Senate Select Committee - XXVIII

Government Policies and Actions

Presidents Nixon, Ford, Carter and Reagan

As part of its effort to conduct the most thorough investigation possible, the Select Committee asked former Presidents Richard Nixon, Gerald Ford, Jimmy Carter and Ronald Reagan to grant the Committee access to POW/MIA-related materials in their Presidential libraries and to submit to formal depositions regarding the handling of POW/MIA-related issues during their administrations. The Committee recognized that the doctrine of Executive Privilege applied to former administrations, but hoped that the former Presidents, realizing the volatility of the issue, would agree to waive the privilege. Because of unique concerns about Executive Privilege and the Constitutional separation of powers, the Committee did not make the same requests of President Bush.

All four former Presidents granted the Select Committee access to relevant materials in their Presidential libraries, but none provided a sworn deposition. The Committee chose not to attempt to challenge any claims of Executive Privilege and not to attempt to compel the former Presidents' testimony. The Committee attempted to negotiate less formal arrangements for obtaining the former Presidents' views on points important to the investigation.

These negotiations resulted in several different arrangements. President Ford agreed to meet informally with Chairman Kerry and Vice Chairman Smith. Presidents Nixon and Carter declined to meet in person with members or staff of the Committee, but agreed to provide signed, written answers to written questions. Only President Reagan declined to answer the Select Committee's questions in any form or setting.

The questions posed to Presidents Nixon and Carter, along with the answers provided, are reproduced in full in the appendix. The informal meeting between Senators Kerry and Smith and President Ford will be scheduled as soon as all parties can meet.

Declassification

Overview

From its inception, the Committee recognized that a successful investigation of the POW/MIA issue could not stop at searching for -- or even obtaining -- answers: to ensure that the American people could have faith that the investigation was comprehensive, it would be necessary to give the American people the documents and other information they need to reach their own conclusions.

At the same time, the Committee had to identify and obtain all relevant POW/MIA information, to burrow through the mountain of paper toward answers, to put those with information on record and pursue the leads they suggested before stories were squared among witnesses or information disappeared. The Committee's first priority was to examine any evidence of live Americans; its second was to lay out for all Americans the evidence to let them judge its merits for themselves.

In the past, the classification of most POW/MIA documents had incurred public distrust and hampered the ability of Congress to exercise its oversight responsibilities and the public's ability to understand the actions behind the words "highest national priority." This stalemate has lasted nearly 30 years in the case of Vietnam War POW/MIA information, and longer for Korean War and World War II documents which remain a secret even from the POW/MIA families.

To ensure that it could meet its two-pronged goals, the Committee first sought to reduce the amount of information withheld on national security grounds and then to find ways to expeditiously declassify and release to the public as much of that information as possible.

To get all essential materials declassified, the Committee agreed that some secrets must be kept: the names of intelligence sources who may be needed for information in the future; the methods the U.S. employs to gather intelligence; and materials generated as policy makers debate options. No other country in the world discloses these secrets -- or as much as the U.S. is disclosing by declassifying the vast majority of its POW/MIA documents.

The Committee's commitment to full public disclosure was referred to frequently in many of the Committee's hearings, including in June 1992:

There is no disagreement between Senator Smith and me whatsoever as to the direction of this committee or what we will do with respect to information. Senator Smith and I have announced since the inception of this committee that we will seek full declassification of all material relevant to this issue and that it will take a major showing of national security concern in order to prevent us from seeking that declassification of material now 20 or more years old. We have been in touch with various parties and we have gotten much of that. And we appreciate the cooperation. I might add that the Defense Department, the State Department, and the National Security Council have provided to this committee documents that have never before been viewed with respect to this issue.

Both Senator Smith and I believe that we could still do better. Both of us believe that there are procedures in place that could be simplified, and both of us believe that the agencies of our Government could frankly be more forthcoming by dumping it on our doorstep rather than waiting for us to have to request it and go through a tug of war.

In all, the Committee sent nearly 500 individual requests for information and obtained and reviewed millions of pages of documents from scores of U.S. agencies, offices, and other sources. These unprecedented steps were taken to assure that all that can be done to get the American public answers is being done, and that as much information as possible about the POW/MIA issue is available to POW/MIA families and others.

The Committee believes that its legacy will be that it removed the shroud of secrecy which for too long has hidden information about POW/MIAs from public scrutiny. The Committee's Members believe that this legacy should become an enduring one, and that secrecy never again becomes the watchword of U.S. accounting for POW/MIAs.

Existing Law : Executive Order 12536

When the Committee started its work, there was little evidence that DoD, the armed services, or any Government agency or department was systematically reviewing classified POW/MIA related information with a view towards determining whether that information should be given to families. This apparent government-wide failure to even consider declassifying POW/MIA information was inconsistent with the requirements of Executive Order 12536, in effect since April 1982:

This Order prescribes a uniform system for classifying, declassifying and safeguarding national security information. It recognizes that it is essential that the public be informed concerning the activities of its government, but that the interests of the United States and its citizens require that certain information concerning the national defense and foreign relations be protected against unauthorized disclosure. Information may not be classified under this Order unless its disclosure reasonably could be expected to cause damage to the national security.

The Executive Order specifically limits how classifications are applied:

In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interest of national security.

Information shall be declassified or downgraded as soon as national security considerations permit.

The fact that the relevant POW/MIA related documents were classified did not prevent the Committee from obtaining them, however, either in redacted form (with portions blacked out) or in their entirety. In virtually all instances, the portions redacted protected intelligence "sources" or "methods" from being identified, a longstanding practice the Committee recognizes as valid. In a few instances, the redacted information concerned deliberative processes which the agencies sought to protect in order to assure that its personnel would not be inhibited in discussing the pros and cons of various policies.

Prior Disclosure Efforts

In 1988, then-Congressman Bob Smith introduced legislation requiring the declassification of POW/MIA records. That effort was incorporated in an amendment to the Intelligence Authorization Act for FY 1989 which codified into law the DOD's responsibility to provide to POW/MIA families any information "which potentially correlated to their missing loved ones."

In 1990, Congressman Smith introduced legislation ("the Truth bill"), co-sponsored by more than 200 Members of the House of Representatives, to require the release of all POW/MIA information, including live-sighting reports, unless a determination was made that the release of a particular report would jeopardize the safe return of any American still held, or would invade the privacy of a primary next of kin. Due to time constraints, no action on this legislation was taken by the 101st Congress.

A day before the Committee was created, the Defense Authorization Act of 1991 was signed into law. This measure included an amendment sponsored by Sen. John McCain that requires the Secretary of Defense to declassify live-sighting reports or other information in DOD's custody about the location, treatment, or condition of any Vietnam-era POW/MIA. It also requires that the declassified information be made available in a suitable library-like location within the Washington, D.C. area for public review and photocopying. A second library for families' use also will be established. McCain's amendment protects families' privacy rights, which reserve information correlated to a serviceman for his family's use.

Senate Joint Resolution 125

The Committee's widely shared concern about the declassification issue next was reflected in Senate Joint Resolution 125, which memorialized Congress' intent to enact legislation directing federal departments and agencies to make public information relating to POWs or MIAs from World War II, the Korean Conflict, and the Vietnam Conflict. It also directed DoD to list of all people so classified. The joint resolution was agreed to by the Senate on February 11, 1992 and by the House of representatives on February 26, 1992.

Committee Task Force on Declassification

As the Committee's investigative efforts intensified, it recognized the need to press harder for declassification. In May 1992, the Committee established a Task Force on Declassification, headed by Senators Robb and Grassley to identify the POW/MIA documents needing declassification, prioritize them, and propose a schedule for their public release at the earliest possible date.

The Task Force interviewed CDO representatives and learned that CDO's initial intention was to declassify live-sighting reports first, and then, if approval by POW/MIA families was granted, declassify some DIA and JCRC casualty files; that was the limit of CDO's declassification authority. On May 13, 1992, DoD transferred 641 declassified live sighting reports to the Library of Congress in Washington, D.C. which began indexing the reports for use by the public. Following initial review of its files of live-sighting reports, DoD indicated to the Committee that approximately 1,600 first-hand live-sighting reports, and approximately 2,700 hearsay reports would be declassified by early fall 1992.

The Task Force believed that declassification should go further and be done by other agencies as well -- to the Defense Intelligence Agency, the National Security Agency, the Service Intelligence Agencies, the Joint Chiefs of Staff, the Central Intelligence Agency, the National Security Council, and the State Department among them. The Committee planned to include all of its own documents in the National Archives, but the use of classified materials in depositions and interrogatories required an additional effort to declassify those depositions and interrogatories.

On July 1, 1992, Senators Robb and Grassley recommended, and the Committee unanimously agreed to:

transmit a letter to the President requesting expeditious declassification of POW/MIA records from the Vietnam War;

direct the Chairman to introduce a resolution to the full Senate on declassifying POW/MIAs;

reconvene a Committee meeting within a month to evaluate progress and consider initiating alternative formal declassification means.

Senate Resolution 400

The Committee's alternative was contained in Senate Resolution 400, adopted May 19, 1976. This never-before-tried avenue established the authority for the Senate to declassify, on its own initiative, information in its possession:

SEC. 8. (a) The select committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure. Whenever committee action is required to disclose any information under this section, the committee shall meet to vote on the matter within five days after any member of the committee requests such a vote. No member of the select committee shall disclose any information, the disclosure of which requires a committee vote, prior to a vote by the committee on the question of the disclosure of such information or after such vote except in accordance with this section.

(b)(1) In any case in which the select committee votes to disclose publicly any information which has been classified under established security procedures, which has been submitted to it by the executive branch, and which the executive branch requests be kept secret, such committee shall notify the President of such vote.

(2) The select committee may disclose publicly such information after the expiration of a five-day period following the day on which notice of such vote is transmitted to the President, unless, prior to the expiration of such five-day period, the President notifies the committee that he objects to the disclosure of such information, provides his reasons therefor, and certifies that the threat to the national interest of the United States posed by such disclosure is vital and outweighs any public interest in the disclosure.

(3) If the President notifies the select committee of his objections to the disclosure of such information as provided in paragraph (2), such committee may, by majority vote, refer the question of the disclosure of such information to the Senate for consideration. such information shall not thereafter be publicly disclosed without leave of the Senate.

(4) Whenever the select committee votes to refer the question of disclosure of any information to the Senate under paragraph (3), the chairman shall, not later than the first day on which the Senate is in session following the day on which the vote occurs, report the matter to the Senate for its consideration.

The primary drawbacks with S.R. 400 were:

that it had not been tested;

it required the material to be identified in advance -- requiring the Committee to know exactly what it sought, rather than getting a wholesale declassification that may have produced documents whose existence was unknown;

only the materials in the Senate's possession could be declassified; and

putting the law into effect would require a vote of the full Senate.

Thus, the Committee tried to obtain a wholesale declassification by asking the President for an executive order.

Members' Letter to President Bush

To appeal for the best help in getting full declassification -- by enlisting the aid of the Commander-in-Chief -- the Committee sent a letter to President Bush on July 1, 1992. It stated, in relevant part:

We are writing to request that you issue an executive order to declassify and publicly release all documents, files, and other materials in the government's possession that relate to American POWs or MIAs lost in Southeast Asia.

Mistrust and suspicion of the government's role and actions on POW/MIA matters through the years have hindered efforts to resolve questions related to our lost American servicemen, and we believe declassifying documents will begin to provide POW/MIA families the answers they need and deserve.

Pursuant to Section 1082 of the FY 1992-1993 National Defense Authorization Act, the defense Department has begun to declassify certain documents, but the effort targets only a fraction of POW/MIA materials in the government's possession. We believe it is in the interests of all those concerned to achieve much broader declassification, and have attached a list of documents that encompasses the full range of information that we believe should be released as expeditiously as possible. We reserve the right to add to our request should we desire additional documents needed to complete our investigation.

We understand that for reasons of national security, some materials to be released to the public require redaction. However, our investigation has convinced us that the vast majority of materials related to the POW/MIA issue now protected by the National Security Classification System could be released to the public in full with absolutely no harm or risk to national security or to the families' right to privacy. . . .

Among the documents the Committee sought were the papers of Henry Kissinger, former Presidents Nixon, Ford, Carter, Reagan and President Bush, WSAG minutes and other materials, live-sighting and other reports, casualty files (except as protected by families' right to privacy), DIA's historical, current, and intelligence files, the files of top Administration officials, including former Secretaries of Defense Caspar Weinberger and Frank Carlucci, war- time and post-war NSA product reports, service intelligence files, imagery files, and documents from the Joint Chiefs of Staff, CIA, NSC, and State Department. The list was a starting point, Sen. Grassley explained in a statement to the full Senate:

This list is by no means meant to be finite. During the course of further investigation, we may discover additional batches of documents that are as yet unknown to us. If so, we intend to identify those documents and communicate our desire to add them to the list. Our objective in creating the list was to be as specific as possible in defining the universe of documents to be declassified, yet general enough to avoid precluding newly discovered documents from declassification.

Senate Resolution 324

While the National League of Families condemned the move, response from POW/MIA families was overwhelmingly. To demonstrate the support for declassification that the Committee believed was widespread, it also sought the backing of the full Senate for its efforts. On July 2, 1992, Senators Robb and Grassley introduced Senate Resolution 324 which provided, in pertinent part:

It is the sense of the Senate that the President of the United States expeditiously issue an Executive Order requiring all Executive Branch departments and agencies to declassify any publicly release without compromising U.S. national security all documents, files, and other materials pertaining to POWs and MIAs.

In introducing the resolution, Sen. Grassley stated:

. . . The reasons this committee, indeed the public and, I believe the Senate support this request for declassification are self-evident. Mystery and suspicion have shrouded this issue from Day One. National security secrecy merely feeds the suspicion.

Let there be no doubt -- in adopting this resolution, the Senate is firmly committing itself, in the public interest, to full, public disclosure of all documents, safeguarding only legitimate risks to national security and families' right to privacy.

By a unanimous vote of 96-0, the Senate agreed to the resolution. The Committee kept up the pressure to have relevant documents declassified, sending one of many letters to the Executive Branch. The letter set forth a timetable and a priority schedule, to be fully implemented -- and all requested documents declassified -- by Oct. 31, 1992.

Executive Order 12812

President Bush lent his support to efforts to have declassify POW/MIA documents on July 22, 1992, as set forth in relevant part below:

. . . by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby order as follows:

Section 1. All executive departments and agencies shall expeditiously review all documents, files, and other materials pertaining to American POWs and MIAs lost in Southeast Asia for the purposes of declassification in accordance with the standards and procedures of Executive Order No. 12356.

Sec. 2. All executive departments and agencies shall make publicly available documents, files, and other materials declassified pursuant to section 1, except for those the disclosure of which would constitute a clearly unwarranted invasion of personal privacy or returnees, family members or POWs and MIAs, or other persons, or would impair the deliberative processes of the executive branch.

Central Document Office

In December 1991, recognizing the scope of the Committee's intended inquiry and in order to comply with the provisions of the McCain Amendment, Defense Secretary Cheney created the POW/MIA Central Document Office (CDO) under the Assistance Secretary of Defense Command Control, Communications and Intelligence.

In compliance with Executive Order 12812, departments and agencies have begun the task of reviewing and declassifying, to the fullest extent possible, all documents, files, and other materials pertaining to American POWs and MIAs lost in Southeast Asia. CDO, which has coordinated most, but not all, of the declassification efforts; a November 1992 progress report detailed its accomplishments:

1. Responded to over 400 written Committee requests for records, documents, files, lists, memoranda, briefings, notes, summaries, and other material. Served as liaison between the Committee and various DoD agencies in scheduling depositions and arranging for witnesses at hearings.

2. Organized, trained, and equipped a staff of over 70 military and civilian personnel to redact and declassify Vietnam-era records and other material requested by the Committee.

3. Expended over $2,000,000 in purchased services, supplies, maintenance, and utilities and rents (not including the salaries of over 70 DoD military and civilian personnel). Specifically,

a. Over 3,000,000 pages of copy paper and seven copying machines

b. Over 28,800 rolls of correction tape used to redact sensitive intelligence sources and methods. (If laid end to end, this tape would extend over 318 miles, or almost five times around Washington's beltway.)

4. Driven over 7,000 miles in the Washington metropolitan area retrieving documents from over 20 archival storage sites and delivering specifically requested documents to the Committee.

5. Declassified over 60 depositions taken by Committee investigators to support open hearings and related activities including coordinating with external agencies to declassify non-DoD material.

6. Made available for committee review an estimated 1.5 million pages of Vietnam-era records. Established an "on call" delivery and courier service for the Committee staff, delivering to the Committee offices 100-200 files daily, provided trained personnel to redact "on the spot" sensitive intelligence to facilitate the Committee's investigation.

7. Served as the focal point to coordinate declassification of documents which contained multiple agency equities, including those of the Department of State, Central Intelligence Agency, National Security Agency, National Security Council, Federal Bureau of Investigation, and the Defense Intelligence Agency. . . .

On Dec. 1, 1992, the DoD issued its mid-course review of CDO project. Portions of its report are set forth below:

The task set by Congress required that the CDO

(1) task Defense components for documents and supporting analysis;

(2) locate, retrieve and consolidate records pertaining to Vietnam-era POW/MIAs;

(3) redact classified records, when required to protect sensitive sources and methods, prior to transfer to Congress;

(4) prepare documents for public repository, and

(5) serve as the focal point to respond to [Committee] requests for specific Vietnam-era POW/MIA related documents.

In practice, the CDO devoted an extraordinary amount of time, effort, and resources to support the [Committee]. On a typical day, the CDO simultaneously

supported Committee investigators' review of classified files in CDO spaces;

transported classified files to the Office of Senate Security in the Capitol;

redacted files for Committee investigators on-the- spot in the Office of Senate Security;

delivered as many as 40,000 pages of declassified material to the Committee offices for investigators to review;

located, retrieved, and transported from local area archival storage facilities specific files requested by the Committee; and

answered literally dozens of Committee and investigator questions by telephone or fax. The committee submitted daily to the CDO as many as ten letters requesting information. Each letter contained up to 50 separate requests for documents, lists, printouts, notes, minutes, and other forms of record material. The CDO has answered over 400 Committee letters requesting information by retrieving information from DoD sources at all levels and making it available to the Committee.

The Committee held eight sets of multiple-day hearings on POW/MIA related subjects during 1992. It frequently tasked the CDO, most often on short notice, to declassify hundreds of pages of specific reports to support these hearings.

The CDO reviewed for declassification over 60 Committee depositions of up to 250 pages each. Materials submitted by the Committee for declassification often required multiple government agency review of each document, including the Central Intelligence Agency, and Department of State. The Committee encountered difficulty in obtaining timely, multiple reviews and requested that the CDO serve as the government-wide focal point for coordinating this multi-agency review process. The CDO coordinated and completed all requested reviews, including the weekend delivery of declassified depositions to former Cabinet officials.

The CDO also reviewed for declassification numerous documents the Committee requested which were originated by non-DoD agencies but reflected DoD equities. These included such organizations as the Central Intelligence Agency, National Security Council, State Department, Federal Bureau of Investigation and Drug Enforcement Agency. This material is conservatively estimated at 10,000 pages.

According to the CDO review, DoD's obligations under the McCain Amendment suffered; at publication time, roughly one-sixth of the work due by November 1994 is complete. The review detailed progress on its McCain-Amendment duties:

Simultaneously, and in response to the disclosure requirement in Section 1082 of the National Defense Authorization Act, the CDO provided over 100,000 pages of declassified material to the Federal Research Division of the Library of Congress to be indexed and microfilmed for access by the public. The pace and volume of work accelerated in July when the President directed, by Executive Order 12812, that all records pertaining to Vietnam-era POW/MIAs be reviewed for declassification. This order enlarged the volume of material to be reviewed for declassification and public release to any estimated 1.5 million pages.

As a result of the heavy workload imposed by the [Committee] during late 1991 and 1992, the majority of the original task levied by Congress in Section 1082 remains to be completed.

DIA records include over 17,500 source files from Vietnam, Laos, and Cambodia. To date, the CDO has declassified 1,613 source files (9 percent). The frequent interruptions of source file declassification to support Committee requests have hampered an accurate production estimate on source file declassification.

The second major collection of records covered by Section 1082 are the DIA, service, and Joint Task Force-Full Accounting casualty files. In compliance with Section 1082 family consent requirements, the CDO drafted and coordinated the submission, through the service casualty officers, of letters to the designated next-of-kin of the 2,266 unaccounted for servicemen requesting consent to release to the Library of Congress records pertaining to the servicemen's location, treatment, or condition. To date:

871 (38 percent) have granted consent;

187 (8 percent) have denied consent;

62 (3 percent) have withheld consent; next-of-kin have asked to be provided a completed, declassified file prior to providing a decision granting or denying consent; these files have been declassified and submitted, through the service casualty officers, to the appropriate next of kin.

No reply has been received from the remaining 1,146 (51 percent); a second follow-up letter has been sent by the service casualty officers as a good-faith effort to elicit a response.

In summary, the CDO has supported the Committee's investigation with a totally unconstrained document location, retrieval, declassification, and delivery (courier) service.

Discussion

The results of the Committee's efforts to declassify POW/MIA information are unparalleled in U.S. history. When the declassification process is complete, well over one million pages of previously classified information will have been made available to the public.

The investigation met significant resistance from certain agencies of the U.S. Government in the release and declassification of the requested materials:

The DIA refused to declassify the "sources" and "methods" which they had used to build up their files. The Committee understood the grounds for not declassifying these materials to the general public since the sources lives could be endangered, information resources compromised or hard-won crypto-analysis work lost. It was less understandable why the DIA refused to disclose the names of sources to appropriately cleared staff of the Committee so the source's story could be checked with the original source.

The CIA initially refused to allow even appropriately cleared members of the Committee staff to review past and current operational files (with the notable exception of a detention camp in Laos). This matter was partially resolved in December when a single selected staff member was allowed to review the files.

CIA officials did not allow the Committee to have access to their Presidential Daily Briefs. Instead, they reviewed the documents themselves for POW content and wrote short summaries of POW related material. These summaries were made available to the Chairman and Vice-Chairman of the Committee. Also, the CIA did not allow Committee investigators to have access to the Executive Registry which are the DCI's personal office files.

The NSC refused to allow anyone but Senators to review the current administration files and limited the review of past administration files to the Staff Director, Chief Counsel and three senior staff members.

The DoD refused to allow anyone but the Chairman and Vice Chairman to review the POW returnee debriefings from 1973. This was in spite of a release that the Committee had obtained from several hundred of the POW returnees involved.

The DoD OSD/ISA initially refused to provide certain current files to the staff of the Committee, but later allowed access. The Committee was disturbed to learn, through internal CDO E- Mail notes, that ISA had intentionally delayed providing files in order to pre-screen them.

The Nixon Archives refused to allow access by the Committee to any of the Watergate tapes that had been requested. Former President Nixon's refusal to allow even the most limited access in the face of repeated requests, letters and entreaties at the highest levels caused the Committee to draw sound unfavorable inferences about the actions of the former President on this issue.

It is unfortunate that the former President had the power to limit the access and frustrate the wishes of a constitutionally created Committee of Congress to what was clearly the best evidence available.

The Committee believes that it has had access to the main materials on POW/MIA issue within the control of the U.S. Government. However, it should be noted that the Committee relied on the good faith compliance of the agencies and departments to its subpoenas and requests. The Committee had neither the ability nor desire to storm into a department or agency and "seize" its files for its review.

In a Government of laws, the Committee relied upon the lawful compliance of the agencies and departments and found its reliance well-founded. The areas listed above illustrate this: where the agency or department would not comply on a good-faith basis, the issue was joined and the department or agency and the Committee resolved it in a manner acceptable to the Committee. The only significant area of non-compliance occurred with respect to the Watergate tapes, where former President Nixon's attorneys were able to frustrate the desire of the Committee to review the tapes for POW/MIA discussions.

Summary

The declassification effort has opened a substantial body of evidence to public scrutiny, but declassification cannot provide all of the answers. For the U.S. Government and its citizens, the facts contained in these documents require a judgment. The answers are not in the blacked-out portions of some U.S. document; if there are answers, they are in Vietnam, Laos and Cambodia.