II

Calendar No. 700

106TH CONGRESS

2D SESSION S. 1902

To require disclosure under the Freedom of Information Act regarding certain

persons and records of the Japanese Imperial Army in a manner that

does not impair 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 10, 1999

Mrs. FEINSTEIN (for herself, Mr. WELLSTONE, Mr. GRAMS, Mrs. BOXER, Mr.

LEVIN, Mr. HATCH Mr. ROBB, Mr. ASHCROFT, and Mr. WARNER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

MAY 18, 2000

Reported by Mr. HATCH, with an amendment

[Insert the part printed in italic]

JUNE 7 (legislative day, JUNE 6), 2000

Referred to the Select Committee on Intelligence pursuant to section 3(b) of

S. Res. 400, 94th Congress for a period not to exceed 30 days of session

JULY 20, 2000

Reported by Mr. SHELBY, with amendments

[Omit the part in boldface brackets and insert the part in bold roman]

A BILL

To require disclosure under the Freedom of Information

Act regarding certain persons and records of the Japanese Imperial Army in a manner that does not impair
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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 ‘‘Japanese Imperial

5 Army Disclosure Act’’.

6 SEC. 2. ESTABLISHMENT OF JAPANESE IMPERIAL ARMY

7 RECORDS INTERAGENCY WORKING GROUP.

8 (a) DEFINITIONS.—In this section:

9 (1) AGENCY.—The term ‘‘agency’’ has the

10 meaning given such term under section 551 of title

11 5, United States Code.

12 (2) INTERAGENCY GROUP.—The term ‘‘Inter13 agency Group’’ means the Japanese Imperial Army

14 Records Interagency Working Group established

15 under subsection (b).

16 (3) JAPANESE IMPERIAL ARMY RECORDS.—The

17 term ‘‘Japanese Imperial Army records’’ means clas18 sified records or portions of records that pertain to

19 any person with respect to whom the United States

20 Government, in its sole discretion, has grounds to

21 believe ordered, incited, assisted, or otherwise par22 ticipated in the experimentation and persecution of

23 any person because of race, religion, national origin,
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1 or political option, during the period beginning Sep2 tember 18, 1931, and ending on December 31,

3 1948, under the direction of, or in association

4 with—

5 (A) the Japanese Imperial Army;

6 (B) any government in any area occupied

7 by the military forces of the Japanese Imperial

8 Army;

9 (C) any government established with the

10 assistance or cooperation of the Japanese Impe11 rial Army; or

12 (D) any government which was an ally of

13 the Imperial Army of Japan.

14 (4) RECORD.—The term ‘‘record’’ means a Jap15 anese Imperial Army record.

16 (b) ESTABLISHMENT OF INTERAGENCY GROUP.—

17 (1) IN GENERAL.—Not later than 60 days after

18 the date of enactment of this Act, the President

19 shall establish the Japanese Imperial Army Records

20 Interagency Working Group, which shall remain in

21 existence for 3 years after the date the Interagency

22 Group is established.

23 (2) MEMBERSHIP.—The President shall appoint

24 to the Interagency Group individuals whom the

25 President determines will most completely and effec-
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1 tively carry out the functions of the Interagency

2 Group within the time limitations provided in this

3 section, including the Historian of the Department

4 of State, the Archivist of the United States, the

5 head of any other agency the President considers ap6 propriate, and no more than 3 other persons. The

7 head of an agency appointed by the President may

8 designate an appropriate officer to serve on the

9 Interagency Group in lieu of the head of such agen10 cy.

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

12 after the date of enactment of this Act, the Inter13 agency Group shall hold an initial meeting and begin

14 the functions required under this section.

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

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

17 the greatest extent possible consistent with section 3 of

18 this Act—

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

20 declassification, and make available to the public at

21 the National Archives and Records Administration,

22 all classified Japanese Imperial Army records of the

23 United States;
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1 (2) coordinate with agencies and take such ac2 tions as necessary to expedite the release of such

3 records to the public; and

4 (3) submit a report to Congress, including the

5 Committee on Government Reform and Oversight of

6 the House of Representatives, the Select Com7 mittee on Intelligence of the Senate, the

8 Permanent Select Committee on Intel9 ligence of the House of Representatives,

10 and the Senate Committee on the Judiciary, describ11 ing all such records, the disposition of such records,

12 and the activities of the Interagency Group and

13 agencies under this section.

14 (d) FUNDING.—There are authorized to be appro15 priated such sum as may be necessary to carry out the

16 provisions of this Act.

17 SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS.

18 ø(a) RELEASE OF RECORDS.—

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

20 (3), and (4), the Japanese Imperial Army Records

21 Interagency Working Group shall release in their en22 tirety Japanese Imperial Army records.

23 ø(2) EXCEPTION FOR PRIVACY.—An agency

24 head may exempt from release under paragraph (1)

25 specific information, that would—
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1 ø(A) constitute a clearly unwarranted inva2 sion of personal privacy;

3 ø(B) reveal the identity of a confidential

4 human source, or reveal information about the

5 application of an intelligence source or method,

6 or reveal the identity of a human intelligence

7 source when the unauthorized disclosure of that

8 source would clearly and demonstrably damage

9 the national security interests of the United

10 States;

11 ø(C) reveal information that would assist

12 in the development or use of weapons of mass

13 destruction;

14 ø(D) reveal information that would impair

15 United States cryptologic systems or activities;

16 ø(E) reveal information that would impair

17 the application of state-of-the-art technology

18 within a United States weapon system;

19 ø(F) reveal actual United States military

20 war plans that remain in effect;

21 ø(G) reveal information that would seri22 ously and demonstrably impair relations be23 tween the United States and a foreign govern24 ment, or seriously and demonstrably undermine
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1 ongoing diplomatic activities of the United

2 States;

3 ø(H) reveal information that would clearly,

4 and demonstrably impair the current ability of

5 United States Government officials to protect

6 the President, Vice President, and other offi7 cials for whom protection services are author8 ized in the interest of national security;

9 ø(I) reveal information that would seri10 ously and demonstrably impair current national

11 security emergency preparedness plans; or

12 ø(J) violate a treaty or other international

13 agreement.

14 ø(3) APPLICATIONS OF EXEMPTIONS.—

15 ø(A) IN GENERAL.—In applying the ex16 emptions provided in subparagraphs (B)

17 through (J) of paragraph (2), there shall be a

18 presumption that the public interest will be

19 served by disclosure and release of the records

20 of the Japanese Imperial Army. The exemption

21 may be asserted only when the head of the

22 agency that maintains the records determines

23 that disclosure and release would be harmful to

24 a specific interest identified in the exemption.

25 An agency head who makes such a determina-
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1 tion shall promptly report it to the committees

2 of Congress with appropriate jurisdiction, in3 cluding the Committee on the Judiciary of the

4 Senate and the Committee on Government Re5 form and Oversight of the House of Represent6 atives.

7 ø(B) APPLICATION OF TITLE 5.—A deter8 mination by an agency head to apply an exemp9 tion provided in subparagraphs (B) through (I)

10 of paragraph (2) shall be subject to the same

11 standard of review that applies in the case of

12 records withheld under section 552(b)(1) of title

13 5, United States Code.

14 ø(4) LIMITATION ON EXEMPTIONS.—

15 ø(A) IN GENERAL.—The exemptions set

16 forth in paragraph (2) shall constitute the only

17 grounds pursuant to which an agency head may

18 exempt records otherwise subject to release

19 under paragraph (1).

20 ø(B) RECORDS RELATED TO INVESTIGA21 TION OR PROSECUTIONS.—This subsection shall

22 not apply to records—

23 ø(i) related to or supporting any ac24 tive or inactive investigation, inquiry, or
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1 prosecution by the Office of Special Inves2 tigations of the Department of Justice; or

3 ø(ii) solely in the possession, custody,

4 or control of the Office of Special Inves5 tigations.

6 ø(b) INAPPLICABILITY OF NATIONAL SECURITY ACT

7 OF 1947 EXEMPTION.—Section 701(a) of the National

8 Security Act of 1947 (50 U.S.C. 431) shall not apply to

9 any operational file, or any portion of any operational file,

10 that constitutes a Japanese Imperial Army record under

11 this Act.¿

12 (a) RELEASE OF RECORDS.—Subject to sub13 sections (b), (c), and (d), the Japanese Impe14 rial Army Records Interagency Working

15 Group shall release in their entirety Japanese

16 Imperial Army records.

17 (b) EXCEPTION FOR PRIVACY.—An agency

18 head may exempt from release under sub19 section (a) specific information, that would—

20 (1) constitute a clearly unwarranted

21 invasion of personal privacy;

22 (2) reveal the identity of a confiden23 tial human source, or reveal information

24 about the application of an intelligence

25 source or method, or reveal the identity
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1 of a human intelligence source when the

2 unauthorized disclosure of that source

3 would clearly and demonstrably damage

4 the national security interests of the

5 United States;

6 (3) reveal information that would as7 sist in the development or use of weapons

8 of mass destruction;

9 (4) reveal information that would im10 pair United States cryptologic systems or

11 activities;

12 (5) reveal information that would im13 pair the application of state-of-the-art

14 technology within a United States weap15 on system;

16 (6) reveal actual United States mili17 tary war plans that remain in effect;

18 (7) reveal information that would se19 riously and demonstrably impair rela20 tions between the United States and a

21 foreign government, or seriously and de22 monstrably undermine ongoing diplo23 matic activities of the United States;

24 (8) reveal information that would

25 clearly, and demonstrably impair the cur-
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1 rent ability of United States Government

2 officials to protect the President, Vice

3 President, and other officials for whom

4 protection services are authorized in the

5 interest of national security;

6 (9) reveal information that would se7 riously and demonstrably impair current

8 national security emergency prepared9 ness plans; or

10 (10) violate a treaty or other inter11 national agreement.

12 (c) APPLICATIONS OF EXEMPTIONS.—

13 (1) IN GENERAL.—In applying the ex14 emptions provided in paragraphs (2)

15 through (10) of subsection (b), there shall

16 be a presumption that the public interest

17 will be served by disclosure and release

18 of the records of the Japanese Imperial

19 Army. The exemption may be asserted

20 only when the head of the agency that

21 maintains the records determines that

22 disclosure and release would be harmful

23 to a specific interest identified in the ex24 emption. An agency head who makes

25 such a determination shall promptly re-
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1 port it to the committees of Congress

2 with appropriate jurisdiction, including

3 the Committee on the Judiciary and the

4 Select Committee on Intelligence of the

5 Senate and the Committee on Govern6 ment Reform and Oversight and the Per7 manent Select Committee on Intelligence

8 of the House of Representatives.

9 (2) APPLICATION OF TITLE 5.—A deter10 mination by an agency head to apply an

11 exemption provided in paragraphs (2)

12 through (9) of subsection (b) shall be sub13 ject to the same standard of review that

14 applies in the case of records withheld

15 under section 552(b)(1) of title 5, United

16 States Code.

17 (d) LIMITATION ON EXEMPTIONS.—

18 (1) IN GENERAL.—The exemptions set

19 forth in subsection (b) shall constitute

20 the only grounds pursuant to which an

21 agency head may exempt records other22 wise subject to release under subsection

23 (a).
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1 (2) RECORDS RELATED TO INVESTIGA2 TION OR PROSECUTIONS.—This section shall

3 not apply to records—

4 (A) related to or supporting any

5 active or inactive investigation, in6 quiry, or prosecution by the Office of

7 Special Investigations of the Depart8 ment of Justice; or

9 (B) solely in the possession, cus10 tody, or control of the Office of Spe11 cial Investigations.

12 SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR

13 JAPANESE IMPERIAL ARMY RECORDS.

14 For purposes of expedited processing under section

15 552(a)(6)(E) of title 5, United States Code, any person

16 who was persecuted in the manner described in section

17 2(a)(3) and who requests a Japanese Imperial Army

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

19 record.

20 SEC. 5. EFFECTIVE DATE.

21 The provisions of this Act shall take effect on the

22 date that is 90 days after the date of enactment of this

23 Act.
Calendar No. 700

106TH CONGRESS

2D SESSION S. 1902

A BILL

To require disclosure under the Freedom of Information Act regarding certain persons and records

of the Japanese Imperial Army in a manner thatdoes not impair any investigation or prosecutionconducted by the Department of Justice or certain intelligence matters, and for other purposes.

JULY 20, 2000

Reported with amendments