Date          Thu, 5 May 1994 15 28 30 -0500                                    
Reply-To:     German History list                        
Sender:       German History list                        
From:         H-GERMAN MODERATOR Dan Rogers       
Subject:      BDC: The State Dept.'s Position                                   
                                                                                
Submitted by:   Dan Rogers                        
                                                                                
Statement of Mary Ann Peters, Deputy Assistant Secretary of State for           
European and Canadian Affairs, before the Subcommittee on International         
Security, International Organizations, and Human Rights, Committee on           
Foreign Affairs, House of Representatives, April 28, 1994                       
                                                                                
Mr. Chairman, Members of the Committee,                                         
                                                                                
     I am pleased to present to you the views of the Department of State on     
the turnover to Germany of Nazi records captured by the Western Allies and      
now contained in the Berlin Document Center.                                    
                                                                                
     The Berlin Document Center, or BDC, is an archive which the United         
States assembled soon after the Second World War and has administered with      
German funding and assistance since.  As early as 1952, U.S. policy             
envisioned the eventual return of captured German records.  Transferring        
the BDC now is appropriate recognition of Germany's full partnership with       
other western democracies.                                                      
                                                                                
     Our objectives in the 1992-93 negotiations that led to the turnover        
agreement were to ensure: (1) full and expeditious U.S. Government access       
to documents in the BDC during the transition period, when microfilm copies     
of the documents at the U.S. National Archives might not yet be fully           
accessible; (2) prompt access to the originals for authentication purposes      
in legal and judicial actions or in cases where microfilm copies were not       
legible; and (3) clear rules for public access to BDC records, both the         
originals in Germany and the microfilm copies in the United States.             
                                                                                
     Our October 1993 agreement and accompanying _notes verbale_ achieved       
these objectives.  Nonetheless, there have been some questions raised about     
scholarly access to the originals and the quality of the microfilm.  We         
believe that the arrangements we secured in last year's agreement should        
allay those concerns.  I believe we can turn over the BDC's documents to        
German control on July 1, in fulfillment of our international legal             
obligation, confident that questions of access and film quality have been       
addressed comprehensively.  We welcome this hearing as an opportunity to        
explain on the record how the agreement fully protects U.S. interests.          
                                                                                
ENSURING A GOOD AGREEMENT                                                       
                                                                                
     Mr. Chairman, we began preliminary talks with Germany about turning        
over the BDC in 1990, drawing upon the record of previous negotiations,         
specifically in the late 1960s and in 1979-80.  Well before we reconvened       
formal negotiations late in 1992, our intention to turn over the BDC was        
clear to scholars, Nazi hunters, and other interested Americans who used        
the facility.  The BDC's American director, David Marwell, regularly            
informed such visitors that he had been hired in 1989 with a mandate to         
complete the microfilming of the BDC collections within five years, for the     
purpose of turning over the original documents.                                 
                                                                                
     On March 11, 1993, members of our Office of Central European Affairs,      
in consultation with our Office of the Legal Advisor, briefed then-Foreign      
Service Inspector General Sherman Funk, at his request, on the legal and        
policy bases on which we proposed to transfer title to the BDC holdings.        
We discussed with Mr. Funk the provisions of 44 U.S.C. Sections 3302 and        
3303, which authorize the National Archives to dispose of paper records in      
certain circumstances, including in cases where microfilm copies are in our     
possession.  The Inspector General concluded that this proposed transfer of     
USG property was permissible under existing statutes.                           
                                                                                
     In the summer of 1993, while preparing to assume charge of the U.S.        
Mission to Germany, Ambassador Holbrooke was briefed on the BDC and the         
recently concluded turnover negotiations.  After he assumed his post, the       
Ambassador decided to reconfirm that the agreement fully provided for           
American interests.  He briefly suspended plans for signature of the            
agreement and asked that the draft text be reviewed again in the State          
Department.  During our review, Ambassador Holbrooke consulted leading          
scholars on Germany and the Holocaust, in particular, Professor Fritz Stern     
of Columbia University and Dr. Michael Berenbaum of the U.S. Holocaust          
Memorial Museum.  Ambassador Holbrooke authorized the signing of our            
agreement last October only after receiving reassurance from them and           
others that American experts familiar with the BDC were satisfied with the      
agreement's provisions.                                                         
                                                                                
     Mr. Chairman, we would never have concluded the agreement in question      
without guaranteeing the continuation of American access to these materials     
to the same degree that has prevailed for four decades.  We have reviewed       
the concerns raised recently in Mr. Gerald Posner's article in the _New         
Yorker_ magazine and by private citizens, and we believe that our agreement     
addresses those concerns, in great part because they were our concerns          
throughout the negotiations.                                                    
                                                                                
USG ACCESS                                                                      
                                                                                
     Mr. Chairman, since the early post-war period, the Department of           
State, the Department of Justice, and the Immigration and Naturalization        
Service have used the BDC for hundreds of name checks annually for the          
purpose of enforcing immigration statutes against persons who were involved     
in Nazi persecution and who sought to gain entry into the United States.        
On rare occasions, information held in the BDC has figured in war crimes        
proceedings in other countries.                                                 
                                                                                
     The turnover agreement affords U.S. officials access "whenever             
necessary" to records now held in the BDC for the investigative, judicial,      
consular, and other purposes that have characterized our use over four          
decades.  Our Bureau of Consular Affairs believes the agreement provides        
the full measure and level of access necessary to enforce our immigration       
laws.  My colleague from the Department of Justice can elaborate on how the     
BDC will serve other U.S. investigative and judicial functions after the        
turnover.                                                                       
                                                                                
     I would like to draw particular attention, however, to Article 5           
section (2) of the agreement.  This section provides for the prompt             
dispatch of original documents to the United States for the official            
purposes enumerated in the agreement.  For the greatest part, Mr. Chairman,     
U.S. official needs have been fulfilled by examination of copies of the         
BDC's contents.  The State Department just this month facilitated a Justice     
Department request for the release from the BDC of an original name file        
for investigative purposes.  According to records in Berlin, this was only      
the second such DoJ request in the BDC's history and only the fifth             
instance overall that original BDC documents have been temporarily removed      
from the facility.  In short, although we have rarely required access to        
the originals, we have ensured that we will be able to obtain them in           
perpetuity.                                                                     
                                                                                
PRIVATE ACCESS                                                                  
                                                                                
     The agreement also ensures continued access for private scholars at a      
level commensurate with that which they have had in the past.  Indeed, we       
had long insisted that the agreement protect private scholarship -- we          
abandoned our 1967-68 negotiations when Germany's proposed "rules of use"       
were unacceptably restrictive of private scholarly access.  That decision       
reflected a constant USG objective which we achieved in the agreement we        
signed last year.                                                               
                                                                                
     Two elements of our agreement last year bear special attention when        
discussing private access to the BDC.  First, Article Four provides that        
our Embassy Office in Berlin shall designate a liaison officer to represent     
American interests in access to the original documents until microfilm          
copies of all documents are fully accessible here.  Ambassador Holbrooke        
has assigned this important duty to the principal officer in Berlin, a          
member of the Senior Foreign Service.  The liaison officer will be a high-      
visibility point of contact for American scholars should they need              
assistance.                                                                     
                                                                                
     However, we expect that few Americans who seek to use the BDC will         
require the intercession of our Embassy.  Article Six of the agreement          
states that after the turnover public access to the original documents in       
the BDC will be in accordance with the rules of the German Federal              
Archives.  The track record of that institution in permitting access by         
German nationals to the BDC is excellent.  The same rules will apply to         
non-German users of the BDC after the turnover.                                 
                                                                                
     In 1988, Germany adopted its federal archives law, and new procedures      
at the BDC began to reflect both that law and the security concern that         
followed revelation of past thefts of documents from the facility.  German      
scholars, journalists, and private citizens seeking access to BDC documents     
apply first to the Federal Archives.  (A similar procedure has long applied     
to non-German scholars using Nazi records held by the German Federal            
Archives.)  The Archives interposed no objection to 452 BDC access requests     
in 1991, 821 requests in 1992, 863 in 1993, and 318 requests from January 1     
to April 19 of this year.  In that time, according to German authorities,       
only one request for scholarly access was denied, and requests from other       
private individuals were denied only rarely.  We are confident that this        
liberal practice on the part of German authorities will continue and will       
apply to American researchers.                                                  
                                                                                
     Our 1993 agreement makes the BDC holdings far more accessible, by          
providing the means to use them to Americans who lack the luxury of a           
research budget for travel to Berlin.  In our 1979-80 round of talks with       
Germany about turning over the BDC, we agreed that the U.S. National            
Archives would receive microfilm copies of all documents held there before      
the originals were turned over to German control.  The microfilming project     
which will be complete by early June provides us reliable, high-quality         
film of every document in the BDC collections.  The project was designed by     
the U.S. Mission in Berlin with the full cooperation of the U.S. National       
Archives and the German Federal Archives.  The budget proposed by the U.S.      
Government representatives has been funded fully by Germany, as detailed in     
the following table.                                                            
                                                                                
                                                                                
Year           German Expenditure       Dollar value (at avg.                   
                                        annual exchange rates)                  
                                                                                
1989           DM    577,894            $    307,390 (DM 1.88=$1)               
1990           DM  3,218,995            $  1,987,034 (DM 1.62=$1)               
1991           DM  4,497,769            $  2,709,499 (DM 1.66=$1)               
1992           DM  3,646,119            $  2,337,256 (DM 1.56=$1)               
1993           DM  3,568,185            $  2,162,536 (DM 1.65=$1)               
1994           DM  1,600,000 (est.)     $    919,540 (DM 1.74=$1)               
               -------------            ------------                            
               DM 17,108,962            $ 10,423,255                            
                                                                                
     In short, the BDC has received all funds it has requested from Germany     
for the microfilming project.  The private contractor and BDC employees who     
are doing the work have performed according to the highest professional         
standards.  I defer to my Archives colleague to comment on the technical        
rigor of the microfilming process.                                              
                                                                                
     Mr. Chairman, in 1989 a unanimous resolution of Germany's parliament,      
the Bundestag, called for the immediate transfer of the BDC.  As the            
preceding figures on the microfilming project indicate, there was a great       
deal of work to be done at the that time, and we made clear that we could       
not agree to a turnover prior to completion of the filming.  In the formal      
negotiations which occurred in late 1992 and early 1993, we gained German       
acquiescence in setting a turnover date that assured us of adequate time to     
complete the microfilming project before we yielded complete control of the     
originals.                                                                      
                                                                                
     I wish to thank you, Mr. Chairman, and your colleagues on the              
committee for the opportunity to discuss the Berlin Document Center             
turnover agreement.  As I have tried to explain today, over the entire          
history of negotiations leading to this agreement the United States has         
sought to ensure that the precious historical record contained in the BDC       
remains fully available to the U.S. Government and to private researchers.      
The agreement we reached achieved that goal, and we stand behind it.  With      
your concurrence, I ask that the English-language text of the turnover          
agreement, the accompanying _notes verbale_, and a brief fact sheet and         
chronology already provided to your staff be entered into the record in         
conjunction with my remarks.  I will be pleased to respond to any questions     
you may have.