Declassification Lessons from Nazi War Crime Records

By October 1, 2007

Last week the National Archives announced the release of the final report to Congress (pdf) on implementation of the Nazi War Crimes Disclosure Act, which is said to be the largest single-subject declassification program ever performed by the U.S. government. Millions of pages of records from World War II and the early Cold War years relating to Nazi war crimes have been released as a result.

But the lessons learned from declassifying the “extraordinary collection” of documents may prove even more important than the documents themselves, wrote Steven Garfinkel, the chairman of the interagency working group (IWG) that led the program.

In particular, he said, the effort “has demonstrated that disaster does not befall America when intelligence agencies declassify old intelligence operations records.”

“Before the Nazi War Crimes Disclosure Act, intelligence agencies, supported by the President, the Congress, and the Federal courts, routinely and consistently exempted files containing intelligence sources and methods from declassification, regardless of the age or actual sensitivity of the information.”

The Act deliberately rejected that policy of absolute denial and authorized the publication of intelligence sources and methods, albeit historical ones.

And so the newly disclosed records do “indeed reveal the vast interrelationship between British intelligence and the OSS [Office of Strategic Security, a U.S. predecessor to the CIA].”

Yet “it is preposterous to suggest that releasing OSS records under the [Act] is a threat to our current working relationship with the United Kingdom,” Mr. Garfinkel wrote in the preface to the new report.

“The declassification lessons learned during the implementation of the Disclosure Acts can and should be applied to other intelligence records of similar age, and may even be applied to records of somewhat more recent vintage, no matter how sensitive the information within these records once was,” said Mr. Garfinkel, who served as director of the Information Security Oversight Office from 1980 to 2002.

It is essential that such lessons be learned, he said, because in practice the declassification process is arbitrary, unpredictable and subject to the whims of individual declassifiers.

“Whether a request for declassification is answered with a yes or a no is essentially determined by whoever happens to make the disclosure or non-disclosure decisions,” Mr. Garfinkel candidly stated.

“All of the laws and orders and regulations, all of the classification and declassification guides and guidance can be cited to support either answer this person cares to give.”

“The individual in charge makes the call based on his or her experiences, biases, proclivities, knowledge, or ignorance, and for many years thereafter, all of us may be stuck with it,” he wrote.

In light of this unsatisfactory situation, Mr. Garfinkel expressed the hope that classification officials throughout the government might learn that “government secrets, even intelligence secrets, are finite,” and should be subject to ultimate declassification.

A copy of the final report to Congress of the Interagency Working Group on Nazi War Crimes Disclosure, including Mr. Garfinkel’s preface, is available here.

Categories: Secrecy