ACHRE Report

Part II

Chapter 13


National Security and Governmental Prestige: The Legal Tradition Inherited by Cold War Agencies

The Practice of Secrecy

The Records of Our Past


Chapter 13: The Records of Our Past

The story that we have told in this report could not have been told if the government did not keep records that could be retrieved. By the same token, the story is often disturbingly fragmentary; seemingly contradictory statements of principle or policy abound, and the trail from policy to practice is often hard to discern. The story is complex, but it is also hard to reconstruct because, notwithstanding considerable search efforts of the Human Radiation Interagency Working Group, many documents appear to have been long since lost or destroyed. In each case, we emphasize, any loss or destruction took place prior--most often many years prior--to the Advisory Committee's creation. Federal records management law provides for the routine destruction of older records, and in the great majority of cases it should be assumed that loss or destruction was a function of normal record-keeping practices. At the same time, however, the records that recorded the destruction of documents, including secret documents, have themselves often been lost or destroyed. Thus, the circumstances of destruction (and indeed, whether documents were destroyed or simply lost) is often hard to ascertain.

As Shields Warren and Alan Gregg suggested, where human research is connected to secret programs, the public has a special interest in the adequacy of record keeping needed to ensure the integrity of experimental activity. Regardless of whether documents that cannot now be retrieved contained further secrets, they would have provided more confidence in our understanding of the rules and practices that governed the boundary between openness and secrecy. In too many cases, however, documents are no longer available.[148] A number of such examples follow.[149]

The CIA, virtually all of whose records are classified, reported that it was unable to retrieve any records of its participation in the midcentury DOD panels that met in secret to discuss, among other things, human experiments. In addition, the CIA's classified records of its secret MKULTRA human experimentation program were, as reported when the program became a public scandal in the 1970s, substantially destroyed at the direction of then-Director of Central Intelligence Richard Helms in 1973. In 1995 the CIA concluded, following a search for remaining records and interviews of those involved, that it did not likely conduct or sponsor human radiation experiments as part of MKULTRA. The Advisory Committee, which was necessarily limited in its abilities to directly review CIA files, did not find evidence to the contrary. As a CIA report on its own inquiry (which was declassified at the Advisory Committee's request) concluded, the circumstances of the CIA's MKULTRA record keeping will likely leave questions in the public's mind.[150]

The DOD provided many documents that shed light on the rules of secrecy. However, some important collections are incomplete, and other important collections (such as the records of the Naval Radiological Defense Laboratory, the Medical Division of the Defense Nuclear Agency, classified records of the Navy Bureau of Medicine relating to Operations Crossroads physical exams, and entire sections of records of the Army surgeon general) appear to have been substantially lost or destroyed.

The DOE could locate only fragments of the records of the Insurance and Declassification Branches, which reviewed human subject research for declassification. The entirety of the files of the AEC Intelligence Division, which likely contained information on intentional releases, research performed by the AEC for other agencies, and secrecy policy and practices, was subject to "purge" in the 1970s, and as late as 1989.[151] Many other significant collections were retrieved. However, there were often gaps, including, for example, multiyear gaps in the Division of Biology and Medicine fallout collection, gaps in the transcripts from the meetings of the Advisory Committee on Biology and Medicine, and limited collections related to the work of the Isotope Distribution Division's Human Use Subcommittee.

The DHHS was able to locate sufficient information to confirm that it conducted classified research on behalf of the military mission, but could not locate information needed to determine the nature and extent of this research.[152] The classified information it once maintained has been substantially destroyed (or lost).

The VA, similarly, was able to provide fragments of information that show that "confidential" files were kept in anticipation of potential radiation liability claims. However, neither the VA, nor the DOE and DOD (who evidently were parties to this secret record keeping), have been able to determine exactly what secret records were kept and what rules governed their collection and availability.[153] VA publications did contain lists of several thousand (nonclassified) human experiments conducted at VA facilities; however, the information was quite fragmentary, and further information could not be readily retrieved (if it still exists) on the vast majority of these experiments.

Thus, in looking for answers to questions about the secrecy of data on human experiments and intentional releases, we find record-keeping practices that leave questions about both what secrets were kept and what rules governed the keeping of secrets.

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