Archive for June, 2008

Kelly’s Letter to Waxman

June 29, 2008

Request to Rep. Waxman for oversight hearings of the JFK Act.

January 16, 2008

William Kelly – Committee for an Open Archive

Rep. Henry Waxman (D. Calf.)

Committee on Oversight and Government Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, D.C. 20515
(202) 225-5051

Cc: Rep. Wm. Lucy Clay (D. Mo.)

Chairman, Subcommittee on Information Policy, Census, NARA.

Rayburn House Office Building B-349A

Rep. Waxman,

As chairman of the Committee on Government Oversight and Reform, you are responsible for conducting oversight of the JFK Act of 1992, which affected the release of millions of previously secret documents and records related to the assassination of President Kennedy. It was one of the largest single releases of such records in history, yet some government agencies and departments ignored the law and many records remain sealed. Some were even destroyed after the law was enacted.

According to the law, the JFK Act remains in effect until the Archivist of the Untied States certifies that that last record has been released (circa 2017). While public hearings were held before the act was passed and signed into law, oversight hearings have yet to be held on what has transpired, especially since the Review Board disbanded.

Since your committee is responsible, hearings should be held by Rep. Wm. L. Clay’s subcommittee on Information Policy, Census and NARA to address the issues raised by the JFK Act, especially in regards to those intentionally destroyed, improperly withheld, and missing records.

Please inform me when any hearings are scheduled to be held on oversight of the JFK Act so that I can make arrangement to attend these important hearings.

You are in position to have a significant impact on the outcome and disposition of these issues and records and it is important that you do so.

Thank you for your time and consideration, William Kelly

Review Board Recommendations

The Final Report of the Assassination Records Review Board provides not only an opportunity to detail the extraordinary breadth and depth of the Board’s work to identify and release the records of the tragic death of President John F. Kennedy, but also to reflect on the Board’s shared experience in carrying out this mission and the meaning of its efforts for the much larger challenge of secrecy and accountability in the federal government. It is true that the Board’s role was to a large extent disciplined and tightly focused on the assassination, its aftermath and the broader Cold War context in which the events occurred.

Any evaluation, however, of the unique experience of the Review Board–five private citizens granted unprecedented powers to require public release of long-secret federal records–inevitably presents the larger question of how the Board’s work can be applied to federal records policy. There is no doubt that for decades the pendulum had swung sharply toward secrecy and away from openness. Changes wrought by the end of the Cold War and the public’s desire to know have begun to shift the balance. The Review Board’s mandate represented a new frontier in this changing balance–an entirely new declassification process applied to the most-sought after government secrets. In this chapter, the Board steps back and reflects on its experiences, raises issues that will help frame the declassification debate, and makes recommendations on the lessons to be learned from the path taken to release of the Kennedy assassination collection. The dialogue about how best to balance national security and privacy with openness and accountability will continue both within government and beyond. The Review Board will necessarily be part of that important debate.

The Review Board was created out of the broad public frustration that the federal government was hiding important information about the Kennedy assassination by placing its records beyond the reach of its citizens. Broad disagreement with the Warren Commission findings, explosive claims in the popular movie JFK, and continued deterioration of public confidence in government led to consensus that it was time to open the files. Thus the debate in Congress largely became a debate over what mechanisms could constitutionally compel the opening of the assassination files.

The Review Board’s mandate was not to investigate once again the assassination, but to release as many of these heavily restricted documents as possible. Lawmakers commented that the efforts of the Review Board “will stand as a symbol and barometer of public confidence in the review and release of the government records related to the assassination of President Kennedy….Several provisions of [the JFK Act] are intended to provide as much independence and accountability as is possible within our Constitutional framework.” Restoring public confidence in government is a difficult task under any circumstances.

The Review Board took this responsibility seriously, however, and set out in April 1994 to create the most complete record possible of the documentary evidence of the assassination so that in the end the American public could draw its own conclusions as to what happened and why on that fateful day in Dallas in November 1963.

From the start, the Review Board did as much of its work in public as it could possibly do, given the classified material with which it worked. The Board’s major policy decisions were all made after carefully consulting with the public through public hearings and Federal Register notices. Many of the Board’s requests to agencies for additional information were suggested by the Board’s continuing dialogue with researchers, authors, and experts. Frequent public hearings outside of Washington, experts conferences, ongoing public releases of the records, witness interviews, and media availability were among the many tools the Board used to reach out and communicate with a public strongly interested in the results of the Board’s work. The result was that the Board was helped immeasurably not only by the advice and suggestions that resulted from this public dialogue, but by the records that were discovered and opened through the communications. The broad definition of “assassination record” and the foundation for the taking of the original Zapruder film were developed through public hearings. Furthermore, some of the Board’s most significant acquisitions of donated collections–for example, the Rankin papers, the Wegmann papers, and the Garrison grand jury transcripts–were the result of the public hearings.

Public involvement in the Review Board’s work was critical to the success of the Board, both because public participation was important for public confidence and because public involvement produced results. The assassination research community, in particular, provided many useful suggestions to the Board, but more importantly perhaps, monitored the Board’s work closely and did not permit the Board to back off in its search for records.

The Review Board began its work at a slow pace, which was necessary for a group of five private citizens with no prior involvement with the issue. Preparation to weigh the important competing interests of national security and privacy with the public interest took time. Education of the Board and the equally important development of trust among the Board, its staff, and agency reviewers takes time, and future declassification efforts need to take that into account. What developed from the early extensive discussions between the Board, its staff and the agency reviewers were thoughtful and well-reasoned decisions that reflected the Board’s commitment to the legislation as well as the Board’s collective interest in developing the fullest possible historical record surrounding this tragic event.

The precedents that developed from the Board’s early deliberations guided the staff in its review of the records and guided agency reviewers in the positions they took toward postponement requests. The development of this unique and valuable set of decisions, which came to be known as the Board’s “common law,” eventually resulted in thousands of “consent releases,” in which documents moved directly from the agencies without redactions to NARA.

There were, of course, many substantive disagreements between the Board and the agencies, but the course of the relationships were characterized chiefly by growing mutual understanding and markedly improved communications. The Board was gratified to see agency reviewers and decision makers grow increasingly aware that the responsible release of information can provide an opportunity to create a more complete record of the extensive work that many agencies did on the issues raised by the assassination. Many appeared also to gain a greater appreciation of the tremendous costs of secrecy, both in terms of public confidence and maintenance of records.

There were critics of the Review Board, those who believed that the “targeted declassification” of assassination records not only interfered with the goal of systematic declassification directed by Executive Order 12958, but was also much too expensive. It is difficult, of course, to compare one method of declassification with another, harder still to place a price tag on the nature of the information that is now released and available to the American public. It is worth noting that the Kennedy assassination records were largely segregated due to the use of the records during the many prior government investigations of the assassination. But, the Review Board does recognize that any meaningful approach to declassification will of necessity be multi-faceted, with different methods adopted for different circumstances. The particular circumstances of the assassination of President Kennedy and the highly secretive governmental response have had an enormous impact on public confidence and made the Review Board approach singularly appropriate. When viewed in that light the cost of this four-year project seems entirely appropriate, particularly when compared with the significant costs, both financial and otherwise, of keeping the record secret. The Board is confident that, in this setting, the approach chosen by the Congress to open the Kennedy assassination records was a highly effective one.

The Review Board is certainly aware that there are a great many unresolved issues relating to the assassination of President Kennedy that will be addressed in the years to come. The massive public collection of documents that awaits the researchers will undoubtedly shed light not only on the assassination, but on its broader context as an episode of the Cold War. The community of professional historians, who initially exhibited comparatively slight interest in the Board’s work, has begun paying attention with the new accessibility of records that reflect the Cold War context in which the assassination was enmeshed. Ultimately, it will be years before the JFK Collection at NARA can be judged properly. The test will be in the scholarship that is generated by historians and other researchers who study the extensive documentation of the event and its aftermath. Does the historical record formed by the Board inspire confidence that the record is now reasonably complete? Will the documents released under the JFK Act lead to still other materials? Will the mass of documentary evidence answer the questions posed by historians and others? Will the Board’s compliance program inspire confidence that the agencies have produced all the relevant documentation that exists today in agency files? What do the records tell us about the 1960s and the Cold War context of the assassination?

The Review Board approach, the precedent created, the tools identified, and the lessons learned will assist future researchers immeasurably. Agency reviewers will note that the Republic has not collapsed under the weight of threats to national security because of Review Board actions and, perhaps, they will also note that openness is itself a good thing and that careful scrutiny of government actions can strengthen agencies and the process of government, not weaken it. There likely will be problems in the future that best lend themselves to the extraordinary attention that a similarly empowered Review Board can focus. Formation of a historical record that can augment understanding of important events is central not only to openness and accountability, but to democracy itself.

At an early stage in the Review Board’s efforts, one of the Board members commented that the Board should strive to accomplish as much as it could, to be remembered for what it attempted. Or, to paraphrase Robert Kennedy, the Board should work hard to ensure that its reach continually exceeded its grasp. The Board did not always achieve that standard, but the sheer scope and accessibility of the JFK Collection speaks eloquently about the effort. The Board has left to posterity a historical bequest that is invaluable and unprecedented.

Recommendations

The Review Board presents recommendations that reflect the Board’s experience and provides guidance for those who wish to capitalize on that experience to further reform the process of classification and declassification of federal documents. The Board recognizes that the JFK Act represents but one approach to declassification, one whose activity was designed to review sensitive records concerning a controversial event.

1. The Review Board recommends that future declassification boards be genuinely independent, both in the structure of the organization and in the qualifications of the appointments.

The Review Board’s independence was grounded in the concept that the Board was in fact an independent agency in the executive branch with powers granted through its enabling legislation. This independence was consequently as political as it was legal, facilitating the Board’s relations with the agencies.

Although appointed by the President, members of the Review Board could not be terminated except for just cause. By not submitting the Review Board to the supervisory authority of the executive branch, providing an independent staff who answered only to the Board, and establishing strong statutory standards governing the review of records, the JFK Act provided political and legal balance for the conflict with agencies. This balance was absolutely necessary for the Board to stand up to experts and their national security claims.

Furthermore, the independent qualifications of Board members is likewise important. A group of five outsiders, uninvolved in previous investigations or research concerning the assassination, but trained in historical, archival, and legal issues that are central to the records of the assassination, the Board collectively brought a perspective framed by professional training and experience. The absence of any connection or allegiance to the agencies freed the Board to make truly independent decisions. The Review Board absolutely needed its independence in order to accomplish its statutory mandate. For any group charged with declassifying secret records, independence is an essential attribute.

2. The Review Board recommends that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (2) clear standards of access, (3) an enforceable review and appeals process, and (4) a budget appropriate to the scope of the task.

The JFK Act established admirable and effective standards through its standards of “presumption of disclosure” for releasing records and “clear and convincing evidence of harm” in restricting them. Both standards helpfully guided the Board in its decision making, were understandable and simple in application. The Board strongly urges that these standards be applied to other efforts to declassify federal records. The discerning enumeration in the Act of criteria for sustaining restricted access created an obligation both for the Review Board and the agencies to apply these criteria to the many issues presented in the documents. These criteria for sustaining restrictions, especially that of “clear and convincing evidence of harm,” provide a very important focus and disciplined way of thinking about federal records and the information they often contain.

The central fact that the access standards were embodied in Congressional legislation was of immeasurable assistance to the Review Board. Although Congress’ inclusion of such standards in the JFK Act nearly sparked a constitutional battle over the Act’s legality, the power of independence by Congressional mandate surely muted a fair number of agency disputes. Standards set through agency recommendations and presidential inclusion in an executive order would have limited the Board’s ability to compel disclosure.

Other powers conferred on the Board by the JFK Act were similarly central to the exercise of the Board’s duties. The agencies could challenge Board decisions only by appealing decisions to the President, who has the “non-delegable” responsibility to decide them. This stringent provision raised our declassification activity to a threshold level that prompted the agencies to weigh the ramifications of any appeal that expended valuable political capital.

The access standards have been a central consideration in guiding the work of the Board, never far from any discussion or decision. Their importance cannot be overlooked, and the pervading influence of the standards was consistently reflected in our deliberations. In balancing the public interest and harm of disclosure, the Board determined that the precept of a “presumption of disclosure” prevailed in every case where there was salient information relative to the assassination.

The Board’s relationship with the agencies often faltered over the “clear and convincing evidence of harm” standard. This exacting standard, borrowed from the criminal law, was not only a new declassification criterion, but it placed the burden on the agency to explain why information should remain shrouded in secrecy. This occasioned conflict and misunderstanding, especially as the agencies complained that satisfying the test required unwarranted expenditure of scarce funds. The Board, however, insisted on adherence to the legislative provisions, and the agencies ultimately learned, for the most part, how to satisfy the Board’s expectations. As interpreted by the Review Board, “clear and convincing evidence of harm” required specific reasons for protection. General concepts of “national security” and “individual privacy” were insufficient. If harm were to be caused by release, the Board insisted on understanding the harm.

Thus, the specific standard resulted in greater fidelity to the law and more accurate decision making by the Review Board.

Moreover, the Congress provided adequate and sufficient funds for the Board to hire staff to undertake its work. The Board was fortunate to recruit talented and dedicated colleagues who worked closely with the Board to fulfill its important mission. The Review Board’s accomplishment is, in a direct way, that of the staff, and the Board is indebted to them. Other federal declassification efforts, especially at NARA, need substantially more resources if they are successfully to accomplish their mandates. The work of the Review Board staff shows what adequate funding can achieve.

3. The Review Board recommends that its “common law” of decision, formed in the context of a “presumption of disclosure” and the “clear and convincing evidence of harm” criteria, be utilized for similar information in future declassification efforts as a way to simplify and speed up releases.

The Review Board’s understanding of the important standards of a “presumption of disclosure” in the release of documents and “clear and convincing evidence of harm” in sustaining restricted access and its application of the more specific section 6 standards developed slowly as the Board applied the law to the many postponement issues raised in the documents.

In time, the body of decision making began to grow, and with it what was termed the Board’s “common law,” a collection of decisions that greatly informed staff and agency reviewers how to apply the JFK Act and saved an enormous amount of time by handling similar information in similar ways.

Many documents share common characteristics. The names of agents and informants, crypts, digraphs, the location of CIA installations abroad, and other numerical data used to identify documents, recurred constantly in the documents examined by the Review Board and helped form the Review Board “common law” about how to treat redacted information in federal documents.

As the effort to declassify federal documents presses forward on other fronts, the Review Board believes that there are common ways of handling these categories of information, so that similar substitute language may be provided, and there might also be consensus concerning how long the information needs to be restricted. Handling restricted documents by adopting common substitute language as appropriate will also enhance the efficiency of the review, lowering unit costs for processing documents.

Codification of these rules of application would permit restricted access to some of this information, and yet still indicate to researchers and other citizens what kind of identifying information had been withheld and for how long. The idea of substitute language for critical pieces of redacted information, together with less sweeping and more discerning application of what is to be withheld, offers a promising way of limiting the volume of restricted information in federal documents, either through more uniform and limited classification rules or through earlier and more declassification.

4. The Review Board recommends that future declassification efforts avoid the major shortcomings of the JFK Act: (a) unreasonable time limits, (b) employee restrictions, (c) application of the law after the Board terminates, and (d) problems inherent with rapid sunset provisions.

If the JFK Act represented a milestone in articulating important new principles by which to review classified records, there were also shortcomings in the law that should be avoided in future declassification efforts. They include:

· the timetable laid out for the Review Board to accomplish its work was unrealistic and required the Board to play “catch up” from the beginning and required agencies to duplicate their work after the Board began its work;

· the provision that the Board could not hire staff who were currently working anywhere in the government seemed unduly restrictive, and obliged the Board to undertake costly and time-consuming security checks for most employees, for whom security clearances were central to their work with classified documents;

· the Review Board sunsets but the JFK Act does not and, as a result, there is uncertainty about the status of openings that will occur after September 1998, and whether any further appeals by agencies might be permitted, and, if so, who would represent the interest of openness;

· the sunset provision in the JFK Act, while embodying the important concept that this effort was not to be permanent, nonetheless undermined the careful review and disposition of the records. The Board inevitably lost critical staff in the final stages because they had to seek job security for themselves and their families. Moreover, the sunset enabled government agencies that were not inclined to cooperate to simply try to outlast the Board. A more open-ended provision would be preferable, in which the Board, supervised by its congressional oversight committee and the Office of Management and Budget, would declare its progress, but not set a termination date until there was agreement concerning the successful completion of the mandate.

5. The Review Board recommends that the cumbersome, time-consuming, and expensive problem of referrals for “third party equities” (classified information of one agency appearing in a document of another) be streamlined by (A) requiring representatives of all agencies with interests in selected groups of records to meet for joint declassification sessions, or (B) devising uniform substitute language to deal with certain categories of recurring sensitive equities.

The practice of extensive classification of government documents has created a jungle of secrecy in which agencies are protective of one another’s prerogatives, meticulously referring records to the originating agency in all cases. The frequency of this occurrence has had a substantial impact on the rate and pace of release of such information. It is not surprising that sensitive information is shared extensively, especially among law enforcement and intelligence agencies. One consequence of this sharing is that one agency’s restricted information is often found in another’s files. When this occurs, the agency creating the information must agree to its release by another agency. Such equities are expensive to search and release.

The Review Board developed an effective means of mitigating these cumbersome referrals by convening on occasion representatives of agencies with interests in the documents so that a group of documents could be collectively declassified at once, with representatives there to sign off on the specific interests associated with each agency. A second means of easing this problem is to develop a uniform means of dealing with certain recurring categories of sensitive information. One such way would be to use agreed-upon substitute language to avoid the originating agency referral.

6. The Review Board recommends that a compliance program be used in future declassification efforts as an effective means of eliciting full cooperation in the search for records.

The Review Board compliance program was established to ensure that all federal agencies holding assassination records would warrant under oath that every reasonable effort had been made to identify assassination records and that such records had been made fully available for review by the Board. The Board has remained concerned that critical records may have been withheld from the Board’s scrutiny and that the Board did not secure all that was “out there.” It is all too easy to imagine that agencies and agency personnel not inclined to cooperate might simply have waited, using the JFK Act’s sunset provision by waiting for it to take effect and ending the need to cooperate.

The Review Board’s solution to this concern was to develop a compliance program in which each agency designated a “compliance officer” to warrant, under oath and penalty of perjury, that records had been diligently searched for and turned over to the Board for review and/or release to NARA. This program entails a detailed review (overseen by Review Board staff) of the effort undertaken by each agency in pursuit of such records and constitutes a record to guide future researchers in examining what assassination records were actually uncovered. The program is also intended to be forward-looking, so that the agencies will continue to follow the provisions of the JFK Act after the Board terminates its role. The program has worked well.

7. The Review Board recommends the following to ensure that NARA can exercise the provisions of the JFK Act after the Review Board terminates:

a. that NARA has the authority and means to continue to implement Board decisions,

b. that an appeals procedure be developed that places the burden for preventing access on the agencies, and

c. that a joint oversight group composed of representatives of the four organizations that originally nominated individuals to serve on the Review Board be created to facilitate the continuing execution of the access provisions of the JFK Act.

The creation of the JFK Collection at NARA established a large records collection undergoing intense use by researchers. Having created this national research resource, Congress should ensure that NARA receives the additional resources necessary to manage this collection responsibly, and that it is also be given the authority to administer the remaining provisions of the JFK Act.

The Board recommends negotiation of a memorandum of understanding among NARA, the FBI, and the CIA that would establish a common agreement on how to resolve the inevitable issues concerning the extensive assassination records of these two agencies. This is particularly necessary since additional records will be sent to NARA and additional releases of documents are scheduled to take place after the termination of the Review Board.

The formation of a liaison group

composed of individuals from professional organizations that originally nominated members for the Review Board to oversee implementation of the provisions of the JFK Act would ensure the continuing representation of the public interest by those trained to understand continuing historical, archival, and legal issues.

8. The Review Board recommends that the Review Board model be adopted and applied whenever there are extraordinary circumstances in which continuing controversy concerning government actions has been most acute and where an aggressive effort to release all “reasonably related” federal records would serve usefully to enhance historical understanding of the event.

The public stake is clear in creating a mechanism such as the Review Board to inform American citizens of the details of some of the most controversial events in American history. Moreover, the release of documents enables citizens to form their own views of events, to evaluate the actions of elected and appointed officials, and to hold them to account. There will not be a large number of such events, but there must be procedures grounded in experience that might be used to uncover the truth when these events, tragic as most of them are, occur. The provisions of the JFK Act have fostered the release of such documents, and the Board’s experience demonstrates that similar legislation would be successful in the future.

9. The Review Board recommends that both the Freedom of Information Act (FOIA) and Executive Order 12958 be strengthened, the former to narrow the categories of information automatically excluded from disclosure, the latter to add “independent oversight” to the process of “review” when agency heads decide that records in their units should be excluded from release.

Despite the sound public policy goals encompassed in both the FOIA and Executive Order 12958, both of these measures fall short of their goal of access, as evidenced by the inability of researchers to use these measures to obtain access to assassination records. The categories of exclusion are far too broad in the FOIA to constitute a meaningful program of opening restricted federal records, and the succession of executive orders issued since the FOIA was enacted reflects the same problem. The most recent, Executive Order 12958, also fails by not creating for federal agencies an “oversight” procedure to ensure that the decisions concerning access to agency records made by that agency’s head will be independently reviewed. The mandate to release should be internalized in the agencies and penalties for secrecy must rival in consequence those for unauthorized release.

The mandate of the Review Board, underscored by powers conferred in the JFK Act and further aided by an adequate appropriation, far exceeds what the FOIA and executive orders can accomplish because the Review Board has the authority and resources to both review and release. Proponents of the FOIA and executive order declassification would benefit from consulting the JFK Act to identify how best to augment the resources and authority of those measures.

10. The Review Board recommends the adoption of a federal classification policy that substantially:

a. limits the number of those in government who can actually classify federal documents,

b. restricts the number of categories by which documents might be classified,

c. reduces the time period for which the document(s) might be classified,

d. encourages the use of substitute language to immediately open material which might otherwise be classified, and

e. increases the resources available to the agencies and NARA for declassifying federal records.

The Review Board’s experience leaves little doubt that the federal government needlessly and wastefully classified and then withheld from public access countless important records that did not require such treatment. Consequently, there is little doubt that an aggressive policy is necessary to address the significant problems of lack of accountability and an uninformed citizenry that are created by the current practice of excessive classification and obstacles to releasing such information. This need is not something recently identified, although the Moynihan Commission on Secrecy in Government is a recent expression of this long-standing concern. Change is long overdue and the Review Board’s experience amply demonstrates the value of sharing important information with the American public. It is a matter of trust.

The Review Board’s recommendations are designed to help ensure that the comprehensive documentary record of the Kennedy assassination is both actively developed after the Board terminates, and that the experience of the Review Board be turned to the larger purpose of addressing the negative consequences of the excessive classification of federal records. The Review Board’s effort to accomplish the purposes of the JFK Act has been focused and aggressive. It will be for others, of course, to judge the Board’s success in achieving these goals, but there can be no doubt about our commitment to making the JFK Act and an independent Review Board a model for the future.

AND NOW IT IS TIME TO JUDGE – IT IS TIME FOR CONGRESSIONAL OVERSIGHT HEARINGS TO ADDRESS THE JFK ACT ISSUES.

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Dear Rep. Waxman

June 9, 2008

Note, letter and memo from Jim Lesar asking that we all write to Waxman and urge him to hold oversight hearings on the JFK Act. – BK

Dear All,
Attached are copies of two letters I mailed on June 7th to Rep. Henry A. Waxman and Sen. Joseph Lieberman requesting that their committees hold oversight hearings on the JFK Act. Please spread the work and encourage people to write concise letters in support of this. Jim Lesar

Mr. Henry A.Waxman
Chairman
House Committee on Oversight and Government Reform
2204 Rayburn House Office Building
Washington, D.C. 205 15
June 6.2008

Dear Mr. Chairman:

I write in my capacity as president of the Assassination Archives and Research Center, a non-profit organization that aims to inform the public about political assassinations. I write, too, as one who in the early 1990s testified before congressional committees in support of the 1992 President John F. Kennedy Assassination Records Collection Act (the “JFK Records Act”). This was the most sweeping disclosure legislation ever passed into law, yet Congress has never reviewed either its accomplishments or, very important, its failures. Your committee, which has oversight responsibility under the Act, has held no hearings on the subject for over a decade. Congressional oversight is necessary, as just two examples make glaringly evident.

1. Congress promised that, under the Act, virtually all Kennedy assassination records would promptly be made public. It emerged just recently, though, that the CIA is withholding 1,100 JFK assassination-related documents until at least 201 7. A second cause for disquiet is the Agency’s response to a recent order by the U.S. Court of Appeals for the District of Columbia. Told to search for operational files on the late George Joannides, who in 1963 was case officer for the DRE, a CIA-funded Cuban exile group that had pre-assassination contacts with alleged assassin Lee Harvey Oswald, the Agency claimed that it could find no such records. This raises troubling questions as to whether case officer Joannides’ operations were completely off-the-books, with no records created or preserved, or whether such records have been destroyed in violation of the JFK Records Act or other federal laws. Alternatively, the CIA may be interpreting the request in line with some in-house formula that enables it to avoid searching for records even though they are plainly within the scope of the request thus circumventing the Freedom of Information Act.

2. There is, too, the recent disclosure by the current Dallas District Attorney that his office has uncovered 12 boxes of records related to the Kennedy case – records that should long since have been released pursuant to the JFK Act. With the JFK Act’s enforcement arm, the Assassination Records Review Board (“Review Board”), no longerin existence, what can be done to ensure that such records are placed where they belong in the JFK Records Collection at the National Archives?

More important than these individual examples, historians and researchers arenow unable to get to pertinent information on President Kennedy’s assassination. This is due in large part to the fact that the Review Board wound up its work in 1998. There is no effective way for researchers to obtain prompt disclosure of records not already deposited in the JFK Records Act Collection. Moreover, researchers experience problems even when seeking access to what is already there.

I ask that you do now hold hearings to assess the working of the JFK Records Act.

Also that your committee address the need to modify and update it, or enact newlegislation, to resolve the sort of problems I have described.

The hearings should address the following issues, at a minimum:

1. The fact that the JFK Records Act’s mandate, which requires full and prompt of all JFK assassination-related records, is no longer being fulfilled.

2. The perceived need for fresh legislation to deal with developments that were not foreseen when the JFK Records Act was passed.

3. The way the Justice Department has handled leads Congress asked it to investigate. These include the acoustics evidence, a key basis for the House SelectCommittee on Assassinations’ finding that there probably was a conspiracy to assassinatePresident Kennedy, and whether and how new tests should be undertaken to resolvemportant evidentiary questions: and

4. The way the Central Intelligence Agency undermined the House Assassinations Committee’s probe of President Kennedy’s murder highly disquieting information that has come to light thanks to work stimulated by the JFK Records Act.

I attach a memorandum addressing these and other matters at greater length.

Sincerely yours,

I/ PresidentAssassination Archives and Research Center
cc: Rep. William Lacy Clay

MEMORANDUM REGARDING JFK ACT OVERSIGHT HEARINGS

From: Jim Lesar President, Assassination Archives and Research Center
To: Chairman Henry A. Waxman
House Committee on Oversight and Government Reform

Date: JUNE 6, 2008

In a cover letter, I have given an overview of why my organization, the Assassination Archives and Research Center (“AARC”), requests that you hold oversight hearings on the President John F. Kennedy Assassination Records CoIlection Act of 1992 (“JFK Records Act”), 44 U.S.C. rj 2107. The fact that it is almost 45 years since President Kennedy’s assassination increases rather than diminishes the need for urgent action.

The Justice Department has in recent years reopened a number of seemingly ancient cases horrific racial slayings of the 1950s and 1960s and in some cases has obtained convictions. It has been conspicuously inactive, however, on the murder of President Kennedy, a crime of enormous importance to the nation. This even though much about the case remains in doubt, and though significant evidence has emerged pointing to the possibility that there was a conspiracy.

The government’s faiIure to address the doubts and confront such evidence has had a lasting, profoundly negative impact on our democracy. It is no coincidence that the steep and continuing decline in trust and respect for American leaders and institutions began after the assassination and the Warren Commission’s finding that Lee Harvey Oswald acted alone in killing the President. Questions remain as to whether to cite more common suspicions, not least those expressed by the House Select Committee on Assassinations there was a conspiracy involving organized crime, or a foreign power, or even “the military industrial complex” of which President Dwight Eisenhower warned in his farewell address. Only by being seen to have made every last effort to resolve such suspicions, and by achieving total transparency in terms of public disclosure. can we begin to restore confidence in our democratic system and our national institutions.

Congress implicitly acknowledged this when it passed the JFK Records Act.

It recognized that the American people have the right to know their own history, and that to know it they must have access to the facts to the fullest possible record. As a direct result of the Act, a huge volume of previously secret documents were rapidly released.

Those disclosures, coupled to ongoing research, produced stunning revelations. One such, of which we would otherwise have remained ignorant, is the existence of Operation Northwoods, the 1962 plan by the Joint Chiefs of Staff that called for mounting violent “terrorist” attacks in Washington D.C., phony hijackings of commercial airplanes, and the framing of innocent people as “bombers” all of which would be blamed on Castro and used to justify an invasion of Cuba.

Most relevantly, we now know that the 1976-1 978 probe by the House Select Committee on Assassinations (“HSCA”) was corrupted by the CIA. This occurred when the HSCA sought to learn what contacts alleged assassin Lee Harvey Oswald had had before the assassination with members of the DRE, a CIA-funded Cuban exile organization. The Committee asked the Agency to identify the group’s case officer and provide it with relevant records. The CIA never did this. Instead it brought the former case officer, George Joannides, out of retirement to act as the CIA liaison handling the HSCA’s inquiries on this and other matters. The CIA withheld from the HSCA7s chief counsel and his staff the fact that they were relying for information on the very officer who had handled the matter they were investigating! Congress never was given the information it needed for this part of its investigation.

The HSCA’s former chief counsel, Professor G. Robert Blakey, has stressed the gravity of this in a sworn affidavit. “By concealing his role in the events of 1963, Joannides effectively frustrated the Committee’s investigation into one of the central issues in the investigation of the President’s assassination and the performance of the agencies that President Lyndon Baines Johnson had tasked with the investigation of President Kennedy’s assassination: the role, if any, of the Agency with those who had a hand in the death of the President.”

The HSCA’s work in this area was potentially crucial because:

(1) it was as a result of Oswald’s confrontations with DRE members in August 1963in New Orleans that he gained a high public profile as a Soviet defector and pro- Castro sympathizer, and

(2) it was DRE leaders who within hours of the assassination disseminated this information on Oswald’s background to the press. It was they who ensured that the next day’s headlines painted Oswald as an active pro-Castro Soviet defector.

By covertly using Joannides to deal with the HSCA, the CIA undermined the House investigation. The last official investigation of the Kennedy assassination was thus subverted by the very agency long suspected by some scholars and researchers of having at least covered up something substantive and perhaps of having even been somehow involved in the assassination. This subversion made a mockery of the democratic accountability intrinsic to congressional investigation.

The AARC calls upon Congress to investigate this CIA malfeasance and require a thorough, fresh probe of Oswald’s pre-assassination contacts with the DRE and other Cuban exile organizations. For Congress not to respond with firm action would be unacceptable in our democracy.

Please note, moreover, that the CIA has disclosed that it is withholding 1,100 JFK assassination-related documents, and intends to block their release at least until 2017.

This alone violates the assurance Congress gave that the public would have prompt access to all relevant records. At least some of these withheld documents may relate to Joannides, the CIA case officer for the DRE at the time Oswald had contact with the group. Should that be the case, the CIA concealed salient information from the Warren Commission, the Senate Intelligence [“Church] Committee, the HSCA, and the citizen body that oversaw the operation of the JFK Act until it ceased its work in 1998 – theAssassination Records Review Board (the “Review Board”).

In light of the above, the AARC calls upon Congress to enact new legislation that brings the date for full disclosure of all JFK assassination records forward to 2009.

The JFK Records Act requires remedial action in other areas.

Some examples:

* The Review Board ordered that many records or portions of records that were initially withheld be disclosed at dates prior to 2008. A good deal of such information, however, is still withheld. The National Archives and Records Administration (“NARA”), which has a duty to disclose such materials once the postponement date is reached, does not always do so.

* While the Review Board was in existence, many records containing third agency information were referred to third agencies for action. Those agencies have in many cases failed to process the referred materials in timely fashion, and NARA which maintains the JFK Records Act Collection, has failed to follow through by obtaining it.

* It has become clear in recent years that records pertinent to the study of the JFK assassination are not in the JFK Collection either because they were overlooked by government agencies and the Review Board or because new areas of inquiry have opened up that were previously not perceived as relevant or significant by agencies or the Review Board. In some instances agencies have concealed or destroyed relevant records. Many Church Committee records that should be in the JFK Records Collection are not. The CIA’S file on Eladio del Valle, a significant Cuban exile long suspected of involvement in the assassination, is missing. The Collection does not have the audiotapes of communications between the White House and Air Force One after the assassination. The Review Board failed, for its part, to obtain the records of President Kennedy’s personal physician, Admiral George Burkley. Burkley was the only doctor present both at Parkland Hospital in Dallas, where the President died, and at Bethesda Naval Hospital, where the autopsy took place. Disclosures under the JFK Act have drawn attention to a CIA operation codenamed AMIWORLD, which some researchers suspect is key to a putative plot to kill Kennedy. Few AMIWORLD records have thus far been released, however.

* In flagrant violation of the JFK Records Act, the Secret Service destroyed records after the Review Board ruled that they were assassination-related. Congress should conduct a full investigation into why this was done and on whose instructions.

* CBS Television agreed to donate film outtakes of Kennedy assassination materials to the JFK Collection. Yet, researchers contend, only part of its collection has so far been deposited.

* Kennedy aide Walter Sheridan investigated the President’s assassination on behalf of Robert F. Kennedy and worked to discredit the probe by New Orleans District Attorney Jim Garrison. After Sheridan’s death. the Review Board’s negotiation with his family to obtain his papers was frustrated by NBC Television. Sheridan had worked for the network, and NBC claiming ownership -took possession of the papers. NBC has not to date turned them over to theNational Archives.

* Mexican television recently reported that the CIA had an agreement with Mexican intelligence that surveillance data gathered on Mexican territory would be shared with the Mexican government. We know that there is or was such material relating to alleged assassin Oswald’s visit to Mexico shortly before the assassination a visit that has long been a subject of controversy. Former HSCA chief counsel Professor Blakey advises that the State Department is currently negotiating with Mexico in an attempt to obtain this surveillance material. It is important that Congress have the State Department report on its progress, or otherwise, on the matter.

* The CIA entered into an agreement with the Review Board to continue processing any and all JFK assassination records after the Review Board ceased to function. It has not honored that agreement. The result and this applies not only to the CIA but also to other agencies is that persons requesting assassination records not already a part of the Collection must proceed under the Freedom of lnformation Act (“FOIA”) which is far more restrictive than the JFK Records Act. It was the inadequacy of the FOIA, indeed, that led Congress to pass the JFK Act in the first place. In a real sense. requesters thus find themselves back to Square One. Congress should hold hearings on the need for new legislation to ensure that researchers have access to materials mandated for release under the JFK Records Act.

The House Assassinations Committee concluded in 1979 that, contrary to the Warren Commission’s lone assassin finding, “President John F. Kennedy was probably assassinated as a result of a conspiracy.” Leads the Committee passed to the Justice

Department for further investigation included, importantly, studies by two distinguishedpanels of acoustical experts. These studies found that at least four shots had been fired at the President, from two different directions, pointing to more than one shooter and thus to a conspiracy.

Congress has conducted no oversight hearings to determine whether the Justice Department adequately pursued these leads, or whether new evidence has emerged on the acoustics issue.

New evidence has indeed emerged:

(1) Scientists from the Lawrence Livermore Laboratory have discredited the last remaining basis for the “Single Bullet Theory,” which was relied on both by the Warren Commission and the House Assassinations Committee. The Single Bullet Theory posits the notion that President Kennedy and Texas Governor John Connally were both struck by a single bullet fired from Oswald’s Mannlicher-Carcano rifle. The Theory is the
sine qua non for the belief that only one assassin was involved. The Livermore Laboratory scientists now say, however, that scientific advances make the Single Bullet Theory inapplicable. They assert, moreover, that bullet fragments tested by the FBI could have come from one or as many as five bullets, and could have been fired from a Remington rifle or another weapon other than Oswald’s Mannlicher-Carcano.

(2) In the HSCA’s probe, each panel of acoustical experts supported the other’s findings that the acoustics evidence indicated four or more shots fired from at least two different directions. These studies have now been reaffirmed and strengthened by a peerreviewed study conducted by an American government scientist, Dr. Don Thomas. If his study is correct, the assassination of President Kennedy indeed remains unsolved.

Other assassination researchers argue, meanwhile, that analysis of the Dallas police tapes and Dealey Plaza photographic evidence fails to support the HSCA’s finding that the sounds of the gunfire in Dealey Plaza were captured by an open microphone mounted on the motorcycle of a police officer in the President’s motorcade. This police tapes photographic evidence should also be investigated.

I am advised that further tests and studies, undertaken by appropriate experts, could clarify whether the acoustical findings relied on by the House Committee are valid or not. In addition to requesting that you hold public hearings on the overall functioning of the JFK Records Act, therefore. we also call upon your Committee to hold oversight hearings on the state of the acoustical evidence, and on what can be done to resolve the issues outlined.

It is essential that Congress use its muscle to ensure that the JFK Records Act again operates as the lawmakers intended and that government agencies, the CIA included, comply with all its requirements. Congress should also ensure that, notwithstanding the passing of the years, fresh evidence is studied and given a thorough hearing.

To fail to take such action, in a way that is absolutely clear and transparent, would be to invite further erosion of the public trust. A democratic nation lost its elected leader, in circumstances never satisfactorily explained, and requires nothing less of its elected representatives.

The Crack in the Constitution

June 2, 2008

THE CRACK IN THE CONSTITUTION

PHILADELPHIA’S National Constitution Center has become a symbolic protest site for demonstrators, most recently by those protesting the violations of the Constitution at the CIA prison at Guantanamo.

During the official opening ceremonies of the Constitution Center, when they pulled on a string to unveil the backdrop to main stage, the frame and support beam collapsed and fell down on top of the assembled dignitaries, which included Supreme Court Justice Sandra Day O’Conner, Senator Arlen Specter and then Philadelphia Mayor Milton Street.

It was an inauspicious opening of the National Constitution Center which Mayor Street claimed was not an accident, but a conspiracy by the stage union to embarrass and discredit him.

The duel purpose of the center – to educate the public and promote tourism in Philadelphia, is buttressed by the conservative Republican agenda that at first attempted to exclude the fact that the authors of the United States Constitution were slave owning hypocrites. The very site of the center is now recognized as once the slave quarters of the founding fathers.

But the primary problem with the Constitution, as opposed to the Constitution Center itself, is the way it has been continuously violated over the years, without redress.

The spirit of the Constitution is broken and the democratic will of the people violated every time a president is assassinated.

Presidents Lincoln, Garfield, McKinnley, Harding and Kennedy were all murdered while in office, the truths of their deaths were left a mystery, and at least in the case of Kennedy, government records are still being withheld from the public for reasons of national security.

Though technically unbroken, the Constitution only remains officially intact because of the provisions that allow for the Vice President to assume the powers of the presidency upon the death of the President, a little-discussed, but significant trigger and legal extra-Constitutional loophole that has been successfully utilized to seize power.

While these provisions allow for the uninterrupted continuation of the functions of government, when the President is brutally murdered and the Vice President is suspiciously implicated in the crime, as we have seen with Lincoln, McKinley and Kennedy, it is, in essence, a coup d’etat, the violent take over of the government.

Because the Constitution, as amended, requires the Vice President to automatically assume the position, authority and powers of the Presidency upon the death of the President, the new President also assumes control over the government’s reaction to the murder, and the official investigations of it.

Staged photos of the swearing in of President Johnson aboard Air Force One, with the former first lady in her blood stained dress, were technically unnecessary, as LBJ automatically became President when JFK’s head was blown open, but the photo psychologically demonstrated the succession of power to the public.

Even though new laws were enacted to ensure the public of the continuity of the government, the legality of Presidential succession and the security of the Constitution, the public’s confidence in the government began to decline with the assassination of President Kennedy, and continues to do so. But it didn’t begin with Kennedy.

GARFIELD

The conspired and premeditated murder of John F. Kennedy, the 35th President of the United States in 1963, was politically based and orchestrated on the earlier McKinley model, and in some respects, on what happened to Garfield.

As Maxim Armbruster points out in The Presidents of the United States (Horizon Press, NY, 1960, 1973), “When Chester Alan Arthur was nominated for Vice President; he was considered a nonentity, while Garfield was considered a man of statesman caliber.”

Then on July 2, 1881 Garfield was shot at a Washington D.C. railroad station “by a fanatic of the Stalwart group who shouted Arthur was now President.” The Stalwarts, Republicans opposed to the “Half-Breeds” who supported Garfield, were the main force behind a third term for Grant.

MCKINLEY and ROOSEVELT

Twenty years later, New York governor Teddy Roosevelt was nominated to be the Vice President candidate with William McKinley, a political move by his opponents to get Roosevelt out of the limelight. But that plan backfired when McKinley was assassinated on September 6, 1901 at the Pan Am Exposition in Buffalo, New York. McKinley was shot by a “glassy eyed anarchist” who was known to be a threat to the President, but not the Constitution, which remained intact with the elevation of Roosevelt to the Presidency.

McKinley had been the Spanish Civil War hero, and as Armbruster reports, “When, after McKinley’s death, Roosevelt became President, he stated he would carry out McKinley’s policies. Before long the country realized that the only policies he was interested in were Roosevelt policies.”

HARDING

When Warren Harding died suspiciously after becoming sick on a train to California from Alaska, some blamed food poisoning, while others said it was a heart attack, but it effectively removed the man, tainted from the Teapot Dome scandal, from power, and elevated Calvin Coolidge to the Presidency. The Constitution remained intact.

JFK

The shooting of John F. Kennedy in broad daylight in front of hundreds of witnesses and filmed for posterity was not so much a coup d’etat as it was the coup d’grace. The real coup took place in August, 1960 in a Los Angeles hotel during the Democratic national convention when Lyndon Baines Johnson was maneuvered into the Vice President slot, against the determined efforts of Robert F. Kennedy.

Despite taking a stature of lower power and esteem than the one he already had as Speaker of the House in Congress, LBJ himself was convinced to be the candidate for Vice President by Texas governor John Connolly and Phil Graham, the publisher of the Washington Post. Johnson knew he would be too old to run for President after serving eight years as Veep, and only agreed to take the position when told one self-explanatory statistic – 20%, or one out of every five presidents have died in office. Johnson knew those odds could be improved to beyond a certainty. (See Clare Booth Luce’s version of this story).

John Kennedy’s father Joe Kennedy convinced his son to offer the Vice Presidency to LBJ, a logical choice to help win the southern states, but an offer that Johnson was expected to refuse. It was a strategic move that backfired, just as it had on Garfield and McKinley.

As Vice President, his only real responsibility was casting the tie breaking vote in the Senate, but LBJ was given many new responsibilities (ie. NASA). But it was reported (In the Dallas Morning News of November 22, 1963) that LBJ would be replaced on the ticket before the next election. This was thought to be certain after LBJ was implicated in the Bobby Baker scandal and Johnson may very well have been on the way out of power, until the President was suddenly shot and killed in broad daylight in downtown Dallas.

Suddenly the Vice President became the most powerful person in the world, with all the executive powers of the government behind him, and with LBJ, all the powers of the Presidency were in the hands of a mean, vile, vicious and power hungry man known to have had others killed.

LBJ’s crimes, other than conspiracy and murder, also include perjury and treason, perjury committed while swearing an oath of office to uphold the Constitution of the United States.

NIXON and FORD BUSH and REGAN

I suspect the same model was used again during the Watergate era when Vice President Agnew was replaced by Rep. Gerald Ford, with the knowledge that Agnew was found to have accepted bribes as Governor of Maryland, and thus unsuitable to assume the sinking Nixon Presidency. Once it was realized that Nixon would have to resign, Ford was put in place to be able to succeed Nixon when he was forced to resign. Then again in 1980, Vice President George Bush was ready to succeed Ronald Regan had the assassination attempt at the Hinkley assassination attempt been successful.

CONSTITUTIONAL IMPERATIVE

TRUTH IN THE NAME OF NATIONAL SECURITY

The Constitution may have remained technically intact with the death of the President in office, but the spirit of the nation’s democratic foundation is lost when the President is violently and publicly executed and the legal and judicial system allows the perpetrators to go unidentified and unpursued.

The only way to restore the public’s confidence in their government is to release all of the government records related to the assassination and resolve the murder of the President to a legal and moral certainly.

Our national security depends on it.

No other reason is necessary to justify the release of all the relevant records and the legal pursuit of those responsible other than it is a constitutional imperative, the laws were broken, and our national security depends on it.

“Even a man’s fate held true on course, in a blinding flash rams some hidden reef; but if caution only casts the pick of the cargo – one well-balanced cast – the house will noto go down, not outright; labouring under its wealth of grief the ship of state rides on.”

Aeschylus, from The Oresteia.