The
Human Rights Information Act
by Heather Fox*
On October 8, 1997, Representative Tom Lantos (D-CA), a long-time human rights advocate and the only World War II Holocaust survivor currently in Congress, proposed the Human Rights Information Act (HRIA). If passed, the bill will declassify U.S. government information about human rights violations that have occurred around the world, providing a new tool for human rights advocates.
The HRIA's primary function is to expedite the declassification of all U.S. government documents concerning global human rights violations, designated "human rights records" in the bill. The HRIA initially dealt only with U.S. records on Guatemala and Honduras, but Representative Dennis Kucinich (D-OH) introduced an amendment to the HRIA that expanded the bill's scope to include all regions of the world.
Substance of the HRIA
HRIA Section 3, which contains definitions of terms used in the bill, broadly defines a "human rights record" as "a record in the possession, custody, or control of the United States Government containing information about gross human rights violations committed after 1944." In addition, Section 3 defines "agency" as "any agency of the United States Government charged with the conduct of foreign policy or foreign intelligence," including the Department of Defense (DOD), the Central Intelligence Agency (CIA), and the Executive Office of the President.
Section 4 contains provisions regarding identification, review, and public disclosure of human rights records. First, it requires that all U.S. agencies identify and review all human rights records under the agencies' control, with the intent of declassifying as much information as possible, no later than 120 days after the enactment of the bill. Second, no later than 150 days after enactment, the president shall report to Congress on the compliance of each agency.
Section 5 of the bill provides protection for information that, if disclosed under the provisions of Section 4, would jeopardize military or intelligence operations and therefore threaten national security. It specifically allows for postponement of public disclosure if there is "clear and convincing evidence" that it would expose an intelligence agent, source, or method that currently is being used or is expected to be used.
Section 7 of the bill establishes an Appeals Panel to review the determinations of the agencies required to declassify human rights records under the HRIA. The panel will consist largely of the directors of these agencies. Importantly, however, it will also include two positions, to be appointed by the president, that will be filled by non-governmental employees with substantial experience in human rights, preferably recommended by nongovernmental human rights organizations. The task of the Appeals Panel (Panel) is to review agency determinations to postpone disclosure of any human rights record. Unless the Panel finds clear and convincing evidence that the record is either not related to human rights or represents a threat to national security if publicly disclosed, its duty is to disclose the records. The president will have the power to overturn any decision made by the Panel to declassify. If the president overturns a Panel decision, however, he must provide Congress with a written explanation of his decision, which will be made publicly available.
Implications of the HRIA
Proponents of the bill believe that the release of government information concerning human rights violations will enable victims and their families to learn the truth about U.S. government knowledge of such violations. In addition, by disclosing information to the public, more evidence could be amassed and the resulting public outcry could lead to more prosecutions of human rights violators. The prosecution of these violators would in turn strengthen the rule of law and deter future violations.
Opponents of the bill find three main faults with the HRIA. First, they argue that current declassification procedures, such as those the Freedom of Information Act (FOIA) provides, are sufficient. According to Amnesty International, however, the DOD and U.S. intelligence agencies are not accommodating FOIA petitions for declassification. Furthermore, FOIA pertains only to documents 25 years or older, which precludes the declassification of many documents relating to more recent human rights violations. In contrast, the HRIA would compel agencies to disclose current human rights records.
Second, critics charge that the widespread declassification required by the HRIA may be an impossible undertaking due to massive amounts of paperwork and limited funding. Yet, proponents of the bill point to initiatives taken by Senator Daniel Moynihan (D-NY), who formed the Senate Commission on Protecting and Reducing Government Secrecy. Senator Moynihan organized the committee due to his belief that excessive funding, including a portion of the U.S. intelligence community's yearly budget of more than $26 billion, is spent on overclassification in all areas. Thus, if overclassification is reduced in general, this will make more funding available for declassification under the HRIA and prevent unnecessary classification of any future human rights records.
A final concern with the HRIA is whether it would pass constitutional muster. HRIA opponents accuse Congress of overstepping its boundaries under the separation of powers doctrine by establishing the Appeals Panel to oversee executive agencies. Congress, however, has established similar congressional panels to oversee executive activity in other areas. For example, Congress established a review board to oversee the declassification of documents pertaining to former president John F. Kennedy's assassination. Furthermore, the power of the executive branch remains intact because the president appoints the two nongovernment employee positions and he alone can veto the decisions of the Panel.
Conclusion
Due to its controversial nature, the HRIA met opposition in the 105th Congress. In the House of Representatives, the Committee on Government Reform and Oversight referred it to the Subcommittee on Government Management, Information, and Technology, which approved and forwarded the bill back to the full committee on September 28, 1998. The full committee, however, has yet to move on the bill. After lobbying by the heads of the CIA and the Federal Bureau of Investigation, the Senate tabled the HRIA as a proposed amendment into the Foreign Operations Appropriations Act of 1999, by a 50-43 vote. Representative Lantos plans to reintroduce the HRIA in the 106th Congress and is optimistic about its passage.
The HRIA's drafters hope that the bill's declassification procedures will further reveal the truth about U.S. government knowledge of human rights violations. Around the world, processes intended to expose the truth about government participation in activities, such as the South African Truth and Reconciliation Commission, have shown that they are imperative to ensure the accuracy of historical records and to aid the healing of victims of human rights violations, their families, and society as a whole.
*Heather Fox is a first year J.D. candidate at the Washington College of Law and a Publications Editor for The Human Rights Brief.
The proper citation for this article in the Human Rights Brief Volume 6, Issue 3, beginning at page 21 is: 6 No. 3 Hum. Rts. Brief 21 (1999).
