.
The Nazi War Crimes Disclosure Act is designed to put the concerns
expressed by the last Congress into strong action. First, the bill
would allow for expedited processing of FOIA requests of survivors of
Nazi persecution. These individuals are growing older every day, and
the time remaining for them to obtain answers to the questions that
have troubled them for five decades will soon come to an end. We owe it
to those who suffered--and to those who seek to prevent future
genocides--to disclose fully and completely all the records in the
United States on this issue.
Second, 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 means that all materials would be required to be released
in their entirety unless a Federal agency head concludes 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. Thus, we in the Senate would
be in a position to review the material being withheld to ensure that
it was being done for valid reasons consistent with this legislation.
The Director of the Holocaust Museum, the Archivist of the United
States, and the Historian of the Department of State are specifically
appointed to sit on the task force because of their unique expertise on
this subject. Further, to help the interagency
[[Page S6727]]
group complete its task, the President is authorized to appoint the
head of any other Agency and up to three additional people with
expertise on this subject who can assist with the identification and
disclosure of relevant documents.
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 among materials related to
Southeast Asia.
Our bill is targeted toward two classes of Nazi-related materials:
First, war crimes information regarding Nazi persecutions; and two, 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 among our government's legitimate national security interests,
the legitimate privacy interests of individuals, 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.
Let me enumerate several changes which we have made since the bill
was unanimously reported out by the full Judiciary Committee last
March:
Section 3(b)3(B) was revised to make clear that the standard of
judicial deference currently accorded to agency classification
decisions under exemption (b)(1) of the FOIA applies to exemption
decisions rendered by Heads of Agency's making a withholding decision
under Section 3(b). As the Committee of Conference recognized when
exemption (b)(1) was amended in 1974, executive departments responsible
for national defense and foreign policy matters have unique insights
into what possible adverse effects might occur as a result of public
disclosure of a particular classified record. Accordingly, it is
expected that federal courts, in reviewing a decision by an Agency head
that disclosure and release of a Nazi War Record would be harmful to a
specific interest identified in an exemption herein, will accord
substantial weight to an agency's affidavit or other submission
concerning the record in question.
Records held by the Office of Special Investigations (OSI) of the
Department of Justice are specifically exempted. Nonetheless, because
of the substantial expertise at OSI, it can reasonably be expected that
OSI will be asked to assist with the review of records held by other
agencies. OSI is currently engaged in an effort to close ongoing
investigations and prosecutions of alleged war criminals. Thus, to
ensure that the high priority investigations continue and all relevant
documents found during the search are quickly reviewed for
declassification, my colleagues and I have asked the Appropriations
Committee to provide a small increase of $2 million in OSI's budget to
enable the staff to take on and complete both of these tasks.
Section 2(b)(1) has been revised to extend the life of the
interagency group from one to three years in recognition of the fact
that there are extensive document holdings that must be reviewed. The
bulk of this work should be done in the first year. The three year life
of the Working Group cannot become an excuse to proceed slowly.
This bill not only addresses the acts of Nazi War Criminals, but also
addresses those who transferred, sold or otherwise disposed of assets
involuntarily taken from persecuted persons by, under the direction of,
or on behalf of, or under the authority of the former Nazi Government
of Germany or any nation then allied with that government.
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.
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.
I thank my colleagues for their strong support for this legislation.
Mr. HATCH. Mr. President, as an original cosponsor of S. 1379, the
Nazi War Crimes Disclosure Act, I am very pleased that the Senate is
about to pass this important piece of legislation. I congratulate
Senator DeWine and Senator Leahy for their bipartisan effort in
drafting a bill which addresses the legitimate concerns of federal
agencies which will be subject to this legislation, while at the same
time ensuring that the original intent and purpose of the law is
carried out. Passage of the Nazi War Crimes Disclosure Act will
facilitate the speedy gathering and release of documents in the
possession of the government which relate to the persecution of, and
theft of assets from, the many millions of victims of Nazi atrocities.
Our government has an obligation to locate, and make public,
documents in the government's possession which shed light on Nazi war
criminals, their nefarious allies, and their crimes. Over the fifty-
three years since the defeat of Germany and its cohorts, and the
discovery of the atrocities committed in the name of Naziism, we have
learned a great deal about the organization, operation, and financial
structure of that regime. However, recent revelations concerning the
acts of certain Swiss banks in the laundering of Holocaust victims'
assets show us how much more there is to learn.
By passing this bill, we are providing a means of access to
information that will be of invaluable assistance in providing answers
to those seeking to learn about the past. But just as importantly, by
studying that information and learning the lessons of history, we can
help ensure that such actions will never be repeated in the future.
Mr. MOYNIHAN. Mr. President, today the Senate takes an important step
in the search to unfold the events of the holocaust by adopting the
Nazi War Crimes Disclosure Act. This bill requires the disclosure of
classified information, currently held by the United States government,
regarding individuals who participated in Nazi war crimes, and stolen
assets of the victims of Nazi war crimes. The bill also requires a
government-wide search of records to ensure the release of as many
relevant documents as possible.
Researchers seeking information on Nazi war criminals and the assets
of their victims will have unprecedented access to relevant materials
in the possession of the United States government, which until now have
remained classified. It is my view that these documents have been held
far too long. Well beyond the time when their disclosure might have
posed a threat to national security--if indeed such disclosure ever
did.
While reviewing relevant material for declassification, officials
will be required to maintain a strong presumption that relevant
material should be declassified. This is based on the "balancing
test" included in the bill which presumes that the public interest in
the release of Holocaust records outweighs the damage to national
security that might reasonably be expected to result from disclosure.
This 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.
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 subject. I applaud those researchers who continue to pursue this
important work. Those who suffered from the Holocaust are reaching the
end of their life-span. We owe it to them to make available as much
information about that terrible period as possible. This is our solemn
task.
Mr. LEAHY. Mr. President, I am pleased that the Senate is passing
this important legislation, the "Nazi War Crimes Disclosure Act," S.
1379. Last year, Congress passed a resolution calling upon federal
agencies to make public any records in their possession about
individuals who are alleged to have committed Nazi war crimes. I agree
with the original sponsors of this bill, Senators Moynihan, DeWine,
Kohl, D'Amato, Dodd and Hatch, who said in a Dear Colleague letter in
October, 1997, that this bill "would put last year's words into
action."
The substitute amendment we consider today requires creation of an
interagency working group to collect and release classified Nazi war
crime records within one year, and gives Nazi war crime victims
expedited access to these records under the Freedom of Information Act
(FOIA). These victims
[[Page S6728]]
are growing older and we should ensure that if they are interested in
seeing these records, their requests should be honored as speedily as
possible.
I first became aware of this bill when I testified in June 1996 at a
hearing before the House Government Reform and Oversight Committee
(GRO). That hearing focused on my Electronic FOIA amendments, which
were enacted later that year, and the Nazi War Crimes Disclosure Act,
H.R. 1281, which had been introduced by that Committee's Ranking
Member, Representative Carolyn Maloney.
Moving oral testimony and written statements were presented at that
hearing about the need for full disclosure by federal agencies about
what our government knew, and when, about Nazi atrocities and the
criminals who committed those atrocities. Rabbi Marvin Hier (the Dean
and Founder of the Simon Wiesenthal Center), the Jewish Community
Relations Council, the Anti-Defamation League, the Orthodox Union, the
American Jewish Committee, and others, committed to teaching the
lessons of the Holocaust expressed their strong support for full
disclosure of Nazi war crime records. War Crimes Disclosure Act, Health
Information Privacy Protection Act, and S. 1090, Electronic Freedom of
Information Improvement Act of 1995: Hearing on H.R. 1281 and S. 1090
before the Subcomm. on Government Management, Information, and
Technology of the House Comm. on Government Reform and Oversight, 104th
Cong., 2d Sess. 17-30 (1996).
To the extent that records pertaining to Nazi war criminals remain
classified over fifty years since the end of the war, we should take
action to disclose those records. No Nazi war criminal should be
protected by government secrecy rules. This is what happened with
government records pertaining to Kurt Waldheim: the Central
Intelligence Agency withheld critical information from researchers
about Waldheim's collaboration with the Nazis, even as other government
agencies were placing him on the list of individuals forbidden to enter
our country because of suspected war crimes. Moreover, an extensive
Justice Department report on Waldheim completed in 1987 was then kept
secret for six long years, before Attorney General Reno, in response to
a FOIA lawsuit, released the document in 1994. The United States
government should not help Nazi war criminals keep their past crimes
secret. This bill is an important step to ensure our government does
not.
Senator DeWine and I worked closely on a substitute amendment to this
bill that was offered in the Judiciary Committee and favorably reported
on March 5, 1998, with the unanimous backing of Committee Members.
Further refinements to the bill are reflected in the Manager's
amendment considered by the Senate today to address the legitimate
concerns raised by the Department of Justice, our intelligence
agencies, press associations and others who use the FOIA regularly, as
well as those who have a personal stake and interest in full disclosure
of Nazi War crime records.
The bill calls for the Nazi War Criminal Records Interagency Working
Group to be created by the President shortly after enactment and
authorizes this Group to operate for three years. The Working Group
will include as members the Director of the Holocaust Museum, the
Historian of the Department of State, the Archivist of the United
States, and heads of agencies selected by the President. In addition,
the President may select from the private sector up to three other
persons whom he considers appropriate to assist in completely and
effectively carrying out the functions of the Interagency Group.
The Interagency Group is tasked under the bill with locating,
identifying, inventorying, recommending for declassification and making
available to the public at the National Archives and Records
Administration all classified Nazi War criminal records in the
possession of federal agencies, and submit to Congress, including to
the Senate Committee on the Judiciary and the House Committee on GRO, a
report describing its activities. While the bill requires that these
tasks be completed within one year, the Interagency Group is authorized
for a full three years in the event that certain of these tasks require
additional time. The bill also authorizes the appropriation of any
necessary funds.
The original Senate bill defined the records of suspected Nazis
subject to disclosure so broadly that it could conceivably have covered
many irrelevant records, such as social security records, medical
records or tax records, even though such records may have had nothing
to do with the person's possible activities as a Nazi. This raised
certain privacy issues as well as concerns about the burden on federal
agencies to collect, review and disclose records, which had no bearing
on the person's activities as a Nazi or our government's knowledge of
that person's war crimes.
The Manager's amendment addresses these concerns by limiting the
records subject to disclosure to classified Nazi war criminal records
and retaining an exemption for those records, or parts thereof, that
would "constitute a clearly unwarranted invasion of personal
privacy."
The bill now defines "Nazi war criminal records" as those
classified records or portions of records pertaining to persons who,
from March 23, 1933 through May 8, 1945, under the direction or in
association with the Nazis ordered, incited, assisted or otherwise
participated in the persecution of any person on account of their race,
religion, national origin or political opinion, as well as to any
transaction involving the assets of those persecuted persons when
the transaction involved assets taken without their consent or the
consent of their heirs. Determination of the classified records that
fall within the scope of the bill is given to the "sole discretion"
of the agencies in possession of the records.
The original bill would have amended the FOIA with a new section of
Nazi war crime records containing ten newly-created exemptions separate
from those under the current FOIA. I have spent many years fighting for
more openness in government. I was very concerned that creating these
new exemptions might set a dangerous precedent--though entirely
unintentional on the part of the original sponsors--of expanding FOIA
exemptions. At a minimum, these new exemptions would have created
confusion about how the current FOIA exemptions were to be interpreted
and applied. These concerns about the new exemptions have been resolved
by taking the work of the Interagency Group out of the FOIA and making
its activities the subject of a free standing law.
The Interagency Group is required to release the classified Nazi war
criminal records covered by the bill in their entirety, subject to ten
enumerated exemptions. The first exemption in section 3(b)(2)(A) of the
bill is for records or parts thereof that "constitute a clearly
unwarranted invasion of personal privacy." This is the same standard
used in the sixth exemption of the Freedom of Information Act (FOIA, 5
U.S.C. 552(b)(6)). In the FOIA context, the phrase enunciates a policy
of a balancing of interests between the protection of an individual's
private affairs from unnecessary public scrutiny, and the preservation
of the public's right to government records. Committee reports
underlying the original FOIA of 1966 indicate that the exemption is to
protect "intimate" or "personal" details in files such as those
maintained by the Veterans Administration (now the Department of
Veterans Affairs), the Department of Health, Education, and Welfare
(now the Department of Health and Human Services and the Department of
Education), and the Selective Service System. As with the other FOIA
exemptions, the personal privacy exception in the FOIA is permissively
applied, and it has come to be understood that the balancing of
interests tilts in favor of disclosure.
Transferring the FOIA experience to the use of the same phrase in
exemption (A) of the Nazi War Crimes Disclosure Act, it is the intent
that the same balancing of interests--between the protection of an
individual's private affairs from unnecessary public scrutiny and the
preservation of the public's right to government records--occur when
the disclosure of Nazi war criminal records is under consideration. The
exemption may be used to protect intimate or personal details, such as
an individual's medical history, marital status, legitimacy of
children, family fights or domestic affairs, and sexual inclination or
associations. While the
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right to privacy of deceased persons is not entirely settled, we expect
the Department of Justice and other agencies to follow the majority
rule that death extinguishes a person's privacy rights. Indeed, I note
that "[t]he Department of Justice has long followed this rule as a
matter of policy." U.S. Dep't of Justice, Freedom of Information Act
Guide & Privacy Act Overview, September 1997.
Thus, the personal privacy exemption in the bill is to be
permissively applied, and the balancing of interests tilts in favor of
disclosure.
Likewise, the balancing of the other Nazi War Crimes Disclosure Act
exemptions tilts in favor of disclosure. Section 3(b)(3)(A) of the bill
states that, in applying exemptions (B) through (J), "there shall be a
presumption that the public interest in the release of Nazi war
criminal records will be served by disclosure and release of the
records." The bill conditions exercise of all the exemptions,
including the privacy exemption in section 3(b)(2)(A), by an agency
head on a determination that the disclosure and release would be
harmful to a specific interest identified in the exemption. To
facilitate oversight of this legislation, an agency head who makes this
determination is required to report the application of the exemption
promptly to the appropriate Committees of the Congress, including the
Senate Committee on the Judiciary and the House Committee on GRO.
The original bill contained a presumption that public disclosure of
the Nazi war crime records outweighs national security interests. The
Department of Justice questioned whether this provision, and others,
raised separation of powers concerns by encroaching on the Presidential
prerogative to decide what records and information should be classified
to protect national security. The presumption was modified during
Committee consideration of the bill simply to make clear that the
public interest would be served by disclosure and release of the
subject records.
The bill does not provide a blanket exemption for classified
material, but instead lists a number of particular national security
concerns that could warrant nondisclosure. The Justice Department may
continue to have constitutional separation of powers concerns that the
bill substitutes congressional rules for the President's executive
order on the classification of documents. This would be unfortunate and
unjustified.
The 1997 Report of the Commission on Protecting and Reducing
Government Secrecy Classification (hereafter, the "1997 Report"), at
page 15, notes that the security classification system is "an area in
which the President and the Congress `may have concurrent authority, or
in which its distribution is uncertain," citing Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952). Moreover, Congress has
prescribed standards to govern elements of classification and
declassification in other contexts, including the Atomic Energy Act of
1954, the National Security Act of 1947, and the Assassination Records
Collection Act of 1992, which the 1997 Report explains "established
broad standards for the declassification of records concerning the
assassination of President Kennedy."
"The classification . . . systems are no longer trusted by many
inside and outside the Government." 1997 Report, at page XXI. This is
particularly true with respect to classified Nazi war crimes records
since, at least in the case of Kurt Waldheim, government secrecy rules
were used to shield what our government knew about his Nazi
collaboration from public view for too many years. I agree with the
comment in the 1997 Report that "by allowing for a fuller
understanding of the past, [greater openness] provides opportunities to
learn lessons from what has gone before--making it easier to resolve
issues concerning the Government's past actions and helping prepare for
the future."
The bill makes clear, in section 3(b)(3)(A), that the enumerated
exemptions shall constitute the only authority whereby an agency head
may exempt records subject to this Act from release. This provision
clarifies legislative intent that, in the case of Nazi war criminal
records only, no other protective authority is controlling except the
enumerated exemptions. Thus, the exemptions in section 3(b)(2) take
precedence over the protective provisions of statutes such as the
Privacy Act (5 U.S.C. 552a), the National Security Act of 1947 (50
U.S.C. 403-3(c)(6)), and the Central Intelligence Agency Act (50 U.S.C.
403g). Indeed, section 3(c) of the bill, expressly waives the
operational file exemption contained in section 701 of the National
Security Act of 1947. The amendment also eliminates the application of
the exemptions of the Freedom of Information Act (5 U.S.C. 552(b)(1)-
(9)); it also overrides the privacy protections of all other statues,
in favor of the privacy exemption set forth in section 3(b)(2)(A).
These waivers of other statutory protections and, most particularly
those waivers of the National Security Act provisions, recognize the
extraordinary and unique nature of the Nazi war criminal records. These
records warrant this special treatment so that the United States may
lead and fully participate in the growing international movement to
open to public scrutiny official records on the conduct of particular
governments and institutions during World War II.
In addition to the enumerated exemptions, the bill exempts from
disclosure the records of the Office of Special Investigations (OSI) of
the Department of Justice, which continues to investigate, prosecute
and extradite suspected Nazi war criminals. Concerns about the impact
of this bill on the work of OSI were raised by the Department of
Justice, and others, at the original House hearing on this bill in
1996. This bill addresses those concerns and will do nothing to
undermine the critical work of this section. Moreover, Senators DeWine
and I, and others, have requested that funding for OSI be increased to
ensure adequate personnel are available to handle any increased
workload due to the passage of this legislation.
While the number of arrests of suspected Nazi war criminals may be
dwindling, some are still on the loose, as we so dramatically witnessed
by the arrest in Germany just a few short months ago, in March 1998, of
a man identified in news reports as Alfons Goetzfried. This suspected
Nazi war criminal was a former low-ranking Gestapo officer who
apparently acknowledged in prior statements personally shooting to
death 500 people, including women and children, at a death camp in
Poland in November 1943. The work of the OSI continues to be of vital
importance.
Judicial review of agency determinations to apply the exemptions and
the operations of the Interagency Group will be available under the
Administrative Procedure Act. We appreciate, however, that executive
agencies responsible for national defense and foreign policy matters
have unique insights into the adverse effects that might occur as a
result of the inappropriate public disclosure of a particular
classified record. Accordingly, we expect that federal courts, in
reviewing determinations by agency heads that disclosure and release of
a record covered by this bill would be harmful to a specific interest
identified in an exemption, will accord substantial weight to the
agency's affidavit or other submission concerning the status of the
disputed record. Indeed, the bill makes this expectation explicit in
section 3(b)(3)(B), which states that in applying the exemptions in
paragraphs (3)(b)(2)(B) through (I) dealing with specific national
defense and foreign policy information, the standard of review is the
same as applied to the withholding of records under the FOIA for
properly classified matters.
Finally, section 4 of the bill provides for the expedited processing
of FOIA requests for Nazi war criminal records by any Holocaust
victims, as provided in section 552(a)(6)(E) of title 5, United States
Code. We expect that any withholding of requested records due to their
classified nature, under section (b)(1) of the FOIA, will be highly
limited once the Working Group has been able to perform its work.
It has been a pleasure to work with Senator DeWine on this matter in
the Judiciary Committee, and with Senator Moynihan and others on
reaching a consensus on this important bill. This legislation is long
overdue, and I urge its prompt enactment.
Mr. WARNER. I ask unanimous consent the amendment be agreed to, the
bill be considered read a third time and
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passed, the motion to reconsider be laid upon the table, and that any
statements relating to the bill appear in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Amendment (No. 2782) was agreed to.
The committee substitute, as amended, was agreed to.
The bill (S. 1379), as amended, was considered read the third time
and passed.
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