EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 1, 2013

Nazis, Espionage, FOIA & Federal Rule of Evidence 803(8)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

So, assume that a public report is accompanied by the following statement in its cover letter:

In order to avoid further delay of the release of this report, members of the IWG did not seek unanimous agreement on a single “official” version of their declassification effort. Instead, this report presents the larger issues that arose while affording participants an opportunity to present personal or institutional perspectives on issues important to them and to those whom they represent. These appear in a separate chapter at the end of the report....

Would such a statement render the public report inadmissible because it tends to indicate "lack of trustworthiness" under Rule 803(8)(B)? That was the question addressed by the United States District Court for the District of Columbia in its recent opinion in DiBacco v. U.S. Department of the Army, 2013 WL 5377060 (D.D.C. 2013).

In DiBacco,

Carl Oglesby filed suit in 1987 challenging several agencies' responses to a Freedom of Information Act (“FOIA”) request Mr. Oglesby submitted in August 1985. Since that time, the case has reached the United States Court of Appeals twice then lay dormant for nearly eleven years. In December 2011, Aron DiBacco and Barbara Webster, the domestic partner and daughter of the now-deceased Mr. Oglesby, sought to replace Mr. Oglesby as the Plaintiffs in this action, which the Court permitted.

 So, what was the nature of Oglesby's FOIA request? According to the court,

Since the early 1970s, [Carl] Oglesby has relentlessly pursued the story of General Reinhard Gehlen, who served as chief of a Nazi spy ring during World War II and who allegedly later negotiated an agreement with the United States which allowed his spy network to continue in existence despite post-war denazification programs. After World War II, his group, then known as the Gehlen Organization, was reportedly reconstituted as a functioning espionage network under U.S. command. According to Oglesby, control of the Gehlen Organization shifted back to the newly-sovereign West German Federal Republic as the BND (for Bundesnachrichtendienst, or “the Federal Intelligence Service”) after ten years of U.S. control.

So, what was the legal question in DiBacco?

On October 8, 1998, President William Clinton signed into law the “Nazi War Crimes Disclosure Act,” or “NWCDA.” P.L. 105–246, 5 U.S.C. § 552 note. The act “required the U.S. Government to locate, declassify, and release in their entirety, with few exceptions, remaining classified records about war crimes committed by Nazi Germany and its allies.” Nazi War Crimes & Japanese Imperial Gov't Records Interagency Working Group (“IWG” or “the working group”), Final Report to the United States Congress 1 (Apr.2007). To oversee the implementation of NWCDA and the Japanese–Imperial Government Disclosure Act of 2000, the President created an Interagency Working Group, consisting of the Archivist of the United States, designated representatives of the FBI, the CIA, the National Security Council, the U.S. Holocaust Memorial Museum, and the Departments of Defense, Justice, and State, as well as three public members....Although General Gehlen is not considered a Nazi war criminal, “the CIA pledged to acknowledge the intelligence relationship with General Gehlen in records processed for release under the [NWCDA].”...Accordingly, “the CIA approved the release of the 2,100–page Army Gehlen file, and in addition released nearly 2,100 pages of materials relating to Gehlen from its own files as well as files on many of Gehlen's personnel and agents–including the operational information in all of these files.”...

The plaintiffs in DiBacco took "issue with the Defendants' reliance on the IWG Report to establish the scope of documents reviewed in connection with the NWCDA." Specifically, they claimed that the Report was unreliable under Rule 803(8)(B) because of the statement quoted in the introduction to this post. The court disagreed, concluding that

Nothing in this statement “raises concerns” regarding the trustworthiness of the report as the Plaintiffs suggest. If an agency or IWG member disagreed with the description of the agency's response to the NWCDA provided in the report, they could address those issues in the final chapter report. For example, Elizabeth Holtzman, one of the public members of the IWG, indicates that although the CIA was reluctant to declassify large swaths of documents, but “is not in full compliance with the law and is giving [the IWG] all the material [the IWG] believe[s] is relevant” under the NWCDA....The Plaintiffs offer no other evidence to suggest the IWG Report description of the processing of documents by the Army or the CIA is not credible. Therefore, the Court finds the IWG Report to be proper non-hearsay evidence pursuant to Rule 803(8)....



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