II

105TH CONGRESS

1ST SESSION S. 1220

To provide a process for declassifying on an expedited basis certain documents

relating to human rights abuses in Guatemala and Honduras.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 25, 1997

Mr. DODD (for himself, Mr. BINGAMAN, Mr. BUMPERS, and Mrs. MURRAY)

introduced the following bill; which was read twice and referred to the

Committee on Governmental Affairs

A BILL

To provide a process for declassifying on an expedited basis

certain documents relating to human rights abuses in

Guatemala and Honduras.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Human Rights Infor5 mation Act’’.

6 SEC. 2. FINDINGS.

7 Congress finds the following:
2

•S 1220 IS

1 (1) Agencies of the Government of the United

2 States have information on human rights violations

3 in Guatemala and Honduras.

4 (2) Members of both Houses of Congress have

5 repeatedly asked the Administration for information

6 on Guatemalan and Honduran human rights cases.

7 (3) The Guatemalan peace accords, which the

8 Government of the United States firmly supports,

9 has as an important and vital component the estab10 lishment of the Commission for the Historical Clari11 fication of Human Rights Violations and Acts of Vi12 olence which have Caused Suffering to the Guate13 malan People (referred to in this Act as the ‘‘Clari14 fication Commission’’). The Clarification Commis15 sion will investigate cases of human rights violations

16 and abuses by both parties to the civil conflict in

17 Guatemala and will need all available information to

18 fulfill its mandate.

19 (4) The National Commissioner for the Protec20 tion of Human Rights in the Republic of Honduras

21 has been requesting United States Government doc22 umentation on human rights violations in Honduras

23 since November 15, 1993. The Commissioner’s re24 quest has been partly fulfilled, but is still pending.

25 The request has been supported by national and
3

•S 1220 IS

1 international human rights nongovernmental organi2 zations as well as members of both Houses of Con3 gress.

4 (5) Victims and survivors of human rights vio5 lations, including United States citizens and their

6 relatives, have also been requesting the information

7 referred to in paragraphs (3) and (4). Survivors and

8 the relatives of victims have a right to know what

9 happened. The requests have been supported by na10 tional and international human rights nongovern11 mental organizations as well as members of both

12 Houses of Congress.

13 (6) The United States should make the infor14 mation it has on human rights abuses available to

15 the public as part of the United States commitment

16 to democracy in Central America.

17 SEC. 3. DEFINITIONS.

18 In this Act:

19 (1) HUMAN RIGHTS RECORD.—The term

20 ‘‘human rights record’’ means a record in the pos21 session, custody, or control of the United States

22 Government containing information about gross

23 human rights violations committed after 1944.

24 (2) AGENCY.—The term ‘‘agency’’ means any

25 agency of the United States Government charged
4

•S 1220 IS

1 with the conduct of foreign policy or foreign intel2 ligence, including the Department of State, the

3 Agency for International Development, the Depart4 ment of Defense (and all of its components), the

5 Central Intelligence Agency, the National Reconnais6 sance Office, the Department of Justice (and all of

7 its components), the National Security Council, and

8 the Executive Office of the President.

9 SEC. 4. IDENTIFICATION, REVIEW, AND PUBLIC DISCLO10 SURE OF HUMAN RIGHTS RECORDS REGARD11 ING GUATEMALA AND HONDURAS.

12 (a) IN GENERAL.—Notwithstanding any other provi13 sion of law, the provision of this Act shall govern the de14 classification and public disclosure of human rights

15 records by agencies.

16 (b) IDENTIFICATION OF RECORDS.—Not later than

17 120 days after the date of enactment of this Act, each

18 agency shall identify, review, and organize all human

19 rights records regarding activities occurring in Guatemala

20 and Honduras after 1944 for the purpose of declassifying

21 and disclosing the records to the public. Except as pro22 vided in section 5, all records described in the preceding

23 sentence shall be made available to the public not later

24 than 30 days after a review under this section is com25 pleted.
5

•S 1220 IS

1 (c) REPORT TO CONGRESS.—Not later than 150 days

2 after the date of enactment of this Act, the President shall

3 report to Congress regarding each agency’s compliance

4 with the provisions of this Act.

5 SEC. 5. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLO6 SURE OF RECORDS.

7 (a) IN GENERAL.—An agency may postpone public

8 disclosure of a human rights record or particular informa9 tion in a human rights record only if the agency deter10 mines that there is clear and convincing evidence that—

11 (1) the threat to the military defense, intel12 ligence operations, or conduct of foreign relations of

13 the United States raised by public disclosure of the

14 human rights record is of such gravity that it out15 weighs the public interest, and such public disclosure

16 would reveal—

17 (A) an intelligence agent whose identity

18 currently requires protection;

19 (B) an intelligence source or method—

20 (i) which is being utilized, or reason21 ably expected to be utilized, by the United

22 States Government;

23 (ii) which has not been officially dis24 closed; and
6

•S 1220 IS

1 (iii) the disclosure of which would

2 interfere with the conduct of intelligence

3 activities; or

4 (C) any other matter currently relating to

5 the military defense, intelligence operations, or

6 conduct of foreign relations of the United

7 States, the disclosure of which would demon8 strably impair the national security of the

9 United States;

10 (2) the public disclosure of the human rights

11 record would reveal the name or identity of a living

12 individual who provided confidential information to

13 the United States and would pose a substantial risk

14 of harm to that individual;

15 (3) the public disclosure of the human rights

16 record could reasonably be expected to constitute an

17 unwarranted invasion of personal privacy, and that

18 invasion of privacy is so substantial that it out19 weighs the public interest; or

20 (4) the public disclosure of the human rights

21 record would compromise the existence of an under22 standing of confidentiality currently requiring pro23 tection between a Government agent and a cooperat24 ing individual or a foreign government, and public
7

•S 1220 IS

1 disclosure would be so harmful that it outweighs the

2 public interest.

3 (b) SPECIAL TREATMENT OF CERTAIN INFORMA4 TION.—It shall not be grounds for postponement of disclo5 sure of a human rights record that an individual named

6 in the human rights record was an intelligence asset of

7 the United States Government, although the existence of

8 such relationship may be withheld if the criteria set forth

9 in subsection (a) are met. For purposes of the preceding

10 sentence, the term an ‘‘intelligence asset’’ means a covert

11 agent as defined in section 606(4) of the National Security

12 Act of 1947 (50 U.S.C. 426(4)).

13 SEC. 6. REQUEST FOR HUMAN RIGHTS RECORDS FROM OF14 FICIAL ENTITIES IN OTHER LATIN AMERICAN

15 CARIBBEAN COUNTRIES.

16 In the event that an agency of the United States re17 ceives a request for human rights records from an entity

18 created by the United Nations or the Organization of

19 American States similar to the Guatemalan Clarification

20 Commission, or from the principal justice or human rights

21 official of a Latin American or Caribbean country who is

22 investigating a pattern of gross human rights violations,

23 the agency shall conduct a review of records as described

24 in section 4 and shall declassify and publicly disclose such
8

•S 1220 IS

1 records in accordance with the standards and procedures

2 set forth in this Act.

3 SEC. 7. REVIEW OF DECISIONS TO WITHHOLD RECORDS.

4 (a) DUTIES OF THE APPEALS PANEL.—The Inter5 agency Security Classification Appeals Panel (referred to

6 in this Act as the ‘‘Appeals Panel’’), established under Ex7 ecutive Order No. 12958, shall review determinations by

8 an agency to postpone public disclosure of any human

9 rights record.

10 (b) DETERMINATIONS OF THE APPEALS PANEL.—

11 (1) IN GENERAL.—The Appeals Panel shall di12 rect that all human rights records be disclosed to the

13 public, unless the Appeals Panel determines that

14 there is clear and convincing evidence that—

15 (A) the record is not a human rights

16 record; or

17 (B) the human rights record or particular

18 information in the human rights record quali19 fies for postponement of disclosure pursuant to

20 section 5.

21 (2) TREATMENT IN CASES OF NONDISCLO22 SURE.—If the Appeals Panel concurs with an agency

23 decision to postpone disclosure of a human rights

24 record, the Appeals Panel shall determine, in con25 sultation with the originating agency and consistent
9

•S 1220 IS

1 with the standards set forth in this Act, which, if

2 any, of the alternative forms of disclosure described

3 in paragraph (3) shall be made by the agency.

4 (3) ALTERNATIVE FORMS OF DISCLOSURE.—

5 The forms of disclosure described in this paragraph

6 are as follows:

7 (A) Disclosure of any reasonably seg8 regable portion of the human rights record

9 after deletion of the portions described in para10 graph (1).

11 (B) Disclosure of a record that is a sub12 stitute for information which is not disclosed.

13 (C) Disclosure of a summary of the infor14 mation contained in the human rights record.

15 (4) NOTIFICATION OF DETERMINATION.—

16 (A) IN GENERAL.—Upon completion of its

17 review, the Appeals Panel shall notify the head

18 of the agency in control or possession of the

19 human rights record that was the subject of the

20 review of its determination and shall, not later

21 than 14 days after the determination, publish

22 the determination in the Federal Register.

23 (B) NOTICE TO PRESIDENT.—The Appeals

24 Panel shall notify the President of its deter25 mination. The notice shall contain a written un-
10

•S 1220 IS

1 classified justification for its determination, in2 cluding an explanation of the application of the

3 standards contained in section 5.

4 (5) GENERAL PROCEDURES.—The Appeals

5 Panel shall publish in the Federal Register guide6 lines regarding its policy and procedures for adju7 dicating appeals.

8 (c) PRESIDENTIAL AUTHORITY OVER APPEALS

9 PANEL DETERMINATION.—

10 (1) PUBLIC DISCLOSURE OR POSTPONEMENT

11 OF DISCLOSURE.—The President shall have the sole

12 and nondelegable authority to review any determina13 tion of the Appeals Board under this Act, and such

14 review shall be based on the standards set forth in

15 section 5. Not later than 30 days after the Appeals

16 Panel’s determination and notification to the agency

17 pursuant to subsection (b)(4), the President shall

18 provide the Appeals Panel with an unclassified writ19 ten certification specifying the President’s decision

20 and stating the reasons for the decision, including in

21 the case of a determination to postpone disclosure,

22 the standards set forth in section 5 which are the

23 basis for the President’s determination.

24 (2) RECORD OF PRESIDENTIAL POSTPONE25 MENT.—The Appeals Panel shall, upon receipt of
11

•S 1220 IS

1 the President’s determination, publish in the Federal

2 Register a copy of any unclassified written certifi3 cation, statement, and other materials transmitted

4 by or on behalf of the President with regard to the

5 postponement of disclosure of a human rights

6 record.

7 SEC. 8. REPORT REGARDING OTHER HUMAN RIGHTS

8 RECORDS.

9 Upon completion of the review and disclosure of the

10 human rights records relating to Guatemala and Hon11 duras, the Information Security Policy Advisory Council,

12 established pursuant to Executive Order No. 12958, shall

13 report to Congress on the desirability and feasibility of

14 declassification of human rights records relating to other

15 countries in Latin America and the Caribbean. The report

16 shall be available to the public.

17 SEC. 9. RULES OF CONSTRUCTION.

18 (a) FREEDOM OF INFORMATION ACT.—Nothing in

19 this Act shall be construed to limit any right to file a re20 quest with any executive agency or seek judicial review of

21 a decision pursuant to section 552 of title 5, United States

22 Code.

23 (b) JUDICIAL REVIEW.—Nothing in this Act shall be

24 construed to preclude judicial review, under chapter 7 of
12

•S 1220 IS

1 title 5, United States Code, of final actions taken or re2 quired to be taken under this Act.

3 SEC. 10. CREATION OF POSITIONS.

4 For purposes of carrying out the provisions of this

5 Act, there shall be 2 additional positions in the Appeals

6 Panel. The positions shall be filled by the President, based

7 on the recommendations of the American Historical Asso8 ciation, the Latin American Studies Association, Human

9 Rights Watch, and Amnesty International, USA.

Æ