Meeting Minutes: 04/19/99
April 19, 1999, 9 a.m. - 3 p.m.; Old Executive Office Building, Room 208
National Archives and Records
Michael Kurtz (Chair)
Office of the Secretary of Defense
Central Intelligency Agency
Federal Bureau of Investigation
National Security Council
U. S. Holocaust Memorial Museum
Department of Justice/Office of Special Investigations
Department of State
Dr. Kurtz convened the April 19 meeting with some introductory announcements. He announced the IWG website that would be located at "nara.gov/iwg/" and accessible from the NARA website, and David Van Tassel gave details of the IWG Website and E-mail address. In announcing that the IWG Staff is seeking contractor support for the IWG, Dr. Kurtz gave details of the work that the contractors would be doing to develop tracking and monitoring systems, develop databases, and provide administrative help with reports. He thanked Mr. Rosenbaum and OSI for their provision of funds. Mr. Rosenbaum stated that OSI was pleased to help with funding supplied under the act for this important undertaking. There was some discussion of the roles that the contractor could have in the work of the IWG.
In commenting on the OSI name list, Mr. Leary indicated that he was skeptical of the feasibility of FBI manually searching their card file against 60,000 names or terms. He wondered if a smaller version of a key terms list might be better for searching manually. Eleni Kalisch, sitting in for Mr. Collingwood of the FBI, suggested that they focus on the files that promised to be the most fruitful. Scanning capabilities were brought up by Ms Holtzman, but the consensus was that the resources were not available for such an undertaking, but that the feasibility of automation should be looked into by the agencies and IWG Staff. Mr. Aly added that DoD had some concern and interest in this area as well. Mr. Klothen proposed help by the Presidential Commission in identifying search terms and promised that he would follow up with his staff.
In further discussion of the OSI name list, Mr. Rosenbaum indicated that while a prioritized list might be achievable, he questioned its usefulness. Dr. Marwell asked if there might be a smaller list of important names that could be used immediately while the broader search proceeded. Mr. Ben-Veniste thought that prioritizing a list might be initially helpful, but that it should not stop at that point and the broader search must take place. Mr. Aly said that a priority list would not work for DoD; its usefulness would be agency dependent.
Dr. Kurtz then introduced the issue of declassification policy, and whether the IWG should subscribe to the redaction or "pass/fail" method of protecting information that continues to be sensitive. Dr. Kurtz said that his understanding of the spirit of the law mandated the redaction method, that is, "sanitizing" rather than closing whole documents, if possible. Mr. Aly brought up the fact that it is an issue, because pass/fail is cheaper and faster, and the IWG should address how much this effort will cost, and how long will it take to complete. Mr. Leary was confident that the two strategies could be combined depending on the agencies and documents. Dr. Marwell agreed that it was agency dependent, given examples of NSA and CIA headers and footnotes from records encounter in his experience with the Assassination Records Review Board. He also commented that there are very real tracking problems in terms of the complexity of tracking. The general consensus was for redaction as the preferable approach, other conditions being equal.
The next issue raised was the management of the OSI exemption contained in the law. Mr. Rosenbaum made clear that OSI has no original classification authority, but that the sensitivity of the investigations and the subjects thereof was at issue. He commented that OSI would not give a list of its cases to all agencies. In terms of the exemption, OSI staff will review everything, and any help from the agencies is appreciated, especially in flagging material for OSI interest. Other agencies will most likely find documents relating to ongoing OSI investigations, and there are civil discovery obligations that must be met. Dr. Kurtz asked how OSI would review this material. He indicated that OSI is preparing by getting a SCIF storage area and hiring new people and contractors. Mr. Holmes indicated that CIA would be ready to accommodate OSI. Mr. Ben-Veniste asked if OSI could not narrow from the outset what OSI needs to look at so that they would not have the burden of reviewing everything. Mr. Leary asked if OSI could come up with guidelines to help to minimize agency delay in processing. Mr. Rosenbaum answered that since no guidelines were forthcoming from Congress, OSI could not issue guidelines to agencies. Mr. Baer asked why OSI does not already have all the documents relating to or supporting OSI's investigations. Mr. Rosenbaum indicated that OSI would like to think that it had everything, but that OSI throughout its history had queried agencies and that agencies were not always forthcoming with all materials pursuant to requests. Mr. Rosenbaum voiced his concern that this process might turn up some documents that might be exculpatory and he is under obligation to share that with defense counsel. Mr. Ben-Veniste added that the IWG task is to release these documents. Mr. Baer objected to OSI looking at everything, and suggested that since OSI already makes inquiries to several agencies, could they not just do the same with all agencies, or maybe just for open cases. Mr. Klothen mentioned his concern about delay caused by another layer of review. Mr. Rosenbaum indicated that OSI has a responsibility for protection of its files by observing the exemption in the law. Mr. Ben-Veniste asked if there could be some distinction made or prioritization, possibly for those subject that have been exonerated. Mr. Baer inquired about the dangers of proliferating a list, and the fact that OSI has not consulted with a certain government agency does not outweigh the need to move quickly. He wondered about the danger of the loss of integrity, or shrinkage, of records. He thought that OSI not consulting with a certain agency previously was not a problem. Mr. Rosenbaum strongly disagreed that OSI review would endanger the record. Dr. Kurtz proposed that the general procedures for administering the OSI exemption still needed to be worked out. Mr. Rosenbaum then addressed the status of the list of 57,000 names. After dealing with several conversion problems, OSI will distribute the database to the agencies in the format that the agencies request. Ms Holtzman inquired about other lists and about the comprehensiveness of lists of names and search terms. Mr. Ben-Veniste added that supplemental lists could be issued when other names or subjects came up in the course of review.
Miriam Nisbet then opened a discussion and presentation on the issue of privacy and the Privacy Act as it applies to the Nazi War Crimes Disclosure Act. The Act has written into it the presumption of disclosure, much like the JFK Act. Ms Nisbet also touched on the issues of threshold considerations, balancing in favor of disclosure, and the protection of name lists. Ms Nisbet indicated that she would prepare privacy guidelines for the IWG.
[The meeting was recessed for a short period]
The IWG re-convened and considered the issue of public meetings/forums. Dr. Kurtz opened the discussion questioning whether the IWG wanted to follow the example of the Assassination Records Review Board (ARRB) and have meetings divided into open and closed sessions, or have some meetings all open and others all closed. Ms Holtzman said she favored all the meetings being open except when security classified discussion required closing. Dr. Marwell informed the IWG that the vast majority of ARRB meetings were closed. Only parts of some meetings were open. The ARRB also had several sets of public hearings that were very successful. Mr. Baer indicated he was in favor of having some open forums to allow groups and individuals to make comments, but that the IWG must seek to make these open forums cost-effective. He suggested the IWG make contact with the Presidential Advisory Commission on Holocaust Assets in the United States to pursue the possibility of having public forums jointly with the Presidential Commission. He also suggested that the staff might survey interested groups about participating in the public forums. Mr. Holmes added that the IWG might solicit interest through the website. The consensus of the IWG was to hold three public forums, in Los Angeles, Chicago, and New York. Dr. Kurtz said he would appoint a subcommittee with responsibility for the public forums. He also indicated that good representation from IWG would be needed at these forums.
The next issue addressed by the IWG was the abstract of the March 31 agency submissions. Dr. Kurtz was pleased with the initial effort in this challenging task. He emphasized that the data from the agencies needs to be of high quality in order to track the process. Ms Holtzman was dissatisfied with the response from NASA. Mr. Aly added that most of the NASA records are likely already to have been declassified. Mr. Kurtz noted that the IWG Staff would be following up with the agencies in preparation for the May 11 implementation meeting, specifically NASA, The Federal Reserve, and USIA. The IWG then went through the agency submissions. Several things came of the ensuing discussion. First, all members agreed that NARA should check the records disposition of the agencies involved and notify any agencies that might need to be alerted not to dispose of relevant records. It was also decided that a subgroup of the IWG would meet with FBI to discuss their strategy for identifying relevant records.
Dr. Kurtz introduced the issue of the records dealing with Japanese war crimes and whether or not they are included in the IWG effort. Ms Holtzman agreed that the European theater in itself required a huge effort, but she recommended that the IWG not leave out the Far East. The members agreed to a two-phase process, with the European theater first and the Pacific theater covered in a second phase.
A brief discussion of the next IWG meeting took place. It was decided that the next meeting would be May 26, 1999, and the following meeting on June 14, 1999.
The meeting was adjourned.