Meeting Minutes: 10/17/01

Steven Garfinkel, IWG Chair, opened the October 17 monthly meeting by mentioning two recent letters. Congresswoman Carolyn Maloney has written to the new Japanese Prime Minister requesting his support in locating Japanese records. Mr. Garfinkel noted that Congresswoman Maloney had written the letter on her own initiative, but had shared a copy with the IWG. The other letter was sent to James Billington, Librarian of Congress, by Mr. Garfinkel and asked for LOC assistance in locating classified Japanese records that may reside in its facilities. Mr. Garfinkel noted that he had received word that the LOC was preparing a response. The Chair also introduced Shlomo Aronson, a political science professor from Hebrew University and a current NARA Fellow, who is a recognized expert on Nazi records. Mr. Garfinkel also reported on a telephone call from the Russian Embassy indicating that officials in Moscow are in contact with various archives which may have records of interest to the IWG. He expects a written response from the Russians next month.

Mark Susser brought the State Department volume Foreign Relations of the United States, Asia and the Pacific, 1951, published in 1977, with 700 pages of material on the negotiating history of the 1951 Treaty with Japan. He said that it includes the "side letters" and is available to interested IWG members. He also brought copies of the legal filings that the Department of State had assembled concerning the "Position of the United States Regarding Compensation Claims Against Japan and Its Nationals Arising Out of World War II." These were given to the Public Members, who said they would review them. He also noted that the Tokyo Embassy has interviewed three potential researchers to survey and inventory documents in archives around Tokyo.

Mr. Susser said that he was concerned about comments at the September 29 Historical Advisory Panel (HAP) meeting that senior DOS officials had been misled on several issues concerning Japanese claims issues. He would welcome specific information on alleged State Department misinformation, because such charges are serious and will be investigated. However, he said that the State Department and the U.S. Government have been very forthcoming on this issue.

Dr. Gerhard Weinberg, the Chair of the HAP, asked if State or Defense could provide any information on diaries that he understands were returned to Japan in the early '50s. He also wondered if DOS had found any further reference to an MOU concerning future U.S. Government access to the millions of pages of records returned to Japan in the 1950s and '60s.

Thomas Baer raised the DOS Memo of September 28 responding to the IWG Request for Department Records relating to U.S. Government representations regarding the right to sue Japan. He asked the Chair to clarify that the request was from the IWG and not a personal one. Mr. Garfinkel confirmed that it was an IWG request, not a personal request from Mr. Baer. DOS lawyer James Hergen said that lawyers for some of the plaintiffs in the California court cases had claimed that they would "use the IWG" to obtain further information for use in the trials. Mr. Baer said that he did not intend to prejudice the cases, but had based the request simply on "a provocative article in a newspaper of record." He continued by stating that he does not know any of the plaintiffs or their attorneys. [Subsequent to the meeting, Mr. Garfinkel noted that he was unaware of any communication, oral or written, from the California plaintiffs or their representatives to any member or staff member of the IWG.]

There was then a discussion between DOS lawyer Ms Jamison S. Borek and Ms Holtzman concerning the scope of the Nazi War Crimes and Japanese Imperial Government Records Disclosure Acts. Ms Borek outlined the DOS position that the IWG request exceeded the scope of the Acts. Ms Holtzman responded that the Acts, based on the legislative history, are far broader than the DOS position, as anything related to the claims of alleged victims must be included under the Acts. Mr. Ben-Veniste stated that further discussions and prospective IWG action on this matter should await the opportunity of the members to review the pertinent files that Mr. Susser had brought with him. Mr. Garfinkel agreed to make additional copies available to any interested member.

Ms Christina Bromwell, the Department of Defense Representative to the IWG, then introduced Sheldon Goldberg from the U.S. Air Force History Support Office. Mr. Goldberg said that NARA and his office had finally located Air Force records that have been stored in St. Louis. They generally relate to "Paperclip" activities. Dick Myers from NARA is arranging for them to be brought to Washington for review and possible declassification in the immediate future. According to Mr. Goldberg, the Air Force has re-reviewed relevant documents, but they were all declassified many years ago. He added that the Air Force lacks an electronic database and cannot conduct "name searches" of its files. However, he said that the U.S. Army has such a capability and has done an electronic review of most of these same records. The Air Force will be doing further searches for relevant, classified materials that may be held at the Air Force War College at Maxwell AFB.

Ms Holtzman said this Air Force search is very important. She asked if the IWG historians could meet with Air Force records managers and historians to review the search criteria used in the reviews. She is concerned that the lack of a database "name search" capability may have missed relevant records. It was agreed that IWG Executive Director Larry Taylor would coordinate with the DOD Representative to set up such a meeting.

The Historians' reports included Professors Richard Breitman, Norman Goda, and Marlene Mayo. Dr. Breitman outlined recent developments in his ongoing review of OSS records. Dr. Goda said he has been concentrating on the major releases of FBI documents, the 13th delivery in the past few months. He found information on the Nazi government's attempt to bring German-Americans to Germany in the late '30s to "propagandize them." Dr. Mayo reported on the U.S. Government decision not to prosecute certain Japanese. Several of them amassed large fortunes which later apparently supported right wing groups in post-war Japan.

Mr. Periera reported that the IWG Audit Team had met with the State Department and reviewed 1200 additional pages from the 1980s and '90s that deal with Waldheim, Hess and property claims. There were only seven redactions and State is reexamining them. State has now completed its page-by-page review of all possible Nazi records. Only the declassification process is still pending. The auditors also met with the FBI, which released another 11,500 pages. The only questions on possible redactions center on 200 pages that Canadian representatives have sent to Ottawa for a final review.

Eli Rosenbaum noted that questions had arisen from time to time about the operation of the so-called "OSI exemption," and that he would therefore like to address the subject. He stated that OSI has long been "disclosure-oriented," as exemplified by his office's preparation and public release of reports on the Klaus Barbie, Robert Jan Verbelen/CIC, Josef Mengele and Kurt Waldheim cases, the extensive assistance it volunteered to the IWG in crafting and implementing search strategies, its review of tens of thousands of documents to date, and in the "waivers" it has granted. Mr. Rosenbaum explained that "exemption" is a misnomer, as both the Nazi and Japanese War Crimes Disclosure Acts expressly exclude OSI-related records from their ambit. Mr. Rosenbaum read from the Nazi statute and pointed out that both laws expressly state that they "shall not apply" to OSI-related records, thus putting OSI-related records in a very different position than are those materials, such as national security and privacy-protected documents, which are denominated only "exemptions" under the two statutes and which, according to the two statutes, must be released in some instances. He explained the rationale behind Congress' decision to exclude OSI-records in order to avoid compromising OSI's continuing legal efforts against suspected Axis criminals, which are uniquely time-sensitive matters, especially at this late date. Since virtually all of OSI's files pertain to suspected Axis criminals, if Congress had brought those records within the statute, OSI would have been forced to shut down and redeploy all of its personnel from law enforcement work to document review and disclosure operations. Mr. Rosenbaum noted that although there is no statutory provision for "waiver" of the OSI exclusion, he had decided from the start to waive objection to the release of non-OSI records in appropriate OSI-related cases, and has already done so in the cases of Barbie, Rudolph, von Bolschwing, Mengele, et al. He stated his willingness to consider other cases for waiver that the staff or others might propose and he noted that he is considering several cases on his own initiative. Rosenbaum also noted that his agency has treaded gently and has declined to invoke the exclusion in many situations in which it demonstrably applies, such as in the Project Paperclip cases and the case of Franz Six. Mr. Rosenbaum emphasized that those IWG historians possessing security clearances had a standing invitation to examine OSI's own files if they believe that doing so would help them in their work. He added that despite the statutory exclusion of OSI-related records, his reading of the 5/12/00 memorandum from the IWG's then-chair, Dr. Michael Kurtz, was that it unambiguously required agencies to process even OSI-related documents for declassification and to forward copies of same to the IWG, properly "flagged" as documents of "OSI interest."

Mr. Baer and Ms Holtzman requested that the State Department arrange a briefing, either classified or otherwise, to discuss the DOS Memo of September 28. They feel that their questions about the "side letters" and other '51 Treaty related documents are well within the scope of the IWG, but would welcome a meeting with DOS officials.

The Chair advised the members that they will receive a series of questions concerning their efforts in locating and declassifying relevant Japanese-related records. These responses will be the basis of a report to Congress that is mandated by the December 27, 2000, Act. He mentioned that a press release on the Army IRR records, along with several key reports by the IWG Historians on information in those documents, is almost completed. They will be sent to members in draft for comment by the end of the month. He expects this press effort will be followed soon by a similar release on the OSS materials.

Mr. Garfinkel noted that he wanted to conclude the meeting by reminding those assembled that the IWG already has had unparalleled results in carrying out its congressionally mandated effort. Everyone should take great pride in his or her relationship to the IWG's accomplishments. Having come so far with such positive results, everyone should be fully committed to finishing up the IWG's work in a similar vein.

Mr. Baer agreed with the Chair and concluded by saying that everyone and each agency has been doing a commendable job.

The Chair announced that the next IWG meeting would be held on Wednesday, November 14, 2001. Due to room scheduling difficulties that surfaced after the meeting, the next meeting has been changed to Tuesday, November 13, 2001 at 1:00 p.m. in Suite 700, 1101 Pennsylvania Avenue, Washington, DC.

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