Archive Sues State Department Over Kissinger Telcons
700 Transcripts Still Withheld, Eight Years after Appeal
Threat of suit in 2001 led to recovery of Kissinger documents
Digital National Security Archive has published 15,000 to date
National Security Archive Electronic Briefing Book No. 503
Edited by William Burr
The National Security Archive today filed suit against the State Department under the Freedom of Information Act to force release of the last 700 transcripts of former Secretary of State Henry Kissinger's telephone calls (telcons). The Archive's appeal of State's withholding dates back to 2007.
Kissinger had removed the telcons, along with his memcons and office files, from State when he left office at the end of 1976. A lawsuit by the Reporters Committee for Freedom of the Press to recover the documents failed in 1980 with a Supreme Court ruling that the plaintiffs lacked standing.
The National Security Archive in 2001 crafted a new legal complaint directed at the State Department and the National Archives for abdicating their duty under the Federal Records Act to recover the Kissinger documents, which were produced on government time with government resources. Remarkably, the State Department Legal Adviser William Howard Taft IV agreed with the Archive, asked us to hold off on our legal action, and formally notified Kissinger that he needed to return the documents or complete copies thereof.
When Kissinger did so, in August 2001, the Archive promptly filed a Freedom of Information request for the telcons, and has published 15,502 of the conversations in the Digital National Security Archive series through the online publisher ProQuest.
But the State Department withheld, starting in 2007, some 700 of the telcons, claiming they were "pre-decisional" or covered by executive privilege — claims that should long since have expired in the case of 40-year-old records. The Archive's formal appeal of the withholding, along with repeated queries by the Archive to State and the White House Counsel's Office about the status of the telcons, have been met only with years of delay, thus making the lawsuit necessary.
The Archive is represented by expert FOIA practitioner David Sobel, a winner of the James Madison Award from the American Library Association for his open government advocacy. Posted today on the Archive web site at www.nsarchive.org are the legal complaint, an overview of the issue by Archive senior analyst William Burr (author of the critically-praised book, The Kissinger Transcripts), and six of the most recently released Kissinger telcons as examples of what is at stake in the lawsuit.
* * *Today the National Security Archive filed a lawsuit against the Department of State insisting that it expedite declassification review and processing of a Freedom of Information Act appeal concerning hundreds of transcripts of Henry Kissinger's telephone conversations (telcons) produced when he was Secretary of State during 1973-1977. The Archive has waited nearly eight years since that appeal and nearly 700 telcons remain at issue. The initial FOIA request, filed in August 2001 yielded thousands of telcon transcripts, high quality records which brought greater openness and clarity to the turbulent foreign relations history of the Nixon-Ford years. As part of the FOIA processing hundreds of documents were coordinated with other agencies, including the White House. In June 2007, the State Department denied over 800 of the transcripts, many of them records of White House-level conversations, on executive privilege and "pre-decisional" (b) (5) grounds. There were rumors that Kissinger's influence at the George W. Bush White House was behind that decision, but whatever the facts are, the Archive challenged the exemptions in an appeal filed in July 2007.
Since it filed that appeal, the Archive has waited patiently. When the Obama administration came to power in January 2009, the Archive reminded the State Department's Appeals Panels of this unfinished business citing the President's 21 January 2009 memorandum which declared that agency heads should follow a "presumption of disclosure" when making decisions on FOIA requests. While the Archive argued that any legitimate executive privilege interest had long faded away and that the "pre-decisional" exemption could not reasonably apply to forty-year-old documents, the records have languished since 2007 at the State Department and the White House's Office of the General Counsel. In light of the unwarranted delay, the Archive saw little choice but to file a lawsuit to accelerate the release of the remaining telcons ensuring that they will be available to historians and social scientists without undue delay.
The record of Henry Kissinger's telephone conversations is a significant historical resource which illuminates the inner workings of the Nixon and Ford administrations. If Kissinger had his way, it is likely that the telcons would be under seal at the Library of Congress to this day. Nevertheless, they became available for declassification review and release after the National Security Archive threatened to sue the National Archives and the Department of State in 2001 for their failure to follow federal records laws by allowing Kissinger to keep under personal control records that were produced with U.S. government resources on U.S. government time. That Kissinger had taken the telcons (and other unique records) from the State Department and the White House, in violation of federal records laws, was a great vulnerability in his legal position, one that the Supreme Court had exposed in its 1980 ruling. Rather than dragging the issues through the courts, the Department of State and the National Archives requested Kissinger to return copies of the telcons so that they could become part of the open historical record. Apparently not wanting a fight with the Bush administration, Kissinger assented.
As part of its mission to obtain and disseminate valuable declassified records on U.S. foreign and military policies, the National Security Archive has published comprehensive collections of records involving Henry Kissinger's role in government during the Nixon and Ford administrations: The Kissinger Telephone Conversations (2008) and a collection of memoranda of conversations: The Kissinger Transcripts (2007). Last fall, the Archive updated both collections with new material: The Kissinger Conversations, Supplement, which includes over 280 new telcons from the Nixon and Ford administrations. A sampling of the documents appears below.
One of the telcons is from late June 1972, of a lengthy and wide ranging conversation with Nixon, after Kissinger had just returned from China. In two pages from the lengthy transcript that were declassified in response to a request by the National Security Archive, Kissinger said that the Chinese "need us," because of the threat posed by the Soviet Union. But the main reason for the previous classification was a discussion between an irate Kissinger and Nixon of Mexican President Luis Echeverría, who had recently visited Washington, D.C. for talks with Nixon. After two meetings at the White House, Echeverría visited New York City for a session with left-liberal actors and writers, including I.F. Stone, Arthur Schlesinger, Jr., and Shirley McLaine. According to a report in the New York Times, Echeverría criticized Nixon for lacking knowledge about the salinity of the Colorado River, a still important regional problem. Telling Nixon about the article, Kissinger said "that son-of-a-bitch has really not behaved too well." Exasperated with the State Department's schedulers, Nixon was angry that they had helped arrange a meeting with "total enemies."
Document 1: Telephone conversation with Ron Ziegler, 1 June 1970, 9:35 a.m. Source: mandatory declassification review release by Richard Nixon Presidential Library and Museum (NPL), National Security Council Files, Kissinger Telephone Conversation Transcripts, box 5, June 1-5, 1970
It took a declassification request to make this transcript available not because White House press secretary Ron Ziegler mentioned Kissinger's dates with actresses Jill St. John and Faye Dunaway but because of the discussion of the U.S. material support to Thai "volunteers" deployed for military operations in Cambodia after the recent U.S. invasion. Because of domestic opposition, Thailand could not send regular troops, but U.S. military assistance permitted irregular operations. Despite press reports from Thailand about U.S. support, Kissinger explained that "we don't want to admit it." As for St. John and Dunaway, Kissinger said that the "publicity" about his personal life was "self-perpetuating. Once the thing has gotten started they're such publicity hounds it keeps itself going."
Document 2: Telephone conversation with President Nixon, 24 June 1972, 12:25 p.m.
Source: mandatory declassification review release by NPL, National Security Council Files, Kissinger Telephone Conversation Transcripts, box 14, June 15-27, 1972
When the lengthy transcript of this wide-ranging conversation was originally declassified and released pages 13 and 14 were exempted and not declassified until 2009 after an Archive's MDR request. The withheld information included a continuation of the Nixon and Kissinger's discussion of China on page 12; Kissinger, who had just returned from talks with Premier Zhou Enlai in Beijing, declared that China was "our best ally right now except on Vietnam." Both agreed that China "need[s] us," apparently because its leadership feared the Soviet Union and saw the United States as a needed counterweight. Kissinger noted that the Chinese are "tough" and "fear [probably a mishearing of "share"] our assessment of the Soviet Union."
When speaking about sending a report on Kissinger's visit to China to select heads of state and prime ministers, Nixon mentioned the possibility of including Mexican president Luis Echeverría, but Kissinger objected by saying "that son-of-a-bitch has really not behaved too well." Kissinger was referring to a report of Echeverría's meeting in New York with left-leaning journalists, actors, and intellectuals, including Arthur Schlesinger Jr., Shirley McLaine, I.F. Stone and Michael Harrington, during which he criticized Nixon for not knowing about saline pollution in the Colorado River as it crossed into Mexico. Nixon was indignant, not only about that statement (he claimed to know a lot about the issue) but that the State Department had included in Echeverría's schedule a meeting with "total enemies." He believed that Echeverría could have said "positive things" especially because he (Nixon) had taken the trouble to hold two meetings with him: "Good God, we built him up, we gave him that kind of treatment."
Document 3: Telcon Mr. Edward Littlefield/The Secretary, 26 August 1974, 7:00 p.m.
Source: FOIA request, released on appeal
As national security adviser and Secretary of State Kissinger was never entirely comfortable dealing with international economic issues. It was not part of his Harvard training and his expertise was in the intersection of political and military affairs. To get the help he needed with economic diplomacy, Kissinger tried to recruit Charles W. Robinson, a California-based businessman, to serve as job of Under Secretary of State for Economic Affairs. Part of the recruitment process involved a conversation with Edward Littlefield, one of Robinson's corporate colleagues at the Marcona Mining Company, during which Kissinger explained why Robinson was the right person for the job and why he needed to start very soon. Sharing his vision of the need to turn the State Department into a "disciplined political and economic unit," Kissinger needed help: "I am quite good in designing the foreign policy constructively. I have no idea how to relate economics here" and Robinson could fill the gap. Kissinger had high hopes about bringing Robinson into the government, believing that he would be suitable for a cabinet post, but he said he could "not wait six months." As it turned out, Kissinger had to wait; Robinson took the job, but did not begin work at State until early 1975. By the next year, he had been appointed Deputy Secretary of State, Kissinger's number two.
Documents 4A-C: Kissinger's Schlesinger Problem:
A. Telcon General Scowcroft/The Secretary, 12 September 1975, 6:15 p.m. Excised copy, released under appeal
B. Telcon Secretary Schlesinger/ Secretary Kissinger, 7 January 1976, 7:25 p.m.
C. Telcon Mr. Habib/Secretary Schlesinger, 24 August 1976, 8:34 p.m.
Source: FOIA request, released on appeal
When Kissinger was Secretary of State, his main bureaucratic rival was the late James R. Schlesinger, who was Secretary of Defense during 1973-1975. Their policy views were not that far apart, but as talented and highly competitive individuals they found it difficult to cooperate. As Walter Isaacson has noted, both found it difficult to treat colleagues as partners. Kissinger compounded the problem with secrecy and compartmentalization while Schlesinger's haughty personal style aggravated many, not least President Ford. The tensions in the Kissinger-Schlesinger relationship are evident in a conversation that Kissinger had in September 1975 with his White House deputy, Brent Scowcroft: it began with Kissinger observing that an acquaintance, whose name is excised, had said that Schlesinger is on "an all out campaign to get me." According to Scowcroft, General John Wickham, Schlesinger's military aide, said that Kissinger was "talking about Schlesinger" but that Schlesinger was "saying nothing about you." Scowcroft did not think that was true: it "is the other way around." With respect to Schlesinger communicating to Kissinger, Kissinger complained that "every single initiative has to come from me." But then Scowcroft observed that if Kissinger called up Schlesinger, the latter would "leak" that Kissinger had "caved."
This was all moot because a few weeks later, as part of the October 1975 "Halloween Massacre," Ford fired Schlesinger and demoted Kissinger by removing him as national security adviser (Scowcroft got that post) but leaving him as secretary of state. A few months later, Schlesinger initiated a friendly conversation where they lamented over the Angolan situation and the "collapse of American responsibility." Discussing the new Secretary of Defense, Donald Rumsfeld's, efforts to get a budget approved, Schlesinger declared that "there will be some cutting up on Rummy on the Defense budget" and Kissinger observed acidly that "it is hard to cut someone up who yields on the first hill." After agreeing to meet for breakfast, Kissinger admitted that he "missed" Schlesinger: "Unbelievable that I long for a good row with someone who knows what he is talking about."
Schlesinger nevertheless got on Kissinger's nerves; months later, he found that the Chinese had invited the former Secretary of Defense for a visit. Kissinger was angry that Beijing had invited an ex-official whom the President had fired. With relations with China already at a low point, Kissinger believed that Beijing was using the invitation to Schlesinger against him. He also believed that Schlesinger would use the occasion to make statements critical of the administration. Accordingly, Kissinger asked Assistant Secretary of State Philip Habib to lodge what appears to have been a low-key unofficial protest with "our friends," by which he meant the Chinese liaison office in Washington, D.C. But the Chinese diplomat said that his government "had a right to invite the people they wanted" in the interests of a "good relationship."
Kissinger and Habib also discussed the repercussions of an incident in the North-South Korean Demilitarized Zone, where soldiers from the North had killed a U.S. Army sentry. With the South Koreans characterizing the U.S. response as a "backdown," Kissinger wanted U.S. Ambassador Richard Sneider to tell President Chung-hee Park, the military dictator, that "we are outraged."