II

Calendar No. 323

105TH CONGRESS

2D SESSION S. 1379

To amend section 552 of title 5, 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.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 5, 1997

Mr. DEWINE (for himself, Mr. MOYNIHAN, Mr. HATCH, Mr. D’AMATO, Mr.

DODD, Mr. KOHL, Mr. COVERDELL, Mr. KENNEDY, Mr. INOUYE, Mr.

LIEBERMAN, Ms. SNOWE, Mr. HUTCHINSON, Mr. THURMOND, Mr.

MCCAIN, Mr. SHELBY, Mr. CAMPBELL, Mr. WYDEN, Mr. TORRICELLI,

Mr. KERREY, Mr. DURBIN, Mr. SPECTER, Mr. ABRAHAM, and Mr. KYL)

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

Committee on the Judiciary

MARCH 5, 1998

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To amend section 552 of title 5, 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 im-
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pairing any investigation or prosecution conducted by

the Department of Justice or certain intelligence matters,

and for other purposes.

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 ‘‘Nazi War Crimes Dis5 closure Act’’.

6 SEC. 2. REQUIREMENT OF DISCLOSURE UNDER FREEDOM

7 OF INFORMATION REGARDING PERSONS

8 WHO COMMITTED NAZI WAR CRIMES.

9 (a) IN GENERAL.—Section 552 of title 5, United

10 States Code, is amended—

11 (1) in subsection (a)(4)(B) in the second sen12 tence, by inserting ‘‘or subsection (h)’’ after ‘‘sub13 section (b)’’; and

14 (2) by inserting after subsection (g) the follow15 ing:

16 ‘‘(h)(1) For the purposes of this subsection, the term

17 ‘Nazi war criminal records’ means records or portions of

18 records that—

19 ‘‘(A) pertain to any person as to whom the

20 United States Government, in its sole discretion, has

21 determined there exists reasonable grounds to be22 lieve that such person, during the period beginning
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1 on March 23, 1933, and ending on May 8, 1945,

2 under the direction of, or in association with—

3 ‘‘(i) the Nazi government of Germany;

4 ‘‘(ii) any government in any area occupied

5 by the military forces of the Nazi government

6 of Germany;

7 ‘‘(iii) any government established with the

8 assistance or cooperation of the Nazi govern9 ment of Germany; or

10 ‘‘(iv) any government which was an ally of

11 the Nazi government of Germany,

12 ordered, incited, assisted, or otherwise participated

13 in the persecution of any person because of race, re14 ligion, national origin, or political opinion; or

15 ‘‘(B) pertain to any transaction as to which the

16 United States Government, in its sole discretion, has

17 determined there exists reasonable grounds to be18 lieve—

19 ‘‘(i) involved assets taken from persecuted

20 persons during the period beginning on March

21 23, 1933, and ending on May 8, 1945, by,

22 under the direction of, on behalf of, or under

23 authority granted by the Nazi government of

24 Germany or any nation then allied with that

25 government; and
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1 ‘‘(ii) such transaction was completed with2 out the assent of the owners of those assets or

3 their heirs or assigns or other legitimate rep4 resentatives.

5 ‘‘(2)(A) Notwithstanding subsection (b), this sub6 section shall apply to Nazi war criminal records.

7 ‘‘(B) Subject to subparagraphs (C), (D), and (E),

8 Nazi war criminal records that are responsive to a request

9 for records made in accordance with subsection (a) shall

10 be released in their entirety.

11 ‘‘(C) An agency head may exempt from release under

12 subparagraph (B) specific information, the release of

13 which should be expected to—

14 ‘‘(i) constitute a clearly unwarranted invasion of

15 personal privacy;

16 ‘‘(ii) reveal the identity of a confidential human

17 source, or reveal information about the application

18 of an intelligence source or method, or reveal the

19 identity of a human intelligence source when the un20 authorized disclosure of that source would clearly

21 and demonstrably damage the national security in22 terests of the United States;

23 ‘‘(iii) reveal information that would assist in the

24 development or use of weapons of mass destruction;
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1 ‘‘(iv) reveal information that would impair

2 United States cryptologic systems or activities;

3 ‘‘(v) reveal information that would impair the

4 application of state-of-the-art technology within a

5 United States weapon system;

6 ‘‘(vi) reveal actual United States military war

7 plans that remain in effect;

8 ‘‘(vii) reveal information that would seriously

9 and demonstrably impair relations between the

10 United States and a foreign government, or seriously

11 and demonstrably undermine ongoing diplomatic ac12 tivities of the United States;

13 ‘‘(viii) reveal information that would clearly and

14 demonstrably impair the current ability of United

15 States Government officials to protect the President,

16 Vice President, and other officials for whom protec17 tion services, in the interest of national security, are

18 authorized;

19 ‘‘(ix) reveal information that would seriously

20 and demonstrably impair current national security

21 emergency preparedness plans; or

22 ‘‘(x) violate a statute, treaty, or international

23 agreement.

24 ‘‘(D) In applying exemptions (ii) through (x) of sub25 paragraph (C), there shall be a presumption that the pub-
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1 lic interest in the release of Nazi war criminal records out2 weighs the damage to national security that might reason3 ably be expected to result from disclosure. The agency

4 head, as an exercise of discretion, may rebut this presump5 tion with respect to a Nazi war criminal record, or portion

6 thereof, based on an exemption listed in subparagraph (C).

7 The exercise of this discretion shall be promptly reported

8 to the committees of Congress with appropriate jurisdic9 tion.

10 ‘‘(E) This subsection shall not apply to records—

11 ‘‘(i) related to or supporting any active or inac12 tive investigation, inquiry, or prosecution by the Of13 fice of Special Investigations of the Department of

14 Justice; or

15 ‘‘(ii) in the possession, custody or control of

16 that office.’’.

17 (b) INAPPLICABILITY OF NATIONAL SECURITY ACT

18 OF 1947 EXEMPTION.—Section 701 of the National Secu19 rity Act of 1947 (50 U.S.C. 431) is amended—

20 (1) by redesignating subsections (e) and (f) as

21 subsections (f) and (g), respectively; and

22 (2) by inserting after subsection (d) the follow23 ing:

24 ‘‘(e) Subsection (a) shall not apply to any operational

25 file, or any portion of any operational file, that constitutes
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1 a Nazi war criminal record under section 552(h) of title

2 5, United States Code.’’.

3 SEC. 3. INTERAGENCY INVENTORY OF NAZI WAR CRIMINAL

4 RECORDS.

5 (a) DEFINITIONS.—In this section the term—

6 (1) ‘‘agency’’ has the meaning given such term

7 under section 551 of title 5, United States Code;

8 (2) ‘‘Interagency Group’’ means the Nazi War

9 Criminal Records Interagency Working Group estab10 lished under subsection (b);

11 (3) ‘‘Nazi war criminal records’’ has the mean12 ing given such term under section 552(h)(1) of title

13 5, United States Code (as added by section 2(a)(2)

14 of this Act); and

15 (4) ‘‘record’’ means a Nazi war criminal record.

16 (b) ESTABLISHMENT OF INTERAGENCY GROUP.—

17 (1) IN GENERAL.—Not later than 30 days after

18 the date of enactment of this Act, the President

19 shall establish the Nazi War Criminal Records Inter20 agency Working Group.

21 (2) MEMBERSHIP.—The President shall appoint

22 to the Interagency Group the heads of agencies who

23 the President determines will most completely and

24 effectively carry out the functions of the Interagency

25 Group within the time limitations provided in this
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1 section. The head of an agency appointed by the

2 President may designate an appropriate officer to

3 serve on the Interagency Group in lieu of the head

4 of such agency.

5 (3) INITIAL MEETING.—Not later than 90 days

6 after the date of enactment of this Act, the Inter7 agency Group shall hold an initial meeting and begin

8 the functions required under this section.

9 (c) FUNCTIONS.—Not later than 1 year after the date

10 of enactment of this Act, the Interagency Group shall, to

11 the greatest extent possible consistent with section

12 552(h)(2) of title 5, United States Code (as added by sec13 tion 2(a)(2) of this Act)—

14 (1) locate, identify, inventory, recommend for

15 declassification, and make available to the public at

16 the National Archives and Records Administration,

17 all Nazi war criminal records of the United States;

18 (2) coordinate with agencies and take such ac19 tions as necessary to expedite the release of such

20 records to the public; and

21 (3) submit a report to Congress describing all

22 such records, the disposition of such records, and

23 the activities of the Interagency Group and agencies

24 under this section.
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1 SEC. 4. EXPEDITED PROCESSING OF REQUESTS FOR NAZI

2 WAR CRIMINAL RECORDS.

3 (a) DEFINITIONS.—In this section, the term—

4 (1) ‘‘Nazi war criminal record’’ has the mean5 ing given the term under section 552(h)(1) of title

6 5, United States Code (as added by section 2(a)(2)

7 of this Act); and

8 (2) ‘‘requester’’ means any person who was per9 secuted in the manner described under section

10 552(h)(1)(A) of title 5, United States Code (as

11 added by section 2(a)(2) of this Act), who requests

12 a Nazi war criminal record.

13 (b) EXPEDITED PROCESSING.—For purposes of expe14 dited processing under section 552(a)(6)(E) of title 5,

15 United States Code, any requester of a Nazi war criminal

16 record shall be deemed to have a compelling need for such

17 record.

18 SEC. 5. EFFECTIVE DATE.

19 The amendments made by this Act shall apply to re20 quests under section 552 of title 5, United States Code

21 (known as Freedom of Information Act requests) received

22 by an agency after the expiration of the 90-day period be23 ginning on the date of enactment of this Act.

24 SECTION 1. SHORT TITLE.

25 This Act may be cited as the ‘‘Nazi War Crimes Disclo26 sure Act’’.
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1 SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS

2 INTERAGENCY WORKING GROUP.

3 (a) DEFINITIONS.—In this section the term—

4 (1) ‘‘agency’’ has the meaning given such term

5 under section 551 of title 5, United States Code;

6 (2) ‘‘Interagency Group’’ means the Nazi War

7 Criminal Records Interagency Working Group estab8 lished under subsection (b);

9 (3) ‘‘Nazi war criminal records’’ has the mean10 ing given such term under section 3 of this Act; and

11 (4) ‘‘record’’ means a Nazi war criminal record.

12 (b) ESTABLISHMENT OF INTERAGENCY GROUP.—

13 (1) IN GENERAL.—Not later than 30 days after

14 the date of enactment of this Act, the President shall

15 establish the Nazi War Criminal Records Interagency

16 Working Group.

17 (2) MEMBERSHIP.—The President shall appoint

18 to the Interagency Group the heads of agencies who

19 the President determines will most completely and ef20 fectively carry out the functions of the Interagency

21 Group within the time limitations provided in this

22 section. The head of an agency appointed by the

23 President may designate an appropriate officer to

24 serve on the Interagency Group in lieu of the head of

25 such agency.
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1 (3) INITIAL MEETING.—Not later than 90 days

2 after the date of enactment of this Act, the Inter3 agency Group shall hold an initial meeting and begin

4 the functions required under this section.

5 (c) FUNCTIONS.—Not later than 1 year after the date

6 of enactment of this Act, the Interagency Group shall, to

7 the greatest extent possible consistent with section 3 of this

8 Act—

9 (1) locate, identify, inventory, recommend for de10 classification, and make available to the public at the

11 National Archives and Records Administration, all

12 Nazi war criminal records of the United States;

13 (2) coordinate with agencies and take such ac14 tions as necessary to expedite the release of such

15 records to the public; and

16 (3) submit a report to Congress describing all

17 such records, the disposition of such records, and the

18 activities of the Interagency Group and agencies

19 under this section.

20 SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS RE21 GARDING PERSONS WHO COMMITTED NAZI

22 WAR CRIMES.

23 (a) NAZI WAR CRIMINAL RECORDS.—For purposes of

24 this Act, the term ‘‘Nazi war criminal records’’ means

25 records or portions of records that—
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1 (1) pertain to the activities of any person with

2 respect to which the United States Government, in its

3 sole discretion, has grounds to believe—

4 (A) occurred, during the period beginning

5 on March 23, 1933, and ending on May 8, 1945,

6 under the direction of, or in association with—

7 (i) the Nazi government of Germany;

8 (ii) any government in any area occu9 pied by the military forces of the Nazi gov10 ernment of Germany;

11 (iii) any government established with

12 the assistance or cooperation of the Nazi

13 government of Germany; or

14 (iv) any government which was an ally

15 of the Nazi government of Germany; and

16 (B) involved the ordering, incitement, as17 sistance, or other participation in the persecu18 tion of any person because of race, religion, na19 tional origin, or political opinion; or

20 (2) pertain to any transaction as to which the

21 United States Government, in its sole discretion, has

22 grounds to believe—

23 (A) involved assets taken from persecuted

24 persons during the period beginning on March

25 23, 1933, and ending on May 8, 1945, by, under
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1 the direction of, on behalf of, or under authority

2 granted by the Nazi government of Germany or

3 any nation then allied with that government;

4 and

5 (B) such transaction was completed without

6 the assent of the owners of those assets or their

7 heirs or assigns or other legitimate representa8 tives.

9 (b) RELEASE OF RECORDS.—

10 (1) IN GENERAL.—Subject to paragraphs (2),

11 (3), and (4), the Nazi War Criminal Records Inter12 agency Working Group shall release in their entirety

13 Nazi war criminal records that are described in sub14 section (a).

15 (2) EXCEPTION FOR PRIVACY, ETC.—An agency

16 head may exempt from release under paragraph (1)

17 specific information, that would—

18 (A) constitute a clearly unwarranted inva19 sion of personal privacy;

20 (B) reveal the identity of a confidential

21 human source, or reveal information about the

22 application of an intelligence source or method,

23 or reveal the identity of a human intelligence

24 source when the unauthorized disclosure of that

25 source would clearly and demonstrably damage
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1 the national security interests of the United

2 States;

3 (C) reveal information that would assist in

4 the development or use of weapons of mass de5 struction;

6 (D) reveal information that would impair

7 United States cryptologic systems or activities;

8 (E) reveal information that would impair

9 the application of state-of-the-art technology

10 within a United States weapon system;

11 (F) reveal actual United States military

12 war plans that remain in effect;

13 (G) reveal information that would seriously

14 and demonstrably impair relations between the

15 United States and a foreign government, or seri16 ously and demonstrably undermine ongoing dip17 lomatic activities of the United States;

18 (H) reveal information that would clearly

19 and demonstrably impair the current ability of

20 United States Government officials to protect the

21 President, Vice President, and other officials for

22 whom protection services, in the interest of na23 tional security, are authorized;
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1 (I) reveal information that would seriously

2 and demonstrably impair current national secu3 rity emergency preparedness plans; or

4 (J) violate a statute, treaty, or inter5 national agreement.

6 (3) APPLICATION OF EXEMPTIONS.—In applying

7 the exemptions listed in subparagraphs (B) through

8 (J) of paragraph (2), there shall be a presumption

9 that the public interest in the release of Nazi war

10 criminal records will be served by disclosure and re11 lease of the records. Assertion of such exemption may

12 only be made when the agency head determines that

13 disclosure and release would be harmful to a specific

14 interest identified in the exemption. An agency head

15 who makes such a determination shall promptly re16 port it to the committees of Congress with appro17 priate jurisdiction, including the Senate Committee

18 on the Judiciary.

19 (4) LIMITATION ON APPLICATION.—This sub20 section shall not apply to records—

21 (A) related to or supporting any active or

22 inactive investigation, inquiry, or prosecution by

23 the Office of Special Investigations of the De24 partment of Justice; or
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1 (B) solely in the possession, custody, or con2 trol of that office.

3 (c) INAPPLICABILITY OF NATIONAL SECURITY ACT OF

4 1947 EXEMPTION.—Section 701 of the National Security

5 Act of 1947 (50 U.S.C. 431) is amended—

6 (1) by redesignating subsections (e) and (f) as

7 subsections (f) and (g), respectively; and

8 (2) by inserting after subsection (d) the follow9 ing:

10 ‘‘(e) Subsection (a) shall not apply to any operational

11 file, or any portion of any operational file, that constitutes

12 a Nazi war criminal record under section 3 of the Nazi

13 War Crimes Disclosure Act.’’.

14 SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR

15 NAZI WAR CRIMINAL RECORDS.

16 (a) EXPEDITED PROCESSING.—For purposes of expe17 dited processing under section 552(a)(6)(E) of title 5,

18 United States Code, any requester of a Nazi war criminal

19 record shall be deemed to have a compelling need for such

20 record.

21 (b) REQUESTER.—For purposes of this section, the

22 term ‘‘requester’’ means any person who was persecuted in

23 the manner described under section 3(a)(1)(B) of this Act

24 who requests a Nazi war criminal record.
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1 SEC. 5. EFFECTIVE DATE.

2 This Act and the amendments made by this Act shall

3 take effect on the date that is 90 days after the date of enact4 ment of this Act.

Calendar No. 323

105TH CONGRESS

2D SESSION S. 1379

A BILL

To amend section 552 of title 5, United States

ters, and for other purposes.partment of Justice or certain intelligence matinvestigation or prosecution conducted by the DeNazi war criminal records without impairing anymation Act regarding certain persons, discloserequire disclosure under the Freedom of InforCode, and the National Security Act of 1947 to

MARCH 5, 1998

Reported with an amendment