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.