Dr. Michael J. Kurtz, statement before the House Subcommittee

Statement of Dr. Michael J. Kurtz, Chair, Nazi War Criminal Records Interagency Working Group, before the House Subcommittee on Government Management, Information, and Technology

Mr. Chairman, I am Dr. Michael Kurtz of the National Archives and Records Administration. I appear before you today in my capacity as Chair of the Nazi War Criminal Records Interagency Working Group (IWG), which is charged with the implementation of the Nazi War Crimes Disclosure Act (PL 105-246). I wish to thank you, Mr. Chairman, for holding this hearing today and for your ongoing interest and leadership in this matter. I look forward to updating you and the Committee on the implementation of this important public law. I would also like to note the contribution of Congresswoman Maloney in sponsoring and in providing the leadership for the passage of this significant legislation. I note that the IWG provided a special briefing for Congress last July at your invitation and that of Congresswoman Maloney and Senator DeWine. We are pleased to be back to report substantial progress.

Background

On January 11,1999, in accordance with the Nazi War Crimes Disclosure Act (PL 105-246), President Clinton issued Executive Order 13110 establishing the Nazi War Criminal Records Interagency Working Group. The Law and the Executive Order charge the IWG with the following responsibilities:

• Locate, identify, inventory, recommend for declassification, and make available at the National Archives all classified Nazi war criminal records, subject to certain specified restrictions.
• Coordinate with federal agencies and expedite the release of such classified records to the public.
• Complete its work to the greatest extent possible and report to Congress one year after passage of the legislation i.e., in October, 1999.

President Clinton appointed three public members to the IWG: former Congresswoman Elizabeth Holtzman, businessman and former Assistant United States Attorney Thomas Baer, and Richard Ben-Veniste who has served the Congress and the government so effectively in numerous capacities. The President also designated the heads of seven key executive agencies as members. Those agency heads have designated high level officials to represent them: Harold Kwalwasser (Department of Defense), Kenneth Levit (Central Intelligence Agency), John Collingwood (Federal Bureau of Investigation), Eli Rosenbaum (Department of Justice, Office of Special Investigations), William Slany (Historian, Department of State), David Marwell (U. S. Holocaust Memorial Museum) and William Leary (observing for the National Security Council). The Archivist of the United States asked me to serve in his place as Chair of the IWG. The National Archives and Records Administration (NARA) provides project management and administrative support to the IWG.

The IWG works closely with the Presidential Advisory Commission on Holocaust Assets in the United States, which was created by Congress two years ago and is chaired by Edgar Bronfman, President of the World Jewish Congress. Much of our declassification work is contributing to the Commission's report that is due in December.

Five employees of the National Archives and Records Administration (NARA) provide primary program and administrative support to the IWG under the immediate direction of the Chair and in accordance with general guidance from the IWG. The Office of Special Investigations (OSI) at the Department of Justice furnished $400,000 to NARA for travel, meeting expenses, and contractor support for the IWG. The National Archives has contributed $200,000 to pay for this year's contractor support. The IWG has no independent funding, and no funding is scheduled for next year. Activities of the Interagency Working Group

The Act and accompanying Executive Order directed the IWG to coordinate with Federal agencies to expedite the release of Nazi war crimes records to the public. On February 25, 1999, Samuel Berger, Assistant to the President for National Security Affairs, issued a compliance order that specified how the statutory tasks would be accomplished. The IWG first met in January and subsequently has held 14 regular meetings. In addition, special public forums were held in Los Angeles and New York to solicit information from experts, historians, Holocaust scholars, and the general public. A public presentation is scheduled for Cleveland in August at the invitation of Senator DeWine. We testified last October before the Senate Select Committee on Intelligence.

On October 27, 1999, the IWG submitted its interim report to the Congress, describing progress thus far and setting forth an implementation plan.

The public members and I have conferred with FBI Director Louis Freeh and CIA Director George Tenet to discuss specific issues related to compliance with the Act. These agencies together with the National Archives and the Army hold the bulk of classified documentation that needs to be examined under the Act.

The IWG has a website that provides minutes of the meetings, reference materials, and other important information concerning this effort, including links to related websites.

Progress Toward Accomplishing Specific Statutory Tasks

Task 1. Locate all classified Nazi war criminal records of the United States:

All agencies that might hold relevant records were required to conduct a preliminary survey of their record holdings and to submit a report on the results by March 31, 1999. Each agency undertook to locate any bodies of classified records that could potentially contain information that (1) pertains to any individual who the Government has grounds to believe ordered, incited, assisted or otherwise participated in the persecution of any persons because of race, religion, national origin, or political opinion during the Nazi rule in Germany (1933-45), or (2) involves assets taken during that period from persons persecuted by the Nazis or governments associated with them.

Agencies included any records likely to contain information on war crimes, war criminals, acts of persecution or assets taken by, under the direction of, or in association with the Nazi government of Germany or any government of a European country allied with, occupied by, or established with the assistance or cooperation of the Nazis. Supplemental guidance identified the specific countries.

The European Theater focus constitutes phase one of the IWG work. Phase two will begin this summer and will concentrate on the Far East and Germany's ally, Japan. In preparation for this phase, we have added an expert on Japanese war crimes, Linda Goetz Holmes, to our historical advisory panel and we are preparing guidance for the agencies that the IWG will issue later this summer.

The White House directed agencies to take an "expansive" view of the Act in completing their surveys. Agencies were advised to take special notice of U. S. Government policy and operational records relating to war criminals and war crimes generally in addition to those that relate to specific war crimes, individual war criminals, acts of persecution, or specific transactions involving taking of assets.

As a result of the survey, a universe of more than 600 million pages was identified, consisting of bodies of records that might contain responsive documents under the Act. It should be emphasized that this initial page count represents only the materials that must be further searched in order to identify records that must be reviewed for declassification. By last July, agency screening had reduced the universe of possible responsive pages to 90 million. Agencies continue to screen documents and we estimate that the number of responsive documents is likely to be between 5 and 8 million pages when all records have been screened.

Among the bodies of records located in the survey, those held by the following agencies are likely to contain the most responsive documents:

Central Intelligence Agency:

Records among the files of the Directorates of Operations and Intelligence, 1947-1998, including operational, personality, country, and project files; analytical production, source material, and biographic reports. 5.7 million pages are being screened.

Files of organizations that were predecessors of CIA, 1941-1947. Records of Coordinator of Information, Office of Strategic Services, Strategic Services Unit, and the Central Intelligence Group. Approximately 1 million pages in NARA custody being screened.

Department of Army:

Army Intelligence and Security Command Foreign Personnel and Organization files, 1900-1975 (61,000 dossiers). Army unit records, 1941-1975. 11,400 microfilm reels are being scanned to create digital images.

Federal Bureau of Investigation:

Selected Security Information Files, 1922-1998. 5.4 million pages being screened.

National Archives and Records Administration:

3.7 million pages of records transferred to NARA from various agencies that were withdrawn from files previously reviewed for declassification because of continuing sensitivity. In addition, with the authorization of the Army, NARA has undertaken responsibility for screening of 50 million pages of records and declassification review of resulting records identified as responsive to the Act.

Task 2. Identify all classified Nazi war criminal records of the United States:

Reviewing the specific classified records in each agency that were subject to the Act involved more rigorous surveys of those specific bodies of potentially relevant documents identified earlier.

In order to assist agencies in identifying files related to individual war criminals, agencies were provided a list of names and birth dates of 59,742 suspected Nazi war criminals. The list was created by the Depart of Justice, Office of Special Investigations and includes SS officers, persons on the wanted lists of the UN War Crimes Commission, persons convicted of Nazi war crimes, individuals extradited by OMGUS in Germany to stand trial for Nazi war crimes, and Axis political and military persons notorious for their role in ordering or fostering Nazi persecution. In addition, the IWG instructed agencies to search not only files based on names but functional and other files as well and also to identify records related to Holocaust-era misappropriated assets and war crimes not necessarily linked to particular individuals. To assist the agencies with their searches the IWG provided them with historical bibliographies, lists of operational terms, and code words. The IWG also briefed the agencies on the historical context of the records and arranged briefings by independent historians.

With the initial location and identification tasks substantially completed by July 30, each agency submitted information on files to be reviewed and a status report describing and quantifying the results of their survey up to that point. The results of this survey were compiled and a database was developed. Each agency provided an implementation plan summarizing resources required to complete the effort in terms of funds and FTE.

Task 3. Inventory all classified Nazi war criminal records of the United States:

Normally, in an archival environment and given enough time, the practice would be to describe the records in enough detail to set the documents in their historical and organizational context, to explain why the records were kept, how they were arranged, and how they relate to broad subjects of interest. The intention here is to provide information on the provenance of the records and to describe the records in enough detail to make them accessible to reviewers and researchers.

Agencies are submitting their information in electronic form in a relational database system capable of maintaining descriptive information and permitting progress to be tracked at various stages during the review process. These submissions comprise the IWG database that will enable monitoring of declassification reviews, Kyl Amendment review, application of OSI's exemption, privacy reviews, and IWG actions on decisions by agencies to retain security classifications.

Following initial development by the IWG staff, a private contractor with knowledge of the federal records and declassification programs has taken over maintenance and further development of the database. The contractor will maintain, expand, and produce reports from the database.

So far the identification phase of the operation has resulted in the location and description of 2 million pages of records, with more being identified as the screening of files continues and is expanded to include records related to Japanese war crimes.

Task 4. Recommend for declassification all Nazi war criminal records of the United States:

The Act states that there is to be a presumption that the public interest will be served by release of Nazi war criminal records. The IWG's position is that each record must be judged on its own merits and sensitivity; no records should be automatically withheld because they contain certain classes of information. Further, the relevance and historical importance of individual documents must be weighted much more heavily than in the past in balancing between release or continued withholding of records for national security reasons. The IWG is prepared to challenge any agency decision to maintain classification of a document when such classification is not strongly justified by one or more of the Act's exemptions or when it determines that the public interest outweighs security considerations. The Act requires that an agency head report to Congress when it is determined that an exemption is to be applied. The exemptions are identical to those allowed for 25-year old material under Executive Order 12958.

Judicious use of redactions can preclude withholding the entire document and yet protect information that remains sensitive. Intelligence agencies understandably may be concerned about protecting several categories of information, particularly sources and methods, identities of agents, and liaison relationships, notwithstanding the passage of time rendering such matters less significant, and may redact to protect this information. This process, of course, is very time-consuming since a line-by-line review must be done.

The agency that created a document, or its successor, is responsible for declassification review of the document and for notifying any other Federal agency that may have an interest (equity) in the document. The OSS documents opened yesterday at the National Archives had been in Archives custody since being transferred in two groups in the mid-1980s and in 1997. However, they remained classified and closed until declassification review by the CIA was finished just recently. Each organization with equity in a document is entitled to conduct its own review. This additional step can delay the review process, particularly if, as often happens, there are multiple agencies with equities in a single document. Coordination is essential here, and the IWG is playing an essential role in tracking and expediting that process.

The U. S. Government has in its possession documents that were either (1) provided by another government or (2) contain information that was provided by another government. Often such foreign government information is shared with the U. S. Government with the understanding that the information will not be made public without the agreement of the government that shared it. In order to expedite the review of older documents of this type, the IWG has asked U. S. agencies to work with their foreign counterparts to establish a process to enable declassification of documents relevant to the Act without the need for a detailed consultation in each instance.

Some material identified as responsive under the Act may also require review by the Department of Energy (DOE) under the Kyl Amendment to ensure that it does not contain Restricted Data or Formerly Restricted Data that would reveal sensitive nuclear information. DOE must review a very large volume of records from other agencies; as a consequence, this review could delay declassification of Nazi war criminal records.

Task 5. Make available to the public at the National Archives and Records Administration all classified Nazi war criminal records of the United States:

Prior to release to the public, certain declassified documents require additional reviews. In accordance with Section 3(b)(2)(A) of the Act, privacy considerations must be taken into account before a declassified document can be released to assure there will be no unwarranted invasion of personal privacy. Legal constraints that protect an individual's privacy must be weighed against the public interest in disclosure. At the request of the IWG, the Office of General Counsel at NARA has prepared guidance to be used by agencies in making determinations regarding exemptions from disclosure based on privacy grounds.

Section 3(b)(4) of the Act contains a special provision for records that relate to investigations and other activities of the Office of Special Investigations (OSI). Certain records, although declassified, must be referred to OSI for further review before a final decision on their release is made. This provision is meant to assure that ongoing Nazi war criminal investigations that would be harmed by premature disclosure will be protected. OSI has volunteered to waive its statutory exemption in appropriate cases.

The IWG faces the challenge of preparing for the orderly release of millions of pages of documents from hundreds of sources. Normally, archival description relates to a body of records that has been transferred intact to NARA from the originating agency. The Nazi War Crimes Disclosure Act, however, often will result in records being selected, on the basis of their subject, from larger bodies of records not yet declassified or transferred to NARA. Many documents will have redactions and therefore will be released in part. Copies of many documents, not the originals, may be transferred to NARA if it is determined that the original files from which the individual documents came should remain at the agency. The result will be the creation of collections of selected documents. This will necessitate the preparation of special descriptions that set the records in their institutional, archival, and historical context so that they are useful to researchers.

As mentioned above, to date the Government has declassified approximately 1.5 million documents in response to the Act. It will take many years before historians and other interested specialists can evaluate the full value of these newly-declassified documents, but we know that the documents are answering some specific questions important to individuals and are filling in the details of history. For instance, in recently released OSS files is documentation of Hitler specifically ordering the Jews of Rome rounded up as Italy was preparing to surrender. According to the documentation, British and American intelligence services were aware of this order which resulted in the transportation and extermination of over 1000 Roman Jews.

In order to help us do such evaluation of the record as is possible consistent with expedited release, the IWG has retained two historical consultants, Professor Richard Breitman of American University and Professor Timothy Naftali of the University of Virginia, and has established an Historical Advisory Panel chaired by distinguished World War II historian Gerhard Weinberg. These historians aid us in the search for relevant materials among the labyrinths of Government records and help us to give some evaluation of the importance of the documentation that is being released.

Completing the Task

All of the IWG's efforts focus on releasing information to the public to the fullest extent possible by the statutory deadline of October 2001. The IWG is committed to accomplishing this goal. The 1.5 million pages declassified thus far include records of the Tripartite Gold Commission, the DoD's Foreign Scientists Case Files, investigative dossiers compiled by the Army's Counter Intelligence Corps, and just yesterday we released 400,000 pages of OSS records dealing with all aspects of intelligence activity during the War that we believe scholars will be using profitably for years to come and that may help to answer questions about how much our government knew about the Holocaust as it was being perpetrated. By the end, we expect the project to yield 5 to 8 million pages of war crimes related records. We are now at roughly 20 to 30 percent of completion and, after the initial startup period, the pace of declassification and release is accelerating.

Successful completion of the task depends, of course, on the availability of sufficient resources for administrative support, educational outreach, and preservation of deteriorating records. Available resources for the agencies are subject to competing requirements for declassification under FOIA, Executive Order, and special programs.