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Missing El Salvador Documents 2.0: NARA’s Response and Remaining Unanswered Questions

December 10, 2010

I would like to thank Mr. Kurtz of the National Archives and Records Administration for providing a candid and illuminating response to my previous post of November 17, 2010, regarding the missing documents of the El Salvador Human Rights Cases held at the NARA and the Library of Congress. I especially appreciate a clarification between the two different collections, the “Special Collection of Records Relating to El Salvador Human Rights Cases, 1979-1993” and the “UN Truth Commission Files, 1980-1993”.

National Archvies and Records Administration - College Park, MD

However, the following issues remain:

Controlled Unclassified Information (CUI)

Mr. Kurtz explains that some of the information in the “UN Truth Commission Files, 1980-1993” is CUI, and needed to be reviewed for personal information prior to its release to researchers. This is part of the larger, general problem of over secrecy. CUI is important for the purpose of protecting social security numbers, corporate trade secrets, etc. However, it is also used as a loophole to restrict access to information not officially classified. In the same way there is massive over-classification in the government, there is also an extreme over-use of the CUI label.

To address this, President Obama presented an executive order on November 4, 2010 providing agencies with a new directive regarding CUI. The EO “establishes an open and uniform program” for managing CUI. It also specifically directs: “If there is significant doubt about whether information should be designated as CUI, it shall not be so designated.” NARA is appointed as the Executive Agent to implement the order.  While this new directive is a strong message, and may be helpful, the actual outcome may be little, if anything at all.

Proper Accession of Special Collections

We now know that the Library of Congress was given many of the “non-State,” or Department of Defense documents directly. Yet there appears to be little institutional memory about the fate of the records, considering that few people at the Library of Congress were aware of this collection, and that archivists in the NARA reading room were not helpful in finding the rest of this collection in the Library of Congress. It is troubling that this special collection of documents, released by order of President Clinton in 1993 and 1994, are not part of a single, coherent collection, available in one location at NARA, the Library of Congress, or both.

Mr. Kurtz points out that NARA only officially received the State Department’s portion of the records of this Special Collection. I appreciate NARA’s concern that there is not a complete collection available, and applaud NARA’s commitment to make efforts to acquire a complete set. As Mr. Kurtz said,

“…because the “Special Collection” was an amalgam of declassified records from numerous agencies, the collection as a whole was never accessioned into the National Archives. NARA appears to have officially received only the State Department’s portion; the CIA and DOD may transfer their portions at some future time. (The Chile/Pinochet and Argentina Human Rights Special Collections were also not accessioned into the National Archives.) Accordingly, there does not appear to be any central repository for a complete set of these special collections of declassified records. If there are future such collections, NARA will make efforts to obtain and preserve a complete set, and NARA will explore whether a full set of the El Salvador Special Collection can be re-constituted.”

We look forward to having a complete copy of the records, including the missing ones, in a single location, easily accessible to the public. The agencies receive a lot of press and praise for releasing the documents to the public; but if these important documents are nearly impossible to access, what is the point?

What about the Library of Congress?

In November, I submitted a formal complaint to the Library of Congress Inspector General regarding the missing documents at the Library of Congress. The case is currently being investigated.

Other Questions…

Why did it take a negative blog post to get an agency to get to the bottom of what happened, and to provide information about the documents?

Is it ok for the FBI (or US government as a whole) to redact files after the fact to protect its agents if they did indeed commit crimes?

What can we do to get the rest of the documents? Waiting for NARA to look into getting a full set, waiting for FOIA and MDR requests to be processed, and waiting for the outcome of the LOC investigation could take years,  but international human rights criminal cases are being heard right now.

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