Comment From the Public Affairs Leadership
Changes to the Agenda
Approval of the October 1994 Minutes
Public Access to Records of the Committee
Report by the Historian
Closed Session, February 14
State Department Documents in the Presidential Libraries
Report of the Subcommittee on Opening the Department of State's 30-Year Old Records
Draft Executive Order on Declassification
Report of the Subcommittee on Declassification
Report on the Visit to the National Security Council
Closed Session, February 15
Comments by the CIA Historian on Access to CIA Records
Kimball then gave an explanation of how to take minutes for the meeting. He reminded the staff that the speaker is responsible for clarifying when a comment is meant to be off-the-record. The speaker must also indicate when a statement should be considered classified or as part of the deliberative process. It is not the responsibility of the notetakers to identify this information.
Kimball noted the presence of several visitors, including Regina Greenwell of the Johnson Library, two reporters representing Japanese television (TV Asahi), and Tim Weiner from The New York Times.
Comment From the Public Affairs Leadership
William Z. Slany explained that the absence of PA Bureau leadership was due to the pending testimony of Secretary Christopher on the Hill. He added that Deputy Assistant Secretary Bennett Freeman might join the Committee for lunch; the attendance of Assistant Secretary and Chief of Staff Tom Donilon would depend on the demands required for Christopher's testimony. Kimball intedected that the Committee would certainly like to have the opportunity to talk with Donilon if at all possible. Slany mentioned Mike McCurry's continuing interest in the Committee and suggested that he might wish to meet with the Committee in spite of his new responsibilities as the President's Press Secretary.
Changes to the Agenda
Slany suggested that the discussion of the draft executive order be moved to the afternoon by rearranging the schedule, i.e., trading places with the session on the LBJ tapes. Kimball and Nancy Smith (NARA) discussed this and Smith agreed to the substitution. With the general agreement of the Committee, Kimball announced that the meeting would proceed along Slany's suggested changes.
Approval of the October 1994 Minutes
Kimball said that he wanted to make one minor correction to the minutes of the October 1994 meeting: substitute "advisory" for "executive" body on page 6. He asked if the Committee had any other changes to suggest. In the absence of any suggestions, Kimball announced that the minutes were approved as corrected.
Kimball suggested that Slany begin his report, since the Committee was uncharacteristically ahead of schedule, and Mary Beth West (L/LM) was not yet due to arrive. Slany began by referring to his written report as a general overview of all aspects of the Foreign Relations program.
Public Access to Records of the Committee
Before Slany could continue, Mary Beth West arrived. Kimball then initiated the session on public access to the records of the Committee.
Emily Rosenberg began the discussion by relating what the subcommittee learned at its meeting on Monday. The Office of the Legal Adviser has determined that the records of the Advisory Committee, including the minutes of its meetings, must be treated like all other records of the Department of State: Department documents, other than those expressly intended for public discussion must either be released through the FOIA process or be opened at the National Archives pursuant to a formal records disposition schedule. Each document must be screened for classified and deliberative process material. The chairman of the Committee should clarify the rules of discussion as Kimball already had at the beginning of the meeting. The notetakers for each meeting must be given clear cues by the participants regarding the need to protect the information they present-- because of security or deliberative sensitivity. After each Committee meeting, the Executive Secretary should segregate the clearly unclassified information intended for public disclosure from deliberative material requiring clearance from the FOIA office. The minutes of the open meeting, and part of the closed session, should be available to the public in the FPC reading room within 3 months. The briefing materials and other documents would be similarly disposed.
Rosenberg raised one problem with this procedure: the Committee must officially approve the minutes before they can be made available. This would generally postpone public release of the minutes until the next meeting (i.e., 3 months later). The FOIA office has indicated that it could probably clear the minutes within 24 hours of receipt. The Executive Secretary will prepare the record of both the open and closed portions of the Committee, segregate the classified portions, and identify the portions at which deliberative discussions were held. Rosenberg suggested that the Committee accept this process on a provisional basis, and return to the issue in 3 months. She also repeated the Committee's concern that the minutes, and other records of the Committee, be available for the public's use.
Mary Beth West stated her appreciation for the concerns of the Committee on this matter. The Office of the Legal Adviser is working with FPC to create an expedited process that could deposit any of the Committee's records in the reading room once they had been cleared for classification and privacy information.
Rosenberg stated the Committee's apprehension concerning the use of the term "deliberative process." She said that the Committee was not ready to commit itself thoroughly to the proposed procedures, and may need to revisit the issue at a later date.
Kimball asked the Executive Secretary (Slany) to monitor the process; perhaps there would not be much public interest. Slany said he would be surprised if that were the case.
Jane Picker asked if the Office of the Legal Adviser made any distinction between the deliberative materials of the Committee and those of the State Department-- between the status of an advisory committee and that of a formal agency of the executive branch.
West admitted that there was a distinction to be made; a problem arose, however, because of the interplay between the Committee and executive branch agencies. The deliberations of the Committee would not be subject to any restrictions unless they included information concerning the deliberations of the State Department or other agencies of the government.
At this point Frank Machak (FPC) arrived, and West provided a review of the previous discussion for his benefit. Kimball then asked if the Committee had any further questions for either Machak or West. There were none.
Report by the Historian
Schedule for Meeting the 30-Year Line
Slany then continued his report by stressing the statutory responsibility of HO to reach the 30-year line by 1996-- and to do so without sacrificing the quality and integrity of the Foreign Relations series. He expressed optimism that the staff might meet the deadline, or at least had a reasonable chance of doing so. Slany did introduce, however, one important qualification: the organization of the series on the basis of Presidential term. Although HO would publish all of the volumes for the Eisenhower and Kennedy administrations by the end of 1996, some of the Johnson volumes might not appear in print until 1998. These volumes would necessarily include documents older than 30 years, but, taken as a whole, the Johnson subseries would be finished within the terms of the statute. Slany added that 1995 would be a big year with the publication of as many as 15 volumes.
Slany asked the Committee for its help and recommendations concerning the 15 volumes scheduled to be published this year, drawing special attention to the "adequacy of documentation" issue. These volumes, which have not been read by the Committee, might possibly require an outside review. Slany asked if the Committee would recommend that the Department hire contractors to review the manuscripts. He explained that, in proceeding with the Johnson subseries, HO is concerned that the Committee has not adequately addressed the issues that confront each volume, including scope and size of volumes and coverage of intelligence matters. Slany asked what the Committee would recommend: is it reasonable to assume that the Cominittee members would review the volumes or should outside contractors be found to do this?
Slany raised the issue of delays caused by the process of declassification. He was quick to note that the problem of declassification delays does not apply to the Department of State itself: the number of HDR reviewers apparently exceeds the number of manuscripts that HO can supply. In fact, due largely to the chronic staff shortage, HO is admittedly behind its original schedule of referrals to HDR. The problem of declassification delays is due primarily to the delinquency of responses from other agencies, particularly DOD, DOE, Treasury, and the CIA. These agencies regularly exceed their statutory responsibility of responding within 120 days. Slany added that these issues would be further addressed in the afternoon.
Slany reiterated that, although the occasional desk officer has not been helpful, the Department leadership has been supportive of HO's mission. He noted in particular that Secretary Christopher remains committed to the principle of promoting public access to the Department's historical records. The problem, of course, is in getting other agencies to share in, and cooperate with, that commitment.
Kimball interrupted to add that the Committee certainly appreciated the support it has received from the Department, and he wanted this appreciation to be appropriately noted in the record.
Slany responded that any internal success can be partially attributed to HO's proximity to the people necessary to the success of the Foreign Relations program within the Department. Our relations with other agencies, on the other hand, remain relatively distant. The government-wide declassification bureaucracy is so large that its very size constitutes a threat to the series. Other agencies have their own considerations and seem to have trouble accepting State's priorities, even when the latter are required by the law. He noted that the failure of some agencies to respond was forcing delays in the publication of two volumes from the end of the Eisenhower administration as well as others covering the Kennedy Presidency. Slany asked the Committee for its recommendation on how to deal with this problem, particularly when certain agencies regularly miss deadlines mandated by the Foreign Relations statute. He remarked that Kimball occasionally scolded him for being "too courteous"; perhaps HO should develop a tougher "complaint system." In bureaucratic terms, it might be easier for the Committee to complain to other agencies and be heard.
Slany mentioned that, although the State Department has been generally supportive, HO was currently having difficulty gaining consistent and effective access to the Department's older records, which have recently been moved to a warehouse in Newington, Virginia. He asked David Patterson to comment on this issue.
Patterson said that Ken Rossman of the Department's Records Management Staff had reported to him last week that the records are already stored at Newington, but that he (Patterson) had received conflicting reports about their availability. Rossman thought that HO could possibly resume its research at Newington by the middle of this week. Patterson also mentioned that he had raised the issue of transportation with Rossman. Rossman did not know if the shuttle bus would stop at the research facility (SA-13) in addition to its other three stops. Otherwise the closest stop is a mile away.
Herring asked if the move to Newington was in addition to or in lieu of the proposed move to Berryville. Slany replied: "In lieu of."
On behalf of the Committee, Kimball expressed the hope that the shuttle "goes the extra mile." He then asked if anyone had checked the facility to see if it meets the minimum standards required of a research facility.
Patterson said that he had been told that the facility would meet the standards that one would expect of such a facility.
Kimball said that he wanted the record to show that the Committee fully supports the shuttle stopping at the facility in Newington. He asked if a memorandum to the appropriate authority would be required to formalize the Committee's position on the issue; he received a negative response.
Anthony Dalsimer (FPC/HDR) interjected that HDR is still waiting for office space to be developed. Kimball suggested that a Committee member visit the facility before the next meeting to judge whether the space is adequate; he volunteered Mel Leffler to look into this on his next trip to the D.C. area.
Access to CIA Records
Slany raised another issue that threatens the Foreign Relations schedule: access to the intelligence records of the CIA. He noted that a decision to include more intelligence documentation in the series would increase the time required to compile the volumes, particularly since these documents are usually more difficult to locate. He said that the issue of access to CIA records would be discussed in the afternoon. Slany also remarked that Kimball often calls to complain that HO historians have not received access to the records of the National Security Agency. Slany said that HO needs to know what the Committee expects from the series, especially for volumes near completion. HO cannot continue to revise and augment completed volumes and, at the same time, stick to the publication schedule. He asked if the Committee had any recommendations on how to do both.
Kimball asked for comments. He said that all historians must face the difficult question of when to stop looking for documentation. The HO historians, however, have the additional burden of the schedule as mandated by law.
Rosenberg commented that the Committee has seen an increase in access over the last year. In view of this consideration, the original schedule may have to be changed. This might require making changes or additions to volumes that are otherwise ready for publication, i.e., in page proofs. Rosenberg stated her conviction that the schedule cannot be the highest priority, that the historical community expects the volumes to reflect the policy of greater openness. Rosenberg admitted that she was not certain how to do this and meet the demands of the schedule at the same time. She further noted that according to Slany's report to the Committee on the scope of inclusion of CIA documents in recent Foreign Relations volumes, recently published volumes on Europe during the Kennedy administration contained no documentation from the CIA. In her opinion, this was a disturbing development. CIA documents were retrieved-- not from the CIA itself-- but from the Kennedy Library. Nancy Smith remarked that the Presidential libraries are a prime repository for significant intelligence documentation. The CIA is often forced to send historians to the Presidential libraries in order to find their own documents.
Slany explained that the volumes in question had been done at a time when HO had yet to work out arrangements for access to CIA records. He did not think that HO could afford to hold up these volumes in order to search for additional documentation from the CIA.
Leffler seconded Rosenberg's reaction to the lack of CIA documentation in certain volumes; he was "shocked." Leffler said that the Committee should reassess the discrepancy in coverage devoted to intelligence issues in the Kennedy volumes, determine what can be found, and decide whether a new search is worth the effort.
Kimball agreed, delegating the task of further recommendation and estimates to HO. A decision would have to be made for each volume. Kimball reminded the Committee, however, that Slany cannot recommend a schedule that is in violation of the law.
Tim Weiner asked for clarification on the subject of access to CIA records. Were the HO historians hampered by the necessity of asking the right question in order to get an appropriate answer?
Kimball explained that the Foreign Relations series had been in transition at the time the volumes on the Kennedy administration were being compiled. In 1991, the Foreign Relations statute signaled a new era of openness: agencies were required to agree to written procedures giving HO (and the Committee) full access to the records necessary for the completeness and integrity of the series. The CIA files, however, are not organized in a way that could be considered conducive to the kind of research normally conducted for the series. HO researchers are leaming how to exploit CIA files and have made some progress in recent months.
Kimball was careful to point out that progress in access does not imply similar progress in declassification. The former is "promising"; the latter is not. Kimball said that the researchers do find more once they learn how to ask the right questions. Now the issue is how to go back to the CIA for additional documentation without forcing the series to be in violation of the law.
Rosenberg used the common metaphor of perspective: the glass is either half empty or half full. The current level of access must be considered a major breakthrough in comparison to the access of the past. Maybe the Committee is inclined too often to see the glass as half empty. The historical community, however, will likely see the results of increased access in some volumes and question the relative lack of coverage in others.
Herring noted that, according to the Perkins Chart, the European volumes had been compiled in 1992 and were due for publication this year. There is little that can be done about them now.
Slany mentioned the Soviet Union volumes for 1961-1963, that are being revised to include intelligence and other documents, to show how the search for supplementary documentation often forces a lengthy postponement in publication.
Picker worried that the failure to conduct additional research might lead to a distortion of the record. If the record is distorted, the Committee may need to add new language to the preface as a warning.. The preface could state that HO is continuing its research and might include additional documentation in a future volume.
Kimball said that Slany's request is legitimate, and the Committee does need to think about the general schedule. Slany, however, will have to insert "intellectual impact statements" for each volume to account for the issue of access.
Herring added that the Committee needs to assess whether new documentation would materially affect the historical record and determine whether such a search would be worth the resulting delay.
Slany said that HO is currently using senior Foreign Service officers to evaluate volumes. Some of these FSOs were involved in the events documented and can therefore recognize any gaps in the record. He conceded that this method had not always worked, but that it has recently produced good results on the Soviet Union volumes.
Kimball said that he had reviewed the Perkins Chart, marking any problems that seemed readily apparent. He suggested that the Committee review the chart as a group in order to identify the delays confronting each volume:
1946-50, Intelligence Supplement
Weiner asked about the China/Tibet volume. He wondered whether the documentation denied in the Foreign Relations volume might confirm a story already in the public domain.
Kimball replied: "God, I wish I could answer that!"
Kimball belatedly introduced two new Committee members, Michael Hogan (Ohio State University) and Michael Schaller (University of Arizona).
The Committee adjourned for the scheduled coffee break at 10:30 a.m.
The meeting reconvened at 10:55 a.m. Kimball reviewed the ground rules concerning minutes: notes would be taken on everything said in the meeting, classified and unclassified, unless the speaker requested that his or her remarks be off-the-record. The classified portion would be segregated. The draft minutes would continue to be circulated to all agencies.
Kimball noted that among the eight Committee members were seven proposals for improving access to documents.
Status of Japan and British Guyana Appeals
Kimball then opened the floor to questions generated from the earlier discussion. Tim Weiner of The New York Times asked Kimball if he could state for the record the status of the Japan and Guyana issues. Slany indicated that the volumes containing these compilations were still in the interagency review process. One or more might also fall into the category, discussed earlier in the morning, of adding more documents to make the record more complete. At one time the volumes were considered finished, but the opportunity now exists to add material.
Weiner asked whether the Department of State had approved the Japan compilation; Slany reported that it had. Weiner asked whether the CIA had said yes or no; Slany indicated that the matter was still under discussion in the Agency, and because the process was not complete, the Office did not accept CIA's answer as a final yes or no. In response to Weiner's question concerning Guyana, Slany indicated that it was also in the interagency review process. Weiner asked to whom in the Agency the matter was addressed. Slany indicated that it was addressed to the person who has authority over declassification matters. Weiner asked whether this was done last month. Slany replied that it had occurred last year. Weiner asked whether there was a time clock. Slany indicated that the Agency had come back with an initial response, and that the answer was not "yes."
Kimball noted that the CIA's initial finding that the documents were not releasable initiated an appeal process. Weiner asked what would happen if a negative answer were received in the appeal process. Slany indicated that the Advisory Committee would then become involved, and it would consider such options as publishing the volume without the documents in question, or not publishing the volume. Weiner asked when or at what point the Department would consider that it had received a final yes or no from the Agency. Slany indicated that it would be about another month.
Christopher Poston of the Asahi National Broadcasting Company asked whether the Department was strictly interpreting the 60-day appeal period. Slany replied that the Department would try to avoid a quick response if the answer was likely to be a flat "no." In some cases where it could be beneficial to the historical record, the Department might allow the 60-day limit to be exceeded.
Weiner asked whether there could be a mixed answer, with some documents cleared and others denied. Slany and Kimball pointed out that this was not only possible but occurred routinely. Weiner asked Kimball if he could say what the CIA's objections were based on in the appeal. Kimball said he could not.
Johnson Telephone Conversations
Kimball then turned to the subcommittee that was dealing with the recorded telephone conversations of President Lyndon B. Johnson in the LBJ Library and an HO plan to gain access to and include portions of these records in the series. Herring indicated that the LBJ Library had decided some time ago to make the telephone conversations available. This represented a windfall of useful material for the Foreign Relations series, especially because so little of President Johnson is reflected in the Johnson papers. This raised problems that could cause significant delays in compiling the 1964-1968 volumes: many hours were required to process the material, researchers and transcribers would have to listen carefully to catch nuances and details, and donor restrictions would have to be dealt with. Regina Greenwell of the LBJ Library pointed out that, in keeping with NARA policy, the Library did not make transcripts.
Herring noted that David Humphrey was working on an action plan that would allow the Office to focus on the periods and subjects of greatest importance: the crises in 1964 in Cuba and Brazil, for example, and the Dominican crisis of 1965. The greatest volume of material was from 1964; of the over 7,000 recordings of telephone conversations, 4,000 were from 1964. The Office was most interested in the conversations during the first half of 1964; most for August through early November 1964 were election-related. As the administration went on, the volume of recorded conversations decreased, and during the years 1966-1968 they dealt primarily with Vietnam. (The HO plan is to work with the LBJ Library and give priority review to about 1,000 conversations most relevant to major foreign policy issues.)
Herring noted the importance of picking up items that might have been missed during the first review but identified later by the LBJ Library, and the importance of providing access to scholars. He indicated that there was no doubt of the utility and significance of the material for the Foreign Relations series.
Slany agreed, adding that the volumes must make clear what the compilers did and did not see, and inform readers that only about 10 percent of the conversations could be reviewed. Herring noted that there was much useftil material on Vietnam for 1964, but the Foreign Relations volume had already been published. Kimball said that it was important to establish criteria for retrofitting the LBJ volumes and adding supplementary material where appropriate.
Schaller pointed out that intonation and expression added other dimensions to the interpretation of the tapes; the transcripts alone did not capture the nuances of the conversations. Hogan agreed and asked about publishing the recordings on CD-ROM. Greenwell emphasized that the LBJ Library considered the tapes to be the original records, not any transcripts that might be made. Nancy Smith indicated that there was no substitute for the recordings, since a transcript could contain erroneous attributions.
Greenwell noted that 33 hours of telephone conversations have been made available thus far in the LBJ Library reading room in the form of digital audiotapes. Eventually the entire collection will be available. Classified and donor-restricted portions are excised from the digital tapes; a tone warns the listener and textual notes indicate the duration in seconds and grounds for excision. Smith indicated that the JFK Library had used the saine system for the Cuban Missile Crisis tapes. With respect to the Nixon tapes at Pickett Street, there were other complicating factors, including a prohibition on the sale of reproductions.
Rosenberg asked about a timetable for release of the LBJ recordings. Greenwell said the Library expected to complete the process of duplication from the original dictabelts onto tapes by March 1995. The tapes should be open to the public in 5 years.
Kimball summarized the sentiment of the Committee as agreeing that a carefully-constructed paragraph concerning the tapes should be added to the preface to each 1964-1968 Foreign Relations volume. The paragraph should indicate that the tapes exist, describe the nature of their use in the particular volume or indicate that a review of the database revealed few or no relevant conversations, and emphasize the importance of listening to the tapes.
Herring noted that great progress had been made during the past year in resolving the issue of the LBJ recorded telephone conversations. Kimball asked that the minutes reflect that the Committee was pleased by the progress made during the last year. Originally there was a donor restriction of 50 years following President Johnson's death; now there were arrangements in place to ensure access to both HO researchers and the public. Slany commended Humphrey for his work on the LBJ telephone conversations, and announced that he had been promoted to Chief of the Office's European and General Division.
Nixon Presidential Materials
Nancy Smith urged the Committee not to lose sight of the urgent need to address the Nixon Presidential materials. NARA was concerned because it was involved in litigation. The Department should begin negotiations with the Nixon lawyers as soon as possible to avoid delays in the Foreign Relations schedule. Kimball asked Slany if there had been any contact with the Nixon Library. Slany indicated that the first step would be to have a plan for the contents of the Nixon subseries. Such a plan would build on the experience in documenting the Kennedy and Johnson administrations. Kimball said he felt there should be something more concrete on the Nixon years by the next Committee meeting; a bad plan that moves things along is better than a good plan that is too late.
Nancy Smith pointed out that one of the Nixon lawsuits deal with the question of whether NARA had returned all the personal and returnable material on the Nixon tapes to the President's agents. The Department of State would have to talk to the Nixon agents about this. There was an existing procedure for the Department to approach the Nixon agents on ongoing foreign policy issues, but not on the Foreign Relations series. It should be possible to work out an arrangement similar to those with the JFK and LBJ Libraries whereby Department historians would select documents and copies would be sent for review to the appropriate agencies.
Kimball stated that while the Department had usually relied on NARA as a good faith agent for access to Presidential materials, in the case of the Nixon materials, the Department might want to act independently to move the process along. Smith agreed that this was a good idea, pointing out that NARA was going into non-binding legal mediation in an attempt to try to resolve some complex issues of access and returnability. The mediation covers all Nixon Presidential materials, not just the tapes. Nixon is a unique and unprecedented case-- unprecedented in the amount of material involved and. with respect to the tape collection. The Nixon Presidency was the last to have tapes and even has its own law, the Nixon Historical Presidential Materials Statute.
Luke Smith pointed out that the Nixon administration was also unique in that Secretary of State Kissinger sent his materials to the Library of Congress, where they are considered private papers. Nancy Smith, responding to Kimball's question about how the situation has changed, indicated that the 1978 Presidential Recordings Act changed the ownership of all future Presidential materials from private to public. But the Federal Records Act did not change as a result of Kissinger's action. The Justice Department issued an opinion that the Kissinger records were not official records but only copies of records in Department of State files, and they therefore have private, non-record status.
Schwar wondered whether the Kissinger materials covered his years as National Security Adviser. Smith said these files were part of the Nixon project, although it was likely that some Kissinger National Security files were at the Library of Congress.
Slany reminded the Committee that the Department had provided subventions to the Johnson Library. He was faced with the problem of presenting and defending requests for a rising sum to ensure priority support. What sort of expenses would the Nixon volumes entail? Nancy Smith said that State was paying two archivists at the LBJ Library (one to expedite access to the paper records and the other to assist in the preparation of selected records of Johnson's telephone conversations) and hoped the precedent would continue for Nixon.
Outside Academic Reviewers
Rosenberg asked about the use of outside reviewers from the academic community for Foreign Relations volumes. The Committee had discussed the idea in the past. Kimball pointed out that there was a money issue; reviewers would presumably be paid $1,000 or more to review a volume. There must be a fair fee that will attract good people. Kimball wondered about the value of published academic reviews. LaFantasie said they had been helpful.
Slany pointed out that another alternative was to make use of active duty senior officers who have security clearances. The Committee's briefing materials had included Slany's report on the reviews completed by various senior experts on 13 different volumes. There was a problem in using outside experts. They must sign a security disclaimer that would prevent them from using the material in their own research. Leffler pointed out that HO had survived for generations without external review, but Slany pointed out that the Office had never before compiled 70 volumes in 5 years. Kimball said that the Committee was not responsible for the content of volumes; compilers were being paid for producing quality work. Kimball suggested that it might be better to hire another HO historian than to seek outside reviewers. The idea of outside reviewers sounded good, but it was hard to put into effect.
The Committee adjourned at noon.
State Department Documents in the Presidential Libraries
Nancy Smith provided a status report on what Presidential Libraries have been doing regarding State Department documents in Presidential Library files.
The Presidential Libraries are seeking revocation of a 1983 State Department memorandum that postponed indefinitely the automatic declassification of documents marked Group 4 (automatic declassification after 12 years). Prior to 1983 such documents, including many State Department cables, could be automatically declassified as soon as they were 12 years old. Dalsimer has drafted a memorandum for Assistant Secretary of State for Administration Kennedy that requests DS to revoke the policy in the 1983 memorandum. The memorandum is going forward. There are many officers in the State Department who do not follow the guideline of the 1983 memorandum.
Smith has a call out to the Libraries to draft declassification guidelines for certain categories of information in State Department documents that are less than 30 years old. It is anticipated that these guidelines would be similar to those adopted more than a decade ago by the National Security Council for information in White House and NSC documents at the Presidential Libraries. The guidelines would permit the Libraries to declassify limited amounts of State Department information in documents less than 30 years old without referring the documents to the State Department.
Smith also noted that a recent NSC letter states that the Truman, Eisenhower, Kennedy, and Johnson Libraries no longer need to refer classified White House and NSC documents to the NSC for declassification, although such documents would still require referral to other agencies with equities. Smith also raised the issue of heads of state correspondence in light of the recent NSC change in policy. Are there categories of subject matter that can be opened without going through the Department of State?
Leffler stated that he would like to have a report back in 6 months as to the effect of NSC's revocation of its equity in White House and NSC documents at the older Libraries. He also asked whether NSC can delegate to the State Department the same authority that it is giving to the Libraries to declassify NSC and White House documents.
Rosenberg suggested that the Committee might express its support for State's giving the Libraries clearance for releasing certain categories of information in heads of state correspondence.
Report of the Subcommittee on Opening the Department of State's 30-Year Old Records
Rosenberg then presented the report of the subcommittee on 30-year old records. She was particularly concerned that the Committee be assured that the records would not only be reviewed by 1996 but also be transferred and opened by that date, as required in the legislation. Marvin Russell (NARA) stated that the legislation would be met. Rosenberg noted that by 1996 everything dated up to 1966 should be open. Russell stated that it will happen.
David Langbart (NARA) also noted that the lot files for 1964-1966 need to be appraised and scheduled. Rosenberg asked if this threw into question her statement about opening everything by 1996. Langbart repeated that the issue of lot files needed to be explored and resolved. Rosenberg asked him to speak to Ken Rossman about it. Herring asked if there was anything the Committee needed to do about it as a committee. Langbart said no.
Rosenberg commented on the issue of getting other agencies involved in the review of 30-year old records. Efforts were being made to get DOD and NSC guidance. The big problem was CIA. She stated that the Committee needed to go on record again expressing the wish that CIA would be more cooperative. Dalsimer said that he had discussed the matter with Jack Wright and John Pereira of CIA but that neither is at the policyrnaking level. Frank Machak was going to talk to people at the policyrnaking level.
Herring asked Dalsimer if he had a plan for anticipating the new executive order on declassification. Dalsimer said no.
Rosenberg discussed the issue of guidelines, noting that they have been reviewed, updated, and disseminated to the Presidential Libraries and that further updates will go out to the Libraries. She also noted the need for a regular training program for those using the guidelines and mentioned other "culture-changing" mechanisms for declassifiers. In HDR openness is specifically encouraged and attention called to the standard of "demonstrable damage" for withholding material. HDR monitors the quality of the review through a 5 percent sample of documents reviewed at College Park.
Draft Executive Order on Declassification
Kimball returned at 2:35 p.m. and introduced James Thessin, Deputy Legal Adviser, and Mary Comfort of the Office of the Legal Adviser, who would provide greater background on the new draft executive order. Frank Machak subsequently joined them.
Thessin discussed maximizing benefits in terms of the number of documents that could be squeezed from the Executive order. The best means to accomplish that goal was, in his view, to concentrate on the end of the 25-30 year cycle. In that regard, the mechanism for declassifying the historical series under the 1991 law could serve as a model for examining and reviewing documents after 25-30 years.
According to Thessin, analyses show that 97 percent of classified documents can be released after 25-30 years and, he felt, the Executive order should pay more attention to that end of the time scale. Earlier release resulted in something closer to only a 50 percent release rate. He explained that continuous declassification procedures are counterproductive and waste resources, whereas concentrating on the later end of the time scale was most economical.
Kimball commented first that State had not allowed for full consultation with the Advisory Committee on this matter. He pointed out, however, that HO had sent him a copy of the Executive order and he, in turn, had consulted with his colleagues on the Committee about it by E-mail. He proffered his view that the Committee should not be thought of as part of the problem, but part of the solution. Better efforts are needed to ensure that the Committee is part of the process and not left out. He went on to express his appreciation that the Advisory Committee at least had had some limited input and that some of its advice had been accepted.
Kimball, speaking for the rest of the Committee, then questioned the approach taken to the Executive order, that is, the joining of resources and procedures. That approach struck the Committee as being the wrong way to develop procedures.
Thessin responded by saying that the fact that the Advisory Committee did not get a copy of the order earlier was not a deliberate act. An attempt was made to reflect all comments made about the order, and he noted that Mary Comfort and Bill Slany had met for that purpose.
Turning to the question of joining resources and procedures, Thessin reminded the Committee that this is a time in which government resources are under threat-- there are fewer resources, tough choices to be made, staff reductions through early outs, and no increase in funds since 1993, although the workload has expanded in some areas. As a result, resource allocation must be a major consideration. In terms of document reviews, that means that the areas in which payoffs are the greatest must be examined, and that is where the approach to the Executive order comes in.
Kimball raised the question of bulk declassification and asked about its impact.
Thessin indicated that the risks of accidental disclosure through bulk declassification could be avoided by "portion marking," that is, marking each paragraph in a document with a classification code, so a reviewer can go through the document quickly and release part or all of the document.
Thessin recommended moving the declassification target date back to 25 years. The cut-off point is now 30 years, but in reality it is closer to 33 years. In addition, reviewers now have more documents per year to review.
Frank Machak stated that the Department recognized the issue of life-cycle management of records. The executive order might be the proper vehicle to accomplish the goal of selecting those documents worth preserving. He indicated that there are now officers in the State Department who are sensitive to these issues and noted that the Assistant Secretaries are willing to help by watching out for unnecessary classification.
Kimball expressed concern that such procedures may be of benefit in 25 years, but again questioned their immediate effectiveness.
Machak responded by again pointing to the issue of resources and the fact that work can be done only with the means at hand. He explained that the current distribution of resources-- one-third devoted to systematic reviews, one-third to FOIAs, and one-third to the Secretary's litigation, congressional investigations. Systematic review should be the priority program. He pointed out that Dalsimer has expanded access to the reviewer pool in order to cover target areas.
Machak also stated that the Committee's help was needed to amend the Freedom of Information Act. As it stands, too much time and money are spent on "snapshots," and those resources could be better used on issues of greater general interest. He indicated that the Executive order engages the Archivist of the United States to make sorne suggestions on its provisions. He also pointed that the program at State is the only one to hold its own. The Assistant Secretary and the Under Secretary for Management support it and will cooperate with the National Archives.
Thessin responded to Kimball's earlier question by stating that a new procedure would not take 25 years to implement, but would require approximately 5 years to catch up.
Leffler raised a question about whether the executive order would be amended to cover documents 25 years old.
Thessin replied that documents could remain classified after 25 years for few reasons; for example, documents deemed to contain information that could put the United States at a disadvantage, even if release of the information did not harm U.S. relations with a foreign power. He clarified his point by using the example of documents pertaining to the comprehensive test ban treaty. Although the documents record 25-year old policies, the information they contain could still be relevant to current negotiations, and therefore their release could put the United States at a disadvantage in ongoing talks. He indicated that the Legal Adviser's Office believed the language on these matters needs to be broadened.
Leffler questioned the need to protect documents covering 25-year-old negotiating positions.
Comfort noted that if the negotiations are not new and different, but rather a continuation of the negotiation process stretching back over a long period of time, such as the test ban treaty negotiations, the documents need to be protected. Thessin agreed there should be a means to protect such documents.
Rosenberg asked what wording State had suggested to cover such situations.
Comfort and Thessin explained that the words "ongoing diplomatic activity of the United States" were added.
Kimball asked if a clear and unqualified definition of the word "ongoing" existed or had been established, to which Thessin replied no.
Kimball expressed his view that declassification is an art rather than a science-- it is subjective and this causes problems. He indicated that by using words such as "ongoing" and "activities," which are very vague, many documents may remain classified without justification.
Nancy Smith also noted that the new executive order would send Presidential material back to the agencies for review.
Thessin responded to those comments by pointing out that clear wording will not solve declassification problems, for the review process will always involve judgments.
Kimball asked if any thought had been given to the procedure or structure for the balancing test requirement.
Thessin was not aware of any. Machak indicated that views differed on that topic and that some agencies had expressed concern about it. In any event, the situation depends on the wording in the Executive order in that the reviewer's decision must be justifiable. In any situation, a reviewer must be able to make a case to support and justify all decisions, and the argument in support of any decision must be able to stand up to the scrutiny of the appeals process.
Kimball spoke for all members of the Committee when he stated that the Department will find it useful to consult with members in order to seek their opinions and to help develop procedures regarding the Executive order and its implementation.
Thessin welcomed the input from Committee members and others in the scholarly community in order to demonstrate why documents needed to be declassified. He warned against appealing each and every document to the highest levels, however, as being overburdensome and in the end self-defeating. He suggested some selectivity be employed to identify documents needing high-level scrutiny and review.
Thessin pointed to some obvious problems inherent. in that request, but indicated he would look into the matter.
At approximately 3:15 p.m. the meeting recessed for the afternoon break.
Kimball reopened the session at 3:40 p.m. with comments on two matters. First, after discussing the matter of ambiguous equities with Nancy Smith during the immediately preceding break, he suggested that guidelines might be drafted for these equities. These guidelines would be circulated to the other interested agencies. If they all approved,then the matter could be handled in that way. Second, he again raised the clause in the draft executive order that would allow agencies to exempt entire files. If agencies exempted some files in this way, they might never be released. He compared the problem with the British refusal to release intelligence documents. This clause was open to tremendous abuse, he concluded, and he wanted Smith to keep the Committee continuously informed on how the agencies were using the files exemption. Leffler said he would like a copy of the latest draft executive order.
In response to a question by Herring, Kimball said he thought the file exemptions clause would remain in the final executive order. Smith remarked that NARA commented on this files exemption. How damaging it is to release of documents depends on how broadly the agencies utilize it.
Leffler then asked what would happen if an agency were not in compliance with the executive order. Marvin Russell commented that nothing would happen, and cited the example of the Carter executive order. Picker said that any penalties would be bureaucratic. The President might deny the agency certain rights subject to litigation.
Report of the Subcommittee on Declassification
Herring reported that his subcommittee discussed Tibet, Japan, Cyprus, Guyana, and Angola. Only Tibet was a problem, he said, but Rosenberg requested a briefing on the others as well. LaFantasie remarked that Cyprus has now been cleared in the Department of State. Herring added that the problem was solved by sending a senior Foreign Service officer, a former Ambassador, to the desk. He persuaded the desk officers to release the documents. He was able to change the officers' mindset, perhaps because they spoke the same language. He got good results, and Herring thought this experience was "interesting, significant," and promised to be helpful for the future.
LaFantasie explained that it was Harmon Kirby who went to the European Bureau (EUR), and perhaps because he was a former Ambassador, his involvement "did seem to do the trick." The desk had earlier reftised even to give reasons for its denial of five documents. This informal appeal process is not in the Foreign Relations legislation. He added that Kirby was now working on Angola and he has succeeded in getting the documents cleared by the Portuguese desk in EUR and was now trying to get a favorable decision from the Bureau of African Affairs.
Herring continued that the 1964-1968 Cyprus documents now had to go to the CIA. Picker inquired whether the Portuguese desk had equity over documents relating to Angola in the post-colonial era, and LaFantasie affirmed that it did. Nina Noring (HDR) added that Portugal was also currently engaged in mediation efforts in Angola.
Herring then turned to the Tibet issue, which, Kimball interjected, the Committee had first raised more than 2 years ago. It too was a CIA question. LaFantasie said that HO had formally appealed two documents that the Committee felt very strongly about. Leffler remarked that the CIA denied this appeal but was willing to talk to the Committee about it. The documents were discussed with the CIA, but nothing further had happened. Kimball noted that the CIA had not answered his letter on the question.
The subcommittee agreed to publish the China volume and the Tibet compilation without the deletions in these two documents because the basic story is intact. The deletions are such that the reader of the volume will be able to see what is missing. Schwar interposed that the Tibet compilation constitutes about 10-12 percent of the volume. Kimball added that the CIA position forced on HO is ridiculous, because it fails to hide successfully what the CIA wants to conceal. None of the Tibet documents was denied in entirety, and a document cleared by CIA showed CIA involvement in Tibet. What the Agency seemed to object to subsequently was certain specific references. In spite of the excisions, the CIA's role could still be gleaned if one compared these documents to ones that had not been excised.
Herring and LaFantasie also noted that the subcommittee did not resolve the issue of the wording in the preface. Herring said he was working on the language, which the CIA would have to approve. When Picker asked why CIA clearance was required, Herschler responded that problems of declassification are described in the prefaces and have to be cleared by the agencies involved. Slany said this was done as a "courtesy," and the CIA had not objected in the past to Foreign Relations prefaces. Kimball said the preface could not be the usual boilerplate, which would not work in this case. Boilerplate language might be all right for volumes that the Committee does not review, but the Committee has a hand in clarifying the language of the prefaces for volumes it does review.
Rosenberg hoped that the Tibet question could be entirely resolved before the next meeting. All Committee members should also have a chance to look at the excised documents on Japan and the draft prefaces. She wondered how long all this would take. Kimball said he assumed that the Committee would be able to comment on it again. LaFantasie said the China/Tibet volume was way off schedule, and Slany added that the Committee could look at the volume in May. Kimball suggested that all Committee members should look at the Tibet compilation by noon tomorrow (Wednesday). The pages could then be typeset, and the volume could proceed to publication. The preface could be added later. The CIA should not worry as long as the preface was drafted carefully.
Committee members expressed interest in reviewing the Tibet documents in the meeting room, and Kimball agreed if it did not take up regular session time. The Committee assented to Leffler's suggestion that,the Committee convene at 8:30 a.m. Wednesday. Kimball added that members could also inspect the documents in the HO Office until 5:30 p.m. Tuesday. Hogan asked whether the Committee could also review the three Japan documents. He and Michael Schaller had not yet seen them. Slany and Herschler agreed that this too could be arranged. Hogan then said that he would also like to see a sample of the CIA "bullet" cards. Kimball agreed and asked HO people to bring over "a reasonable sample" for a "peekaboo" session for interested Committee members beginning Wednesday morning at 8:30 a.m.
Kimball went on to say that Ken McDonald would appear before the Committee on Wednesday morning. He had heard that McDonald is retiring and would be bringing his replacement with him. The Committee might go into executive session to clear past problems and get off to a good start with Donald Steury, McDonald's successor.
Report on the Visit to the National Security Council
Leffler then described the meeting of the subcommittee at the National Security Council. There was discussion of the small "institutional" collection of pre-1969 NSC documents at the National Archives. Langbart said that this collection included only a small part of the documents from the Kennedy and Johnson Presidencies. Davis and Leffler said they were told there were 15 boxes of NSC material at NARA. No guidelines existed to review the documents for declassification, and there was a backlog of 3,000 FOIA requests at the NSC. Leffler said the NSC told the subcommittee that NARA had not asked the NSC for guidelines.
Marvin Russell interjected that NARA had often requested guidelines from the NSC, but after 15 years of non-response had given up. Davis added that Bill Leary had only been at the NSC for one year and had previously been at NARA. Leffler said the NSC had told the subcommittee that there could be no declassification of "institutional" NSC records until there were guidelines. Picker said the subcommittee was also told that even if the NSC was asked for guidelines, it did not have the resources to develop them. Davis said it was a Catch-22 problem, with Leary saying that there was no solution.
Smith proposed a joint NARA-State letter to the NSC requesting guidelines. When Picker noted that there was a legal device whereby it was possible to draft a "continuous request" letter, Davis affirmed that such a letter would act like the redial button on telephones. Smith indicated that the NSC had in effect responded that it was a question of insufficient resources.
Rosenberg then asked whether the State guidelines could be the basis for NSC guidelines. Of course, the NSC would have to approve them. Kimball noted that the Committee had no jurisdiction over other agencies, but Picker pointed out that the Committee could say that all the other agencies have guidelines. Smith repeated that the NSC tells the Presidential Libraries to send White House documents to the other agencies that have equities and not to submit them for NSC review. The Libraries have done this, but the NSC wants all "institutional" NSC documents (numbered NSAMs, memoranda, etc.) to be submitted to the NSC. Russell added that the NARA staff does not have the documents, only the numbers. Even the lists of documents had been taken away ftorn him.
Kimball then inquired whether even the numbers were classified, and whether this problem has any effect on the Foreign Relations series. Keefer said "no," and heads shook around the room. Humphrey noted that there were virtually no numbered NSC memoranda for the Johnson years. Langbart added that for the JFK-LBJ Presidencies there were no background files or interagency input to the NSC papers. When Leffler asked if NSAMs still go back to the NSC for review, Regina Greenwell replied "yes," but only after other agencies had reviewed them. Leffler believed that if the situation was good at the Presidential Libraries, then the Committee did not have to worry. Smith said that when the NSC was asked for guidelines for the Johnson Library documents, it was clear from Leary's letter of 2 weeks ago that the Library would get none for the NSAMs.
Kimball asked whether the NSC might not scramble to give NARA guidelines for declassification authority to all NSC materials when they see all the NSC docunients coming to the NSC for declassification review. Smith concluded that the NSC still wanted the NSC "institutional" documents to go from the Presidential Libraries back to the NSC, but that this was only a small portion of NSC materials.
Kimball inquired whether the DOD guidelines had been extended, and Rosenberg replied that they were being worked on.
Slany then distributed to the Committee copies of the latest CD-ROM put out by the PA Bureau, and he announced that the May disc will also include a Foreign Relations volume.
At 4:30 p.m., the Committee went into executive session.
Kimball called the meeting to order at 9:15 a.m. He noted that the only item on the agenda was the question of access to CIA records. He observed that Ken McDonald and Donald Steury from the CIA History Staff were present and invited McDonald to open with any remarks he wished.
McDonald noted that the Committee had expressed its concern over the provenance issue at its luncheon meeting with CIA Executive Director Leo Hazlewood. McDonald, commenting on proposals included in Slany's January 1995 letter on the citations to CIA documents in Foreign Relations volumes, stated that they had an agreement in principle that Foreign Relations could include job numbers in document provenance identifications, but he did not yet have a formal letter on the subject signed by Hazlewood.
McDonald stated that his office had been working with HO on questions of access. He stated that Don Steury will be taking over the responsibility formerly held by Mary McAuliffe (former Deputy Chief of the History Staff) of coordinating access for HO historians for Foreign Relations purposes. He noted that two senior Foreign Service officers assigned to HO, William Marsh and Gerald Monroe, have been going through the 1954 Guatemala documents. There is a massive amount of material. He stated that HO historians have made copies of a portion of a card index to agency records at the History Staff office, which he said was one of the best finding aids to CIA records. He said that some of the information on the cards was very sensitive, in spite of its age, and noted that people in the Operations Directorate tend to think that age makes no difference in determining sensitivity.
McDonald stated that he will be retiring in September. He will be with the History Staff until May. His successor is not yet selected.
Kimball stated that the Committee recognized that McDonald was in an awkward position between the Committee and the CIA leadership on matters of access and stated that a lot of progress had been made in the last couple of years.
McDonald stated that there was a practical problem of getting agency records organized so the historians can get at them. CIA records were not organized for purposes of historical research. We can't resolve all problems of access at any one time.
Leffler presented the report of the subcommittee on access, which had met with HO staff members and senior FSOs Marsh and Monroe. He stated that Marsh and Monroe had reported that they were going through 250 boxes of documents on U.S. policy toward Guatemala in 1954, consisting largely of trivia. So far they had found six documents which might be said to relate to policy. They were using a study by Nick Cullather (former member of the CIA History Staff), which was helpful, and using his citations. They had seen a document from the station that said everything had been burned.
The subcommittee had also seen an HO memo reporting that CIA History Staff had found the papers of Richard Bissell. When HO historians researched the Bay of Pigs in 1992 and 1993, they had been assured that all records on that subject had been made available. The subcommittee wondered how the newly discovered Bissell papers could have been overlooked. What are the prospects that other such collections might be discovered? What if HO gave the History Staff a list of people who played important roles at CIA?
McDonald said this was the first he had heard about the Bissell papers. Who had discovered them and where? It was explained that CIA staff historian Mike Warner had found them. McDonald stated that a couple of years ago Bissell was at the History Staff office. They had worked with him to try to find his records but had not found them.
McDonald stated that the CIA has no central register of records. Each directorate has its own system. Records were deliberately compartmentalized. Plans (Operations) is most difficult, because they are most compartmentalized. He was sure there were no boxes labeled "Bissell Papers." If Mike Warner has turned up the Bissell records, it was probably by rooting through a lot of files. The chances of finding other such collections are not good. McCone kept excellent records, but other DCls on the whole have not done so.
Leffler wondered if it might be useful for someone like Warner to come and talk to the Committee about how he goes about locating records. One of the things HO needs to do is to identify the subjects it is working on in ways that are helpful to the History Staff. He didn't think the index cards looked very helpful.
McDonald agreed that it would be helpful if Warner were there. He thought the index cards were helpful. He said that if a historian did a study on a particular subject, the records he used were filed as a group. The cards are indexed to the source documents.
Rosenberg asked if HO historians had access to the studies. McDonald said yes. He stated that there are about 600 studies, including many station histories and histories of CIA components. They vary greatly in quality and were confined to the period of 1947 to 1967, although some extend further. There are thousands of cards pointing to documents used in the studies.
Leffler asked if HO historians could see the documents? McDonald said yes, if the documents can be found. Schwar asked whether the cards can be used to locate the documents. McDonald said there were numbers on the upper right hand comers of the cards that indicate the location.
Kimball asked if HO historians had access to the cards. . A number of HO historians indicated varying degrees of access.
Kimball suggested that the History Staff put together a list of finding aids. McDonald agreed that. a list would be useful. He stated that the more we could, deal with information systematically the better.
Kimball asked whether the History Staff had such information available for use in training its own new historians.
McDonald replied that the staff is small. When a historian starts work on a new project, he goes and talks to the Information Management office in that directorate. He thought development of a cumulative list of sources was a good idea. He stated that HO historians theoretically have access to all records; it's a matter of finding them. For any topic, you need specialized information. The CIA historians are learning as they go along; with each new topic they discover new records. The body of knowledge rests with the staff historians.
Leffler asked if the History Staff records this information anywhere. McDonald replied that they had not done so in the past, but that it might be very useful.
Schwar asked if records schedules of CIA records might be helpful, whether the History Staff has access to them, and whether HO historians could get access to them. McDonald said they are helpful; they show job numbers. The History Staff has access to them, and HO historians could get access to them. Geyer asked if this would apply to files that are still active. McDonald said they have records schedules for active files too. He thought it unlikely that such files would be helpful to HO; operational offices don't keep files around for archival purposes.
Geyer asked if the index cards extended into the Nixon period. McDonald replied that they extended very little into the Nixon period. He stated that the CIA Executive Director from 1967 to 1973 had tasked all major offices with producing histories of the period 1947-1967. When Colby became. Executive Director in 1973 he stopped the project. Therefore the card file covers the 1947-1967 period but very little afterward. These histories are mainly institutional histories, but there are station histories.
Howland asked if there was a central list of station histories. She referred to one in which she had seen a reference but which Warner had been unable to locate. McDonald said the histories were done in two copies. The original went to the component, and in most cases, a copy went to the History Staff. The History Staff does not have all the studies. Most of the ones it does not have are from the Science and Technology Directorate. It could be that the study in question was never completed.
At this point the session concluded, and the Committee went into executive session to meet with HO staff members for off-the-record comments and to consider its recommendations and actions for this meeting. The executive session concluded at 1:20 p.m.