[Congressional Record Volume 144, Number 81 (Friday, June 19, 1998)]
[Senate]
[Pages S6724-S6730]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NAZI WAR CRIMES DISCLOSURE ACT

  Mr. WARNER. I ask unanimous consent that the Senate now proceed to 
the consideration of Calendar No. 323, S. 1379.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       A bill (S. 1379) to amend section 552 of title V, United 
     States Code and the National Security Act of 1947 to require 
     disclosure under the Freedom of Information Act regarding 
     certain persons, disclose Nazi war criminal records without 
     impairing any investigation or prosecution conducted by the 
     Department of Justice or certain intelligence matters, and 
     for other purposes.

  There being no objection, the Senate proceeded to consider the 
bill which had been reported from the Committee on the Judiciary, with 
an amendment to strike all after the enacting clause and inserting in 
lieu thereof the following:

     [SEC. 4. EXPEDITED PROCESSING OF REQUESTS FOR NAZI WAR 
                   CRIMINAL RECORDS.

       [(a) Definitions.--In this section, the term--
       [(1) ``Nazi war criminal record'' has the meaning given the 
     term under section 552(h)(1) of title 5, United States Code 
     (as added by section 2(a)(2) of this Act); and
       [(2) ``requester'' means any person who was persecuted in 
     the manner described under section 552(h)(1)(A) of title 5, 
     United States Code (as added by section 2(a)(2) of this Act), 
     who requests a Nazi war criminal record.
       [(b) Expedited Processing.--For purposes of expedited 
     processing under section 552(a)(6)(E) of title 5, United 
     States Code, any requester of a Nazi war criminal record 
     shall be deemed to have a compelling need for such record.

     [SEC. 5. EFFECTIVE DATE.

       [The amendments made by this Act shall apply to requests 
     under section 552 of title 5, United States Code (known as 
     Freedom of Information Act requests) received by an agency 
     after the expiration of the 90-day period beginning on the 
     date of enactment of this Act.]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Nazi War Crimes Disclosure 
     Act''.

     SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS 
                   INTERAGENCY WORKING GROUP.

       (a) Definitions.--In this section the term--
       (1) ``agency'' has the meaning given such term under 
     section 551 of title 5, United States Code;
       (2) ``Interagency Group'' means the Nazi War Criminal 
     Records Interagency Working Group established under 
     subsection (b);
       (3) ``Nazi war criminal records'' has the meaning given 
     such term under section 3 of this Act; and
       (4) ``record'' means a Nazi war criminal record.
       (b) Establishment of Interagency Group.--
       (1) In general.--Not later than 30 days after the date of 
     enactment of this Act, the President shall establish the Nazi 
     War Criminal Records Interagency Working Group.
       (2) Membership.--The President shall appoint to the 
     Interagency Group the heads of agencies who the President 
     determines will most completely and effectively carry out the 
     functions of the Interagency Group within the time 
     limitations provided in this section. The head of an agency 
     appointed by the President may designate an appropriate 
     officer to serve on the Interagency Group in lieu of the head 
     of such agency.
       (3) Initial meeting.--Not later than 90 days after the date 
     of enactment of this Act, the Interagency Group shall hold an 
     initial meeting and begin the functions required under this 
     section.
       (c) Functions.--Not later than 1 year after the date of 
     enactment of this Act, the Interagency Group shall, to the 
     greatest extent possible consistent with section 3 of this 
     Act--
       (1) locate, identify, inventory, recommend for 
     declassification, and make available to the public at the 
     National Archives and Records Administration, all Nazi war 
     criminal records of the United States;
       (2) coordinate with agencies and take such actions as 
     necessary to expedite the release of such records to the 
     public; and
       (3) submit a report to Congress describing all such 
     records, the disposition of such records, and the activities 
     of the Interagency Group and agencies under this section.

     SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING 
                   PERSONS WHO COMMITTED NAZI WAR CRIMES.

       (a) Nazi War Criminal Records.--For purposes of this Act, 
     the term ``Nazi war criminal records'' means records or 
     portions of records that--
       (1) pertain to the activities of any person with respect to 
     which the United States Government, in its sole discretion, 
     has grounds to believe--
       (A) occurred, during the period beginning on March 23, 
     1933, and ending on May 8, 1945, under the direction of, or 
     in association with--
       (i) the Nazi government of Germany;
       (ii) any government in any area occupied by the military 
     forces of the Nazi government of Germany;
       (iii) any government established with the assistance or 
     cooperation of the Nazi government of Germany; or
       (iv) any government which was an ally of the Nazi 
     government of Germany; and
       (B) involved the ordering, incitement, assistance, or other 
     participation in the persecution of any person because of 
     race, religion, national origin, or political opinion; or
       (2) pertain to any transaction as to which the United 
     States Government, in its sole discretion, has grounds to 
     believe--
       (A) involved assets taken from persecuted persons during 
     the period beginning on March 23, 1933, and ending on May 8, 
     1945, by, under the direction of, on behalf of, or under 
     authority granted by the Nazi government of Germany or any 
     nation then allied with that government; and
       (B) such transaction was completed without the assent of 
     the owners of those assets or their

[[Page S6725]]

     heirs or assigns or other legitimate representatives.
       (b) Release of Records.--
       (1) In general.--Subject to paragraphs (2), (3), and (4), 
     the Nazi War Criminal Records Interagency Working Group shall 
     release in their entirety Nazi war criminal records that are 
     described in subsection (a).
       (2) Exception for privacy, etc.--An agency head may exempt 
     from release under paragraph (1) specific information, that 
     would--
       (A) constitute a clearly unwarranted invasion of personal 
     privacy;
       (B) reveal the identity of a confidential human source, or 
     reveal information about the application of an intelligence 
     source or method, or reveal the identity of a human 
     intelligence source when the unauthorized disclosure of that 
     source would clearly and demonstrably damage the national 
     security interests of the United States;
       (C) reveal information that would assist in the development 
     or use of weapons of mass destruction;
       (D) reveal information that would impair United States 
     cryptologic systems or activities;
       (E) reveal information that would impair the application of 
     state-of-the-art technology within a United States weapon 
     system;
       (F) reveal actual United States military war plans that 
     remain in effect;
       (G) reveal information that would seriously and 
     demonstrably impair relations between the United States and a 
     foreign government, or seriously and demonstrably undermine 
     ongoing diplomatic activities of the United States;
       (H) reveal information that would clearly and demonstrably 
     impair the current ability of United States Government 
     officials to protect the President, Vice President, and other 
     officials for whom protection services, in the interest of 
     national security, are authorized;
       (I) reveal information that would seriously and 
     demonstrably impair current national security emergency 
     preparedness plans; or
       (J) violate a statute, treaty, or international agreement.
       (3) Application of exemptions.--In applying the exemptions 
     listed in subparagraphs (B) through (J) of paragraph (2), 
     there shall be a presumption that the public interest in the 
     release of Nazi war criminal records will be served by 
     disclosure and release of the records. Assertion of such 
     exemption may only be made when the agency head determines 
     that disclosure and release would be harmful to a specific 
     interest identified in the exemption. An agency head who 
     makes such a determination shall promptly report it to the 
     committees of Congress with appropriate jurisdiction, 
     including the Senate Committee on the Judiciary.
       (4) Limitation on application.--This subsection shall not 
     apply to records--
       (A) related to or supporting any active or inactive 
     investigation, inquiry, or prosecution by the Office of 
     Special Investigations of the Department of Justice; or
       (B) solely in the possession, custody, or control of that 
     office.
       (c) Inapplicability of National Security Act of 1947 
     Exemption.--Section 701 of the National Security Act of 1947 
     (50 U.S.C. 431) is amended--
       (1) by redesignating subsections (e) and (f) as subsections 
     (f) and (g), respectively; and
       (2) by inserting after subsection (d) the following:
       ``(e) Subsection (a) shall not apply to any operational 
     file, or any portion of any operational file, that 
     constitutes a Nazi war criminal record under section 3 of the 
     Nazi War Crimes Disclosure Act.''.

     SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR 
                   CRIMINAL RECORDS.

       (a) Expedited Processing.--For purposes of expedited 
     processing under section 552(a)(6)(E) of title 5, United 
     States Code, any requester of a Nazi war criminal record 
     shall be deemed to have a compelling need for such record.
       (b) Requester.--For purposes of this section, the term 
     ``requester'' means any person who was persecuted in the 
     manner described under section 3(a)(1)(B) of this Act who 
     requests a Nazi war criminal record.

     SEC. 5. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect on the date that is 90 days after the date of 
     enactment of this Act.


                           Amendment No. 2782

  Mr. WARNER. Senator DeWine and Senator Leahy have a substitute 
amendment at the desk. I ask for its consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. DeWine, for 
     himself and Mr. Leahy, proposes an amendment numbered 2782.

  The amendment is as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Nazi War Crimes Disclosure 
     Act''.

     SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS 
                   INTERAGENCY WORKING GROUP.

       (a) Definitions.--In this section the term--
       (1) ``agency'' has the meaning given such term under 
     section 551 of title 5, United States Code;
       (2) ``Interagency Group'' means the Nazi War Criminal 
     Records Interagency Working Group established under 
     subsection (b);
       (3) ``Nazi war criminal records'' has the meaning given 
     such term under section 3 of this Act; and
       (4) ``record'' means a Nazi war criminal record.
       (b) Establishment of Interagency Group.--
       (1) In general.--Not later than 60 days after the date of 
     enactment of this Act, the President shall establish the Nazi 
     War Criminal Records Interagency Working Group, which shall 
     remain in existence for 3 years after the date the 
     Interagency Group is established.
       (2) Membership.--The President shall appoint to the 
     Interagency Group individuals whom the President determines 
     will most completely and effectively carry out the functions 
     of the Interagency Group within the time limitations provided 
     in this section, including the Director of the Holocaust 
     Museum, the Historian of the Department of State, the 
     Archivist of the United States, the head of any other agency 
     the President considers appropriate, and no more than 3 other 
     persons. The head of an agency appointed by the President may 
     designate an appropriate officer to serve on the Interagency 
     Group in lieu of the head of such agency.
       (3) Initial meeting.--Not later than 90 days after the date 
     of enactment of this Act, the Interagency Group shall hold an 
     initial meeting and begin the functions required under this 
     section.
       (c) Functions.--Not later than 1 year after the date of 
     enactment of this Act, the Interagency Group shall, to the 
     greatest extent possible consistent with section 3 of this 
     Act--
       (1) locate, identify, inventory, recommend for 
     declassification, and make available to the public at the 
     National Archives and Records Administration, all classified 
     Nazi war criminal records of the United States;
       (2) coordinate with agencies and take such actions as 
     necessary to expedite the release of such records to the 
     public; and
       (3) submit a report to Congress, including the Committee on 
     the Judiciary of the Senate and the Committee on Government 
     Reform and Oversight of the House of Representatives, 
     describing all such records, the disposition of such records, 
     and the activities of the Interagency Group and agencies 
     under this section.
       (d) Funding.--There are authorized to be appropriated such 
     sums as may be necessary to carry out the provisions of this 
     Act.

     SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING 
                   PERSONS WHO COMMITTED NAZI WAR CRIMES.

       (a) Nazi War Criminal Records.--For purposes of this Act, 
     the term ``Nazi war criminal records'' means classified 
     records or portions of records that--
       (1) pertain to any person with respect to whom the United 
     States Government, in its sole discretion, has grounds to 
     believe ordered, incited, assisted, or otherwise participated 
     in the persecution of any person because of race, religion, 
     national origin, or political opinion, during the period 
     beginning on March 23, 1933, and ending on May 8, 1945, under 
     the direction of, or in association with--
       (A) the Nazi government of Germany;
       (B) any government in any area occupied by the military 
     forces of the Nazi government of Germany;
       (C) any government established with the assistance or 
     cooperation of the Nazi government of Germany; or
       (D) any government which was an ally of the Nazi government 
     of Germany; or
       (2) pertain to any transaction as to which the United 
     States Government, in its sole discretion, has grounds to 
     believe--
       (A) involved assets taken from persecuted persons during 
     the period beginning on March 23, 1933, and ending on May 8, 
     1945, by, under the direction of, on behalf of, or under 
     authority granted by the Nazi government of Germany or any 
     nation then allied with that government; and
       (B) such transaction was completed without the assent of 
     the owners of those assets or their heirs or assigns or other 
     legitimate representatives.
       (b) Release of Records.--
       (1) In general.--Subject to paragraphs (2), (3), and (4), 
     the Nazi War Criminal Records Interagency Working Group shall 
     release in their entirety Nazi war criminal records that are 
     described in subsection (a).
       (2) Exception for privacy, etc.--An agency head may exempt 
     from release under paragraph (1) specific information, that 
     would--
       (A) constitute a clearly unwarranted invasion of personal 
     privacy;
       (B) reveal the identity of a confidential human source, or 
     reveal information about the application of an intelligence 
     source or method, or reveal the identity of a human 
     intelligence source when the unauthorized disclosure of that 
     source would clearly and demonstrably damage the national 
     security interests of the United States;
       (C) reveal information that would assist in the development 
     or use of weapons of mass destruction;
       (D) reveal information that would impair United States 
     cryptologic systems or activities;
       (E) reveal information that would impair the application of 
     state-of-the-art technology within a United States weapon 
     system;
       (F) reveal actual United States military war plans that 
     remain in effect;

[[Page S6726]]

       (G) reveal information that would seriously and 
     demonstrably impair relations between the United States and a 
     foreign government, or seriously and demonstrably undermine 
     ongoing diplomatic activities of the United States;
       (H) reveal information that would clearly and demonstrably 
     impair the current ability of United States Government 
     officials to protect the President, Vice President, and other 
     officials for whom protection services, in the interest of 
     national security, are authorized;
       (I) reveal information that would seriously and 
     demonstrably impair current national security emergency 
     preparedness plans; or
       (J) violate a treaty or international agreement.
       (3) Application of exemptions.--
       (A) In general.--In applying the exemptions listed in 
     subparagraphs (B) through (J) of paragraph (2), there shall 
     be a presumption that the public interest in the release of 
     Nazi war criminal records will be served by disclosure and 
     release of the records. Assertion of such exemption may only 
     be made when the agency head determines that disclosure and 
     release would be harmful to a specific interest identified in 
     the exemption. An agency head who makes such a determination 
     shall promptly report it to the committees of Congress with 
     appropriate jurisdiction, including the Committee on the 
     Judiciary of the Senate and the Committee on Government 
     Reform and Oversight of the House of Representatives. The 
     exemptions set forth in paragraph (2) shall constitute the 
     only authority pursuant to which an agency head may exempt 
     records otherwise subject to release under paragraph (1).
       (B) Application of title 5.--A determination by an agency 
     head to apply an exemption listed in subparagraphs (B) 
     through (I) of paragraph (2) shall be subject to the same 
     standard of review that applies in the case of records 
     withheld under section 552(b)(1) of title 5, United States 
     Code.
       (4) Limitation on application.--This subsection shall not 
     apply to records--
       (A) related to or supporting any active or inactive 
     investigation, inquiry, or prosecution by the Office of 
     Special Investigations of the Department of Justice; or
       (B) solely in the possession, custody, or control of that 
     office.
       (c) Inapplicability of National Security Act of 1947 
     Exemption.--Section 701(a) of the National Security Act of 
     1947 (50 U.S.C. 431) shall not apply to any operational file, 
     or any portion of any operational file, that constitutes a 
     Nazi war criminal record under section 3 of this Act.

     SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR 
                   CRIMINAL RECORDS.

       (a) Expedited Processing.--For purposes of expedited 
     processing under section 552(a)(6)(E) of title 5, United 
     States Code, any requester of a Nazi war criminal record 
     shall be deemed to have a compelling need for such record.
       (b) Requester.--For purposes of this section, the term 
     ``requester'' means any person who was persecuted in the 
     manner described under section 3(a)(1) of this Act who 
     requests a Nazi war criminal record.

     SEC. 5. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect on the date that is 90 days after the date of 
     enactment of this Act.

  Mr. DeWINE. Mr. President, I am very pleased that the Senate is about 
to pass S. 1379, the Nazi War Crimes Disclosure Act. I introduced this 
legislation along with my friend from New York, Senator Moynihan, and 
fifteen of my colleagues on November 5 of last year. Our Judiciary 
Committee Chairman, Senator Hatch, and the Ranking Member, Senator 
Leahy, strongly support this bill. Indeed, I want to thank Senator 
Leahy and his staff for their tireless work in helping to bring this 
legislation to the floor. As an authority on the Freedom of Information 
Act, or ``FOIA'' (pronounced FOYA), Senator Leahy has made very useful 
suggestions that I have incorporated into the substitute. These changes 
satisfy privacy concerns raised by FOIA and Privacy Act professionals. 
Finally, I want to underscore that we would not be here today without 
Senator Moynihan and his staff. He has brought to our work the unique 
insights on the classification system that he gained as chairman of the 
Commission on Protecting and Reducing Government Secrecy 
Classification.
  The Nazi War Crimes Disclosure Act represents what I hope will be the 
culmination of work begun in the last Congress to release U.S. 
government-held records of Nazi war criminals, the Nazi Holocaust and 
the trafficking of Nazi-held assets.
  Just two years ago, we celebrated the 50th anniversary of the end of 
the Second World War, and with it, the end of the Nazis' death grip on 
an entire continent. Since that time, searingly detailed accounts of 
the Nazi Holocaust have provided more and more evidence of the true 
magnitude of the atrocities that were committed.
  We have learned so much. Yet, if the last few years are any 
indication, we still have a great deal more to learn.
  After the fall of communist rule, Russia and several former Soviet-
bloc nations opened volumes of secret files on Nazi war crimes. 
Argentina has cooperated in the public release of its files. British 
government records are being declassified and made available for public 
scrutiny. And over the course of last year, Swiss banks and the Swiss 
government have been under intense international pressure to make a 
full accounting of unclaimed funds belonging to Holocaust victims, as 
well as Nazi assets that may have once belonged to Holocaust victims.
  Mr. President, here at home, our own government has been gradually 
making records available about what it knew of Nazi-related activities 
and atrocities. Last year, a government-conducted study revealed new 
information about what the U.S. Government knew regarding the transfer 
and flow of funds held by Nazi officials. This report found that the 
U.S. government was aware that the Nazi mint took gold stolen from 
European central banks and melted it together with gold obtained in 
horrible fashion--gold obtained from tooth-fillings, wedding bands and 
other items seized from death-camp victims.
  Mr. Chairman, the photos I have on display are several aerial U.S. 
intelligence photographs taken in 1944 of Auschwitz, with prisoners 
being led to the gas chambers. These pictures were discovered by photo 
analysts from the Central Intelligence Agency in 1978. They confirm 
what we had heard from the Polish underground that a ``death camp'' did 
in fact exist at Auschwitz. They also demonstrated that our government 
had photographs of these camps as these atrocities were occurring.
  These pictures tell a grisly story. How many more such pictures or 
documents exist? With the legislation before us, we intend to answer 
that question.
  Both Congress and the President have taken action to promote the 
release of government-held records during this tragic era. On April 17, 
1995, the President issued an executive order calling for the release 
of national security data and information older than 25 years. Late in 
the 104th Congress, thanks to the tireless efforts of my friend from 
New York, Senator Moynihan, and Representative Carolyn Maloney and 
several others, we passed a sense of the Congress resolution, which 
stated that all U.S. Government agencies should make public any records 
in its possession about individuals who are alleged to have committed 
Nazi war crimes. The President agreed, noting that learning the 
remaining secrets about the Holocaust is clearly in the public 
interest.
  The Nazi War Crimes Disclosure Act is designed to put the concerns 
expressed by the last Congress into strong action. First, the bill 
would allow for expedited processing of FOIA requests of survivors of 
Nazi persecution. These individuals are growing older every day, and 
the time remaining for them to obtain answers to the questions that 
have troubled them for five decades will soon come to an end. We owe it 
to those who suffered--and to those who seek to prevent future 
genocides--to disclose fully and completely all the records in the 
United States on this issue.
  Second, the bill would establish the Nazi War Criminal Records 
Interagency Working Group. This Working Group would to the greatest 
extent possible locate, identify, inventory, declassify and make 
available for the public all Nazi war records held by the United 
States. This means that all materials would be required to be released 
in their entirety unless a Federal agency head concludes that the 
release of all or part of these records would compromise privacy or 
national security interests. The agency head must notify Congress of 
any determination to not release records. Thus, we in the Senate would 
be in a position to review the material being withheld to ensure that 
it was being done for valid reasons consistent with this legislation.
  The Director of the Holocaust Museum, the Archivist of the United 
States, and the Historian of the Department of State are specifically 
appointed to sit on the task force because of their unique expertise on 
this subject. Further, to help the interagency

[[Page S6727]]

group complete its task, the President is authorized to appoint the 
head of any other Agency and up to three additional people with 
expertise on this subject who can assist with the identification and 
disclosure of relevant documents.
  This pro-active search is necessary, because a full government search 
and inventory has never been completed. For example, some documents 
that surfaced this spring were found among materials related to 
Southeast Asia.
  Our bill is targeted toward two classes of Nazi-related materials: 
First, war crimes information regarding Nazi persecutions; and two, any 
information related to transactions involving assets of Holocaust and 
other Nazi victims.
  In summary, what we are trying to do with this bill is strike a clear 
balance among our government's legitimate national security interests, 
the legitimate privacy interests of individuals, and the people's 
desire to know the truth about Nazi atrocities. These records, once 
released, will be held in a repository at the National Archives.
  Let me enumerate several changes which we have made since the bill 
was unanimously reported out by the full Judiciary Committee last 
March:
  Section 3(b)3(B) was revised to make clear that the standard of 
judicial deference currently accorded to agency classification 
decisions under exemption (b)(1) of the FOIA applies to exemption 
decisions rendered by Heads of Agency's making a withholding decision 
under Section 3(b). As the Committee of Conference recognized when 
exemption (b)(1) was amended in 1974, executive departments responsible 
for national defense and foreign policy matters have unique insights 
into what possible adverse effects might occur as a result of public 
disclosure of a particular classified record. Accordingly, it is 
expected that federal courts, in reviewing a decision by an Agency head 
that disclosure and release of a Nazi War Record would be harmful to a 
specific interest identified in an exemption herein, will accord 
substantial weight to an agency's affidavit or other submission 
concerning the record in question.

  Records held by the Office of Special Investigations (OSI) of the 
Department of Justice are specifically exempted. Nonetheless, because 
of the substantial expertise at OSI, it can reasonably be expected that 
OSI will be asked to assist with the review of records held by other 
agencies. OSI is currently engaged in an effort to close ongoing 
investigations and prosecutions of alleged war criminals. Thus, to 
ensure that the high priority investigations continue and all relevant 
documents found during the search are quickly reviewed for 
declassification, my colleagues and I have asked the Appropriations 
Committee to provide a small increase of $2 million in OSI's budget to 
enable the staff to take on and complete both of these tasks.
  Section 2(b)(1) has been revised to extend the life of the 
interagency group from one to three years in recognition of the fact 
that there are extensive document holdings that must be reviewed. The 
bulk of this work should be done in the first year. The three year life 
of the Working Group cannot become an excuse to proceed slowly.
  This bill not only addresses the acts of Nazi War Criminals, but also 
addresses those who transferred, sold or otherwise disposed of assets 
involuntarily taken from persecuted persons by, under the direction of, 
or on behalf of, or under the authority of the former Nazi Government 
of Germany or any nation then allied with that government.
  This bill is a bipartisan effort to ensure the Federal Government has 
done all it can to ensure Holocaust victims and their families can 
obtain the answers they need.
  The clock is running, and time is running out for so many victims of 
the Holocaust. They, and history itself, deserve to know as much as 
possible about this tragic chapter in the story of humanity.
  I thank my colleagues for their strong support for this legislation.
  Mr. HATCH. Mr. President, as an original cosponsor of S. 1379, the 
Nazi War Crimes Disclosure Act, I am very pleased that the Senate is 
about to pass this important piece of legislation. I congratulate 
Senator DeWine and Senator Leahy for their bipartisan effort in 
drafting a bill which addresses the legitimate concerns of federal 
agencies which will be subject to this legislation, while at the same 
time ensuring that the original intent and purpose of the law is 
carried out. Passage of the Nazi War Crimes Disclosure Act will 
facilitate the speedy gathering and release of documents in the 
possession of the government which relate to the persecution of, and 
theft of assets from, the many millions of victims of Nazi atrocities.
  Our government has an obligation to locate, and make public, 
documents in the government's possession which shed light on Nazi war 
criminals, their nefarious allies, and their crimes. Over the fifty-
three years since the defeat of Germany and its cohorts, and the 
discovery of the atrocities committed in the name of Naziism, we have 
learned a great deal about the organization, operation, and financial 
structure of that regime. However, recent revelations concerning the 
acts of certain Swiss banks in the laundering of Holocaust victims' 
assets show us how much more there is to learn.
  By passing this bill, we are providing a means of access to 
information that will be of invaluable assistance in providing answers 
to those seeking to learn about the past. But just as importantly, by 
studying that information and learning the lessons of history, we can 
help ensure that such actions will never be repeated in the future.
  Mr. MOYNIHAN. Mr. President, today the Senate takes an important step 
in the search to unfold the events of the holocaust by adopting the 
Nazi War Crimes Disclosure Act. This bill requires the disclosure of 
classified information, currently held by the United States government, 
regarding individuals who participated in Nazi war crimes, and stolen 
assets of the victims of Nazi war crimes. The bill also requires a 
government-wide search of records to ensure the release of as many 
relevant documents as possible.
  Researchers seeking information on Nazi war criminals and the assets 
of their victims will have unprecedented access to relevant materials 
in the possession of the United States government, which until now have 
remained classified. It is my view that these documents have been held 
far too long. Well beyond the time when their disclosure might have 
posed a threat to national security--if indeed such disclosure ever 
did.
  While reviewing relevant material for declassification, officials 
will be required to maintain a strong presumption that relevant 
material should be declassified. This is based on the ``balancing 
test'' included in the bill which presumes that the public interest in 
the release of Holocaust records outweighs the damage to national 
security that might reasonably be expected to result from disclosure. 
This provision is in keeping with the Report of the Commission on 
Protecting and Reducing Government Secrecy which recommended that such 
a balancing test be applied in all classification decisions.
  With the passing of time it becomes ever more important to document 
Nazi war crimes, lest the enormity of those crimes be lost to history. 
The greater access which this legislation provides will add clarity to 
this subject. I applaud those researchers who continue to pursue this 
important work. Those who suffered from the Holocaust are reaching the 
end of their life-span. We owe it to them to make available as much 
information about that terrible period as possible. This is our solemn 
task.
  Mr. LEAHY. Mr. President, I am pleased that the Senate is passing 
this important legislation, the ``Nazi War Crimes Disclosure Act,'' S. 
1379. Last year, Congress passed a resolution calling upon federal 
agencies to make public any records in their possession about 
individuals who are alleged to have committed Nazi war crimes. I agree 
with the original sponsors of this bill, Senators Moynihan, DeWine, 
Kohl, D'Amato, Dodd and Hatch, who said in a Dear Colleague letter in 
October, 1997, that this bill ``would put last year's words into 
action.''
  The substitute amendment we consider today requires creation of an 
interagency working group to collect and release classified Nazi war 
crime records within one year, and gives Nazi war crime victims 
expedited access to these records under the Freedom of Information Act 
(FOIA). These victims

[[Page S6728]]

are growing older and we should ensure that if they are interested in 
seeing these records, their requests should be honored as speedily as 
possible.
  I first became aware of this bill when I testified in June 1996 at a 
hearing before the House Government Reform and Oversight Committee 
(GRO). That hearing focused on my Electronic FOIA amendments, which 
were enacted later that year, and the Nazi War Crimes Disclosure Act, 
H.R. 1281, which had been introduced by that Committee's Ranking 
Member, Representative Carolyn Maloney.
  Moving oral testimony and written statements were presented at that 
hearing about the need for full disclosure by federal agencies about 
what our government knew, and when, about Nazi atrocities and the 
criminals who committed those atrocities. Rabbi Marvin Hier (the Dean 
and Founder of the Simon Wiesenthal Center), the Jewish Community 
Relations Council, the Anti-Defamation League, the Orthodox Union, the 
American Jewish Committee, and others, committed to teaching the 
lessons of the Holocaust expressed their strong support for full 
disclosure of Nazi war crime records. War Crimes Disclosure Act, Health 
Information Privacy Protection Act, and S. 1090, Electronic Freedom of 
Information Improvement Act of 1995: Hearing on H.R. 1281 and S. 1090 
before the Subcomm. on Government Management, Information, and 
Technology of the House Comm. on Government Reform and Oversight, 104th 
Cong., 2d Sess. 17-30 (1996).
  To the extent that records pertaining to Nazi war criminals remain 
classified over fifty years since the end of the war, we should take 
action to disclose those records. No Nazi war criminal should be 
protected by government secrecy rules. This is what happened with 
government records pertaining to Kurt Waldheim: the Central 
Intelligence Agency withheld critical information from researchers 
about Waldheim's collaboration with the Nazis, even as other government 
agencies were placing him on the list of individuals forbidden to enter 
our country because of suspected war crimes. Moreover, an extensive 
Justice Department report on Waldheim completed in 1987 was then kept 
secret for six long years, before Attorney General Reno, in response to 
a FOIA lawsuit, released the document in 1994. The United States 
government should not help Nazi war criminals keep their past crimes 
secret. This bill is an important step to ensure our government does 
not.

  Senator DeWine and I worked closely on a substitute amendment to this 
bill that was offered in the Judiciary Committee and favorably reported 
on March 5, 1998, with the unanimous backing of Committee Members. 
Further refinements to the bill are reflected in the Manager's 
amendment considered by the Senate today to address the legitimate 
concerns raised by the Department of Justice, our intelligence 
agencies, press associations and others who use the FOIA regularly, as 
well as those who have a personal stake and interest in full disclosure 
of Nazi War crime records.
  The bill calls for the Nazi War Criminal Records Interagency Working 
Group to be created by the President shortly after enactment and 
authorizes this Group to operate for three years. The Working Group 
will include as members the Director of the Holocaust Museum, the 
Historian of the Department of State, the Archivist of the United 
States, and heads of agencies selected by the President. In addition, 
the President may select from the private sector up to three other 
persons whom he considers appropriate to assist in completely and 
effectively carrying out the functions of the Interagency Group.
  The Interagency Group is tasked under the bill with locating, 
identifying, inventorying, recommending for declassification and making 
available to the public at the National Archives and Records 
Administration all classified Nazi War criminal records in the 
possession of federal agencies, and submit to Congress, including to 
the Senate Committee on the Judiciary and the House Committee on GRO, a 
report describing its activities. While the bill requires that these 
tasks be completed within one year, the Interagency Group is authorized 
for a full three years in the event that certain of these tasks require 
additional time. The bill also authorizes the appropriation of any 
necessary funds.
  The original Senate bill defined the records of suspected Nazis 
subject to disclosure so broadly that it could conceivably have covered 
many irrelevant records, such as social security records, medical 
records or tax records, even though such records may have had nothing 
to do with the person's possible activities as a Nazi. This raised 
certain privacy issues as well as concerns about the burden on federal 
agencies to collect, review and disclose records, which had no bearing 
on the person's activities as a Nazi or our government's knowledge of 
that person's war crimes.
  The Manager's amendment addresses these concerns by limiting the 
records subject to disclosure to classified Nazi war criminal records 
and retaining an exemption for those records, or parts thereof, that 
would ``constitute a clearly unwarranted invasion of personal 
privacy.''
  The bill now defines ``Nazi war criminal records'' as those 
classified records or portions of records pertaining to persons who, 
from March 23, 1933 through May 8, 1945, under the direction or in 
association with the Nazis ordered, incited, assisted or otherwise 
participated in the persecution of any person on account of their race, 
religion, national origin or political opinion, as well as to any 
transaction involving the assets of those persecuted persons when 
the transaction involved assets taken without their consent or the 
consent of their heirs. Determination of the classified records that 
fall within the scope of the bill is given to the ``sole discretion'' 
of the agencies in possession of the records.

  The original bill would have amended the FOIA with a new section of 
Nazi war crime records containing ten newly-created exemptions separate 
from those under the current FOIA. I have spent many years fighting for 
more openness in government. I was very concerned that creating these 
new exemptions might set a dangerous precedent--though entirely 
unintentional on the part of the original sponsors--of expanding FOIA 
exemptions. At a minimum, these new exemptions would have created 
confusion about how the current FOIA exemptions were to be interpreted 
and applied. These concerns about the new exemptions have been resolved 
by taking the work of the Interagency Group out of the FOIA and making 
its activities the subject of a free standing law.
  The Interagency Group is required to release the classified Nazi war 
criminal records covered by the bill in their entirety, subject to ten 
enumerated exemptions. The first exemption in section 3(b)(2)(A) of the 
bill is for records or parts thereof that ``constitute a clearly 
unwarranted invasion of personal privacy.'' This is the same standard 
used in the sixth exemption of the Freedom of Information Act (FOIA, 5 
U.S.C. 552(b)(6)). In the FOIA context, the phrase enunciates a policy 
of a balancing of interests between the protection of an individual's 
private affairs from unnecessary public scrutiny, and the preservation 
of the public's right to government records. Committee reports 
underlying the original FOIA of 1966 indicate that the exemption is to 
protect ``intimate'' or ``personal'' details in files such as those 
maintained by the Veterans Administration (now the Department of 
Veterans Affairs), the Department of Health, Education, and Welfare 
(now the Department of Health and Human Services and the Department of 
Education), and the Selective Service System. As with the other FOIA 
exemptions, the personal privacy exception in the FOIA is permissively 
applied, and it has come to be understood that the balancing of 
interests tilts in favor of disclosure.
  Transferring the FOIA experience to the use of the same phrase in 
exemption (A) of the Nazi War Crimes Disclosure Act, it is the intent 
that the same balancing of interests--between the protection of an 
individual's private affairs from unnecessary public scrutiny and the 
preservation of the public's right to government records--occur when 
the disclosure of Nazi war criminal records is under consideration. The 
exemption may be used to protect intimate or personal details, such as 
an individual's medical history, marital status, legitimacy of 
children, family fights or domestic affairs, and sexual inclination or 
associations. While the

[[Page S6729]]

right to privacy of deceased persons is not entirely settled, we expect 
the Department of Justice and other agencies to follow the majority 
rule that death extinguishes a person's privacy rights. Indeed, I note 
that ``[t]he Department of Justice has long followed this rule as a 
matter of policy.'' U.S. Dep't of Justice, Freedom of Information Act 
Guide & Privacy Act Overview, September 1997.
  Thus, the personal privacy exemption in the bill is to be 
permissively applied, and the balancing of interests tilts in favor of 
disclosure.
  Likewise, the balancing of the other Nazi War Crimes Disclosure Act 
exemptions tilts in favor of disclosure. Section 3(b)(3)(A) of the bill 
states that, in applying exemptions (B) through (J), ``there shall be a 
presumption that the public interest in the release of Nazi war 
criminal records will be served by disclosure and release of the 
records.'' The bill conditions exercise of all the exemptions, 
including the privacy exemption in section 3(b)(2)(A), by an agency 
head on a determination that the disclosure and release would be 
harmful to a specific interest identified in the exemption. To 
facilitate oversight of this legislation, an agency head who makes this 
determination is required to report the application of the exemption 
promptly to the appropriate Committees of the Congress, including the 
Senate Committee on the Judiciary and the House Committee on GRO.

  The original bill contained a presumption that public disclosure of 
the Nazi war crime records outweighs national security interests. The 
Department of Justice questioned whether this provision, and others, 
raised separation of powers concerns by encroaching on the Presidential 
prerogative to decide what records and information should be classified 
to protect national security. The presumption was modified during 
Committee consideration of the bill simply to make clear that the 
public interest would be served by disclosure and release of the 
subject records.
  The bill does not provide a blanket exemption for classified 
material, but instead lists a number of particular national security 
concerns that could warrant nondisclosure. The Justice Department may 
continue to have constitutional separation of powers concerns that the 
bill substitutes congressional rules for the President's executive 
order on the classification of documents. This would be unfortunate and 
unjustified.
  The 1997 Report of the Commission on Protecting and Reducing 
Government Secrecy Classification (hereafter, the ``1997 Report''), at 
page 15, notes that the security classification system is ``an area in 
which the President and the Congress `may have concurrent authority, or 
in which its distribution is uncertain,'' citing Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952). Moreover, Congress has 
prescribed standards to govern elements of classification and 
declassification in other contexts, including the Atomic Energy Act of 
1954, the National Security Act of 1947, and the Assassination Records 
Collection Act of 1992, which the 1997 Report explains ``established 
broad standards for the declassification of records concerning the 
assassination of President Kennedy.''
  ``The classification . . . systems are no longer trusted by many 
inside and outside the Government.'' 1997 Report, at page XXI. This is 
particularly true with respect to classified Nazi war crimes records 
since, at least in the case of Kurt Waldheim, government secrecy rules 
were used to shield what our government knew about his Nazi 
collaboration from public view for too many years. I agree with the 
comment in the 1997 Report that ``by allowing for a fuller 
understanding of the past, [greater openness] provides opportunities to 
learn lessons from what has gone before--making it easier to resolve 
issues concerning the Government's past actions and helping prepare for 
the future.''
  The bill makes clear, in section 3(b)(3)(A), that the enumerated 
exemptions shall constitute the only authority whereby an agency head 
may exempt records subject to this Act from release. This provision 
clarifies legislative intent that, in the case of Nazi war criminal 
records only, no other protective authority is controlling except the 
enumerated exemptions. Thus, the exemptions in section 3(b)(2) take 
precedence over the protective provisions of statutes such as the 
Privacy Act (5 U.S.C. 552a), the National Security Act of 1947 (50 
U.S.C. 403-3(c)(6)), and the Central Intelligence Agency Act (50 U.S.C. 
403g). Indeed, section 3(c) of the bill, expressly waives the 
operational file exemption contained in section 701 of the National 
Security Act of 1947. The amendment also eliminates the application of 
the exemptions of the Freedom of Information Act (5 U.S.C. 552(b)(1)-
(9)); it also overrides the privacy protections of all other statues, 
in favor of the privacy exemption set forth in section 3(b)(2)(A). 
These waivers of other statutory protections and, most particularly 
those waivers of the National Security Act provisions, recognize the 
extraordinary and unique nature of the Nazi war criminal records. These 
records warrant this special treatment so that the United States may 
lead and fully participate in the growing international movement to 
open to public scrutiny official records on the conduct of particular 
governments and institutions during World War II.

  In addition to the enumerated exemptions, the bill exempts from 
disclosure the records of the Office of Special Investigations (OSI) of 
the Department of Justice, which continues to investigate, prosecute 
and extradite suspected Nazi war criminals. Concerns about the impact 
of this bill on the work of OSI were raised by the Department of 
Justice, and others, at the original House hearing on this bill in 
1996. This bill addresses those concerns and will do nothing to 
undermine the critical work of this section. Moreover, Senators DeWine 
and I, and others, have requested that funding for OSI be increased to 
ensure adequate personnel are available to handle any increased 
workload due to the passage of this legislation.
  While the number of arrests of suspected Nazi war criminals may be 
dwindling, some are still on the loose, as we so dramatically witnessed 
by the arrest in Germany just a few short months ago, in March 1998, of 
a man identified in news reports as Alfons Goetzfried. This suspected 
Nazi war criminal was a former low-ranking Gestapo officer who 
apparently acknowledged in prior statements personally shooting to 
death 500 people, including women and children, at a death camp in 
Poland in November 1943. The work of the OSI continues to be of vital 
importance.
  Judicial review of agency determinations to apply the exemptions and 
the operations of the Interagency Group will be available under the 
Administrative Procedure Act. We appreciate, however, that executive 
agencies responsible for national defense and foreign policy matters 
have unique insights into the adverse effects that might occur as a 
result of the inappropriate public disclosure of a particular 
classified record. Accordingly, we expect that federal courts, in 
reviewing determinations by agency heads that disclosure and release of 
a record covered by this bill would be harmful to a specific interest 
identified in an exemption, will accord substantial weight to the 
agency's affidavit or other submission concerning the status of the 
disputed record. Indeed, the bill makes this expectation explicit in 
section 3(b)(3)(B), which states that in applying the exemptions in 
paragraphs (3)(b)(2)(B) through (I) dealing with specific national 
defense and foreign policy information, the standard of review is the 
same as applied to the withholding of records under the FOIA for 
properly classified matters.
  Finally, section 4 of the bill provides for the expedited processing 
of FOIA requests for Nazi war criminal records by any Holocaust 
victims, as provided in section 552(a)(6)(E) of title 5, United States 
Code. We expect that any withholding of requested records due to their 
classified nature, under section (b)(1) of the FOIA, will be highly 
limited once the Working Group has been able to perform its work.
  It has been a pleasure to work with Senator DeWine on this matter in 
the Judiciary Committee, and with Senator Moynihan and others on 
reaching a consensus on this important bill. This legislation is long 
overdue, and I urge its prompt enactment.
  Mr. WARNER. I ask unanimous consent the amendment be agreed to, the 
bill be considered read a third time and

[[Page S6730]]

passed, the motion to reconsider be laid upon the table, and that any 
statements relating to the bill appear in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Amendment (No. 2782) was agreed to.
  The committee substitute, as amended, was agreed to.
  The bill (S. 1379), as amended, was considered read the third time 
and passed.

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