Meeting Minutes: 02/02/99
February 2, 1999, 2:00 - 4:30; National Archives Building/Room 105
National Archives and Records
Michael Kurtz (Chair)
Office of the Secretary of Defense
Central Intelligency Agency
U. S. Holocaust Memorial Museum
Department of Justice/Office of Special Investigations
Department of State
Federal Bureau of Investigation
National Security Council
Dr. Kurtz convened the second meeting of the Working Group and made introductory comments. The floor was then opened for any discussion on changes in the draft summary minutes from the January 12 meeting. Mr. Aly wanted to make sure that future minutes clearly indicate when the IWG reaches a consensus or makes a decision. He also suggested that the title "Member-at-Large" be used in place of "Public Member". Mr. Baer opposed this change because he thought that "Public Member" was a clear designation meaning "outside the government". The consensus was to keep the title "Public Member." Dr. Marwell, Mr. Rosenbaum and Mr. Ben-Veniste noted renderings of their remarks that needed correction. These changes were adopted without objection and will be reflected in the final summary minutes. There was also a consensus approving the tape recording of the future meetings of the IWG. Dr. Kurtz thanked Mr. Rosenbaum and OSI for the quick transfer of funds to aid the IWG in its work and also named Cynthia Cutright as the NARA contact for travel reimbursement for out of town members. Mr. Leary gave an update on the security clearances for the public members, indicating that a temporary Top Secret clearance would most likely be in place by the end of the week, with a permanent clearance coming in approximately six weeks.
Mr. Ben-Veniste informed the IWG that because of certain clients that have retained the services of the law firm of Weil, Gotshal & Manges, LLP, he would recuse himself at any points where a conflict of interest or the appearance of a conflict of interest might arise.
Dr. Kurtz addressed the issue raised in the first meeting about the application of the Government in the Sunshine Act to the IWG. He read a legal opinion from NARA General Counsel that the act did not apply and entered it into official record. He and others emphasized that although the Act did not apply, the IWG should strive for full openness as consistent with national security.
The IWG next addressed the issue of additional members to the IWG. There was a general consensus for inviting the Treasury Department to attend regularly. Ms Holtzman brought up USIA, particularly its components Radio Liberty and Radio Free Europe. USIA is currently being merged into the State Department. Presidential Libraries were also mentioned as repositories for relevant classified records. Dr. Kurtz indicated that they are part of NARA and thus are represented.
Mr. Ben-Veniste inquired about the possibility of the IWG and the Holocaust Assets Commission having a cooperative effort, especially with the commonality of public interest. Mr. Rosenbaum agreed that the two bodies should work closely together once the Assets Commission gets up and running. Dr. Kurtz pointed out that the question of involving the Commission was on the meeting agenda.
Ms Holtzman voiced concern about some of the CIA's predecessor organizations such as OSS/SSU/CIG and, also, economic-related wartime organizations. Mr. Holmes indicated that predecessor agencies are included in CIA records. Mr. Leary added that in terms of custody most records are at NARA, with the exception of CIA and FBI. Mr. Aly said that Army is at the moment reviewing some records relating to this subject that it still has in its custody. Several questions addressed specific agencies/organizations, to which Dr. Kurtz indicated that their records were at NARA. Mr. Rosenbaum inquired about the personnel records in St. Louis. Dr. Kurtz explained that although those records are in the physical custody of NARA, legal custody still belonged to the military services.
The IWG addressed the Mission/Scope statement. Mr. Holmes focused the attention and discussion of the IWG on the draft language paraphrasing the statute. It was the general consensus that the Mission/Scope statement needed to track the language of the statute more closely. In addition to adhering to the language of the statute where necessary, several other terminology changes were proposed. Mr. Collingwood suggested in subparagraph 1 of page 1 that "arranged" be changed to "arranged or retrievable by" name in relation to application of the list of war criminals to files on individuals. Also in subparagraph 1, Ms Holtzman thought the term "likely" inadequate and suggested "reasonably be expected to" as a good alternative.
The IWG then considered the draft NSC tasker. Ms Holtzman thought that paragraph four (that describing relevant records) was too narrow and should not be limited by terms such as "should include...". Mr. Leary pointed out that Ms Holtzman is correct in that narrowness is not the intended purpose, but rather it was intended to be broad and simple, with the understanding that supplemental guidance would be forthcoming. Mr. Rosenbaum directed his comments to the effect of directives in large bureaucracies. He thought that the tasker should talk immediately about the goal with some sort of Presidential direction. He suggested that perhaps if the White House were to issue a strong statement of support, it might get agencies' attention. Ms Holtzman added that it should include Congressional and Presidential direction. Mr. Baer wanted the first paragraph to have a strong statement that the agencies are looking for classified records they reasonably believe to be covered, whether favorable to the agency or not. Dr. Marwell raised the issue of the agencies reporting back to the IWG on their searches. He informed the IWG that the Assassination Records Review Board (ARRB) had the agencies issue compliance reports to the ARRB, and suggested that the IWG might consider having the same sort of compliance program. Dr. Kurtz then summarized the IWG consensus concerning what the NSC tasker should include:
- Statement of significance of the effort to give it authority and direction.
- Indication of the comprehensiveness of the Act so as to not limit the search.
- Changes to track the language of the statute where necessary.
- A clear statement that the mission is to open the historical record.
Mr. Aly then turned the discussion to the ultimate scope of the work of the IWG, and the implications of the Far East issue (that is, whether the inclusion of Japanese war crimes was intended by the Congress). Dr. Kurtz reminded the IWG that the consensus from the last meeting was to prioritize, taking Europe first. Mr. Rosenbaum considered it a major expansion of the act to include the Far East. Ms Holtzman indicated that the statute tracks the Holtzman amendment, which does include Japan, especially since the Act clearly says "Allies". Mr. Rosenbaum inquired whether that includes the Soviet Union, in terms of the Hitler-Stalin pact. Mr. Holmes stressed that it was critical to move forward in starting the agencies initial search. Mr. Collingwood was concerned about staffing issues, and argued for one "global" search. Mr. Aly agreed about the efficiency of a single search. Mr. Rosenbaum argued that the IWG and the Act were intended to apply to Europe, and that even if Europe is given a first priority, the delay in getting a name list out to agencies might become substantial if an expansion to Japanese war crimes was contemplated. Mr. Ben-Veniste asked if there was a division in terms of Europe first and the Far East second, would that require duplicative effort from agencies? Mr. Holmes responded that if the first search is an effective search by name, it would probably not be duplicative. Mr. Aly responded that in preliminary discussion with DOD components, the response varies, however NSA has 10 million pages, and they would be best served by a single search. The need is to set single parameters for the search. Mr. Aly proposed a session of the IWG with agencies and others. Dr. Bradsher of NARA indicated that at NARA a systematic search in a one-step process would be best. Mr. Aly asked about the extent of records outside NARA. Dr. Kurtz answered that CIA from 1947 on, most of FBI, and NSA, with some Army records were mostly what is considered outside of NARA. Ms Holtzman asked about the effects of EO 12958, in terms of the agencies. Dr. Slany voiced concern that the IWG aim at getting something issued soon, so that the work can commence. He also expressed the need for an historical overview. Mr. Baer emphasized that the IWG needs to indicate to the agencies that the search includes agency complicity or involvement with war criminals. Ms Holtzman wanted the tasker to include the "global" scope of the intention of the IWG. Mr. Leary agreed that the intention of the IWG was full compliance with the statute, and that if there is a consensus which includes the Far East, that the IWG should inform the agencies from the outset even though initial efforts would be directed at Europe. He emphasized the need to get the initial effort started, but that other guidance would be forthcoming. The first step is that of agencies surveying and identifying relevant records. Ms Holtzman thought that if it was the intention of the IWG to decide that the law does not deal with the issue of the Far East then a formal vote should be taken after the agency members consult with their agency heads. Dr. Kurtz concurred and then asked that the Far East issue be set aside for the moment, in order to move forward with the other parts of initial guidance.
Dr. Kurtz noted that the initial guidance would change in its tracking the language of the statute based on the changes in the Mission/Scope statement and the tasker. Mr. Aly voiced concern that in paragraph 2, starting with "European...". Is there to be a specific list of countries? His concern was that if the IWG did not provide a list, the agencies would probably create their own. Mr. Van Tassel addressed this issue, saying that a list might be misconstrued by agencies and another set of issues come up in terms of who gets on the list, for example, Turkey, Romania, Spain? Mr. Rosenbaum thought that the IWG needed to give the agencies some idea pertaining to countries, perhaps not a complete list, but a starting point. Ms Holtzman suggested that perhaps a list could be appended to the guidance. Mr. Aly wanted more clarification on the second sentence of the third paragraph concerning "types" of records. Dr. Bradsher explained that in choosing "types" they wanted to be inclusive, rather than using more precise archival file descriptions . Mr. Aly added that he thought the agencies might set a common strategy before plunging into the records. Dr. Marwell thought it might be helpful to consult with agency FOIA officers for recently denied requests. Mr. Aly raised the issue of the expedited FOIA requests that could possibly disrupt the business of the IWG. Mr. Leary wanted to wait to discuss that issue at a later date.
Mr. Rosenbaum indicated that the IWG was looking at the end of February for the SS Officer list and April at the earliest for other OSI provided lists, with the help of NARA, and that the immediate need was to at least get a first list done. Ms Holtzman brought up the issue of other lists that were possibly readily available. She pointed out that in 1976 GAO created a report that listed contacts between the U.S. Government and Nazi war criminals. It was decided to inquire with GAO for this list. Mr. Rosenbaum suggested getting in touch with John Tipton, formerly with GAO, if possible.
Mr. Rosenbaum asked about dates, and whether it included up to the present. Mr. Aly thought it would more efficient for agencies to have a cut-off date for records searches. Mr. Leary thought that the date the President signed the Act would suffice for a cut-off date.
Dr. Kurtz then moved on to the topic of the schedule, which he thought, given the ideas expressed by the IWG members, needed to be re-drafted then again reviewed by all the members. Ms Holtzman inquired as to how does the IWG get agencies to start on the assets issue, because a name search does not cover it. Dr. Kurtz indicated that #2 in the tasker covers this issue, but if any more explanation is needed NARA could come up with an essay to help explain. Mr. Baer added that assets taken pursuant to German law are substantially listed in German records, and he inquired whether the IWG could get these and offer the agencies some sort of guidance. Dr. Bradsher answered that these records are declassified and are with the captured German records at NARA, contained within 75,000 rolls of microfilm. Ms Holtzman thought the initial focus should be on the estimated 200,000 pages still classified at NARA.
Mr. Ben-Veniste asked what the schedule was for the next IWG meeting. In the session with historians and specialists, he wanted some interaction, like a seminar. It was decided that Thursday, February 25, would be best for the all day seminar with the historians. Ms Holtzman suggested the need for a two part all day meeting, with outside historians for the morning session and government historians for the afternoon. Mr. Collingwood offered to have the sessions at the FBI building. Dr. Kurtz indicated that the IWG staff would find a location for the February 25th meeting and draft a list of possible historians to attend. They would send it out for comment to the IWG members within the week.