before the Subcommittee on Government
Management,
Information and Technology
of the U.S. House of Representatives
July 14, 1998
Thank you for inviting me to testify here today. I have a statement which I would like to submit for the record.
I am here on my own behalf, but the many historians and researchers with whom I have discussed FOIA reform strongly support your initiative.
Our country is unique in having a Freedom of Information Act. We treasure it as a tribute to an open society. But it needs to be improved.
Two years ago, I testified before this subcommittee in support of H.R. 1281. Eventually signed into law by the President, that legislation represented an improvement over its predecessors. But it is clear that despite the efforts of its bipartisan supporters, H.R. 1281 contained some of the same loopholes that had undermined prior laws governing researcher access under the Freedom of Information Act. I wish that the CIA had not opposed the elimination of those loopholes, but the agency did, and it prevailed. So if I repeat some of the language I used in 1996, it is only because that legislation has failed to remedy some of the problems addressed by the far superior H.R. 4007.
Let me tell you about the case that brings me here today. For almost ten years, I have been told that national security concerns prevent me and the public from learning more about the involvement of this government in Kurt Waldheim's postwar career and cover-up. But I can tell you this: For at least twenty-eight years, individuals working for at least two agencies protected Waldheim and propagated false information about him.
What national security interest justifies the protection of Kurt Waldheim, five decades after his initial contacts with U.S. intelligence officials?
As a result of the research conducted by myself and others, Waldheim was in 1987 placed on the "Watch List." This decision was mandated by the Holtzman Amendment, which mandates the listing of persons who committed or facilitated atrocities, such as illegal deportations and other persecutions, which were carried out by or on behalf of Nazi Germany or its allies. Such persons are properly covered under the legislation you are considering in H.R. 4007.
The small amount of documentation I have obtained from State and CIA reveals a pattern of protection. But why did U.S. officials protect a man like Kurt Waldheim? Especially when war crimes lists produced by and for the Department in 1948 listed Waldheim as an accused war criminal?
The CIA, in one of the few documents it has released on this case, admits that Waldheim was "particularly effective in confidentially working out Austrian formulations acceptable to the United States." Had there been a tradeoff, silence about his activities during the war, in return for cooperation? Until H.R. 4007 becomes law and is put to work, we will not know.
Under Title VII, Section 701 (b) of the CIA Information Act (passed by the Congress in 1984, see 50 U.S.C. 431, "Protection of Operational Files of the Central Intelligence Agency"), "operational files" of the Agency may be exempted from the Freedom of Information Act. The President's executive order of 1996, which was a step in the right direction, nevertheless left these major exemptions in place. And at the CIA's assistance, H.R. 1281 failed to remedy the problem. Judicial review was nowhere to be found. But back to the Waldheim case.
The CIA's 1980 report to a Congressman who had inquired into Waldheim's biography, cleared Waldheim. Its letter contained inaccurate information which to my knowledge did not then or now exist in what the agency calls "open source materials." The CIA had collaborated with Waldheim in the production of parallel alibis. How do we obtain the full truth, hidden somewhere in agency files?
As I read the bill before us, the proposed Nazi War Criminal Records Interagency Working Group crafted by H.R. 4007 will examine classified records relating to Nazi war criminals and other persons involved in various acts of persecution, and will declassify them in a manner consonant with national security and legitimate intelligence concerns.
The newly available records will then be moved to Archives II in Maryland, where they will be completely open to researchers.
It is my understanding that all records concerning, say, Waldheim, not just documents about him, will be declassified. In other words, postwar documents detailing U.S. government dealings with suspect individuals will be among those released to the public through the Archives.
The language of H.R. 4007 wisely follows that of the Holtzman Amendment (Section 3, and see above).
Another strength of the bill is its reference to releasing documents involving assets robbed from persecuted persons, e.g., documents concerning Swiss or other involvement in the despoliation of Holocaust victims.
A major advance in H.R. 4007 concerns accountability.
The burden of denial is for the first time ever shifted from the researcher to the agency denying the request.
In addition, the Interagency Task Force is accountable to Congress (page 8), so a frustrated researcher can to turn to his/her Congressperson. In addition, that the same researcher can request a review of the denial under section 552 (b) of title 5, U.S.C.
I do hope one change will be made. I strongly oppose the unreasonable exemption of any agency (page 9, 4A), however noble the intent. Inactive files must be open to the public. How ironic that under the current version of H.R. 4007, I may gain access to operational CIA files on a Nazi accomplice, but may be denied access to inactive files stored in the cabinets of the Justice Department entity charged with investigating Nazis and Nazi accomplices from Eastern Europe who illegally gained access to the United States!
Except for this exemption, I strongly support the initiative undertaken by Representative Maloney and her bipartisan colleagues. If H.R. 4007 becomes law, we will not only learn a lot about suspect persons, but we will also discover how our government used them, exposed them, or ignored them. Our history of the Cold War will become that much more complete.
If all goes well, this legislation may mark the biggest breakthrough for researchers dealing with the Nazi era and the Holocaust since the Nuremberg trials themselves.
Reams of documents will be uncovered and revealed, but unlike the Nuremberg tribunal, the task force will also be responsible for declassifying materials dealing with postwar machinations conducted for reasons related to the Cold War.
Scholars, historians, and journalists will all benefit, but the major beneficiary will be the American people. We all need to know the full history of individuals who helped the Nazis, and of officials who possibly colluded with these perpetrators after the war. We owe this to ourselves, and to the memory of the victims of the Nazi killing machine.
Finally, as a researcher, I want to pay tribute to Representative Maloney, whose insistence upon righting past wrongs has brought much credit to her and to the institution of Congress. I also wish to praise the work of A.M. Rosenthal, who more than most journalists has fought to amend FOIA so as to enable researchers to discover the whole historical truth. And as a fellow academic, I wish to thank you, Mr. Chairman, for convening this session, for your past support for measures intended to improve FOIA and help researchers.