Blowback (2 page)

Much more remains to be done. The Interagency Working Group (IWG) faced insider foot-dragging, constant double-talk, and occasional outright deceit from some federal agencies that were opposed to its legally mandated work. The problems intensified in the wake of the 911 crisis and subsequent wars in Afghanistan and Iraq.

Insider resistance to the IWG reached its logical consummation when the White House appointed John Yoo as a public member of the IWG in May 2004.
¹
Yoo, of course, is the official directly responsible for the legal rational used by the White House to approve use of torture and torture-like practices during protracted interrogations of prisoners.
²
Many people have noted the overlap between Yoo's recommendations and the techniques used in Nazi and Axis concentration camps, as well as in Stalin-era Gulag prisons.

Yoo's appointment sparked a battle led by the public members of the IWG that eventually led Yoo to quietly withdraw from the project—by any standard, this was an important IWG accomplishment in Bush-era Washington. Yoo's appointment to the IWG, and even the National Archives/IWG press release that once announced it, has since that time quietly disappeared from the National Archives' and IWG's Website, and from other public documents.
³

Throughout the IWG's existence, the actual implementation of the NWCDA and JIGDA disclosure laws was carried out by, and to a large extent financed by, the same federal agencies whose records were being declassified. While the public members of the IWG attempted to work by consensus—and up to a point succeeded at it—the realities of operating a no-budget honor system involving a dozen federal agencies significantly restricted what could be accomplished, particularly when dealing with agencies that set out to restrict the IWG's work from the outset.

There is only space here to present a handful of examples of the power of intelligence bureaucracies to obstruct declassification in such a situation. Substantial evidence indicates that the Army's central repository for intelligence records has intentionally destroyed its files on prominent Nazis closely associated with U.S. intelligence during the early Cold War when their names surfaced in the media. Known instances include a failed effort to destroy all files concerning Klaus Barbie, and the successful elimination of almost all records concerning the Gehlen Organization's Heinz-Danko Herre, and about Walter Rauff, an SS executioner who cooperated with Allen Dulles in Operation Sunrise and eventually escaped to South America. (The official story is that the Army intelligence records were routinely destroyed.)

The Department of State, for its part, provided false documentation concerning its performance under the NWCDA and JIGDA when it felt opportune to do so. From 2002 through at least 2004, the IWG's public members and the Historical Advisory Panel (on which I served) repeatedly requested federal agencies to document what they were actually doing under the acts, rather than to simply provide periodic statements that all was well. As part of its response, the Department of State historian's office created after-the-fact memos that claimed it had completed its agency-wide search for records of war crimes in the Asian Theater in less than 24 hours—a transparently misleading claim. Other searches required under the laws were said to have been completed in less than a week.
⁴
When questioned about these strange memos, the Department's representative asserted that a verbal ‘order' had been distributed three months prior to the concocted memos, which he regarded as only a formality. The Historians' Advisory Panel then requested copies of the paperwork and related records documenting the actual search. At this writing, there has been no substantive response from the Department.
⁵

It was the CIA, however, that more than any other agency systematically exploited the IWG's structural weaknesses. At early IWG meetings the CIA's representative, Larry Holmes, succeeded in pushing through several measures that had a long-term impact. To the best of my knowledge, neither of these measures has been acknowledged in the IWG's report to Congress. Perhaps most damaging was the IWG's early acceptance of what was known behind closed doors as the CIA's “Waldheim Rule,” after the case of former UN Secretary General Kurt Waldheim. Put briefly, Holmes agreed that the CIA would review for release Agency records that included information on the war crimes of a particular person. (More on this in a moment.) But any other intelligence records the Agency might have about that individual, such as his or her postwar role in politics, business or the military, or his associations with U.S. officials or with Axis war criminals, were to be automatically off limits, unless the individual was personally employed by a U.S. agency.

Accepting this stricture eventually led to absurd consequences, such as what is presently called the “CIA's file on Hermann Abs” in the National Archives. Abs was a major German banker deeply involved in Nazi-era looting of Jewish property, but who later won favor with the postwar West German government and the United States. In the end, the U.S. Justice Department banned Abs' entry into this country under laws that prohibit suspected Nazi and Japanese war criminals from traveling here.

One might reasonably expect the CIA to have a substantial dossier on Abs. Yet what the National Archives now calls the “CIA file on Hermann Abs” includes none of that, because the Agency has withheld it under the Waldheim Rule. The present dossier is made up of a handful of pages, almost all of which are an informant's report quoting Abs saying he was not responsible for Nazi crimes.

The scope of the Waldheim Rule was dramatically expanded by the CIA's “relevancy standards,” the existence of which was concealed from the IWG for most of that group's existence. At the time the IWG was established, its members (including the CIA) voted unanimously that “an individual's membership in a Nazi criminal unit such as the SS is prima facie evidence of the relevance [under the NWCDA] of the files maintained on that individual.”
⁶

This agreement meant, in effect, each agency was to check its records against a computerized list of about 60,000 persons who are known to have been senior Nazi Party officials, members of the SS, identified as war crimes suspects during 1945–1947, or part of collaborationist murder squads the Nazis operated on the Eastern Front. If a match was found, that person's records were to be considered “relevant” for review under the NWCDA and later under the JIGDA.

It was not until IWG work had been underway for almost five years that the CIA informed the IWG that it was not using the standard for relevancy it had voted to endorse. It was using a different standard, which the CIA itself estimated had eliminated the “relevancy” of 95.5 percent of the Nazis and other Axis criminals on the computerized list before the search for records had even begun.
⁷

Thus, the only records the CIA considered “relevant” for potential declassification under the law were those that concerned an individual who had been “actually convicted of war crimes” or related persecution, or if the CIA itself had collected information about that individual's World War II crimes (a rare occurrence, particularly during the 1950s), or if another government agency had independently completed the research necessary to prove to the CIA's satisfaction that the individual was a war criminal. If there was no information about an actual conviction for World War II crimes, “any documents on that person are deemed ‘outside the scope of the Act,'” wrote the CIA's representative to the IWG, Larry Holmes.
⁸

Once the policy was discovered, IWG Chair Steven Garfinkel and the IWG public members strongly protested. These “highly restrictive handicaps” called into question whether the IWG could ever perform the task that Congress had assigned to it, Garfinkel said.
⁹
Holmes demurred, and shortly after retired.

During the winter of 2003–04, Garfinkel led a demarche to DCI George Tenet's office to argue for greater agency cooperation in declassifying records, in part because it was in Tenet's own interest to avoid the appearance of hiding information about Nazi war criminals. Tenet agreed to use his discretionary power as CIA director to conduct limited new searches and to release additional information on certain Nazi cases identified by the IWG and its historians.

Most of the material subsequently released by Tenet concerned the Gehlen Organization, the predecessor of the West German state intelligence service. While Garfinkel and the IWG deserve considerable credit for pressuring Tenet, it is nevertheless true that the release of the Gehlen-related records was actually compelled by a federal judge in response to a Freedom of Information Act suit brought by a private citizen.
¹⁰
The majority of the other materials released by Tenet consisted of little more than a form indicating that someone in the U.S. government had once requested a file trace on the subject.

For the IWG, the important thing was that the records were released at all. But for the CIA, the director's “discretionary” release has meant that today the Agency maintains a
de facto
Waldheim Rule and the abusive “relevancy” restrictions on records it controls concerning Cold War—era activities of Axis criminals. This is an especially serious problem when it comes to records on Japanese and Asian collaborationist criminals whose crimes against humanity remain largely unrecognized or unknown in the West.

The CIA today continues to treat with disdain and often with outright deceit those individuals and institutional researchers who lack the resources to bring a great deal of pressure on the Agency, notwithstanding the passage of two laws designed specifically to compel disclosure of records on perpetrators of crimes against humanity. The CIA's ongoing campaign against accountability for its activities requires that every responsible historian and journalist treat the CIA claims with great skepticism.

1
. IWG Press Release, “President Appoints John Choon Yoo to the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group,” May 13, 2004.

2
. Karen Greenberg and Joshua Dratel (eds.) The Torture Papers, Cambridge University Press, 2005.

3
.
http://www.archives.gov/iwg/about/press-releases/index.html
, viewed most recently on Jan. 21, 2007.

4
. For the Department's memo, see “Search for Records Concerning Japanese War Crimes (Pursuant to P.L. 105-246) (IPS No. S200100002)” (unclassified) January 23, 2001, and the attached 4-page tab titled “Tab 6 Document Search Action Office Checklist.”

5
. Similarly, a Freedom of Information Act request for these records filed almost four years ago has yet to be processed.

6
. IWG Chair Steven Garfinkel to David Holmes, DCI representative to the IWG, April 30, 2002; see also (n.a.) “IWG Decisions As of February 22, 2000,” copy in author's collection.

7
. Percentage has been calculated from numbers reported in David Holmes (CIA) to Steven Garfinkel (IWG Director) September 20, 2002, “CIA Response to IWG Report Questions, September 2002,” see “CIA Relevancy Guidelines,” pp. 12-13. The CIA later reported that it had run computerized searches on the names on the Justice Department list.

8
. Ibid, p.12. At that stage, work had not even begun on records concerning Japanese and Asian war criminals. The CIA's relevancy standard reduced their entire Pacific Theater search to a few dozen names.

9
. NARA/IWG press release, “CIA Intends to Release Records on Cold War Spymaster,” October 5, 2000.
http://www.archives.gov/iwg/about/press-releases/cold-war-spymaster-records
.

10
. Garfinkel to Holmes, April 30, 2002.

Prologue

The press briefing room at the U.S. Department of Justice in Washington, D.C., is designed as a modern-day lions' den, with the department's spokesperson cast in the role of Daniel. The focus of the design is the lectern at the center of the room, which is filled with serpentine microphones and wires when a big story is about to be announced. The lions of the press are arranged along broad rising steps like the seats in an amphitheater.

On August 16, 1983, U.S. government Nazi hunter Allan Ryan strode into that briefing room to announce an unprecedented 600-page report on the activities of a certain Klaus Barbie (alias Klaus Altmann, alias Becker, alias Merten, etc.) and on that one man's relationship to the American intelligence agencies more than thirty years ago.

“I didn't really know how much of a bombshell this would be,” Ryan recalled later. “I was so immersed in the details of the investigation that I wasn't quite sure what the reaction would be.”
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When he arrived, he found more than 100 reporters crammed into the briefing room, about two dozen cameras complete with newscasters representing every major television organization in the world, hangers-on of every description, and so many microphones clipped to the lectern that they had to be rearranged before he could find a place for his notes. It was, one press corps veteran commented, the biggest crowd to turn out for a news briefing since the stormy investigations of Watergate days.