Zumwalt

by Larry Berman

  I began research in the Operational Archive of NHC on January 25, 2008. I was especially excited about access to the files used by Zumwalt when writing his 1976 memoir, On Watch. By my second day of research, I had made hundreds of copies of declassified documents and written several pages of notes. My euphoria was shattered when the head archivist approached me to say that I had inadvertently been given access to classified materials. All copies were taken from me and the next day I learned that fifty-six pages were being withheld pending further review by other agencies. They have never been returned.

  It was puzzling, since some of the documents withheld had been used and quoted extensively in On Watch, published thirty-two years earlier and available in libraries throughout the world; the same documents were also available either online or in the research room at the Vietnam Archive at Texas Tech University, the archive chosen specifically by Zumwalt over both the National Archives and the U.S. Naval Academy as home for his personal papers.

  My puzzlement quickly turned to bewilderment when I was contacted by a special agent of the Naval Criminal Investigative Service (NCIS). In our meeting, the agent directed me to turn over all copies I made from my first day of research so they could also undergo “declassification review.” The agent soon presented me with a “Classified Information Non-Disclosure Agreement,” essentially a legal agreement between an individual who has been given access to classified materials and the United States government. It is a “house rules” agreement by which the signatory acknowledges that “I understand and accept that by being granted access to classified information, special confidence and trust shall be placed in me by the United States Government.” The agreement spells out serious consequences for unauthorized disclosure of classified materials and assigns “to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result” from the release of classified materials.

  After consulting with my legal counsel, I told the agent that I would not sign this agreement. I was not a member of the government; nor had I received security training. Indeed, I had been given access to these materials by people in NHC who presumably had received training in handling classified materials. The agent could not force me to sign the agreement, but that spurred another request from her: I would have to turn over any handwritten notes I had taken during my research in the archive. NHC then shut off my access to unclassified materials on the grounds that these materials needed to undergo a page-by-page inspection as part of what is known as a Kyl-Lott review. It was nothing personal, just business.

  Let me explain the Kyl-Lott reference. On April 17, 1995, President Bill Clinton signed Executive Order 12958 titled “Classified National Security Information.” The intent of the executive order was to foster transparency, openness, and access to government records by prescribing a uniform system for classifying, safeguarding, and declassifying national security information. A central provision was the requirement that U.S. government agencies declassify all of their historical records that were twenty-five years old or older by the end of 1999, “except for those documents that fell within certain specified exempt categories of records, such as documents relating to intelligence sources and methods, cryptology, or war plans still in effect.”3 It was this executive order that allowed me to see the Zumwalt materials in the first place.

  By 1998, a controversy involving Chinese nuclear espionage and a spy scandal led the U.S. Congress to tighten reclassification efforts associated with Clinton’s executive order. Congress took aim at the Department of Energy’s sensitive nuclear secrets and nuclear weapons design–related information.4 All of these materials were removed from public access, pending review. A year later, Congress adopted an amendment to the 1999 Defense Authorization Act that terminated all automatic declassification activity while a “plan to prevent the inadvertent release of records containing Restricted Data” is developed. This amendment was further amended, named after its sponsors, Senators John Kyl and Trent Lott, requiring review of all previously declassified documents, meaning that any documents released into the public domain since 1995 would need to be re-reviewed on a page-by-page basis for “restricted data or formerly restricted data unless such records have been determined to be highly unlikely to contain restricted data or formerly restricted data.”5 The Zumwalt materials fell under this broad umbrella.

  My options were now narrowing.

  In my next move, I requested an expedited review of the materials because they had been generated from the years 1970 to 1974. Zumwalt had obviously dealt with “nuclear issues,” so I focused on the “highly unlikely” part of the amendment’s language by requesting access to the CNO files on race relations, racial incidents at sea, retention study groups, and people programs. I was willing to wait a few years for the review of defense-related files and never expected to see nuclear-related materials. My request was denied on the grounds that there might be a misfiled nuclear secret in a retention study report. The risk to our nation’s national security was deemed too great. I was in a state of disbelief and wondered if this book would ever be written.

  My best option was to generate a Freedom of Information Act (FOIA) request, using the federal law that gives the public the right to make requests for federal agency records. Throughout my career, I have used FOIA to gain access, most notably in my case seeking Presidential Daily Briefs (PDBs) from 1965 to 1968, the so-called crown jewels of intelligence reports. I lost that case, Berman v. Central Intelligence Agency, on appeal in the California Ninth Circuit.6 But I learned much from the experience.

  Before filing this FOIA request, I needed to see the Folder List or Finding Guide for Admiral Zumwalt’s Office Papers. I had already used this folder list on my first day of research, but now needed it simply to identify files for my FOIA. The head of Operational Archives tried to dissuade me from filing the FOIA because of the drain it would place on her small and beleaguered staff. She also told me that filing a FOIA would slow down the Kyl-Lott review. I knew that denying a researcher a finding aid or folder list because of fear of a FOIA request is a violation of Department of Defense regulations. When I raised this issue, the entire Folder List was declared Classified. Since I lacked the necessary security clearances, I could not see the folder list and therefore would be unable to identify documents for a FOIA. If this folder list was indeed classified, it had been mishandled for many years within NHC, constituting a serious security violation.

  I offered another compromise: What if NHC allowed me to see unclassified and declassified materials in the folder list and blacked out the classified materials? That request was also denied. What NHC did not know was that I had by now obtained a copy of Admiral Zumwalt’s official list of documents stored in the navy’s “secure safe” upon transfer of his papers to NHC. These were available to any researcher at the Vietnam Archive as part of the papers that Zumwalt had given them. I still needed the navy’s current folder list, however, because during processing from the secure safe into the navy archive, a new numerical system for identifying the materials had been created.

  I understand why the navy must comply with the legislative requirements delineated in Kyl-Lott, but observance of law can and should be consistent with meeting the needs of historical researchers. I went up the chain of command to request that Operational Archives conduct “review on demand,” just as the National Archives had done in its Kyl-Lott review. That is, why not prioritize reclassification reviews so that historians needing materials for projects could get priority over files that no one was likely to ever use?

  The navy did not support my request. Vice Admiral J. C. Harvey, Jr., director of navy staff in the Pentagon, wrote that “previously established government declassification priorities” related to Kyl-Lott prevented review on demand. The deputy director of the Naval History and Heritage Command (the renamed Navy Historical Center) wrote me that NHHC “does not have the authority to provide the expedited declassification review requested i
n your letter.” I was informed that only the navy declassification program manager could make decisions on the review of records subject to the provisions of the Kyl-Lott Amendment. My appeals to this individual went unanswered.

  When in a hole, stop digging.

  I filed a blanket FOIA on April 3, 2009. The FOIA included a request for the complete folder list for the 14 boxes of the Zumwalt Personal Papers used for writing On Watch, as well as all documents in that list. I also requested the folder lists for Zumwalt’s CNO office 00 files (the central files of the CNO, 1970–1974, which contained over 750 boxes). I requested access to all documents and materials in approximately 300 containers identified as Admiral Zumwalt’s Personal Papers. I also requested access to all documents withheld from me on my two research days in the archive. Finally, and perhaps most vital to this story, I requested a public fee waiver, meaning that the documents would be furnished without charge if the navy believed that disclosure of the information was in the public interest and likely to contribute to public understanding of the operations or activities of the government.

  The FOIA was referred to the director of the Naval History and Heritage Command. On July 28, 2009, I was informed that my request for a fee waiver had been denied. The estimated cost for conducting a FOIA review of approximately 295,000 pages would be $44,235. I was somewhat bemused to read, “Please notify my office if you agree to pay these estimated costs and we will immediately continue processing your request.”

  It was clear to me that the navy, intent on denying me access to the Zumwalt materials, had stooped to the lowest level of subterfuge by concluding that a book about Admiral Zumwalt would not be in the public interest; however, if I wanted to pay $44,235, they would facilitate the project by processing the unclassified papers. I had one option left: a final appeal to the Office of the Judge Advocate General (JAG), the navy’s office for resolving legal issues involving military operations, organization, and personnel.

  My appeal focused on the Naval History and Heritage Command’s denial of a fee waiver as a deterrent to my right of access under FOIA. I described the continued pattern of manipulating the Code of Federal Regulations (CFR) to deny me timely access to government information. This was not within the spirit of the DOD’s published policy that aims to restrict procedural obstacles and promote openness, transparency, and the public’s right to access U.S. government information. I went on to document a two-year pattern of procedural deceit and noncompliance intended to thwart my research, focusing on the denial of folder lists and finding aids. The Naval History and Heritage Command had not been acting in good faith per Title 32 of the CFR by creating numerous procedural obstacles that had impeded my right to prompt and timely access to DOD records. I closed with the following plea: “I beseech the JAG appeal officers to recognize the broad public interest that will result in disclosure of the requested information.”

  On October 9, 2009, a letter arrived from Captain M. G. Laverdiere, JAGC, U.S. Navy, deputy assistant judge advocate general (general litigation), the secretary of the navy’s designee for determining my rights under the FOIA. My eyes focused immediately on four words in the second paragraph, “I grant your appeal.” A JAG lawyer acknowledged the obvious: “disclosure of the information was clearly in the public interest and likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interests of the publisher.” The Naval History and Heritage Command was informed that I had met the criteria for a waiver of fees, and they were instructed to process my FOIA request immediately.

  The JAG’s ruling had ripple effects throughout the chain of command. The FOIA coordinator and archivist in NHHC’s Histories and Archives Division began copying whatever responsive records were available and expedited the review of CNO materials, meaning that those unclassified and not exempt from release would be made available to me. I received folder lists and made several research trips to the archive. Certain materials still needed to undergo the Kyl-Lott review. I was given no date for when that would begin.

  In May 2010, I received the Naval History and Heritage Command’s Vice Admiral Edwin B. Hooper Research Grant to assist in my research and writing for this biography about the life and times of Admiral Elmo Russell Zumwalt, Jr.

  Bud Zumwalt understood that the disposition of his papers depended on a system that not even Kafka could have dreamed up. He anticipated that the bureaucracy might do everything possible to prevent these materials from reaching public disclosure. He did not think that Henry Kissinger should get to write the history of the Cold War. He sought to ensure that his extensive set of records, including private tapes as well as personal and official papers, would be made available to historians in a timely manner. “He was meticulous about dictating what I guess would amount to journal notes every night,” observed Admiral Harry Train. “He had extensive records that he himself kept.”7

  Bud Zumwalt made multiple copies of many documents, including remarkably candid materials from his own intelligence network of loyal spies reporting on the inner secrets and operations of the Nixon White House. He also made dozens of tapes while his memory was fresh from the events of the day. These tape transcripts were later used as raw data for the ghostwriter of On Watch. The transcripts have been invaluable to me in reconstructing virtually all aspects of Zumwalt’s life, from childhood memories of growing up in Tulare and the influences in his life, up through the CNO years.

  I have been able to use the declassified materials from my FOIA request, the personal papers and materials in the Zumwalt Collection of the Vietnam Archive at Texas Tech University, dozens of personal interviews, access to personal family materials and records, the Agent Orange and Agent Orange Coordinating Committee files at the Vietnam Archive, the Papers of Paul Nitze in the Library of Congress, Naval Institute Oral Histories, and files within the National Archives as well as NHHC, and also the valuable interviews conducted by naval historian and author Paul Stillwell. I have triaged the primary source materials, that is, drawing my portrait of a man’s remarkable journey through life from the materials available to me. I envy the next generation of historians, who should have greater access to the records that are rightfully ours.

  There is one final sad exchange in my story of struggle for access to the materials. In November 2011, I was notified by Captain Jeffrey L. Gaffney, deputy director of the Naval History and Heritage Command, that I would no longer have access to materials. “I had wanted to touch base to explain why we were less able to help you on your research. I understand that you were quite disappointed in us, which of course was never our intention. We are proud to help with research such as yours, particularly your research because Admiral Z is such an important, complex and controversial figure. As you must have noticed during visits here to the Archives, we are in sad shape physically and cannot maintain the collection in the environmental conditions that it requires to prevent mold and other deterioration. This was pointed out to us very clearly by a recent Inspector General’s visit which cataloged our problems and brought them to the attention of the highest Navy leadership. . . . The bad inspection results, our duty of stewardship of the collection, and a plus-up in our budget (thanks to Admiral Greenert) together pushed us to make hard decisions about the preservation of the collection. It needed to be moved to proper storage and it had to be done immediately, so we struck while the fire was hot and Navy leadership was ready to support us. Unfortunately, preparing this huge collection (4.7 miles of shelving) for movement necessitates inventory and other preparation which takes up the time of our archivists. In order to preserve the collection for future naval historians, we have to curtail the availability temporarily. The collection will be moved next year to a temporary facility where we will still be able to access it, although not with the ease we are used to.”

  I am not surprised that the navy’s Inspector General produced such a scathing report on the Naval History and Heritage Command’s management
. In light of my experience, it is essential that the new leadership at History and Heritage Command be more sensitive to the needs of researchers and find ways to establish the right balance between openness and security requirements. I hope that researchers are treated better than I was.

  The battle never ends, and I just keep leaning forward.

  INDEX

  The pagination of this electronic edition does not match the edition from which it was created. To locate a specific passage, please use your ebook reader’s search tools.

  Page numbers beginning with 443 refer to notes.

  Abrams, Creighton, 172–73, 180, 182, 184, 204, 321, 323, 462, 465, 470

  ERZ and, 168–70, 187–92, 196, 213, 219, 224–25, 241–42

  Afghanistan War, 390

  Agency for International Development (AID), 415

  Agent Orange, 3, 398, 404–13, 489

  dioxin in, 9, 21, 407, 408, 414, 468

  ERZ’s life impacted by, 3, 9–11, 15, 19–21, 202–5, 403–13

  exposure of ERZ III to, 9–10, 19–21, 203–5, 226, 392, 401–2, 403

  Agent Orange Coordinating Council, 412, 413, 417

  Air Force, U.S., 127, 157, 168, 188–89, 318

  Aleutian Islands, 74, 75–78

  Allison, Roy, 227

  American Legion, 405, 411, 489

  American Revolution, 1, 389

  American Telephone and Telegraph Company (AT&T), 141–42

  Amherst College, 140

  Anderson, George, 135–36, 148, 258, 292–94, 296, 324

  Anderson, Jack, 330–35, 337–39, 342, 482, 483

  Anderson, Walter, 398

  Andrews Air Force Base, 227