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Chairman Tunheim - "Okay, are we ready to go? We got the tape recorder going. (This was a member of the staff who brought in his tape recorder.) Okay, I will call to order this open meeting of the Assassination Records Review Board.
(Dr. Joyce humorously points towards the gavel which Judge Tunheim then used.)
Chairman Tunheim - "It is the 26th of August and we are pleased to welcome everyone who is here today with us.
"The first item that we need to review are the open board meeting minutes from July 21 of 1998 for purpose of approval. They have been drafted by Ms. Olsen and submitted to board members. Are there any additions, corrections, or changes?
(No response.)
"If not, is there a motion to approve?
Dr. Anna Nelson - "So moved."
Judge Tunheim - "Is there a second?"
Dr. William Joyce - "Second."
Judge Tunheim - "All in favor say `Aye."
All - "Aye."
Judge Tunheim - "It's carried, four to zero."
"Note, that Dr. Graff is unable to be with us today. He was here yesterday working with us but he had to return to N.Y. So, we do have a quorum, however, with four remaining board members here today for work.
"Okay, what addition, do you have any reports for us Laura [at] this stage or would you like to get us into a discussion that we had planned for today?
Laura Denk - "I think we probably ought to just go ahead and start with the final report since that is our main item of work these days, and Dr. Joyce has provided us with his latest draft of chapter seven, and although the entire report will be issued and approved by the Board, chapter seven is uniquely yours because of its reflections and recommendations of the board. So, I think we decided that we would talk about getting some Board feedback, specifically on chapter seven. And I encourage anyone who wants to start to start."
Dr. William Joyce - "Well, maybe I can say a few things. Dr. Joyce will be eternally grateful to everyone who has anything to say or can provide any guidance
(laughter) whatsoever. Let me get that on the record, first and foremost.
"This is the second iteration that I have struggled with, and have tried to use the occasion not only to give us some distance on our own experience but then to try to apply it to the problem of classification of government records especially and so the chapter has a series of recommendations that are directed toward trying to do something about the effort of the federal government in declassifying some records, or perhaps even limiting the classification of those records to begin with.
"The initial organization of the chapter is reflected in the heading, `Reflections and Recommendations', and in conversations with several of you I have reconsidered the wisdom of that because the current organization of that does strike me as being somewhat redundant and in some respects maybe a little bit pretentious to use the word `reflections' and it occurs to me that it might improve the narrative flow and make it a little bit less ponderous if we have a discussion that certainly takes its measure of our experience and leads from there to the recommendations without necessarily formalizing those reflections. So, it is my intention, after I get guidance from all of you to try to conflate those two parts and to have one text that would be, hopefully, flow well from some account of our experiences so we can make recommendations. So, I think having said that I would like to hear what you all have to say, so I will stop there."
Dr. Anna Nelson - "Why don't you go ahead.
Chairman Tunheim - "Dr. Hall."
Dr. Kermit Hall - "Dr. Hall? Okay, well, Bill, we have previously corresponded on this and I think you have incorporated a number of pieces into the second draft much of which I think are very helpful, I really agree, I...what do we call this last chapter? I mean maybe just as simple a question as that might be useful, or provocative, in this setting because I'm pretty sympathetic to the view that `reflections and recommendations' doesn't quite get us where we want to be and probably `illuminations' wouldn't do well."
Dr. William Joyce - "I wouldn't think so."
Dr. Kermit Hall - "We certainly are in the business of providing some recommendations aren't we? That is kind of the purpose of this exercise."
Dr. William Joyce - "Yeah. Yeah."
Dr. Anna Nelson - "Conclusions rather than recommendations might be more fitting than reflections and in some ways might be the same thing, but this chapter calls for recommendations. It seems to me you are calling for conclusions."
Judge Tunheim - "Well, the next step would be proposals, I suppose. I mean that's a little bit more direct."
Dr. Kermit Hall - "One of the things that we have talked about before that may be in that spirit of proposals is the body of recommendations that we need to make and I don't know if Bill that is completely addressed to you is what our understandings are with regard to the persistence of the Act beyond the life of the Board."
Dr. Anna Nelson - "We've talked about this at a past meeting, a little bit, and you're absolutely right we need to make very clear recommendations."
Dr. Kermit Hall - "So I think substantively even to something like proposals that that would be one that I think could use attention as a separate item."
Judge Tunheim - "Whether that is a proposal or a presumption, I think, would be a question too. How we would refer to it, because I think we are presuming that because there are not any ending dates in the Act itself despite the fact that we are ending, the Act continues, and that's an important principle."
Dr. Anna Nelson - "It's important that the documents be released under the Act whatever else exists in the federal government to release documents. I think the criterias are different."
Dr. Kermit Hall - "Yeah, the standards are much different that one would hope that any subsequent `assassination record' as revealed would be treated in the same way with the same set of `common law' and other understandings-"
Dr. Anna Nelson - "That's right."
Dr. Kermit Hall - "-that we have developed. So, my sense is that really belongs somewhere in here..."
Dr. Anna Nelson - "I'm not sure that we really want to play with words. The proposal may not be quite right."
Dr. Kermit Hall - "I think what we should do is invite our author to-
Dr. Anna Nelson - "Yeah."
Dr. Kermit Hall - "-to let him hear all of our reflective intelligence we can bring, and then knowing our colleague as I do he will sort, in an appropriate way, can produce another draft which we can (laughter) , something like `useful reality'."
Dr. William Joyce - "modest praise."
Dr. Kermit Hall - "I also thought that maybe a second piece that would be worth thinking about, then again it's something that's in, I'm really talking about amplification now, we would hope that in the future an independent targeted board would serve as a tool for those who want to see more materials opened, and especially in the context of the Archives, and perhaps even the presidential libraries, an issue that was raised I think in some of our discussions previously, and I think what that really says is that we need to remember that when it comes to declassification, the opening of materials, we are providing others with tools and in this case I am not sure that we can't give them, the archival community, from being able to use what we put before them."
Dr. Anna Nelson - "I think, actually, what I have seen missing, not just from this chapter but from others is the view that we, that our legislation was castigated, by many, early on, as being `reckless'. We were being allowed to release things that should never have been released, and they have been released, and they have been sitting there all of these years, and nothing has occurred. It seems to me that this is a model, this is a lesson for people who are, for example for people who are interpreting the news and who may in the future be doing some of these things, in other words, it's not just a model in the way it worked, but a model in the way in which the results have proved to be non-threatening, and useful. And [that is] surprising, probably, to some people who thought it would be dangerous."
Laura Denk - "That leads me into a thought I had throughout which is the question as to whether the true work of the Board can be understood in the time that we have remaining? And I continue to wonder, Bill has a section in which he talks about the effect of the work of the Board on each of the communities, he talks about the academic community and the research community, the general public, and I always wonder how long will it take for the results of what has been released in the collection to sort of sift out into-"
Dr. Kermit Hall - "A decade, a decade."
Dr. Anna Nelson - "But, actually it's already sifting out. I mentioned this a little bit to Bill on the first draft, but I have seen more of it sifting out to the professional historian, Bill is right in his point that mostly they are just interested in the documents, the assassination, but we have heard from an Archivist just this morning, in fact they are getting countless requests for documents, but slowly the historians who tend to of course head for the documents, like flies to flypaper, anyway, will discover, and are discovering, they already are discovering, I think Kermit is not far from wrong, I think the final decision may be a decade away maybe, maybe not though Kermit, it might be 6 years, 5 years."
Dr. Kermit Hall - "Well, I don't know whether it's 6 years or 10 years but I know there are probably going to be about 5 million documents that have to be digested. Obviously no one is going to read all 5 million of them."
Dr. Anna Nelson - "No, no."
Dr. Kermit Hall - "But, I would hate to sell ourselves short in, as we go out of business by saying, `Well, we didn't get on the front page of The New York Times , or whatever, because in point of fact-"
Dr. Anna Nelson - "We didn't get in The New York Times at all."
Dr. Kermit Hall - "-the history of this enterprise is going to be written by historians and scholars-"
Dr. Anna Nelson - "Oh yeah."
Dr. Kermit Hall - "And I really do believe much as I'm sure great artists believe when they go to their graves, and think how, ha, ha, in point of fact this will turn out to be a treasure house of material."
Dr. Anna Nelson - "And I think this has really got to be reflected, that we feel really strongly about that for all time, not just for our time."
Dr. Kermit Hall - "(to Laura Denk) Is that helpful?"
Judge Tunheim - "Bill, do you intend to rework the order of things? The nature of renumerating the reflections of-
Dr. William Joyce - "I thought that what I would do is to take several of the topics, which almost all of which are balanced by recommendation, to take the narrative a little bit closer to the recommendation and in that way the recommendations will flow as part of the flow of the text."
Dr. Anna Nelson - "Actually, we moved some of it around the second time."
Dr. William Joyce - "I moved some of it around because I felt, because I tried to have it more nearly approximate the importance of some of the things that we've done, some of the more real ones."
Dr. Kermit Hall - "If I could in that vein, I really do appreciate what you have done with the concept of opening it up with independence."
Dr. William Joyce - "Yes."
Dr. Kermit Hall - "I think there is more to be said. I think it's an element of political independence, and it's also an element of legal independence, and the public character of the Board which you touched on, but for me this is really one of the touchstones of understanding of why we have been able to do what we have done.
So, you're first recommendation talks about the independence, it must be independent of federal agencies but it's interesting we're also independent of some other folks as well in the political process who might want to influence us, and-"
Dr. Anna Nelson - "We were independent, although it upset all of those people who have been writing about the assassination for so many years we were also independent of use, we were asked and nominated only from a group of nine, so that is a judgment, should enter into the picture, that's another group that we were independent of."
(pause)
(There was some very brief comments on Dr. Joyce's draft, as Dr. Hall and Dr. Nelson went through it, flipping pages. Dr. Nelson said something about a fax machine.)
Dr. Anna Nelson - "You see one of the advantages I have of being in Washington. Their advantage is they have all the time to read on the plane.
Laura Denk. - "Right."
Dr. Kermit Hall - "Not if you're sitting in coach. (laughter) With two three years old who are going on their first flight."
Dr. Anna Nelson - "Oh, that's a problem. Actually, you don't want that three year old behind you."
(pause)
Dr. Kermit Hall - "Bill, I'm curious you did get some comments back to us, let me shift the burden here a little bit, what was your reaction to the comments that you received, any kind of pattern to them?
Dr. William Joyce - "Umm, any kind of pattern to them? (pause) I would say more the amplification was one of the, that was truncated in various parts of it and it needed expansion. I was interested in what I didn't hear about it. I made a fairly aggressive attempt to outline, to recommend what I regarded as principles, as attributes of, programming federal declassification, and I think you did at one point use the phrase `redactive', the word redacted, Kermit describes it, and I think that's very true, and I didn't know if that would play to universal agreement with the Board."
Dr. Anna Nelson - "I disapprove of one thing-"
Dr. William Joyce - "Well, I mean Kermit, there are particular pieces of it that have not always had us at full agreement but in terms of the general direction that I went in, and I pretty aggressively cooperated to be sure that if there was disagreement that it would be obvious and that it would be caught, and I was interested in that, and the other principled thought that I had was that I found it very difficult to, in my mind, adequately capture the nature of the experience that we have had with a perspective sense, and part of the reason why I have not reached the reflective sense is because I am so dissatisfied with my ability to elicit what I would regard as a true reflection in that sense. I think, and you touched a little bit on that Kermit, and so did you Anna, in terms of the comments about the nature of our relationships, some of the, shall I say Sturm und Drang of some of the initial meetings that we had, some of the, you know, we spent our first meeting, I think, or our second meeting we spent two hours talking about four documents, when you spend about half a day talking about four documents, but to capture that in a way that begins to communicate what that was like, and it's not just those four documents, it's the agency relationships, there's the relationships in the hearings, and some of those, you know, we had what I regard as, looking back on them, as close to being circuses in New Orleans and Dallas where there was, you know, a lot of activity in and around those hearings."
Dr. Hall - "Let me stop [you] right there because this, I think, is another piece, one of the things that we are not commenting upon here is the utility of that effort to reach out to the public, and it strikes me that that is something that requires some attention. How valuable were, and what recommendation would we make about, cause we are really going on two lines here aren't we? One line of argument says, `Yes, this targeted scheme of declassifying documents, and opening and releasing them is an appropriate way of doing business' which means you do a lot of in depth, but if you pursue that kind of tactic especially given something like the assassination, lots of visibility, maybe Pearl Harbor would be another one, lots of visibility, or Martin Luther King, then you would almost have to expect, if you are on a document hunt you are going to go out and say, [to the public] `Well, tell us what's there."
Dr. William Joyce - "Right."
Dr. Kermit Hall - "And I guess the interesting issue is that we actually ferreted out some documents."
Dr. Anna Nelson - "We certainly did in Los Angeles."
Dr. Kermit Hall - "Yeah, the Rankin papers, and in New Orleans as well."
Dr. Anna Nelson - "That's right, the whole New Orleans-
Dr. William Joyce - "Yeah, that kicked off that whole thing, and it went all the way to the Supreme Court."
Dr. Anna Nelson - "That's right, so that, and we became wiser after our first hearing as to what we really wanted the hearings to do, but we were very open. And I think part of the key to this that we went into the hearings being very open to what we were going to hear but also very narrow in our sense that we were talking to these people for documents, or what they might have, film, textual, documents in general so we were free wheeling, but we weren't free wheeling in a way. After our first one we learned how best to get documents in."
Dr. Kermit Hall - "And I think some reconnaissance on that issue is worth, and that picks up some of the drama because there is, we got Joe Backes here on the one hand, who I think has been, has exercised a great deal of fidelity about attending all our meetings-"
Joe Backes- "Thank you."
Dr. Kermit Hall - "then we have some other colleagues who haven't probably been quite as scrupulous in attending, but there is a public function, there is a public piece that plays into this, that solicitation-"
Dr. William Joyce - "And in essence I think we have been self-conscience about that ."
Judge Tunheim - "But I think the issue is clearly two separate planes to it, one is that the public hearings were a very useful vehicle, or impetus for the gathering of records that people were considering releasing, and it gave them a forum to turn them over to us and an opportunity to do so whereas without that opportunity they may have just as simply continued considering whether they would turn them over."
Dr. Anna Nelson - "Yes, that's right."
Judge Tunheim - "And then secondly, the more general, which in the long haul I think is probably, in my view, the more important, and that is the general notion that we were not doing all of our work in secret, that the prior bodies that have worked on this subject have done virtually all of their work in secret, and it was important for us to reach out to the public, whether we always got something of value or not was kind of besides the point. We were open."
Dr. Anna Nelson - "That's right, that's what i think, and I think that, earlier in the report, one of the drafts, you mentioned the fact that every other group that ever investigated or studied the assassination had closed their records. This may be a point that needs to be emphasized to a degree. That we were very much aware of it."
Dr. William Joyce - "That leads me to a thought, two thoughts actually, one is that I'm very eager to have detailed examples of, I think this also suffers from a certain lack of specificity, and for those of you who have had a chance to look at this and can help me point to certain examples I think that would do a lot to convey some of the texture and flavor of our work, and the other is a question, the question is how would we if we were our own worst critics, how would we assay our performance, and are there any things that we should cling to to say, `Gee, we should have done that better, we should have done this, we should not have done that?"
Dr. Kermit Hall - "Well, there's one area where I think we've made a lot of effort, and good effort but in the end we haven't got as far as I think we all would have liked to have gotten, and it's really not here, maybe it's unique to our situation, but those are the foreign records. And if you are looking for a kind of examples of difficult cases to handle especially in light of the fact that we end up using the Department of State as a principal agency of the government to help us, I believe a separate section on that would be appropriate, and interestingly to take a couple of the examples you offered, blowing up the [U.S.S.] Maine, and World War II, with Pearl Harbor, arguably both of those are examples are where one would want to turn abroad.
"I don't think it's a case of doing, I don't think we've done a bad job I just think it's extremely difficult to do."
Judge Tunheim - "It's very hard, you've [got] very limited authority and you are dependent on other organizations that don't list you as one of their priorities."
Dr. Anna Nelson - "Ha! That's a nice way to put it."
(laughter)
Dr. Kermit Hall - "And how you would make it a priority, and how the legislation would get a little bit more `umph' so that they would make us a priority would be an interesting question."
Dr. Anna Nelson - "I think we-"
Judge Tunheim - "A `command' of Congress would have helped more than rather simply a `sense' of Congress."
Dr. Anna Nelson - "I have another, I agree on that, but I have another point and that is we were probably a little too patient with some of the agencies. We probably should have zeroed in a little bit earlier so that we wouldn't be getting some last minute papers now. Hindsight, of course, does kind of work. But, I think that we perhaps spent a little too long because the people we are dealing with, the people, you know, in the declassification world we are dealing with are such nice, hard working, well meaning people that we failed to realize that it was at the top that we were being a little too kind. We should have pushed harder, earlier, cause we got a good response once we did say, `Thank you, we are going out of business now, you got to comply."
Dr. Kermit Hall - "Yeah, well, [but] I kind of lean a little...I would maybe phrase it a little bit differently, not to disagree with you, just to phrase it differently, I think that everybody in this process, including the old time classifiers and declassifiers, not to mention the five of us who kind of came in walking off the street that there was-
Dr. Anna Nelson - (rather quietly but heard by all) "I didn't come in walking off the street."
Dr. Kermit Hall - " ah, a pretty substantial learning curve, and the learning curve is what kind of a relationship you construct. I think one of the points to make by way of a recommendation is pay attention to what we did because if you do you can save some of your own time instead of putting a second meal together as the invented model, and actually learn something. And I think, one of my grave fears is that actually what will happen here is we will be totally forgotten."
Dr. William Joyce - "Well, I do, in fact one of the recommendations is framed around the word `model'-"
Dr. Anna Nelson - "The next `model' has got to understand that we still have a secrecy of culture [she meant to say, "culture of secrecy"] around whatever event, otherwise the documents would not have been kept secret, and you have to start in on that a little harder, a little earlier."
Dr. William Joyce - "But I think that maybe one of the ways first to address this is to point out to the agencies that it is in their interests, and that this can be a benefit to them, right? Very much in the way we heard from Stephanie (?) the Kennedy library, how the Act helps them release the information, and how it can help the agencies in terms of their documentation of their own records,...including the CIA."
Dr. Anna Nelson - "Well, we had the man tell us we never (something like "we never released this information to anybody before")
Dr. William Joyce - "I would only point to the challenge of educating-
Dr. Anna Nelson - "Yes, and I think we did educate."
Dr. Kermit Hall - "I think the learning goes on both sides."
Dr. William Joyce - "Yes, that's right."
Dr. Anna Nelson - "Well, I don't know, not entirely. I've been down this road a long, long time, but certainly on the sides of the agencies and people who never thought, it was a learning experience for them, boy there's no doubt about it."
Laura Denk - "That's something we talked about a bit on the staff, how we started out with the agencies in a very friendly and open manner, and from a staff perspective it was really helpful for us to be able to have said that the Board had an open mind, that they listened to the agencies arguments, that you all took the time to understand where the agencies were coming from, and it gave all of us a lot more credibility later in the process. I don't know whether that could have been achieved a little bit quicker or not."
Dr. Anna Nelson - "I think we had to listen."
Laura Denk - "But it was important to at least have a congenial relationship with the agencies early on from our perspective because we talked to those agency representatives literally everyday, sometimes 5 and 6 times, some of the bigger agencies. So, from our perspective it was wonderful that you were slow early on, although there were some things that could have moved faster."
Dr. William Joyce - "I think that prior to that Laura was in the beginning we had a kind of seminar atmosphere almost and the process of taking our full measure of everything that was first being laid in front of us, and then how, you know a lot of the agencies initially presented things in the context of what they knew from FOIA (Freedom of Information Act) so you had to say, `Now wait a minute, we have a different standard here', so then we got into a kind of wrestling, a little bit of arm wrestling about how much effort will go into this to sustain this thing, and gradually they found out that we could sustain, and we found that they could supply information that we would listen to, and I think it was a matter of maybe adjusting, and I felt in that sense that all of us learned a lot from that process."
Dr. Anna Nelson - "I think we all had to know what was in the record to make our decisions, we ended up calling that our `common law' if we hadn't done that, if we hadn't spent 2 or 3 hours on four documents [ a subject Dr. Joyce brings up repeatedly] well, we should remember that the documents were brought to us as examples as the kind of documents that we would end up seeing over and over and over again so that we could make some sense out of it, conclusions out of it.
"I agree with Bill, it's too bad, I don't know how he, you know, [would] put those experiences into writing and reflecting or recommending or whatever we do in terms of our last chapter. But, they were interesting experiences."
Dr. Kermit Hall - "Number 6 (referring to some paper of correspondence with Dr. Joyce) the other side that targeted recommendations, or rather recommendations that grew out of a targeted arrangement, and then the more generalized problem of classification to begin with and then declassification under FOIA or Executive Order, in 6 you, I think those were interesting terms that you used, the distinction between release and review and the need to understand the narrowness of, the need to narrow, narrow categories, I guess I raise, let me pose a question to you, why do we have this here? Why are we making recommendation number 6?"
Dr. William Joyce - "Well, it's part of my `redactatism' in this chapter, to create what I regard as an adequate federal information policy, especially in regard to classifying records and in referring these recommendations to FOIA and the most recent Executive Order it seems to me that you have some specific criticisms of those two things that we have found in the course of our work that they are not adequate to achieve the purpose, that we perceive that they are not adequate-"
Dr. Kermit Hall - "How do we, okay, let me just, how do we know that?"
Dr. William Joyce - "Well, I think we know it from some of the FOIA efforts that I have been aware of, where there have been, where agencies have been able to cast blanket redactions, and that the legislation does not go far enough in mandating the use of material, and in the case of the Executive Order, as I have understood it, the agency heads, all they are committed to do is to review their records, they can, by their own prerogative, decide not to release anything, and the concern, maybe in the case of the Executive Order is, less in the way an actual transaction would show that, but there is concern on the part of those who would actively seek that information."
Dr. Kermit Hall - "Now the reason I pose the question is it seems to me that that discussion needs to be a part of what is 6. There are actually two separate problems here as I see it, one is FOIA, which we can point to examples where we've been able to open up materials which would never have been opened under FOIA, it seems the case however that ours was a targeted effort as opposed to a more generalized standard to be applied. And so I just think it's worth saying on an exemplary basis as we make this recommendation see what good could be done in favor of openness if you apply this kind of a more demanding standard."
Dr. William Joyce - "Well, for example, all of the CIA records that would come out of Operations would have been excluded by statute.
Dr. Anna Nelson - "Excluded by the Executive Order. It doesn't really fall under the Executive Order, one of the problems of a general reader maybe confusion over FOIA and the Executive Order and the fact that the Executive Order is part of FOIA, but not really part of FOIA, and it has to be really explained, and as I mentioned before, you see, people over the years, the last, since Reagan was in office have been getting their documents out of the old Executive Order which bears no relation to the new one, so that in all of this I think we have to be very clear about whether it's just general FOIA or the security classified stuff. And Bill I only got about half of your, I realize now when Kermit started talking I don't have much.
(Dr. William Joyce apparently had sent out correspondence to the other Board members, but Dr. Nelson did not receive all of it. And it is this correspondence relating to Dr. Joyce's second draft of Chapter 7 and the other Board member's comments that is the main reason for this open meeting.)
"So, we will have to get Jerry to copy."
Judge Tunheim - "Just one point on the FOIA, the FOIA experience, you know if we want to tie it into this it is manifested in the fact that for years people have tried to get access to these records through the FOIA and by and large failed.
Dr. William Joyce - (together with Chairman Tunheim) "by and large failed."
Dr. Kermit Hall - "And on the Executive Order front we got to, really kind of again two different streams, one, we have the most recent 12958, and then we got succeeding, or is it preceding?-
Dr. William Joyce - "Preceding."
Dr. Kermit Hall - "Preceding Executive Orders and if I may say so in the paragraph that follows, which I think really needs to be more fully developed, in the paragraph that follows that distinction isn't really clearly enough thought, you talk about Executive Order-"
Dr. William Joyce - "Right."
Dr. Kermit Hall - "And I think drawing the distinction is important, because in the end the most recent of these was supposed to make the process more systematic, more automatic, it's kind of the, you know, the flat tax approach, as opposed to this antique code, and I think that either you or Anna used one of the key phrases here, anyone who has gone through the FOIA process knows how confusing it is and one of the ways to restrict access is to impose such opportunity costs, and so I think, I mean what we are really saying is that the opportunity costs aught to be dropped to get at the information, and what our example does is to demonstrate that that can be done without compromising the security of the United States, and especially in the context of when you use, when you make the recommendation that well one of the things to think about here is using `substitute language' as a way of helping the material that in the present scheme is blacked out."
Dr. William Joyce - "Right."
Dr. Kermit Hall - "Okay, now I got another one for you, if I can."
(Dr. Anna Nelson is whispering to Ms. Olsen or another board member about the documentation which she does not have. Dr. Nelson comments, lightheartedly, `I will get the documentation. You will be hearing from me,' and laughs. It was a little
awkward.)
Dr. Kermit Hall - "You go from six and seven, which I think are real helpful examples, you go from the general to the real targeted, and then you go onto federal information policy and you list all the policies that that should do, and again the question that I would raise is how appropriate is it for us to speak to the creation of a bigger information policy especially when we follow this with such a short paragraph, we don't talk about the Moynihan report, we don't talk about the kind of competing pieces that are out there, you do actually have (ISOUP?) earlier and all of that-"
Dr. William Joyce - "Right."
Dr. Kermit Hall - "But I think if we are going to, let me put it this way, I don't think that we can sustain an argument that a federal information policy ought to be really A, B, C, and D if the short paragraph that follows and relied only on the kind of history that we built up, I just think there needs to be is an effort to reference some authority, perhaps Moynihan, whether we agree or disagree with it or not, but let's say this issue is really in contention and again what we have demonstrated we believe is it is possible to engage in this kind of activity and not put the republic at a great disadvantage."
Dr. Anna Nelson - "I'm not sure. We have to work on this."
Dr. William Joyce - "Well, this is part of what I meant by redactacism. I had to decide how far to go, so I decided I would rather pull back then say well you didn't go far enough on this."
Dr. Anna Nelson - "Well, actually I agree."
Dr. Kermit Hall - "I'm sure my colleagues are better versed in this than I am, but I am not sure that anybody believes that federal information policy is right."
Dr. Anna Nelson - "There is no federal information policy."
Dr. Kermit Hall - "Well, that's my point, you got people on one side who will say, you know, don't give them anything, and people on the other side-
Dr. Anna Nelson - "That's not even the crux of the problem, Kermit.
"The crux of the problem is what is the information?"
Dr. William Joyce - "Well, let him express -"
Dr. Ann Nelson - "-and that goes far beyond-"
Dr. Kermit Hall - "Well, I think...in any case I think we should tackle that issue, coming in with something else, because we are not alone."
Dr. William Joyce - "Well, and that's one of the disadvantages, is here we come riding along, and I will say that the Moynihan report offers an instructive caution in this respect, because they propose legislation and the White House soon after they issued their report paid their disrespects to it and it fell like a stone, and I understand it is coming back now, and cooler heads have gotten involved now, and they wish to change some of the provisions and so on. But, I think, you know, one of the concerns I have is that we come along with our head held aloft on our steed with our banner held high and people shrug and turn away and go on with their business. And that's a real, real problem for us, how far do we want to go with this and how focused do we this to be, what is the scope or range of this?"
Dr. Anna Nelson - "I think, actually Bill the one thing wrong with that is the term `information policy'. I think we are talking about declassification / classification policy. I think what was troubling me was the broadness of the term `information policy', it is very broad. Whereas all of those points are good points but they are on classification / declassification."
Dr. William Joyce - "Well they speak to what information the federal government generates and wants to share with its citizenry, in my view."
Dr. Anna Nelson - "No, because every one of these is classified and a lot of information that is not shared is not classified, it's just drafts or whatever, but it's not classified. In the federal government this means something different, I guess. People read it differently. It is the use of the terms that is different."
Dr. Kermit Hall - "I have two other points for you Dr. Joyce, then I will cease and desist. Number 9 which I think is, I think the compliance program we've put together is very well and good. I think it is turning out to be one of the stars of our effort-"
Dr. William Joyce - "I do too."
Dr. Kermit Hall - "And one of the reasons that it's important that I don't think you make the point here is it quite beyond getting people on the record about what they have, those compliance documents actually I think can be read as kind of forward agreements, that is, the assumption is this is what we say we have now, we've tried, but if something else comes along then we are in essence obligated by the compliance agreement to take account of it. And I think we need to say that, I think we need to say that compliance takes account of where we are when we go out of business but what it means is there is a good faith effort which continues to get addressed. But I really thought this was, putting that recommendation in was smart.
"And when we tell other people how to do this wouldn't you say to them make sure you have a compliance program to get people to sign on?"
Dr. William Joyce - "Well it also speaks to if I may say just say that to the next I think it's to the next recommendation, no, to the last one, which we've discussed earlier which has to do with how the Act continues, you know, and I realize now that looking at this I refer to these as loose ends, well these are not loose ends, there are loose ends to the work of the Board but there is the continuing mandate of the legislation and that really needs to be the focus so that 9 can speak and lives in other ways."
Dr. Anna Nelson - "If I might add something to the compliance, one of the reasons why the compliance worked is because of the pursuit of things, that is to say there was a definite way in which the staff kept track of what was found and what was not found, went out to look when they didn't think the agency had looked adequately, in other words it wasn't just a matter of somebody signing off, it was a matter of pursuing compliance, and then gaining compliance. And that's an important difference. Initially, I was under the impression we were just going to hand them a letter and say here sign this, but it was the way in which it was finally carried out, and brought into our report."
Dr. Kermit Hall - "Last comment? The last comment is about number 10, it's about two things, one is about the use of a particular word, and that is `urgent', and the reason I have problems with `urgent' is it suggests that some of the other items in here aren't urgent. And I would say this is an important problem-"
Dr. Anna Nelson - "another `urgent' one."
Dr. Kermit Hall - "and here's where I think we really get into trouble, okay? I think we really get into trouble because what follows in the paragraph that you have provided is a, you are relying on federal information policy as the solution, a better federal information policy as the solution, and somehow or other that policy ought to get everybody together who has equities in these documents, and I don't think that's an adequate expression of what we believe or what actually needs to be done. For example, we have a model with Doug [Horne] and the people that he put...
End of Side A
Side B starts
Dr. Kermit Hall - "...I think that's an excellent, excellent example to use to show that quite apart from federal information policy be prepared to get all of the players to the table, and the reason is those people came, and I think our experience was, they were delighted to come, they were happy to have the chance to unload a lot of classified materials that would have taken them a lot longer to do so. My only point would be in here is to say it is an important problem but then to frame the response and say take the initiative even if there is no federal information policy."
Dr. William Joyce - "Well, I did say, `one means of addressing' I could simply put it in a more proactive-
Dr. Kermit Hall - "And you are looking for an example and the example is military records and the Pentagon-"
Dr. Anna Nelson - "All military records that Doug got. We took the CIA to the Kennedy library which was a real boon, we did the very same thing with the (?), State Department, and Defense. And I asked the CIA if they would use that again and I got a definite no, `We will never do that again.' So, I think you have-
Dr. William Joyce - "Why?"
Dr. Anna Nelson - "They don't believe in doing it. They did it because of the statute."
Dr. William Joyce - "Well, I would say that among other things-"
Dr. Anna Nelson - "Now wait, wait, wait just a minute, let me finish, so I think that somewhere in there you have to point out to the agencies themselves [they] must be compelled in some way, in other words just urging them is not going to do it. Actually, I have, my view is that there aught not to be any third party [equities], that what we were told this morning out of the Kennedy library, some of the State Department files are State Department records. There is nothing that the CIA has in those State Department records that has `sources and methods' in it for example. They don't put that sortof thing in State Department records. Whatever is in the Defense files aught to be there. There is no way out of equity, but we made a big step which could be a means but I don't think we can be definite in a sense that this is going to happen."
Dr. Kermit Hall - "Well, no, no, and that is certainly not the point that I am attempting to make, I am really suggesting here that we have examples of how with an issue we can bring people together around a common problem of equities, and if you go to federal information policy that I think Bill is talking about, whoever has the document gets to declassify it, that may be part of federal archive information policy, I think that that one may be far down the road."
Dr. Anna Nelson - "Ummm, no."
Dr. Kermit Hall - "Well, I think it is way down the road because anybody who has authored those documents in the end wants to have control especially if you are dealing with agents, and sources and methods, you don't want somebody else revealing what you are doing, that is the rub."
Judge Tunheim - "I think that group declassification is a good initiative and maybe we should push it, and maybe to coin a phrase `round table declassification' but one that tries to give it a little bit more of a focus, give it a little bit more attention."
Dr. Anna Nelson - "It was one of the most successful things we did that we achieved under the statute."
Dr. Kermit Hall - "Yeah, and I think that speaks a lot about the power of the statute-"
Dr. William Joyce - "Right."
Dr. Kermit Hall - "And that is in essence why we are here.
"Mr. Chairman, I want to commend my brother Joyce, A, for putting into good effort what has produced two drafts now, and B, for the fine spirit that he brought to this discussion-"
Judge Tunheim - "Amen."
Dr. Kermit Hall - "of understanding."
Dr. William Joyce - "Thank you all for your help. And I look forward to more help when you have more thoughts on this."
Dr. Anna Nelson - "Yeah, I'll give them to you."
Judge Tunheim - "I'll give you comments in the next few days."
Dr. Anna Nelson - "One of the things that we should, in spite of all of this, basically we pretty much entirely agree on the recommendations, I mean we have had our little push and pull here-
Judge Tunheim - "Yes."
Dr. Anna Nelson - "-from the very beginning we have always agreed on the essence of the recommendations, and a lot of it has to do with how they are phrased or what order they are in, something like that but we are actually in agreement."
Judge Tunheim - "Laura do you have anything else for today?"
Laura Denk - "I don't."
Judge Tunheim - "Any further business this afternoon?
(no response)
"If none is there a motion to adjourn?"
Dr. Kermit Hall - "So moved."
Judge Tunheim - "Is there a second?"
Dr. William Joyce - "Second."
Judge Tunheim - "All in favor say `Aye."
All - "Aye."
Judge Tunheim - "None opposed, it's carried four to zero. Thank you."
Dr. William Joyce (referring to how Judge Tunheim banged the gavel to close the meeting) - "Well done."
Judge Tunheim - "At the last meeting can I go like that? (and really smash it.)
(laughter)
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