NCC Advocacy Update, February 1999
Court Petitioned to Grant Access to Alger Hiss Records
On December 15 Public Citizen filed a petition in the U.S. District Court of the Southern District of New York seeking an order releasing 50-year-old grand jury records relating to the early cold war era indictment of Alger Hiss. The petition was joined by the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Society for Legal History.
More than 50 years ago, on December 15, 1948, Alger Hiss was indicted for and later convicted of two counts of perjury arising out of his denials under oath before the grand jury of having passed State Department documents to a communist agent. The intent of this petition is both to gain access to significant historical documents and also to establish a legal precedent for opening secret grand jury records of historical interest.
This petition builds on a 1997 decision of the U.S. Court of Appeals for the Second Circuit in New York City in the case of Bruce Craig v. United States (No. 96-6264). In that decision the court denied historian Bruce Craig access to the specific historical records that he sought; however, the court made clear that historical interests are appropriate grounds for the release of grand jury material. This groundbreaking opinion stated that it is "entirely conceivable that in some situations historical or public interest alone could justify the release of grand jury information." The court provided some specific guidance for determining the "special circumstances" when sensitive grand jury records should be unsealed for historical reasons.
This petition demonstrates how the request for the Hiss records meets each of the specific factors laid out for considera- tion in the appeals court's decision. Leading scholars signed affidavits in support of the importance of these records for addressing unanswered questions about important political and legal events of the early cold war era. The petition has the support of the Hiss family with both his son and stepson supporting the disclosure of the records. The petition also notes that all of the principal parties involved in the grand jury proceedings are now dead and that significant disclosures about what transpired in the grand jury proceedings have already been disclosed.
More information on this case may be found on the web site of Public Citizen at http://www.citizen.org.
Opening of AEC Records Delayed
For over a decade scholars have been seeking access to the records of the Atomic Energy Commission (AEC) from the 1940s and the 1950s. Yet today one small percentage of these records are available for researchers at the National Archives. Now there are further delays as the Department of Energy re-reviews material that it had certified for release several months ago. The department, which has custody of the AEC records, had certified that 62 boxes of the 1946-61 records of five AEC commissioners had been reviewed and were ready to be opened to researchers. But these records remain closed because the National Archives has suspended its processing of the records—the final stage in making them available to the public—for as long as the Department of Energy is engaged in the re-review.
Given the department's record of re-reviews and delays in opening records, the National Archives and the Department of Energy established a process whereby the department would sign certification letters stating that reviews for sensitive national security information and restricted data (including atomic weapons design information) were completed and the material could be released to the public. Researchers are deeply dismayed that the certification process is no longer working and that the department is continuing to retreat from its commitment to opening very old records that have already undergone numerous reviews.
Records of Congress
On December 17 the Advisory Committee on the Records of Congress met. Two of the major items of discussion were the renovation of the Archives I building and public access via the Internet to resource materials for the study of Congress. Representatives of the National Archives reported that a major renovation of the archives building on Pennsylvania Avenue will take two years with a target completion date in 2003. They stressed that the work would have minimal impact on the Center for Legislative Records. The current research rooms for legislative records will remain in operation during the renovation. When the renovation is completed, the center will move within the building to larger and better facilities.
However, it was noted that the storage facilities for legislative records in Archives fare not suited for audiovisual records, because the retrofitting of the old building will not include adequate storage standards for audiovisual material. The committee heard very encouraging reports about resource guides for the study of Congress that are now available on the Internet. The Senate, House, and National Archives have cooperated in making available biographical and bibliographic information on all members of Congress from 1774 to the present as well as a guide to the repositories across the country that house manuscript collections of members of Congress. Additional work is now underway to develop enhanced finding aids for congressional records, which will include guides for the records of each major congressional committee.
The National Archives, Senate, and House each have web sites with historical components that provide valuable research material, at, respectively, http://www.nara.gov/nara/legislative; http://www.senate.gov; and http://clerkweb.house.gov.
Trial to Evaluate Nixon Material
On December 2, U.S. District Judge John Garrett Penn opened the trial in the case of William Griffin and John Taylor v. United States (Case No. 80-3227), in which the representatives of the Nixon estate are seeking "just compensation" from the United States for the Nixon tapes and materials. Nixon brought this suit in 1980 claiming that he deserved compensation for his presidential materials, which include 17,000 hours of Dictaphone, telephone, and tape recordings and 44 million pieces of paper. Acting in accordance with the Presidential Recordings and Materials Preservation Act, the government took these materials in 1974 and placed them under the custody of the National Archives.
Judge Penn ruled in 1991 that Nixon deserved no compensation, but the Nixon estate appealed the decision. In 1992 the court of appeals overturned that decision and said that the government owed compensation to Nixon for the seized material. The court of appeals sent the case back to the lower court to determine the damages due to the Nixon estate. Thus this trial, which has no jury, will determine the appropriate monetary value of the materials. The judge encouraged the Nixon estate and the U.S. government to reach a settlement and to avoid a trial, but after years of negotiations, the parties failed to reach an agreement.
On the first day of the trial both sides laid out their key arguments. The Nixon estate is seeking compensation of $213 million, which they claim is the "fair market value" in 1974 dollars with compounded interest for 24 years. Stan Mortenson, the lawyer for the Nixon estate, said that Nixon had brought the case reluctantly because he had been denied his dream of having a presidential library. Mortenson reviewed the expert testimony of document collectors and appraisers who placed extremely high values on documents such as Nixon's handwritten resignation speech, comparing the value of the documents to the Gutenberg Bible, the Declaration of Independence, and the Winston Churchill papers.
Mortenson focused considerable attention on various ways in which he claimed that the National Archives had commercially exploited the Nixon material, such as charging for making copies of documents and photographs. Mortenson quoted historians Stephen Ambrose and Joan Hoff, who had provided expert reports as to the extraordinary historical significance of these records and to their value for research. Furthermore, he stressed that the Nixon estate was not seeking a "windfall," for it had been determined by the family that the money from the case would go for legal expenses and for running the private Nixon Birthplace Museum and Library in Yorba Linda, California.
Neil H. Koslowe, the Justice Department attorney, stressed that the documents had been created by public officials, at public expense, on public equipment for the public's benefit, and that the Nixon estate should receive no compensation. He described Nixon's desire to keep his papers together as an integral research collection, stressing that Nixon had never envisioned selling the documents piecemeal for the top dollar. The government's case also focused on establishing the value of the records in 1974. Koslowe noted that in 1974 many of the records were still classified or had not been reviewed for privacy concerns and thus could not be sold; that much of the material was not well organized and lacked adequate finding aids; and that the federal government had since 1974 spent considerable sums to preserve, store, and describe the materials. Quoting various letters and documents Koslowe emphasized that in 1974 Nixon stated his intention to destroy the tapes. At later dates Nixon entered into failed negotiations with various universities and with the National Archives concerning his desire to establish a central research repository for his papers. Koslowe pointed out that neither plan involved the piecemeal selling of the documents.
The question of the monetary value of a comprehensive collection of a president's papers, photographs, and tapes is difficult, given that the question has never come up before. Past presidents from Hoover to Carter donated their papers to the National Archives to be part of the presidential library system. And the records of presidents beginning with Reagan are governed by the Presidential Records Act, which states that the federal government retains complete ownership and control of presidential records. The trial may last as long as six weeks with each side calling to the stand numerous expert witnesses.
Three New National Parks
The 105th Congress added three new national parks, bringing the total to 378 parks in the national park system. The three new parks-like more than half of the national parks-focus on historical events and are effective classrooms for expanding an understanding of America's past. The three new sites are: the Little Rock Central High School National Historic Site, for the pivotal role that it played in the desegregation of public schools in America; the Tuskegee Airmen National Historic Site, which is established in association with Tuskegee University to commemorate and interpret the impact of the "Tuskegee Airmen" and the thousands of men and women who served in African American Air Force units during World War II; and the Oklahoma City National Memorial, related to the April19, 1995, bombing of the Alfred P. Murrah Federal Building in downtown Oklahoma City, where 168 people died.
Page Putnam Miller is the director of the National Coordinating Committee for the Promotion of History.
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