II

Calendar No. 559

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, and Mr. HATCH) 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]

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

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,
2

S 1902 RS

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Japanese Imperial

3 Army Disclosure Act’’.

4 SEC. 2. ESTABLISHMENT OF JAPANESE IMPERIAL ARMY

5 RECORDS INTERAGENCY WORKING GROUP.

6 (a) DEFINITIONS.—In this section:

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

8 meaning given such term under section 551 of title

9 5, United States Code.

10 (2) INTERAGENCY GROUP.—The term ‘‘Inter11 agency Group’’ means the Japanese Imperial Army

12 Records Interagency Working Group established

13 under subsection (b).

14 (3) JAPANESE IMPERIAL ARMY RECORDS.—The

15 term ‘‘Japanese Imperial Army records’’ means clas16 sified records or portions of records that pertain to

17 any person with respect to whom the United States

18 Government, in its sole discretion, has grounds to

19 believe ordered, incited, assisted, or otherwise par20 ticipated in the experimentation and persecution of

21 any person because of race, religion, national origin,

22 or political option, during the period beginning Sep23 tember 18, 1931, and ending on December 31,

24 1948, under the direction of, or in association

25 with—

26 (A) the Japanese Imperial Army;
3

S 1902 RS

1 (B) any government in any area occupied

2 by the military forces of the Japanese Imperial

3 Army;

4 (C) any government established with the

5 assistance or cooperation of the Japanese Impe6 rial Army; or

7 (D) any government which was an ally of

8 the Imperial Army of Japan.

9 (4) RECORD.—The term ‘‘record’’ means a Jap10 anese Imperial Army record.

11 (b) ESTABLISHMENT OF INTERAGENCY GROUP.—

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

13 the date of enactment of this Act, the President

14 shall establish the Japanese Imperial Army Records

15 Interagency Working Group, which shall remain in

16 existence for 3 years after the date the Interagency

17 Group is established.

18 (2) MEMBERSHIP.—The President shall appoint

19 to the Interagency Group individuals whom the

20 President determines will most completely and effec21 tively carry out the functions of the Interagency

22 Group within the time limitations provided in this

23 section, including the Historian of the Department

24 of State, the Archivist of the United States, the

25 head of any other agency the President considers ap-
4

S 1902 RS

1 propriate, and no more than 3 other persons. The

2 head of an agency appointed by the President may

3 designate an appropriate officer to serve on the

4 Interagency Group in lieu of the head of such agen5 cy.

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

7 after the date of enactment of this Act, the Inter8 agency Group shall hold an initial meeting and begin

9 the functions required under this section.

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

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

12 the greatest extent possible consistent with section 3 of

13 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 classified Japanese Imperial Army records of the

18 United States;

19 (2) coordinate with agencies and take such ac20 tions as necessary to expedite the release of such

21 records to the public; and

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

23 Committee on Government Reform and Oversight of

24 the House of Representatives and the Senate Com25 mittee on the Judiciary, describing all such records,
5

S 1902 RS

1 the disposition of such records, and the activities of

2 the Interagency Group and agencies under this sec3 tion.

4 (d) FUNDING.—There are authorized to be appro5 priated such sum as may be necessary to carry out the

6 provisions of this Act.

7 SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS.

8 (a) RELEASE OF RECORDS.—

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

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

11 Interagency Working Group shall release in their en12 tirety Japanese Imperial Army records.

13 (2) EXCEPTION FOR PRIVACY.—An agency head

14 may exempt from release under paragraph (1) spe15 cific information, that would—

16 (A) constitute a clearly unwarranted inva17 sion of personal privacy;

18 (B) reveal the identity of a confidential

19 human source, or reveal information about the

20 application of an intelligence source or method,

21 or reveal the identity of a human intelligence

22 source when the unauthorized disclosure of that

23 source would clearly and demonstrably damage

24 the national security interests of the United

25 States;
6

S 1902 RS

1 (C) reveal information that would assist in

2 the development or use of weapons of mass de3 struction;

4 (D) reveal information that would impair

5 United States cryptologic systems or activities;

6 (E) reveal information that would impair

7 the application of state-of-the-art technology

8 within a United States weapon system;

9 (F) reveal actual United States military

10 war plans that remain in effect;

11 (G) reveal information that would seriously

12 and demonstrably impair relations between the

13 United States and a foreign government, or se14 riously and demonstrably undermine ongoing

15 diplomatic activities of the United States;

16 (H) reveal information that would clearly,

17 and demonstrably impair the current ability of

18 United States Government officials to protect

19 the President, Vice President, and other offi20 cials for whom protection services are author21 ized in the interest of national security;

22 (I) reveal information that would seriously

23 and demonstrably impair current national secu24 rity emergency preparedness plans; or
7

S 1902 RS

1 (J) violate a treaty or other international

2 agreement.

3 (3) APPLICATIONS OF EXEMPTIONS.—

4 (A) IN GENERAL.—In applying the exemp5 tions provided in subparagraphs (B) through

6 (J) of paragraph (2), there shall be a presump7 tion that the public interest will be served by

8 disclosure and release of the records of the Jap9 anese Imperial Army. The exemption may be

10 asserted only when the head of the agency that

11 maintains the records determines that disclo12 sure and release would be harmful to a specific

13 interest identified in the exemption. An agency

14 head who makes such a determination shall

15 promptly report it to the committees of Con16 gress with appropriate jurisdiction, including

17 the Committee on the Judiciary of the Senate

18 and the Committee on Government Reform and

19 Oversight of the House of Representatives.

20 (B) APPLICATION OF TITLE 5.—A deter21 mination by an agency head to apply an exemp22 tion provided in subparagraphs (B) through (I)

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

24 standard of review that applies in the case of
8

S 1902 RS

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

2 5, United States Code.

3 (4) LIMITATION ON EXEMPTIONS.—

4 (A) IN GENERAL.—The exemptions set

5 forth in paragraph (2) shall constitute the only

6 grounds pursuant to which an agency head may

7 exempt records otherwise subject to release

8 under paragraph (1).

9 (B) RECORDS RELATED TO INVESTIGATION

10 OR PROSECUTIONS.—This subsection shall not

11 apply to records—

12 (i) related to or supporting any active

13 or inactive investigation, inquiry, or pros14 ecution by the Office of Special Investiga15 tions of the Department of Justice; or

16 (ii) solely in the possession, custody,

17 or control of the Office of Special Inves18 tigations.

19 (b) INAPPLICABILITY OF NATIONAL SECURITY ACT

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

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

22 any operational file, or any portion of any operational file,

23 that constitutes a Japanese Imperial Army record under

24 this Act.
9

S 1902 RS

1 SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR

2 JAPANESE IMPERIAL ARMY RECORDS.

3 For purposes of expedited processing under section

4 552(a)(6)(E) of title 5, United States Code, any person

5 who was persecuted in the manner described in section

6 2(a)(3) and who requests a Japanese Imperial Army

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

8 record.

9 SEC. 5. EFFECTIVE DATE.

10 The provisions of this Act shall take effect on the

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

12 Act.
Calendar No. 559

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.

MAY 18, 2000

Reported with an amendment