Issue Date: Nov 10, 2000

By Douglas Frank

Warren Kimball: Fighting federal secrecy

So, Dr. Kimball, on the one hand our government has entities that are charged with being truthful and others that are supposed to hide stuff?”

“It’s an appropriately confusing dynamic. I love it.”

Everybody knows the United States government needs to keep secrets, but, as a democracy, it is also committed to the public’s right to know. Helping maintain this delicate balance and open the doors to information is Warren Kimball, the Robert Treat Professor of History on the Newark campus.

Kimball was the first chair (1991–1998) and remains a member of the State Department’s Historical Advisory Committee, a congressionally mandated advisory committee to the series “Foreign Relations of the United States,” regarded as the world’s most prestigious and long-standing documentary collection on foreign policy.

The federal government has published this record of American foreign policy since 1861. Professional standards of research and editing were established in the 1920s, and trained historians were hired by the State Department to research and compile the volumes.

For a long time the aim was to tell the people on a timely basis what their government was doing in international affairs. Over the years, however, our expanded involvement in world affairs and the fear generated by the Cold War created a vast “information security system” designed to protect our secrets, sometimes for longer than necessary, according to Kimball.

In addition, other agencies besides the White House and the State Department came to have a direct involvement in the development and implementation of foreign policy — the Central Intelligence Agency, the Department of Defense and the Treasury Department, to name just a few. These agencies are not always amenable to releasing information to the public, especially if it is embarrassing to public officials.

When these agencies close their doors to the State Department historians, particularly when the information they seek is some three decades old, Kimball and his committee have stepped in.

The committee was created and given a mandate by a 1991 statute aimed at opening 30-year-old documents on foreign policy. Its nine members usually include six historians, a political scientist, an archivist and an international law scholar.

“Some secrets about national security need to be kept — at least for a while. But secrets from back in the era of Lyndon Johnson and before hardly pose a threat to our safety, although they may threaten to embarrass policy-makers,” Kimball says.

The committee exists because the law demanded it, not because it was thought to be good public relations, says Kimball. It is further charged with making sure that “Foreign Relations of the United States” is a thorough, accurate and comprehensive documentation of foreign-policy decisions — necessitating access to all agencies’ records. Committee members have security clearances so they can examine any records being withheld from the public.

“The committee can’t demand to see today’s hot stuff. But if it is historic and starts getting about 25 years old, the time period for which the historians are now preparing volumes, then we can see the material.

“We don’t sit and look at specific documents, except to make a case about why it’s silly to close this or that type of document. So it’s not just one document that is opened, but dozens like it. We’re constantly trying to expand the universe of documentation,” Kimball adds.

The historical office of the State Department has 15 professional historians, all of whom work full time going through the archives, compiling lists of documents and then selecting documents for publication in the foreign relations series.

“We look at problems the historians have with the CIA, National Security Council and others, either getting access to the material guaranteed by law or getting the material declassified,” Kimball relates.

“No one advocates revealing information that would threaten today’s national security. But we cannot allow that to become a means for our government agencies to hide their embarrassment, their failures, or their violations of law and our sense of ethics — especially when the events are 30 or more years in the past.”

Kimball notes that there are some “ludicrous” examples of withholding information, but hesitates telling about most of them.

“The best example I can give is the time when the Danish government published part of the text of the U.S.–Danish agreement on stationing of weapons in Greenland. Despite the fact that the Danes had already published the information, our agencies hesitated to open the U.S. record because American policy was: ‘We don’t do that.’ That is silly, and that kind of silliness wastes a lot of time and money. They eventually came to their senses.”

Kimball’s committee operates for the State Department, but only some 20 percent of the documents published are State Department documents, he points out. The rest are from the Defense Department, CIA, National Security Council, Joint Chiefs of Staff and White House.

“We have access and talk to the CIA and Department of Defense and others only because the law requires them to support the foreign relations series. We don’t demand that anything be opened; we are not a declassification authority. All we can do is drive people up the wall challeng-ing their decisions and reporting to the secretary of state.

“The main thing is that, like a gadfly, we don’t go away. No matter what happens, no matter what awkward things we say — we keep saying them. There is always beneath the surface the threat that we will report problems, because we are required by law to make a report to the secretary of state on our findings once a year. And a copy of that report must go to the Senate and to the House.”

Kimball says the advisory committee has met with enough success to suggest that its legal mandate should be expanded. Many CIA records, previously locked up tightly, are now examined by State Department historians, and a few documents are being opened and published.

“There are no victories in the fight against excessive secrecy, just an ongoing struggle to strike a reasonable balance. But the glare of public scrutiny gives some leverage to reasonable people,” concludes Kimball.





Jonathan Lurie: Military justice on trial

During World War I at the Army’s Camp Logan in Texas, some 40 black soldiers were court-martialed for participating in a riot in town. After conviction, 15 were summarily hanged on the orders of the camp commander.

Word of the executions reached the War Department, and although they were perfectly legal from a military standpoint, there was outrage and calls for an appellate process to review cases before executions were carried out.

Unfortunately, nothing came of this until World War II, when numerous examples of excessive sentences and other problems led Congress to develop the Uniform Code of Military Justice applicable to all services, which were unified into the Department of Defense in the postwar era.

The statute also created the U.S. Court of Appeals for the Armed Forces, which went into operation in 1951 as, essentially, the supreme court of the military, handling appeals from courts-martial throughout the services. Its five civilian judges, appointed by the president and confirmed by the Senate, serve 15-year terms.

This little-known judicial body, which holds tremendous power over the lives of the nation’s servicemen and women, has been the subject of close scrutiny over the past 13 years by Jonathan Lurie, professor of history on the Newark campus, who serves as historian and archivist for the court.

Lurie, a legal historian, has written a two-volume history of military justice from 1775 to 1980, to be revised and synthesized into a paperback version by the University of Kansas Press early next year. Princeton University Press published “Arming Military Justice” in 1992 and “Pursuing Military Justice” in 1998.

He was recruited for the task by the chief of history for the Air Force, Richard Kohn, who had been a Rutgers professor in New Brunswick. “I suggested several scholars to him, and he noticed that my name was not on the list. I told him I didn’t know anything about military justice and had never heard of the court,” Lurie recalls. “He explained that they were looking for a scholarly history from someone not connected to the military, who could be objective about the field.” Ultimately, to Lurie’s surprise, in 1987 Kohn asked him to come down for interviews.

Lurie says he was given great latitude and independence in pursuing the task, “total freedom to research as I wanted. I gave each chapter to the judges as I wrote it and asked for feedback, which I rarely got. After several chapters, I was told to find a publisher.”

Over the years, Lurie has concluded that while there is a belief that civilians should monitor the military in this country, there is all too often a deference to the military viewpoint in matters of military justice.

“In a very narrow sense, there is appeal to the U.S. Supreme Court, but it is tightly circumscribed and that court does not hear many cases in military justice — only three or four key cases in the last five years.

“And when cases do go to the U.S. Supreme Court, the dissenting opinions that arise from them often complain of an almost ‘supine deference’ to the military viewpoint,” Lurie maintains.

For instance, in a case in 1975, the Supreme Court was asked to decide whether military personnel in a low level of court-martial had the right to counsel. The Supreme Court said no. The dissent by Thurgood Marshall, joined by William Brennan (both frequent dissenters in these types of cases), noted that the majority opinion was “a grant of almost total deference to any act of Congress dealing with the military.”

In another famous case, the Supreme Court in 1986 refused to uphold the right of a chaplain to wear a yarmulka. Brennan, in dissent, accurately said that the court gave “credulous deference to unsupported assertions of military necessity.”

“My point is that when you look at the decisions in military justice, you don’t find that careful systematic exploration of legal issues that you ought to get in the highest appellate court. If it is a military issue and a matter of ‘military necessity,’ which is the buzz phrase, the civilian sector says, ‘We can’t get into that; we can’t interfere,’ and I think that is a very dangerous view to hold,” Lurie says.

A realist, however, Lurie says he knows that being in the military is not like being a civilian. “You must be prepared to lose your life, and I would not advise that when your commander says, ‘Take that hill,’ you start quoting the 14th Amendment and due process. On the other hand, and particularly now with a voluntary military, these are American citizens who have some expectations of fairness and due process.”

Lurie is not suggesting that every action taken by the military should be scrutinized by the U.S. Supreme Court. “But there is real potential for it to be an effective balancer in the permanent tension between military justice and the need for discipline and due process and constitutional procedure,” he suggests. “It’s disturbing that the court hears so few cases now and could explore some issues in much greater depth than they have.”

The lack of interest by graduate schools and law schools in military law and justice is even more dangerous over the long run, Lurie warns. “What I am saying in the book is that the real problem is that military justice is not of more concern to the greater legal/scholarly community. Law schools don’t teach military justice or military law. I’ve asked where military lawyers come from, and I’m shocked to see how few come from outstanding law schools.”

One noteworthy change over the years is that the armed services are much more aware of procedures in military justice than before the Court of Appeals came into existence, he says. But much greater attempts to resolve the tension between civilian control and military control of military-justice issues are needed, he asserts.

Lurie recalls traveling to bases and installations to orient himself to the military way of life. Since he was not in the military, he wanted to learn about its environment. One of the commanders, in all seriousness, told him: “You know, professor, you don’t have to worry about military justice here. We never try anyone unless they’re guilty.”

This article was published in the Nov 10, 2000 edition of the Rutgers Focus and is available online at http://urwebsrv.rutgers.edu/focus/article/link/278/