Statement by Robert Wolfe, New York City - September 27, 1999

EXECUTIVE SUMMARY:

The following are the main impediments to the swift, efficient and economical implementation of the Nazi War Crimes Disclosure Act, which was devised to discover and declassify Holocaust-

related documents interspersed among classified records of Federal agencies:

1. Most agency personnel lack sufficient substantive knowledge
   easily to identify Holocaust-related documents;
2. intelligence agencies are apprehensive lest the identity of
   domestic and foreign agents and sources, as well as agency modus
   operandi, be jeopardized through disclosure of any information
   derived from those sources and methods;
3. investigative agencies are apprehensive lest prosecution of
   prospective cases be jeopardized through premature disclosure of
   evidence and witnesses;
4. reflexive denial, and sometimes bureaucratic coverup by
   Federal agencies of documentation that might publicly embarrass
   them, nourishes feeding frenzies by investigative reporters, and
   rouses public suspicions and cynicism.

Recommendation:

The Nazi War Crimes Disclosure Act would be more efficiently and frugally implemented by detailing to those Federal agencies most likely to hold classified Holocaust-related documents, several security-cleared, substantively-qualified, Federal archivists and historians who would identify such record items more than 25 years old for declassifying, sanitizing, and transfer to the National Archives.

Statement Delivered at the Public Hearing of the Interagency Working Group
September 27, 1999

Retired some four years ago from the National Archives and Records Administration after more than a third of a century service as specialist for captured Third Reich, war crimes trial, and World War II records, I have published articles, and directed and edited the proceedings of scholarly conferences on Captured German and Related Records; on "The Nuremberg Trials as History, Law and Morality"; and on Americans as Proconsuls: The US Occupation of Germany and Japan. Appointed a Special Advisor to Eli Wiesel, Chairman of the U.S. Holocaust Memorial Museum Council in May, 1982, I served as a member of the museum's Archives-Library Committee, and on that museum's team of experts which examined captured Nazi records in Soviet Union archives in 1988, and in East German archives in 1990. So, on the matter before you I can perhaps claim to be the only surviving triple threat, and presumably for that reason have been invited here to offer this Interagency Working Group the benefit of that experience. I have included this and other professional information in a resume accompanying a copy of this statement, but I hope to persuade you by the cogency of my remarks rather than by paper credentials. Since I have published all I intend to on the Holocaust, per se, I have no personal ax to grind as historian or archivist in the recommendations I offer you.

Executive Order 12958 (Classified National Security Information), whether or not its deadline is prolonged, is an uncertain vehicle for satisfying the public interest addressed by the Nazi War Crimes Disclosure Act. Both Order and Act assign to the creating agency the decision whether its classified records require protection beyond 25 years under one or more exemptions provided in the Freedom of Information and Privacy Acts--exemptions reiterated in the Disclosure Act. This is an invitation to reflexive denial (and sometimes bureaucratic coverup) which have continued to nourish feeding frenzies by investigative reporters and roused public suspicions and cynicism. (Nothing stirs researcher suspicions more than the locution: "We can neither confirm nor deny.")

Thus far, implementation of the Disclosure Act has unintentionally generated a costly and unnecessary bureaucratic burden. Effective scrutiny of such a large and complex database, consisting of seized Nazi as well as U.S. records, requires recasting and streamlining of current procedures if implementation is to be frugal and timely. The current several separate agency operations utilize personnel most of whom lack the many years of training and experience needed to recognize Nazi culprits' names, let alone familiarity with Nazi agencies and American wartime and postwar exploitation of their dossiers. By contrast, archivists collectively familiar with the history, mission, and paperwork practices of all Federal agencies, have by far the most experience in sanitizing documents to comply with the required exemptions. For decades Federal archivists have been protecting national security and personal privacy information recorded in classified (as well as unclassified) accessioned records, while releasing as many documents as statutorily permissible to satisfy the public's need to know.

In facilitating the research of scholars with expertise derived from extensive research in records of the Third Reich and the Holocaust, archivists could more reliably execute the mission of this Act in a fraction of the time and funds now being expended. Such an informed surgical approach might replace the current blanket approach, which resembles a typical legal discovery practice, where numerous paralegals sift through all remotely pertinent documentation; only in this case the taxpayers are excessively billed, rather than the clients.

Implementation of the Disclosure Act would better progress by the normal archival practice of following the life cycle--what courts call the chain of control--of the files documenting the history of war crimes investigations from creation, through interim exploitation, to final repositories. In this case that history begins with the wartime capture or postwar seizure of Nazi paperwork which discloses the names of perpetrators and their crimes; it continues with contemporaneous documentation of the capture or arrest of war crimes suspects by Allied troops; their interrogation by the Counter-intelligence Corps (CIC) National Archives Record Group 319) and the Office of Strategic Services (OSS, RG 226); interrogation of nuclear scientists by ALSOS personnel and by Field Information Agency-Technical (FIAT) of scientists and technicians, many of whom were eventually brought to the U.S. by Operation Paperclip and similar programs, and acquired American citizenship and government pensions; by State and War Department interrogators of top-level Nazis; and a plethora of interrogations by war crimes prosecution staffs of accused and witnesses (RG 238).

Also useful in identifying individuals are the order-of-battle interrogations conducted by intelligence and prisoner-of-war staffs of Supreme Headquarters, Allied Expeditionary Forces (SHAEF), its successors U.S. Forces, European Theater (USFET), its subordinate Seventh (SAIC), Third Army Intelligence Centers, and intelligence staffs (G2) of corps, and divisions, as well as the voluminous prisoner-of-war dossiers now deposited variously in the records of U.S. Army Commands (RG 338) and OMGUS Civil Affairs staffs CAD (RG 260). (Although not involved in these aspects myself, in more than three years of military government assignments from 1945 through 1948, I frequently dealt with many of those who were.)

These early interrogation efforts were indispensably enabled by captured Third Reich and Nazi Party records containing personnel and person-related records of many perpetrators, predominantly Reich and ethnic Germans, such as assignment and transfer lists to and from Einsatzgruppen and concentration camps--there is little identification of their non-German henchmen. Incidentally, there is also information therein about many victims, and in many cases their confiscated property is described--especially industrial property--not only in records of the Nuremberg industrialists trials, but in holdings of former East German archives, sources I summarized during the National Archives Symposium on "Records & Research Relating to Holocaust-era Assets" of December 1998.

The bulk of captured Wehrmacht records, as well as non-biographic records of the Nazi Party, its formations (such as the SS) and affiliated organizations (such as the monolithic German Labor Front), and also of some Reich ministries, were shipped to the United States via Britain between 1945 and 1950. Most of these were microfilmed on some 30,000 rolls for deposit in the National Archives before the original records were transferred to the Federal German Archives, where they are also open for research.

Captured personnel records of the Nazi Party, its formations and affiliated organizations were consolidated in the American- operated Berlin Document Center (BDC) and utilized, not only for the aforementioned early interrogations, but also for postwar occupation purposes, notably denazification and war crimes prosecutions. The entire contents of the former BDC are now available at the National Archives on some 70,000 rolls of microfilm.

Research is particularly difficult in the captured German records because of the irretrievable invasion of archival integrity by the legally justifiable, but archivally horrendous, removal of original war crime and other significant records from their German archival context. Thereby innumerable seized German documents were incorporated into American files through exploitation for intelligence and military government purposes sanctioned by international law, most notably into the Nuremberg and subsequent U.S. war crimes trial records. It would only have compounded the violence already committed against the integrity of these documents, in tearing them out of their original German file context, if in order to return them, they were again torn from what had already by 1950 become their American file context. And to have expunged the unthinking vandalism of Allied prosecution personnel, lawyers and intelligence analysts alike, who had stamped identifying numbers or written annotations on document faces, would only have obliterated historically significant evidence of the unusual odyssey of those documents. The consequences of this massive breach of archival integrity were brought home, when I was asked to give evidence for the prosecution in a pretrial hearing to establish the chain of control of documents certified by the Bundesarchiv for a war crimes trial in Adelaide, Australia in 1993. Defense counsel had objected that the proffered documents had been out of German control for some 25 years, roughly from 1945 to 1970. It required much research for me to produce contemporaneous documentation demonstrating the where and when of the capture of the bodies of records in which the documents had been filed by Nazi agencies, the itinerary by which they had reached the United States, where they had been microfilmed, and the receipts signed by German archivists at Bremerhaven certifying their return. Whether the case be a criminal prosecution as in Adelaide, or a deportation case in Cleveland, a broken chain of control, or for that matter English or Cyrillic graffiti on original documents, taints courtroom as well as historical evidence.

I have perhaps devoted too much time to pertinent captured German documents--unclassified as well as classified, both those left in their German context and those incorporated into American records--because they are the primary source for investigating, prosecuting, and historical verification of Nazi crimes--most other documentary sources are secondary and derivative. Nevertheless, partially offsetting their regrettable cannibalization, in exploiting these primary sources to conduct war crimes trials of major war criminals at Nuremberg, U.S. government agencies did put a compensating gloss on Third Reich paperwork when incorporating individual documents (often accompanied by indifferent translations) into our related postwar files. Probably most pertinent of these for potential prosecution purposes are the records of small fry, predominantly concentration camp and euthanasia program staffs tried by U.S. military courts at Dachau from 1945 to mid-1948 (Judge Advocate General records in Record Groups 153 and 338), since their obscurity made them much more likely to slip into the United States undetected.

My experience in a trial of an SS concentration camp dog-handler before a court in Duisberg, Germany, in 1992, is instructive on how and why much incriminating evidence about such small fry came to be neglected until recent years. The trials conducted at Dachau derived their jurisdiction from ACC Law No. 10, drawing on the precedents of the Hague and Geneva Conventions, and the International Military Tribunal (IMT) at Nuremberg, as well as the ongoing subsequent American trials in that city. The Duisburg defendant had been brought to Dachau in 1947 as a witness against his SS non-commissioned superiors. Despite twice being warned against self-incrimination by the American officer presiding, he testified, that obeying a direct order, he had shot one straggler during the evacuation march from Wiener-Neudorf concentration camp at war's end. Nine days later, discovering that he was listed among the accused in the next upcoming case, he escaped before he could be served charges. He was still a fugitive when the American theater commander directed that the trial of war crimes cases of compara- tive major importance be completed prior to the end of 1947, and that all records be reviewed and other aspects of the operation completed prior to 3 June 1948. This was well beyond the dwindling strength of the war crimes staff, so many cases were dropped under these circumstances, leaving no hindrance for putative criminals to return to normal life, and perhaps to emigrate to places where they were unknown.

In September 1949, when Allied Military Government was replaced by the Allied High Commission, the Occupation Statute of that date reserved control over war criminals already convicted and imprisoned by Allied military government courts, but not over those not yet indicted. Since his 1947 escape, my dog-handling perpetrator had been living in West Germany under his own name, and was only discovered and charged when witnesses were sought for the pending trial of a Wiener-Neudorf colleague who had recently been deported to Germany from the United States by OSI efforts.

Cross referencing SS and other Berlin Document Center (BDC) alphabetically-arranged Nazi Party personnel files with Immigration and Naturalization Service dossiers is particularly useful for identifying those who entered this country under their own names. This is of no help, however, in those cases where U.S. agencies imported allegedly useful suspects through undocumented channels, often under false names, and now refuse to divulge such irregularities, citing the Privacy Act and various exemptions to the Freedom of Information Act. It is a curious paradox that the archives law of the Federal Republic of Germany, whose Data Protection Law (DatenschÜtz Gesetz) is much stricter than our Privacy Act, makes an exception to allow release of data on persons who were prominently active in official or private capacity in promoting the Third Reich and its racist ideology, by public speech or writing--to say nothing of indicting small-fry perpetrators like my dog-handler.

We have experienced two historical watersheds since the Nazi targets of the Interagency Working Group perpetrated their alleged war crimes: the end of the Second World War and the end of the Cold War. Few of the American personnel involved in recruiting Nazi collaborators are still alive, and fewer still officially active, so there is little need to withhold records dealing with such a relatively remote past. Of more concern is a media feeding frenzy likely to embarrass any Federal agency still rigidly applying secrecy regulations which override the public right to know. The establishment of the IWG suggests that this problem has belatedly been recognized.

Would targeted searches by security-cleared, substantively-qualified, Federal archivists and historians in classified records held by Federal agencies, in order to identify Holocaust-related record items more than 25 years old for declassifying, sanitizing, and transfer to the National Archives, risk breach of those exemptions designed to protect national security, foreign relations, foreign intelligence and other confidential sources, and intelligence and investigative processes, as well as industrial secrets and personal privacy? The many scandals of the past half century should have taught us that it is better to confess before one is "outed," than having to confess because one has been outed!

There are record items in the National Archives which indicate that files pertaining to informants, informers, agents or spies we have employed--German or other, Nazi Party members or not, war criminals or not, brought to this country or not--may still be retained under top security classification by Federal intelligence or investigative agencies in order to protect government agents as well as tainted sources. There is no reason why the identities of domestic and untainted foreign agents cannot be sanitized in order to release a document containing evidence of war crimes. Recent exposure of investigative and intelligence agency alleged "cover-ups" exacerbate long-held suspicions that such records may be deliberately withheld, when often it is merely a matter of lack of resources, low priority, or inadvertence, but it nevertheless prevents identification and release of documentation pertaining to war crimes.

Such justifications for denial of access resemble a complaint raised by a West German city archivist who was researching an article on the fate of local Jews during the Third Reich. His own state archives had refused access to a file disclosing the identity of a Nazi profiteering in "aryanization" of property, on the grounds that the identity of the Jewish victim required protection!

Many years ago, beginning with the Hermine Braunsteiner Ryan case, New York and other Immigration and Naturalization Service (INS) investigators from Ohio and Florida separately sought from the National Archives what amounted mainly to duplicate background information and documentation in order to deport alleged war criminals from their several jurisdictions. To minimize dissipation of INS efforts and mine, I suggested that a central operation and cumulative document repository be established, similar to that set up in Ludwigsburg, Germany. Presumably, as a consequence of that advice and my subsequent assistance to its lawyers and historians, some have dubbed me the "godfather" of the Office of Special Investigation of the Department of Justice (OSI).

We have learned a good deal in recent decades about the need to protect investigative processes against premature disclosure to investigative reporters--to say nothing of deliberate leaks. But eventually, in open court established facts become public, and innuendo, hearsay and perjured testimony can be excluded or discredited--sometimes accompanied by a backlash against occasional excess prosecutorial zeal.

As one of the younger veterans of the Second World War, my compulsive daily perusal of obituary columns reveals that more and more of my contemporaries are reaching the biological end. I assume that this is equally true of the war criminals who immigrated into this country under the deplorable overt racism, and scarcely concealed anti-semitism of the Displaced Persons Act. Relatively few of these were Germans and ethnic Germans, who were easily barred because their depredations were generally detectable in SS and other Nazi Party personnel records in the Berlin Document Center. These immigrants were predominantly East European Nazi collaborators fleeing hard-handed Soviet retribution, and they got away with it by playing on prevalent anti-Communist attitudes in Congress and the general public. Even when Soviet and other East European Communist governments could be persuaded to supply incriminating evidence, most American officials disdained it as "disinformation."

But there is no reason why the Office of Special Investigations cannot release copies of its pertinent amassed evidence to the National Archives staff, who hold high security clearances, as well as a record of discretion which I daresay is unparalleled by any other Federal agency. By law, OSI records must eventually be offered to the National Archives as part of Department of Justice records in general. Should budget constraints bring an unexpected early sunset to OSI operations, unlike the limbo into which the Dachau dossiers fell, the records of most of its suspects will no longer be exempt as "investigative" and will be opened in the National Archives to serve the public need to know.

Federal agency records officers understandably are primarily attuned to protect the interests of their own agencies, not to mention preservation of staff positions. Again by contrast, National Archives staff are enjoined to consider the public interest as overriding the withholding of Federal records, other than those exempted under the Freedom of Information and Privacy Acts--exemptions which are restated in the Nazi War Crimes Disclosure Act.

Given access, Holocaust historians and investigative reporters would soon cumulatively discover and disclose Holocaust information interspersed throughout the records. In my experience, an archivist learns more about the records in his or her custody from motivated and prepared researchers to whom likely avenues of research are suggested, than if the custodians set out to plow through every piece of paper themselves. This would secure a surer and sooner release of Holocaust-related records which exemptions no longer justifying withholding.

Based on the foregoing explication, the following is my recommendation to the Interagency Working Group:

RECOMMENDATION:

The Nazi War Crimes Disclosure Act would be more efficiently and frugally implemented by detailing to those Federal agencies most likely to hold classified Holocaust-related documents, several security-cleared, substantively-qualified, Federal archivists and historians who would identify such record items more than 25 years old for declassifying, sanitizing, and transfer to the National Archives.

After transfer of identified and declassified Holocaust- related record items to the National Archives, it might be cost- effective to employ under temporary contract graduate students well-immersed in the history of the Third Reich, and of the Holocaust and its American aftermath, to prepare descriptions of such records for dissemination to potential researchers. These students would require prior training, and their work receive periodic assessment by a substantively-qualified senior archivist-historian.

Equipped with the operational and administration history of records putatively pertinent to the Holocaust, National Archives staff could save time and effort in directing researchers to those agency records declassified under the Disclosure Act most likely to provide information on the perpetrators, as well as proof of the harrowing historical veracity of the Holocaust.

A costly and counterproductive bureaucratic overhead could then go into the sunset, and Federal agencies could go about their prescribed business, while an efficient less-expensive and quicker search for classified Holocaust-related documents would sooner be completed.