Kennedys and King Test host626

Author: Mark Adamczyk

  • Mark Adamczyk’s Letter to Congresswoman Luna Regarding Declassification

    Mark Adamczyk’s Letter to Congresswoman Luna Regarding Declassification

    Via Federal Express Overnight Courier & Email

    U.S. House Representative Anna Paulina Luna
    Florida’s Thirteenth Congressional District
    9200 113th St. N., Office Suite 305
    Seminole, Florida 33772

    Re: Task Force on the Declassification of Federal Secrets (“Task Force”) –
           Official Record on the JFK Assassination

    Dear Congresswoman Luna:

    I am writing to congratulate you on the public hearings of April 1 and May 20, 2025. In those hearings, the Task Force created an important record on the secrecy surrounding the assassination of President John F. Kennedy.

    I am a Florida attorney and member of the Florida Bar since 2005. I am a co-author of The JFK Assassination Chokeholds, along with James DiEugenio who testified before the Task Force on April 1, 2025. I have studied the President John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Act”) extensively since 2017, the year when each assassination record was to be disclosed in full and available in the JFK Collection at the National Archives. While President Trump’s recent Executive Order and the focused efforts of the Task Force have certainly resulted in progress, the JFK Collection at the National Archives is still not complete as required by law. This letter will explain the serious continuing problems surrounding the JFK assassination records held by the National Archives and specifically what the Task Force can do to ensure that Congress’s mandate from 1992 is fully carried out and respected.

    At the May 20 hearing, you stated that the Task Force is not organized “to provide the definitive account of what happened to President Kennedy on November 22, 1963. Instead, the Task Force is meant to root out the hidden pockets of federal government that has for too long remained in the shadows and out of our reach…for even good faith investigators to reach.” I agree with that statement, and I believe the following information is critical to the stated mission of the Task Force.

    The hidden pocket that can and should be investigated going forward is the conduct of and obstruction by the National Archives with respect to JFK assassination records. On May 20, we heard Judge John Tunheim testify that the Assassination Records and Review Board (ARRB) never saw or had the opportunity to review many assassination records that were supposed to be at the National Archives for ARRB review and declassification decisions. Judge Tunheim also confirmed what he perceived to be the plan of agencies to “wait out” the ARRB, and then selectively turn over assassination records to the National Archives “at a later time.” As you are probably aware, these acts of obstruction of the ARRB mandate are and were a direct and flagrant violation of the JFK Act, and it is the chief reason why there is still not a complete and reliable collection of assassination records, despite President Trump’s recent Executive Order dated January 23, 2025.

    The following discussion will respectfully attempt to provide a guide-map on what the Task Force can do to ensure that there is a legitimate, comprehensive, organized and transparent collection of assassination records available to the public. This may not provide a definitive account of what happened to President Kennedy, but without strong action by the Task Force on the following issues, we can be sure that we will never have all assassination records generated by agencies that were always most concerned about maintaining their secrecy.

    Pre-ARRB Obstruction of the JFK Act

    As you know, the JFK Act was signed into law by Congress on October 26, 1992. The CIA knew that the ARRB would have unprecedented declassification authority and that the ARRB was mandated to review and make release decisions on each assassination record. Before the JFK Records Act even became law, the CIA was prepared with a plan to maintain maximum secrecy over its most sensitive assassination records. By February 1992 (eight months before the Act was passed), the CIA had already designed a written strategy to circumvent the JFK Act before the ARRB even took office.

    On February 10, 1992, the CIA’s Chief of History Staff authored a memorandum with the subject “Survey of CIA’s Records from House Select Committee on Assassinations Investigation”. This collection of files involved 64 boxes of CIA records sequestered by Congress for the HSCA investigation of 1977-1979. Specifically, this “Sequestered Collection” of CIA assassination records is described to contain:

    16 boxes of Lee Harvey Oswald’s 201 file and numerous loose folders (mainly from Mexico City Station records) collected for the Warren Commission

    34 boxes of material collected by the Directorate of Operations

    29 boxes of records from the CIA Office of Legislative Counsel, Inspector General, Office of General Counsel, Directorate of Science and Technology, Office of Security, and several boxes of HSCA staff notes and records

    72 microfilm reels (box no. 64), which include the Oswald 201 file and Mexico City Station records, as well as other 201 files and information about Cuban exile groups.

    Under the sub-heading titled “Sensitivity” (paragraph 5), the memorandum discusses a scattering of “Top Secret” and codeword documentation in this Sequestered Collection. Materials considered “especially sensitive” include “201 files, phone taps, mail intercepts, security files, photo surveillance, names of sources, watch lists and MHCHAOS documentation. Such material occurs throughout the collection, usually in response to HSCA requests for name traces. There are 22 microfilm reels of 201 files in addition to the Oswald file, while eight boxes contain security records, including for example, files on David Atlee Phillips, Martin Luther King, and Claw Shaw (sic).”

    In the section titled “CIA Complicity” in the JFK assassination, the memorandum states: “Our survey found nothing in these records indicating any CIA role in the Kennedy assassination or assassination conspiracy (if there was one), or any CIA involvement with Oswald.”

    [Note: We now know from recent testimony before the Task Force that the CIA without question had extensive operational involvement with Oswald.]

    After internal considerations of whether to fully close or open this Sequestered Collection, the memorandum states a final “Recommendation” (section 10):

    “I recommend that CIA transfer its entire HSCA collection (as defined and identified in this report) at its existing classification (emphasis added) to the National Archives and Records Administration (NARA), for continuing declassification review by Archives staff, in accordance with the relevant laws, regulations and CIA guidelines (emphasis added). This transfer should be earned out under the auspices of CIA’s Historical Review Program (emphasis added). To retire this HSCA collection to the National Archives offers some significant advantages…”

    The perceived advantage identified by the CIA was that a transfer of these HSCA records (Sequestered Collection) to the National Archives, before the establishment of the ARRB, would “protect their existing classification.”

    The memorandum concludes that “NARA must ensure the confidentiality of investigatory sources and the proper protection of personal privacy and national security information, including intelligence sources and methods. NARA would continue the court-ordered declassification review according to CIA guidelines (emphasis added). CIA can accelerate the declassification of this collection by funding review positions at NARA (emphasis added).

    The final Recommendation concludes: “If Congress should eventually undertake to open this entire Collection without regard to classification, the National Archives will be in a stronger position to protect its national security and privacy information than the CIA, whose motives would appear self-serving, if not sinister.”

    Why is this a serious problem? First, the CIA transferred sensitive HSCA records to the National Archives before enactment of the JFK Act, which subverted review by the ARRB. This may have only been proper if the Sequestered Collection was transferred to NARA and “made publicly available in their entirety without redaction” as provided in section 5(d)(3) of the JFK Act. Otherwise, only the ARRB had the authority to make final declassification decisions under specific standards in the JFK Act, with only the President having the authority to overrule the ARRB on its final decisions and orders. As Judge Tunheim confirmed in his May 20 testimony, the ARRB made those final decisions on over 27,000 records (where agencies sought postponement) that were provided to the ARRB for review under the JFK Act.

    A critical question for the Task Force is:    Was this sensitive Sequestered Collection of CIA assassination records provided to the ARRB with identification aids and RIF numbers for review by the ARRB under the JFK Act? Or was this Collection transferred separately to the National Archives under separate procedures, not authorized by the JFK Act, for review only by the Archivist and the CIA at a later point in time and under different standards that were favorable to the CIA? This CIA memorandum from February 1992 strongly suggests the latter.

    As the likely result of this CIA Memorandum of February 1992, a massive trove of CIA assassination records from its HSCA collection was shipped to the National Archives before the ARRB could start its work. Assuming that is true, these records were not assigned Record Identification Form (RIF) numbers and properly catalogued for mandatory ARRB review. This CIA strategy ended up giving the Archivist unauthorized and uncontrolled discretion over the CIA’s HSCA Sequestered Collection, controlled only by CIA guidelines, which is not permitted in any provision of the JFK Act. The Archivist and staff who controlled these records in the 1990s needs to be questioned about (a) exactly how the Archivist exercised his discretion pursuant to section 5(d)(3) of the JFK Records Act and (b) specifically about the extent of the HSCA/CIA records that did not receive a RIF number and were not disclosed to the ARRB for review and release final determinations.

    These are JFK assassination records of the CIA for the HSCA investigation, which are critical to the historical record. These are probably some of the most important CIA records out there because they were handled in a highly secretive manner before the JFK Act took effect. As discussed by James DiEugenio and Judge Tunheim before the Task Force, we know how hard the CIA fought the ARRB on postponement requests for records that were in the JFK Collection under the JFK Act. It is clear that this “Sequestered Collection” of HSCA records, apparently turned over in a clandestine manner to the National Archives before the appointment of the ARRB and without RIF numbers and proper cataloging, was even more sensitive to the CIA.

    Also note that this CIA Memo was not released by the Archives until November 1, 2021. The Identification Aid Form for this assassination record, as required by the JFK Act in 1992, was not generated until 2005. Not only is this delay and selective treatment of critical assassination records a direct violation of the JFK Act, but this CIA Memo is a prime example of the need for a full investigation of assassination records that were handled only the by the CIA and NARA before and after the ARRB and without any identification, cataloging, periodic review and mandated full releases on or before October 26, 2017 as required by the JFK Act.

    The link to this CIA memo is found here:

    https://www.archives.gov/files/research/jfk/releases/2021/docid-32404131.pdf

    I believe the February 10, 1992 Secret CIA Memo should be mandatory reading for the Task Force and a strong basis to take appropriate action to compel the Archivist to locate and determine the status of the entire HSCA Sequestered Collection. The CIA may still claim some equities in these records, but they are assassination records that must be reviewed for declassification under the standards of the JFK Act.

    ARRB Final Determinations and Periodic Review

    Judge Tunheim acknowledged on the record that the ARRB reviewed over 27,000 assassination records in response to postponement requests from agencies. As a result, each assassination record currently held in the “Protected Collection” at NARA is the result of an ARRB “Final Determination” under the JFK Act. When the ARRB made these final agency determinations on each record it reviewed between 1994 and 1998, it created an “ARRB Final Determination Notification” form (FDN). Each FDN included a specific standard under the JFK Act that formed the legal basis for postponement either in full or in part. The FDN also provided an unclassified reason for each postponement decision, along with the ARRB’s final determination for periodic review and/or release (e.g. a covert agent’s death, or a source or method no longer requiring protection).

    The mandate of Congress in the JFK Act was clear, as expressed in sections 5(g) and 9(c) of the JFK Act. After the ARRB made a final decision on a postponement request from agencies, that decision was published in an unclassified FDN. Agencies were notified of the decision to release or postpone until a specified date. If postponement was approved by the ARRB, originating agencies and the Archivist had a duty to periodically review those records until such time as a specified occurrence or other date (as identified by the ARRB) warranted a mandated release of the record. There is no record that any of this was undertaken by the Archivist of the United States. Only the location and status of the ARRB’s Final Determination Notifications can provide a basis to determine the status of the most important records reviewed by the ARRB. Once all of the Final Determination Notifications and associated assassination records are accounted for, the Task Force can confirm whether those critical assassination records have been disclosed and released in full in compliance with the law.

    Some may argue that the ARRB’s Final Determinations are merely recommendations and that all declassification authority ultimately lies with the President. That is only true to an extent. The ARRB’s Final Determinations are agency final orders. This is consistent with American administrative law principles. The ARRB was an independent government agency. The ARRB’s chief function was to make final declassification decisions on postponement requests. For each postponement request (in over 27,000 records), the ARRB held a meeting and heard the originating agency’s appeals. The ARRB made a final decision and notified the agency, thus ensuring due process to the agency. The ARRB also notified the President of its Final Determinations, and the President had 30 days under the JFK Act to override the ARRB’s decision. If the President did not exercise his authority to override the ARRB, the ARRB’s decision became a final agency order that the Archivist was required to follow.

    Why is this information so critical? Lawyer Andrew Iler recently uncovered a Memorandum of Understanding (MOU) prepared by ARRB chief counsel Jeremy Gunn with respect to the President’s 30-day window to override any ARRB final determinations. Mr. Iler is also a co­author of The JFK Assassination Chokeholds, and I consider him to be the world’s leading expert on the JFK Act and how it was intended by Congress and the ARRB to operate. The ARRB realized it was practically impossible for President Clinton to review over 27,000 ARRB final declassification orders in short order, so Dr. Gunn and the ARRB simplified the process for the President. If the President wished to override any ARRB final decisions under his authority in the JFK Act, he could do so within 30 days of notification from the ARRB. If the President did not respond with a written certification overriding the ARRB’s decision(s), it would be deemed Presidential Certification and consent to the ARRB’s Final Determination under the JFK Act. Mr. Iler discovered clear written confirmation that President Clinton approved this MOU with the ARRB. Please refer to: https://jfkchokeholds.com/wp-content/uploads/2025/05/Box09-Folder13- 9504452-Pages015-021.pdf

    The result of President Clinton’s approval is that the ARRB’s Final Determinations for assassination records in the Protected Collection are the final and binding authority for declassification. As such, the National Archivist was required to periodically review these FDN’s, without new appeals and interference from agencies on the same records, and abide by the declassification decisions of the ARRB (which were certified by President Clinton).

    Between September 1998 and October 26,2017, virtually no mandatory periodic review took place as required by sections 5 and 9 of the JFK Act. If this mandatory periodic review had occurred, by October 26, 2017 there should have been very few records left in the Protected Collection held at the National Archives.

    Instead, because of the Archivist’s failures to abide by the JFK Act for 25 years and the unwarranted interference from the intelligence community at the eleventh hour, President Trump was pressured to delay the declassification process for an undetermined number of unidentified assassination records, which we know he did not want to do in 2017. If the Archivist had followed its ministerial duties under the JFK Act and provided President Trump with the handful of remaining withheld records (if any) and the corresponding ARRB’s Final Determinations, President Trump could have simply followed precedence established by President Clinton and the job would have been done with respect to records actually made available to and reviewed by the ARRB. [1]

    To compound all of these problems, the ARRB Final Determinations have been unlawfully kept secret at the National Archives and the public has been denied access to these critical, binding and enforceable legal orders.

    To resolve the actual status of the ARRB’s Final Determinations and the associated assassination records, Andrew Iler recently made a FOIA request to NARA for copies of the FDN’s (there should be over 27,000 of them at NARA), and he personally visited the National Archives with other researchers in College Park, Maryland in November 2024 in search of the FDN’s.

    Mr. Iler has written about this experience at the National Archives. He has also thoroughly researched and written about the ARRB’s operations and the critical historical importance of the ARRB’s Final Determinations. When Mr. Iler and his colleagues finally obtained a box of FDN’s at the Archives, they were only provided with approximately 450 of them by complete coincidence. That is less than 2% of what NARA should have been able to produce on this visit in response to a very focused records request.

    In response to Mr. Iler’s FOIA request to NARA for digital copies of the ARRB’s Annual Reports and Final Determination Notifications, NARA sent an email to Mr. Iler dated June 13, 2025, which states:

    “Thank you for your follow-up message regarding your request (our tracking number RF 25-32296) for digital copies of the Assassination Records Review Board’s (ARRB) Annual Reports and Final Determination Notifications. We have not been able to identify any additional digital Annual Reports for Fiscal Years 1997 and 1998 or a set of Final Determination Notifications [emphasis added]. As my reference colleagues noted, a search of the ARRB finding aids and the Online Computer Library Center (OCLC) only identified Annual Reports for Fiscal Years 1995 and 1996. We have not located any evidence that the ARRB produced Annual Reports in 1997 or 1998.”

    This is a remarkable response from NARA considering that they produced approximately 450 FDN’s to Mr. Iler and his colleagues at their physical inspection at NARA in November 2024. As of June 13, 2025, NARA’s official position is that the National Archives has no record of the ARRB’s meticulous review and final postponement decisions. These are the very records that were required by law to serve as the basis for NARA’s duty under the JFK Act to periodically review and ensure an accountable, transparent and enforceable process to downgrade and declassify the Protection Collection.

    Mr. Iler’s published articles on these issues are also critical reading for the Task Force. They can be found at the following links on James DiEugenio’s website, “Kennedy’s and King”:

    https://www.kennedysandking.com/john-f-kennedy-articles/why-are-we-still-declassifying-jfk-records-critical-arrb-final-determinations-buried-and-ignored-part-1

    https://www.kennedysandking.com/john-f-kennedy-articles/critical-arrb-final-determinations-buried-and-ignored-part-2

    Post-ARRB Activity at NARA – Periodic Review Failures

    The issue of the ARRB’s Final Determinations covers the serious problem at NARA with respect to records that agencies did turn over to the ARRB for review of postponement decisions. What about records that were not made available to the ARRB as required by law? This also requires serious investigation in light of Judge Tunheim’s compelling statement to the Task Force on May 20, 2025 about the CIA “waiting out the ARRB” and his observation that records were sent to NARA “at a later time.”

    As discussed above, the winding down of the ARRB did not excuse NARA from continuing to collect, organize and downgrade declassification of assassination records. However, neither the Archivist nor originating agencies had the legal authority to make declassification decisions on their own after the ARRB. Only the ARRB had that authority with respect to each and every assassination record that existed as of October 26, 1992.

    For the records not made available to the ARRB, and for agencies and government offices that “waited out” the ARRB and haphazardly sent records to the National Archives after the ARRB’s tenure in violation of the JFK Act, that is a wholly separate investigation. The Archivist should be questioned on activities at NARA after the ARRB. Were the records received at a “later time” inventoried and assigned RIF numbers for cataloging and indexing as part of the JFK Collection? Exactly who reviewed them for downgrading and declassification, and when? The Archivist has a duty to collect and catalog records, however, neither the Archivist nor agencies had independent authority under the JFK Act to perform the actual declassification decisions mandated by Congress in 1992.

    A prime example was the FBI release of approximately 2,400 records in response to President Trump’s 2025 Executive Order. How did this happen, and how many other similar incidents of this occurred after 1998 when the ARRB left office? Until these records are accounted for and declassification decisions are made under the standards of the JFK Act, an accurate collection and accounting of JFK assassination records in the possession of agencies is not complete.

    A strong solution for ensuring the complete accounting for and declassification of assassination records is the appointment of a new ARRB, or similar independent agency. This is completely consistent with section 12(b) of the JFK Act, which states:

    “The remaining provisions of this Act shall continue in effect until such time as the Archivist certifies (emphasis added) to the President and the Congress that all assassination records have been made available to the public in accordance with this Act.”

    In summary, the ARRB could only review and make declassification decisions on records that were available to it under the JFK Act. As explained above, the ARRB did just that and issued Final Determinations on each record where agencies sought postponement. For the undetermined number of records that were not made available to the ARRB, the Archivist cannot possibly comply with section 12(b) and issue a certification of final disclosure until those records are located and reviewed by a new ARRB (or similar independent agency), or Congressional oversight committee under the JFK Act (specifically, section 6). Assuming that there is no legitimate reason to protect information in those records in 2025 under section 6 of the JFK Act, those records can also be accounted for in a complete and reliable collection of JFK assassination records at the National Archives.

    Conclusion and Recommendations

    It is clear that the CIA and other agencies subverted the entire JFK Act from even before its passage in October 1992. Another recent example of this is the release of certain CIA files on officer George Joannides. The Task Force should certainly be commended for compelling the CIA to release more files on George Joannides, which further demonstrate the CIA’s focused effort to obstruct the HSCA investigation and conceal the CIA’s intelligence connections to and operational use of Lee Harvey Oswald. However, there should be no tolerance for any kind of CIA policy to omit disclosure of its operational files that are related to the assassination. If the CIA can demonstrate a need in 2025 for continued postponement under section 6 of the JFK Act, that postponement decision should be made independently and with appropriate oversight as discussed above.

    For those who may claim that the CIA, the Archivist or other agency are permitted to employ separate policies or rules for declassification of certain assassination records, I believe the correct response is found in sections 2(a)(5) and 2(a)(6) of the JFK Act. Those provisions collectively state that the JFK Act was necessary because FOIA and Executive Order No. 12356 (entitled “National Security Information”) have prevented the timely disclosure of records relating to the assassination of President Kennedy. Further, section 11(a) of the JFK Act makes it clear that when the Act requires transmission of a record to the Archivist for public disclosure, that the JFK Act takes precedence over any other law, judicial decision or common law doctrine that would otherwise prohibit such transmission or disclosure. [2]

    The bottom line is that the JFK Act is the binding and ultimate legal authority with respect to any government record that is related to the assassination of President Kennedy. A thorough investigation of the CIA and the National Archives on the handling of assassination records before, during and after the tenure of the ARRB is critical to the stated goals of the Task Force. I believe that Congress has a duty under the JFK Records Act to conduct exactly this kind of oversight.

    Recommendations

    1. Conduct a hearing with past and present senior officials from the CIA and National Archives regarding the handling of the CIA’s Sequestered Collection of HSCA assassination records. These are legislative branch records, and while the CIA may still claim certain equities in these records, they are assassination records that must be reviewed by the Task Force or appropriate oversight committee(s) under the standards of the JFK Act for declassification. The executive branch (e.g. the CIA and the National Archives) should not have unfettered authority to seize control of and make its own classification decisions on these records.
    2. In the same hearing, seek answers on whether operational files of the CIA or other agencies were excluded from disclosure to the ARRB and on what basis.
    3. Conduct a hearing with senior officials from the National Archives regarding the ARRB Final Determinations, their location and status, and the disclosure status of each associated assassination record reviewed by the ARRB.
    4. Conduct a hearing with senior officials from the National Archives regarding each assassination record transferred to NARA after the ARRB’s termination, their location and disclosure status at NARA.
    5. Demand the National Archives to comply with the JFK Act and finally create and maintain a comprehensive and searchable catalog and index of all assassination records in the JFK Records Collection. It is critical for the public to know precisely what is actually held and maintained at NARA at this time.

    Finally, there may be some who believe that the Task Force does not have enough time to investigate the CIA and National Archives on these issues. I do not believe that is the case. Section 4(e) of the JFK Act provides express oversight authority and jurisdiction over the JFK Collection to the Committee on Government Operations of the House and the Committee on Governmental Affairs of the Senate. There is no time limit on that unlimited oversight authority in the JFK Act. Important work can still be done by Congress until the Archivist can legitimately make its required final certification required by section 12(b) of the JFK Act.

    Thank you for your attention to these details and to these important remaining issues. I remain available to meet with you and your colleagues to discuss the above matters and recommendations as may be of assistance to you.

    Respectfully Submitted,

    Mark E. Adamczyk, Esq.

    cc: Washington D.C. Office, 226 Cannon House Office Building, Washington, D.C. 20515

    [1] It is critical to note that the ARRB’s Final Determinations and the associated records were the most important historical work performed under the JFK Act. These are the records that agencies provided to NARA for ARRB review and fought fiercely with the ARRB to protect. Due to the Archivist’s failure to perform its ministerial duty of periodic review, there were still an undetermined number of assassination records being fully or partially withheld by NARA in October 2017, which put President Trump in a difficult position. An accurate number was impossible to calculate because of the broken down and functionally inoperable identification aid and cataloging program that NARA and agencies failed to adequately maintain pursuant to their legal mandate. ARRB staff provided NARA with a meticulous digital cataloging program for NARA to use for periodic review, downgrading and final declassification after ARRB termination and ultimately disclose every assassination record to the public in accordance with the ARRB’s Final Determination. There is simply no valid excuse for this failure of the Archivist to perform functions that were integral to the JFK Act.

    [2] The only exceptions under section 11(a) are section 6103 of the Internal Revenue Code and deeds of gift.

  • The Anna Paulina Luna Task Force

    The Anna Paulina Luna Task Force

    The Anna Paulina Luna Task Force

    Mark E. Adamczyk Esq.

    If you are interested in the history of the JFK assassination and want to know what actually happened to President Kennedy on November 22, 1963, you have probably heard or read about the recently-appointed “Task Force on the Declassification of Federal Secrets”. This is a congressional panel established by the U.S. House Committee on Oversight and Accountability, chaired by Representative Anna Paulina Luna (R-Fla.). 

    The stated primary mission of the task force is to investigate and recommend the declassification of long-held government records related to significant historical events and topics of public interest.  The task force was formed in response to President Trump’s executive order signed on January 23, 2025, titled “Declassification of Records Concerning the Assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and the Reverend Dr. Martin Luther King Jr.,” which mandates federal agencies to prepare plans for releasing these records. According to journalist Jeff Morley, both CIA Director John Ratcliffe and DNI Chair Tulsi Gabbard are in favor of the order.

    As of today, the task force has made notable headlines. On February 25, 2025, Representative Luna announced via X that she met with the National Archives and Records Administration (NARA), securing a commitment to make declassified JFK files publicly accessible through a dedicated NARA website. She indicated that documents would be uploaded in real time once declassified, and she addressed efforts by some within the NARA agency to delay access, claiming those “obstructionists” were being removed. Additionally, Luna has scheduled the task force’s first hearing for March 26, 2025, which will focus specifically on the JFK assassination. This hearing aims to examine evidence and interview firsthand witnesses, including doctors who treated Kennedy at Parkland Hospital in Dallas, where the task force plans to travel as part of its investigation.

    A visit to Dallas to interview the Parkland doctors and a tour of Dealey Plaza would be educational for the task force.  Representative Luna has publicly questioned the official Warren Commission findings, asserting her belief in a “two-shooter” theory based on conflicting evidence and abnormalities she claims were overlooked.  

    But here’s the problem: Why spend the task force’s time and money investigating things we have known for years?  As written by JFK Assassination Chokeholds co-author Paul Bleau, we already know that over forty witnesses, including almost all of the medical personnel at both Parkland and Bethesda Medical Center—where the autopsy was held—clearly saw the massive injury to the back of JFK’s head, describing what could only be an exit would.  The evidence we already know makes it all but impossible to conclude that there was not at least one shot fired at JFK from the front of his limousine, which vitiates the Warren Commission’s conclusion that only three (3) shots were fired by Lee Harvey Oswald from the rear.  

    The task force is on the correct path by investigating NARA and the Archivist’s inaction and failures under the JFK Records Collection Act of 1992 (JFK Act). Pursuant to the JFK Act, the Assassination Records and Review Board (ARRB) in the 1990s already made final declassification decisions on the thousands of assassination records still withheld in full or in part.  Under the exhaustive rights afforded to agencies still seeking postponement of assassination records to this day, they already had their complete legal opportunity to appeal those final declassification decisions to the ARRB and the President for continued postponement.  

    Which brings us back to the focus that should be front and center for Representative Luna’s task force – the Archivist.  As discovered by JFK Assassination Chokeholds co-author Andrew Iler, the ARRB’s final declassification decisions from the 1990s have been buried at NARA.  Why?  The Archivist should immediately be called into an oversight hearing with the task force to explain why NARA did not follow the ARRB’s final agency orders on postponed assassination records and release them as ordered by the ARRB.  The Archivist should be compelled to explain why it is nearly impossible to find the ARRB’s final declassification orders at NARA.  The path to the proper declassification of the JFK assassination records lies in the ARRB’s final orders.  

    The final point, and this is critical, is revealed in comments recently made by Representative Luna in an interview with Clayton Morris on Lear Redacted.  Luna stated that she is confident, based on discussions with the White House and Gabbard (Director of National Intelligence), that there will be a full release of assassination records through the efforts of the task force.  I have no doubt in Representative Luna’s confidence, and her energy and passion on this effort should be commended.  

    However, here is the troubling comment Luna gave in the interview.  The Archivist has apparently told Representative Luna that even if President Trump orders the declassification of assassination records, the President’s decision then needs to go back to the originating agency for a “re-review” by the agency head.  Representative Luna disagrees with NARA’s assessment, and she is correct.  The Archivist’s position is directly contrary to the JFK Act.  Under the Freedom of Information Act (FOIA) standards, an agency head does have the authority to make declassification decisions in their discretion.  The JFK Act is not FOIA, and it is not close.   Under the JFK Act, the final declassification decision, short of the President, was with the ARRB and only the ARRB.  If the ARRB ordered the full release of a record by a specified date, the agencies (many years ago) had a final 30-day right of appeal.  And the following is important: Short of an appeal based on clear and convincing evidence justifying continued postponement, the Archivist had a legal duty to release the assassination record and publish it for public disclosure. 

    Luna said that if a record is ordered declassified, then “do it, and call it a day…declassification does not need to go through bureaucratic nonsense.”  Again, she is correct.  Under the standards of the JFK Act, only the President in 2017 had the final call on declassification. And any further Presidential decisions for continued postponement must be stated in a public Presidential certification stating a current identifiable harm to the United States or a living person.  

    The correct legal path on the declassification process under the JFK Act is simple.  After the Archivist is compelled to make the ARRB’s final release decisions available and easily searchable, President Trump and his legal advisors need to review the ARRB’s final decisions in the Archivist’s possession.  If there is no longer a current identifiable harm in the withheld record to a living person or current intelligence source or method, the record must be released in full today pursuant to the JFK Act.  Further, President Trump needs to immediately order all originating agencies to turn over (to the Archivist) any assassination records that were not provided to the ARRB in the 1990s as required by the JFK Act.  The same Presidential review process would apply to those records as well.  The task force, with Congressional oversight powers in the JFK Act itself, has the authority to make sure all of this happens without further delay.  No further “plans” are necessary, especially not from the intelligence agencies who are determined to maintain secrecy.  

    In 2025, it is fiction to believe that a record from 1963 could still pose an identifiable harm.  Maybe a handful of records by a stretch of the imagination, but not thousands.  In short, President Trump should not tolerate more obstruction from the intelligence community.  As explained in JFK Assassination Chokeholds, the American people have already tolerated more than 60 years of obstruction of justice in the JFK case.  Unless President Trump can explain how and on what basis a withheld record still poses a current and identifiable harm to the United States or a living person, the record can and must be released today pursuant to the clear Congressional mandates in the JFK Act. 

  • The Protected JFK Files

    The Protected JFK Files

    The Protected JFK Files

    With Donald Trump re-assuming the Presidency in January, it is time to ask the question: What will or what can President Trump do about the 3,600 protected JFK assassination records?  

    I use the word “protected” for a reason.  The ARRB had the authority under the JFK Records Collection Act of 1992 (JFK Act) to postpone the release of certain assassination records under very specific standards in the JFK Act.  The ARRB made specific postponement and release decisions on each record that agencies sought to protect after 1998 when the ARRB’s work was done.  Agencies do not have the right to protect those records in perpetuity, which is what we are facing today.  This article will dissect the problem and what Trump and Congress can do about it.  We will also discuss what information is likely found in the remaining protected records, which sheds significant light on WHY agencies are fighting so hard to maintain secrecy.  

    What will President Trump do?  We do not know for sure.  He has recently pledged to resist pressure from agencies and authorize the release of the remaining withheld records.  Trump has Robert Kennedy, Jr. in his cabinet, who is no doubt committed to this effort.  RFK, Jr. believes that the CIA is responsible for the assassination of his uncle, President John F. Kennedy.  I agree, which is discussed in detail below.  RFK, Jr.’s commitment is so serious that he is seeking to have Trump appoint his daughter-in-law as the new CIA Deputy Director.  That might rattle some cages in Langley.  

    But in reality, all the CIA has to do is abide by the final decisions that the ARRB already made when it had the chance to negotiate with the ARRB on the final release date. In no event was any record to be withheld past October 26, 2017 under the clear language in the JFK Act.  More than 7 years later, and 61 years after the JFK assassination, the agencies are still fighting harder than ever on this issue.  The bottom line is that agencies, chiefly the CIA, cling to a fierce belief that it has the unrestricted power to break the law.  The belief it has the authority to continue dictating to the President and to Congress the information that can be shared with the American public.  That has to change, and the release of the protected JFK records would be a major step toward change in this power struggle on secrecy and transparency.  

    Understanding the Problem

    Before we talk about the solutions that are available to President Trump and Congress, it is important to look at the reason for this problem.  To examine the answer to the questions: Why is the CIA still willing to break the JFK Act and ignore the ARRB’s final decisions?  Why did the CIA pressure both Presidents Trump and Biden to do the same between 2017 and today?  I believe the answers lie with Lee Harvey Oswald and the 61-year cover up of his known assignments and activities and how they probably explain what happened in Dallas on November 22, 1963.  At the very least, the protected records show that the CIA created a false identity for Oswald, used that to its advantage before and after the assassination, and has covered that up for 61 years.

    Today, we have a very good idea of what information is likely in the CIA’s protected records, and only full public disclosure of those records can prove otherwise.  Here is what we know today, and there is no legitimate dispute about it.

    We know that the CIA sponsored an operation known as AMSPELL, which was designed to infiltrate leftist organizations in the U.S. that supported Castro’s regime in Cuba.  The AMSPELL network included the DRE–Directorio Revolucionario Estudiantil–an anti-Castro organization that operated in New Orleans in the summer of 1963. Its titular head was Carlos Bringuier, and according to Howard Hunt’s HSCA testimony, it was originated by David Phillips.

    We know that the AMSPELL/DRE network had direct contact and involvement with Lee Harvey Oswald in New Orleans in August of 1963.  Those activities resulted in a public and, in all likelihood, a staged altercation with Oswald, leading to his arrest.  The result being that Oswald was detained in jail and paid a fine for receiving a punch from Bringuier.

    We know also about operation AMSANTA, a joint FBI/CIA program designed to place willing Fair Play for Cuba Committee (FPCC) members into Cuba to collect intelligence.  We also know that Oswald met at length with the FBI after his arrest—the visit lasted for well over an hour–while in police custody in New Orleans.

    After Oswald’s arrest in New Orleans, the DRE leaders arranged for Oswald to appear on local TV and radio stations, where he flashed his fake Fair Play for Cuba Committee (FPCC) credentials and talked about his beliefs as a “pro-Castro Marxist”.  The FPCC was the exact organization that these intelligence operations—FBI, CIA, DRE– were targeting.  And Oswald was in the middle of it all.

    The evidence strongly indicates that a CIA operation was used weeks later in Mexico City. Done to further advance the legend that Oswald was a “Castro patriot” desperately seeking entry into Cuba.  A bit over six weeks later, President Kennedy was assassinated in Dallas by the alleged “lone assassin” Oswald.  

    In Chapter Two of The JFK Assassination Chokeholds, Oswald’s intelligence connections are discussed at length.  To put it mildly, he was no “lone nut” assassin.

    We know that within hours of the assassination on November 22nd, CBS broadcasted to the world Oswald’s radio and TV interviews from New Orleans, where he discussed his “work” with the FPCC and claimed to be a “Marxist”.  Where did CBS get all of this information on Oswald so suddenly?  Was it through the CIA’s AMSPELL/DRE network?   

    We know of a project  known as “Operation Northwoods”, a Pentagon scheme designed to provoke war with Cuba by using a “spectacular” act of violence in the United States, utilizing covert CIA personnel to arrange for the blame to fall on Casto.  Creating pretext and public support for the President to finally invade Cuba.  Is this not similar to what happened in Dallas on November 22?  With Oswald, the Castro sympathizer, in perfect position to take the immediate blame?  Thus provoking an invasion of Cuba.

    A complete release of the withheld JFK assassination files would likely disprove the above.  Yes, the JFK Act authorized agencies to request continued withholding of sensitive assassination records that could or would disclose an intelligence “source or method.”  Those requests (thousands of them) were made to the ARRB in the 1990’s, and the ARRB was the arbiter.  Only the President had authority to continue postponement if there was still clear and convincing evidence that a record, if disclosed publicly, could still harm a current intelligence source and method.   

    But back to the ultimate problem today.  It is already known that agencies were using operations like AMSPELL and AMSANTA to infiltrate the FPCC.  It is already known that the AMSPELL/DRE network had direct and public involvement with Oswald in New Orleans.   It is already known that CIA officer George Joannides managed the AMSPELL operation in New Orleans that utilized Oswald’s fake FPCC credentials.  We already know about the CIA operation in Mexico City involving Oswald (or more likely an imposter).  Is then the AMSPELL/DRE operation involving Oswald and the FPCC still a current source and method?  No.

    There is an undeniable conclusion here.  The only plausible reason for the intelligence agencies to fight tooth and nail on the remaining withheld records is that all information on Oswald, AMSPELL, AMSANTA and Mexico City would finally be public.  And those intelligence operations played a part in what happened on November 22, 1963 in Dallas. 

    Solutions for Trump and Congress

    In November, I had the chance to speak at the CAPA conference in Dallas on the legal status of this case.  I had the pleasure of presenting with Larry Schnapf and Jacob Hornberger.  The Mary Ferrell Foundation is still working through its lawsuit seeking compliance with the JFK Act.  Of course, the Department of Justice lawyers are still fighting very hard to confuse the Ninth Circuit in California regarding the scope and purpose of the JFK Act.  The Appellate Court will ultimately decide whether that case will change the momentum on this historic issue.

    However, regardless of what happens with that lawsuit, I believe that President Trump and Congress can independently solve the problem without the need for more lengthy lawsuits.

    New ARRB

    Representatives in Congress are working on new legislation that would create an extension of the JFK Act.  If successful, this legislation would create a new independent panel that would finish the historical work of the ARRB from the 1990’s.  The new legislation should reiterate that the ARRB was the final arbiter on postponements and that only the President has the authority to make record-specific determinations on which assassination records, if any, still pose an identifiable harm to a current person or a current source or method of the agencies.  That is what the JFK Act of 1992 already says!  

    An “ARRB 2.0” would start by locating and reviewing all of the final decisions made by the ARRB in the 1990’s and ensure that agencies have complied with those postponement and release decisions.  A new ARRB should also be empowered to locate any assassination records that are still withheld entirely by agencies or not even archived at NARA as they are required to be.  The new ARRB should then have authority to make record-specific final decisions on those records, similar to what the ARRB did 30 years ago.

    In concert with this, Congress this time can actually use its oversight authority to ensure that the agencies are fully cooperating with the new ARRB.  To ensure that the President exercises proper authority over executive branch records that agencies still wish to protect.  And in the rarest of cases where an agency could still seek protection on a record or group of records, the President must make a record-specific determination on postponement under the standards of the JFK Act, as extended by Congress now.  Again, congressional oversight committees had that authority in the original JFK Act of 1992.  They did not utilize it.

    President Donald Trump

    The problem with new legislation is that we do not know if it will succeed in Washington,  or if it does, how long it will take to enact.    Trump, however, can take immediate action and has pledged to do so when he resumes office.  He can rescind President Biden’s executive orders that made the issue worse (if that was even possible).  Biden’s “Transparency Plans” practically encouraged continued secrecy from the agencies and did not actually require transparency.

    Trump also needs to address what happened in 2017 when he authorized delays on the assassination records, which eventually led to Biden’s orders.  What happened there?  Trump himself has hinted at it in a recent interview with Joe Rogan.  He privately told trusted advisor Andrew Napolitano that he wanted to release the records when he was President but was under severe pressure from agencies (namely the CIA and director Mike Pompeo) not to do so.  Trump was misled on what the JFK Act required, and he was convinced that the remaining protected records were still “too sensitive” to release.  Too sensitive in terms of who Oswald actually was and what he was doing?  Or too sensitive for the CIA to explain in terms of the 60-year cover up of the operations involving Oswald and how they resulted in Dallas?

    Trump can also address the faulty legal advice he received from the DOJ at the eleventh hour in 2017, which essentially re-wrote the JFK Act without legal authority and set the stage for more secrecy and postponements.  The DOJ is using that same legal strategy in the aforementioned lawsuit.    A new attorney general can ensure that the JFK Act is properly interpreted and that its purpose and intent is finally carried out.  

    Finally, there is talk about Trump authorizing a new Presidential Commission to investigate assassinations.  I support this as well.  No doubt this Presidential Commission would not be another Warren Commission that was set up by President Johnson  and J. Edgar Hoover to cover up both Oswald and his known domestic intelligence connections.  It could lead to a new investigation of the JFK case, the RFK case and the assassination attempt in Pennsylvania on Trump himself.

    Regardless, there is little doubt that Trump can have success on this issue if he orders compliance with the JFK Act of 1992, as currently written, and works with Congress on solutions it can provide.  If he strikes the appropriate balance of following the JFK Act, while still protecting actual living persons and current sources and methods.  

    Conclusion

    The agencies will not give up the fight.  That is clear. We have discussed solutions.  Perhaps the final withheld JFK records will not show much at all and that we are simply dealing with stubbornness and belief from agencies that they are above the law.  Logic certainly dictates otherwise.  All signs point to the withheld records containing a lot more information on Oswald and his assignments and activities in New Orleans, Mexico City and Dallas.  And that various components of the CIA were sponsoring or guiding Oswald’s activities.  Those records probably will not show a direct connection to the actual assassination operation in Dallas–but do they even need to at this point?  We already know that the Joint Chiefs and the CIA-Mafia apparatus were itching to use a “Northwoods” type event to spark an invasion of Cuba.  The intelligence operations connected to Oswald in New Orleans and Mexico City were probably the final piece to that plan.  Regardless, it is time to let the records, already reviewed with scrutiny by the ARRB in the 1990’s, speak for themselves. 

  • JFK Records Release: Trump at it Again, Is he For Real This Time?

    JFK Records Release: Trump at it Again, Is he For Real This Time?

    The delayed final release of the JFK Assassination records has been well documented on this website. It has been covered by the media when Presidents Trump and Biden have made historical and controversial decisions to continue delay of the release of the final Protected Collection. To best of our knowledge, over 4,600 assassination records are still withheld from the American public or redacted in part.

    Why? The U.S. Government (through the notorious Warren Commission Report) continues to officially maintain that Lee Harvey Oswald assassinated President Kennedy as a “lone nut”. The Warren Report concluded that Jack Ruby assassinated Oswald on his own in a sudden “act of passion”. The Warren Report concluded that there was no evidence that Oswald and Ruby even knew each other.

    In 1979, the House Select Committee on Associations (HSCA) dug further and concluded that Kennedy was “probably” killed in a conspiracy. The HSCA also cleared various services (that the conspiracy did not involve any group like the USSR, or Fidel Castro, Organized Crime, the FBI, the CIA or Secret Service. See Final Report, pp. 1,2). However, the HSCA also found that it could not exclude the possibility that individual members of the national syndicate of organized crime or anti-Castro Cubans were involved in a probable conspiracy to assassinate President Kennedy.

    That is the context for the obvious question: Based on the conclusions of the Warren Commission and the HSCA, why the need for continued secrecy in 2024? In 2024, 60 years have passed since the assassination, and more than 30 years have passed after Congress unanimously passed the JFK Records Collection Act of 1992 (the JFK Records Act). That is another article, and that question more than deserves an answer from the President, Congress and the National Archives and Records Administration (NARA). This article explains what those offices and agencies are in fact doing (and more importantly not doing), why it is wrong, and why it is a direct violation of the JFK Records Act. We will conclude by explaining what can be done going forward to fix the ultimate problem. That problem is continued secrecy regarding the JFK Assassination records.

    I

    It is important to briefly explain the timeline of events since October 26, 2017. Why that date? That was the date established by Congress in 1992 for the mandatory final release of all government records related to the assassination of President John F. Kennedy.

    Why did Congress approve a 25-year release period in 1992, when the assassination occurred almost thirty (30) years prior in 1963? Congress found that specific reasons could warrant delay of release after 1992. And those reasons are very specific. They are listed in the JFK Records Act. Under the JFK Records Act, the President in 2017 was permitted to authorize further delay if (and only if) a specific record met the legal standard for continued withholding. In summary, the reason for delayed release must connect to a threat to current military or intelligence operations, identities of living persons or agents who could likely be harmed by release of a record, current security or protective procedures (i.e. Secret Service procedures), or the conduct of current foreign relations, the disclosure of which would demonstrably impair national security and outweigh the public interest in immediate disclosure.

    As you can see, the prevailing theme and standard used by Congress was “current”. Meaning in 1992, the reason for delaying the release of an assassination record must then have been a current and specified concern. And that reason must still have been current and a substantial threat to the “national security” of the United States as of October 2017. Otherwise, the President, by October 26, 2017, was required to either release the assassination record(s) in full and without redactions, or certify in writing the specific reason for delay (under the standards of the JFK Act) for each and every record withheld. That presidential certification was to be in an unclassified record and available to the American public. This is what Congress required. There is no reasonable debate on this, regardless of if one still believes the Warren Report or an alternative.

    It is undisputed that President Trump failed to provide a record-by-record certification for delay past October 26, 2017. In reality, Presidents Clinton, Bush (George W.) and Obama also failed to meet that duty under the JFK Records Act. Why? In all likelihood, those presidents did not receive adequate and objective advice from legal counsel on their actual duties under the JFK Act. As explained below, President Trump clearly did not receive objective or timely legal advice on this historical issue. Or the issue was perhaps too controversial for the office of the President when other matters of transparency and “national security” were more pressing in their view. The reason does not matter. The law was clear and the mandate from Congress was clear. The JFK Act was unanimously approved by Congress in 1992. In the JFK Records Act, Congress declared in 1992: “most of the records related to the assassination of John F. Kennedy are almost 30 years old, and only in the rarest of cases is there any legitimate need for continued protection of such records.”

    So what happened on October 26, 2017? We know that Trump intended to authorize the full release of all assassination records that were still withheld at that time. He said so publicly. Instead, at the eleventh hour Trump, by Executive Memorandum, authorized a 6-month delay for agencies to review any remaining withheld records and complete the declassification job. Trump then authorized another 3-year delay, which ultimately transferred responsibility to the Biden administration. Notably, Trump did not attempt to rewrite the law. By all accounts, Trump simply authorized further delay under pressure from government agencies who were determined to keep certain assassination records secret no matter the cost.

    II

    Trump’s Executive Memorandum prompted troubling reactions by Thomas Samoluk and Judge John Tunheim of the Assassination Records Review Board (ARRB). The ARRB was an independent agency established by Congress in the 1992 JFK Records Act, whose sole mission was to ensure declassification under the standards of the JFK Records Act through an accountable and enforceable process.

    Samoluk: “It is really frustrating what has happened. Because the law said that anything that was not released … needed to be released under the law by October 26, 2017. Now there is a clause that says if the president certifies, under certain conditions, that the records would not be released. I don’t think the process under the law was followed. The records have not been released in total, and I don’t think any good reasons have been given.” (James DiEugenio, JFK Revisited, p. 389)

    Judge John Tunheim: “The information (non-declassified documents) was intended to be released in 2017. Only under extreme circumstances was a president in 2017 supposed to continue to protect records. And they didn’t, as near as I can tell, they didn’t provide that certification.” (ibid, pp. 347-48)

    Then, matters got worse. Far worse. In October of 2021, Biden issued an “Executive Memorandum” authorizing another delay until December 15, 2022 for agencies and government offices to make “final decisions” on the release of withheld records. In this Memorandum, Biden empowered agencies to make their own decisions on releasing assassination records generated by their agency. Let that sink in. President Biden told agencies, the very agencies who have maintained secrecy regarding the assassination since 1963, to run the show. To release their records when they felt “comfortable” doing so.

    In June of 2023, President Biden then issued his “Maximum Transparency” Executive Memorandum. Despite the clear mandates imposed by the JFK Records Act to establish an “accountable” and “enforceable” process for full disclosure, and despite the explicit requirement that each withheld assassination record be accounted for with an unclassified identification aid, the President’s June 30, 2023 Memorandum does not identify or account for a single withheld assassination record. Biden’s “Transparency Plans” – originated by the CIA – are the opposite of transparency. It is government secrecy in its most egregious form.

    The illegality of Biden’s orders (not approved by Congress or NARA, that we know of) cannot be understated. It was a presidential attempt (unwittingly or not) to destroy the purposes of the JFK Act – a law that Biden voted in favor of when he was a senator in 1992. Trump’s orders were also in violation of the JFK Act. Biden’s were even worse – telling agencies that they could make their own declassification decisions. If this does not ensure continued secrecy, it is difficult to imagine what could.

    III

    So, here we are in the summer of 2024. To our knowledge, the agencies with this unsubstantiated “power” have done nothing. Congressional oversight committees are undoubtedly aware of this historical declassification issue, or at least they should be. To date, oversight committees have done nothing about the fact that the Office of the President has unilaterally and illegally rewrote the law with a presidential pen. They have done nothing about the fact that the President has seized control over their own Congressional records. It is critical to note that Congressional oversight committees (both House and Senate) have express legal authority under the JFK Records Act to ensure complete declassification under the standards and timeline of the JFK Records Act. In other words, when the ARRB finished its original mandate in 1998, Congressional oversight committees had the authority and duty to take whatever action necessary to ensure that agencies and government offices complied with the JFK Records Act. A historical law that was intended to restore faith in government transparency.

    This author personally attended a meeting of the Public Interest Declassification Board (PIDB) in June 2021. According to NARA’s website, the purpose of the PIDB is to advise the President regarding issues pertaining to national classification and declassification policy. The PIDB’s mandate is to promote “the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” Further, the PIDB was established by Congress to advise the President and other executive branch officials on the “identification, collection, review for declassification, and release of declassified records and materials of archival value.”

    On the June 2021 meeting agenda (of the PIDB) with respect to JFK assassination records was a) Potential John F. Kennedy Assassination Records Collection records review; b) Increase public awareness; and c) Congressional engagement. Despite an apparent attempt by the PIDB to recognize this problem, Congressional oversight committees have done nothing. President Biden (assuming he was properly advised by the PIDB) made this historical secrecy issue even worse. Rather than recognizing the critical issue, increasing public awareness and imploring Congress to engage on the issue, the Biden administration issued “Transparency Plans” that put the declassification decisions squarely in the hands of the agencies that have held assassination records close to the vest since the Warren Commission was established immediately after JFK’s assassination.

    Donald Trump Returns

    Those who seek the right to see the remaining “Protected Collection” of JFK assassination records recently learned of some seemingly positive news. Former President Trump (running for election again in November 2024) recently made a pledge on the Fox & Friends Weekend program. Trump was asked what he would do to restore the American people’s trust in government institutions. Trump was asked if he would declassify the withheld JFK assassination records. Trump said he would declassify them and that he already “did a lot of it”.

    Trump’s feelings on the matter when leaving office are also clear. Former Fox commentator Judge Andrew Napolitano was a frequent advisor to Trump during his presidency. When discussing “unfinished business” in his presidency, Judge Napolitano reminded Trump about his unfulfilled pledge in 2017 to release the remaining JFK records. Trump said to his friend and advisor Judge Napolitano: “Judge, if they showed you what they showed me, you wouldn’t have released it either.”

    It now appears that Trump was pressured and intimidated in 2017 when he had to make a historical decision on declassification and transparency. If Trump can be intimidated, then what was to stop a lifelong politician and establishment loyalist like Joe Biden? All signs appear to point to Trump’s CIA “advisors” in 2017. Tucker Carlson reported on this, before he was fired by Fox News soon thereafter.

    Is there a Path to Success in Declassification of the JFK Records?

    We have summarized the developments in this matter since 2017, starting with Trump’s first postponement decision. A lawsuit was filed in 2022 by the Mary Ferrell Foundation to enforce the JFK Records Act, but predictably the DOJ’s lawyers have strenuously defended that legal effort.

    So what is a different path to achieving full transparency and declassification on the JFK records? The path is clear and actually quite simple. It does not matter which President takes this path. It could be Trump, Biden or another candidate running in 2024. It would be more difficult for Biden because he would literally have to do a full pivot, reverse his recent Executive orders, come up with plausible reasons for doing so, and then instruct agencies (and his own Executive team) to follow the JFK Act and be accountable for that task. Trump’s path is difficult but less difficult, and I will explain why. Any President, however, can successfully overcome the continued disturbing trend of secrecy regarding the JFK assassination records, and look like a strong and decisive U.S. President while doing so.

    If Trump is elected again, he can explain what he experienced in October 2017. He can explain what he told Judge Andrew Napolitano and why. He can explain why felt that he had no choice under last minute pressure from agencies in October 2017 (and again in 2018), including pressure from the CIA.

    During this upcoming campaign Trump can explain how he received faulty legal advice from the DOJ’s Office of Legal Counsel at the eleventh hour in making his decisions on the JFK Records, which he did. Trump can obtain an objective and clinical legal analysis demonstrating how the JFK Records Act was intended (by Congress) to operate. Trump can declare with confidence, after receiving competent and objective legal counsel, that the JFK Act was NOT intended for the President–30 years after the passage of the JFK Act–to rewrite the law with a presidential pen. Trump would surely attempt to embarrass Biden regarding his more recent orders, but the issue does not change.

    Trump can acknowledge and endorse the recent Tucker Carlson reporting. Trump can pledge to rescind and reverse ALL of Biden’s executive orders on this historical issue. Trump can pledge to issue a new executive order requiring all agencies and NARA to immediately comply with provisions of the JFK Records Act that require an unclassified identification of each assassination record still withheld and why each record should still be withheld today under the standards of the JFK Act. Trump can establish a reasonable deadline for agencies and NARA to complete this ministerial work for the remaining Protected Collection. It could be 6 months, it could be 9 months. But no more arbitrary extensions or delays. Trump could then make a final and independent Presidential decision after receiving this required information from the agencies. And that decision must relate to an identifiable harm as currently posed by a specific record(s).

    What else could Trump do? He could acknowledge Jefferson Morley’s efforts and the serious problem with George Joannides. It is now undisputed that Joannides ran a CIA anti-Castro operation that was connected to Lee Harvey Oswald. It is now clear that Joannides stonewalled the HSCA in a clandestine CIA operation determined to maintain secrecy on the CIA anti-Castro operations, no matter the cost. Trump may not go there, but the history on Joannides is clearly one of the reasons why the CIA is determined to maintain secrecy in the remaining Protected Collection.

    IV

    What about Congress? They also cannot keep hiding on this issue. Imagine the breath of fresh air in the House if instead of pursuing an impeachment that will not happen, Rep. James Comer actually called the National Archives and John Tunheim and Jeff Morley to testify about why the JFK Records are still classified? That committee is controlled by the Democrats in the senate, chairman Gary Peters of Michigan. Peters could call both Trump and independent candidate Robert Kennedy Jr. They could suggest—particularly the latter—that Congress immediately establish a new ARRB to enforce the standing requirements of the JFK Act. As events have unfolded, NARA and the intelligence agencies have proved inadequate or unwilling to do the job. At this date, there needs to be a plan to guarantee accountability and enforcement. The new ARRB would locate all the crucial Final Determination Forms (originated by the first ARRB) for remaining withheld records, make INDEPENDENT final determinations (as of 2024), and provide a report to Trump or Kennedy so they can make reliable and independent decisions on his presidential certifications for complete declassification. Both men can use this during the remaining days of the campaign. What is to stop them What is to stop both men from taking these steps supported by the actual law? Would that not resonate with the public a heck of a lot more than Hunter Biden’s drug addiction? Trump and Kennedy could contrast this plan with Biden’s rewrite of the JFK Act. For once a presidential candidate could promise to do something right about the JFK records.

    If Biden is Re-Elected

    Once placed on the defensive, President Biden can take the same steps that Trump could take. However, that would require him to acknowledge that Trump made rushed decisions with pressure from agencies. It would require Biden to recognize that Trump received faulty DOJ legal advice that was aimed at delay and delay only. That his (Biden’s) team has done more legal research and now recognizes how the JFK Records Act is actually supposed to work. Biden would have to rescind and reverse his executive orders and his “Transparency Plans” and somehow explain that they were issued in good faith but they now need a substantial overhaul. That is a tall task, especially with an opponent like Trump. However, the public should eventually appreciate the transparency and a serious effort to do the job correctly.

    To be clear, this article is not an endorsement of any candidate for the Office of the President. We have done our best to report the actual record and the issues currently at hand. The Independent, Republican or the Democratic nominee can pledge to follow the JFK Records Act and get this done. Lay out an actual plan, and a clear path as suggested above.

    V

    If Robert F. Kennedy, Jr. was elected and took a similar path, he would also be following the law and erasing the history of secrecy regarding the JFK Records. He is on record that he plans to do so. On the 60th anniversary of JFK’s assassination (November 2023), RFK Jr. petitioned President Biden to release all government records concerning the assassination of his uncle. RFK Jr.’s position is squarely in line with the language and intent of the JFK Records Act of 1992. In his petition, RFK Jr. states: “The 1992 Kennedy Records Assassination Act mandated the release of all records related to the JFK assassination by 2017. Trump refused to do it. Biden refused to do it. What is so embarrassing that they’re afraid to show the American public 60 years later?” RFK Jr. simply called upon Biden to obey the JFK Act and release all assassination records to the public. The petition received more than 20,000 signatures.

    President Seizing Control Over Congressional Records

    What Trump and Biden may not know is that they have repeatedly and illegally assumed control over “non-executive branch” assassination records. These records include House and Senate records, largely originating from the House Select Committee on Assassinations (HSCA) and the Senate’s Church Committee. Congress was very careful in drafting the JFK Records Act to not yield any authority (to the President) over non-executive branch records. Section 9(d)(1) of the JFK Records Act explicitly limits presidential authority to classification decisions on executive branch records only.

    What impact does this have on the current state of the JFK assassination records still held secret in the Protected Collection? It means that any Presidential postponement of a non-executive branch record is unlawful and that by law, every single record that originated from the HSCA and the Church Committee in the 1970’s should have been fully publicly disclosed on October 26, 2017. No questions asked. No Presidential discretion.

    When Trump and Biden made their postponement decisions, Congress should have stepped in to protect their authority over their own records and processes. To date, Congress has failed to schedule any oversight hearing or call on any official to account for non-compliance under the JFK Records Act. These officials would include NARA, intelligence agencies and of course the Executive Office of the President. As mentioned before, both ARRB Chair Tunheim and Tom Samoluk, his deputy, are on record as strongly disagreeing with the stonewalling.

    The next President can simply implore Congress to unite on this historical transparency issue and take control of its own records. To follow the language and intent of the law that it passed unanimously in 1992 to ensure proper declassification and transparency. To reconvene and appoint a new independent ARRB to do the exact job it was empowered to do under the JFK Act. A job that it did well during its life span from 1994 to 1998. The ARRB simply did not have enough time, partly because of limited funding, partly due to resistance from agencies determined to maintain secrecy no matter the cost. If there is an issue for the next President on the question of immediately declassifying the JFK Records, after 61 years it is difficult to imagine what it could be.

    Conclusion

    Over4,600 assassination records are still withheld or redacted in the “Protected” JFK Collection. The President can achieve full declassification without harming any current military defense or intelligence operations. The President can do this without posing a current harm or risk to any living person who was involved in or had confidential information regarding JFK’s assassination. The President can do this job without posing a threat to current foreign relations or policies. And if there are somehow identifiable and legitimate legal reasons for postponement that still exist in 2024, the President can simply follow the law and issue record-specific certifications for each record that could still warrant continued postponement under the standards of the JFK Records Act. It’s that simple. Otherwise, the President (whoever that may be) will have to go to Congress and request that it rescind the JFK Records Act of 1992 and pass a new law that supports the recent trend of secrecy and supports Biden’s “Transparency Plans”. In this authors’ view that would be a direct reversal of the historical JFK Records Act that was intended to ensure declassification through an accountable and enforceable process. It would be fascinating to see how that would be received by the American public and the rest of the world.

    Decisive action and leadership from the President as discussed above would be based purely on the law and the result that the JFK Act was supposed to achieve – to “fully inform the American people about the history surrounding the assassination of President F. Kennedy.” That is a direct quote from Congress in the 1992 JFK Records Act.

    Regardless of how the next President acts on this issue, remember that Congressional oversight committees are not off the hook either. Congress can re-establish control of non-executive branch records related to the JFK assassination and appoint a new ARRB if the President fails to do so. That is a point that should not be ignored. The original act was one passed by congress, with Senator Joe Biden voting for it.

    There is a path for the next President to follow the existing law that governs the declassification of JFK Assassination Records. Otherwise, the President and Congress would need to work together to re-write that law and follow the existing pattern of secrecy. The choice should be easy.

  • The Trump/Napolitano/Carlson Connection on JFK

    The Trump/Napolitano/Carlson Connection on JFK

    The Trump/Napolitano/Carlson Connection on JFK

    Tucker Carlson is an American political commentator and writer who hosted the nightly political show Tucker Carlson Tonight on Fox News from 2016 to 2023. Tucker Carlson Tonight was the third-highest-rated cable news show as of March 2018. After the inauguration of Joe Biden, the show remained the most-watched news-related cable show as of mid-2021. On April 24, 2023, Fox News dismissed Carlson and the executive producer of Tucker Carlson Tonight. Fox did not provide a reason for Carlson’s termination. The rest is speculation.

    What we do know is that Carlson appeared on a Fox News Report on December 15, 2022—a bit over 4 months before he was terminated– to discuss the JFK assassination. The timing was no coincidence. On that same day, Biden issued an “Executive Memorandum” which was the worst Presidential decision to date regarding the JFK records. This is the memo in which Biden introduced his “Transparency Plans” permitting agencies to prepare a “plan” for the “eventual release” of information to ensure that information would continue to be disclosed “over time” as the “identified harm associated with release of the information dissipates.”

    Biden ordered the relevant agencies and NARA to jointly review the remaining withheld records and redactions with a view to “maximizing transparceny” and disclosing all information in records concerning the assassination, “except when the strongest possible reasons counsel otherwise.” As discussed in great detail in Chapter 10 of The JFK Assassination Chokeholds, these new “standards” imposed by Biden are not found anywhere in the JFK Records Act of 1992. Biden effectively empowered the agencies (namely the CIA and FBI) to run the show. NARA is nothing more than a custodian of records under the JFK Records Act and does not have the legal authority that Biden suddenly created. Essentially, Biden’s “executive memorandum” was a green light for agencies to authorize declassification of the remaining JFK assassination records at their discretion.

    Back to December 15, 2022. Tucker Carlson on Tucker Carlson Tonight took an opportunity to make powerful statements about the JFK Assassination. After all, the President once again stalled the release of the remaining assassination records without legal authority. Carlson called it as it was and is. He pointed out that the CIA eventually admitted that it withheld critical information (from the Warren Commission) on its relationship with Oswald. Carlson then talked about the CIA’s withholding of critical information from the House Select Committee on Assassinations in the late 1970’s. This pointed to the obvious inference: that the CIA was involved on some level in the assassination and was making every possible effort since late 1963 to hide its involvement.

    Carlson then moved toward 2017 and discussed “intense pressure” applied by CIA Director Mike Pompeo on Trump regarding the final release of all assassination records. It’s well documented that Trump announced his intention to release all of the records before changing course on the eve of the October 26, 2017 deadline. Carlson then went into how Biden did the same thing. So 60 years later, and after the death of virtually every single person who could have been involved in a plot to kill JFK, or the possible existence of some other archaic intelligence operation that still “warranted secrecy”, two presidents were still being paralyzed by the intel community.

    Carlson then went right to the heart of the matter. He said that his team talked to a source who had access to remaining withheld CIA records and who was deeply familiar with what those documents contained. Tucker’s team asked this source: did the CIA have a hand in the assassination of President Kennedy? The reply from the source: “The answer is yes. I believe they were involved. It’s a whole different country from what we thought it was. It’s all fake. Yes, I believe the CIA was involved in the Kennedy assassination.”

    Carlson then turned his focus to Mike Pompeo, who served as CIA Director in the Trump administration from 2017 to 2018. Pompeo then served as Secretary of State under Trump from 2018 to 2021. Carlson’s team asked Pompeo to appear on the show and comment on this information regarding the CIA’s involvement in the assassination. At that time, Pompeo declined to appear or make any comment.

    The next day (after his December 15, 2022 show), Carlson got a call from Mike Pompeo’s lawyer. He discussed this in an April 20, 2024 appearance on the Joe Rogan Experience. Pompeo’s lawyer reminded Carlson that anyone who reveals the contents of classified documents has committed a crime. Carlson felt that this was an absolute threat, directly from Pompeo’s lawyer. It was obvious to Carlson that Mike Pompeo was the one who pressed Trump to keep the remaining JFK assassination records secret, and he said as much on Rogan’s show. As CIA Director in 2017, at the time of Trump’s critical decision under the JFK Records Act, nobody was in a better position to intimidate Trump. And if Trump can be intimidated, then any President can be. And we saw the same pattern, and even worse, from Joe Biden. Trump delayed the release, without question for a period of three and a half years. Biden then essentially re-wrote the JFK Records Act with his Presidential pen, and to date there have been zero consequences or any response to either man from Congress.

    Trump Discussion with Judge Napolitano

    Judge Andrew Napolitano is a former judge from New Jersey and syndicated columnist. Beginning in 1997, he became an analyst for Fox News. He often spoke with and consulted with President Trump. On March 15, 2024, Judge Napolitano appeared on the Judging Freedom podcast with Professor Jeffrey Sachs. Napolitano detailed his last conversation with Trump while he was in office, only a week or two before Biden’s inauguration. Trump wanted Napolitano’s opinion on the list of people he was going to pardon while still in office. The conversation went “big picture” into things left unfinished during the Trump presidency, and Napolitano reminded Trump of his 2017 promise to release the remaining withheld JFK assassination records. As we know, Trump made this promise publicly through Twitter, and also privately to Napolitano in their frequent conversations.

    This is a record of the conversation according to Judge Napolitano: “I told Trump, ‘you promised you would release the records of the JFK assassination.’ He (Trump) said to me ‘If they showed you what they showed me, you wouldn’t have released it either.’ I said ‘Who’s they? What did they show you?’ Trump said “Judge, someday when we’re not on the phone and (raising his voice) there aren’t 15 people listening to the call, I’ll tell you.’”

    Prof. Jeffrey Sachs replied: “It has been said that after the Kennedy assassination, there has been no president. They have only been factotums of the system since then.”

    Professor Sachs sums it up pretty well. Even a brazen president like Trump could be intimidated to stop in his tracks and follow the direction of agencies and more powerful interests.

  • JFK Assassination Records – A Watershed Moment?

    JFK Assassination Records – A Watershed Moment?

    On October 19, 2022, a lawsuit was filed by the Mary Ferrell Foundation against President Joseph R. Biden and the National Archives and Records Administration (“NARA”) to enforce the John F. Kennedy Assassination Records Collection Act of 1992. The lawsuit seeks to compel the President and NARA to finally perform their duties under the federal law that governs the final declassification of JFK assassination records.

    Some historical context is important. The John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Records Act”) was unanimously passed by Congress in 1992. President Biden, a Senator at the time, voted in favor of the JFK Records Act. The JFK Records Act was unanimously approved by Congress and signed into law by President George H.W. Bush. One can read the JFK Records Act in its entirety by searching “Public Law 102-526, 102d Congress, President John F. Kennedy Assassination Records Collection Act of 1992.”

    The JFK Records Act is extremely favorable to the American public in terms of transparency and declassification of assassination records. On reading the JFK Records Act one does not have to go past the first page of the statute to see what Congress intended and how strong of an impact it was meant to have. For example:

    Section 2(a)(2), JFK Records Act: “all Government records concerning the assassination of President John F. Kennedy should carry a presumption of immediate disclosure, and all records should be eventually disclosed to enable the public to become fully informed about the history surrounding the assassination.”   

    Section 2(a)(3), JFK Records Act: “legislation is necessary to create an enforceable, independent, and accountable process for the public disclosure of such records.”

    Section 2(a)(4), JFK Records Act: “legislation is necessary because congressional records related to the assassination of President John F. Kennedy would not otherwise be subject to public disclosure until at least the year 2029.”

    Section 2(a)(7): “most of the records related to the assassination of President John F. Kennedy are almost 30 years old, and only in the rarest cases is there any legitimate need for continued protection of such records.”

    This is what your Congress declared in 1992, 30 years ago, and with the strongest of language. Congress declared that records pertaining to the JFK assassination had already been unreasonably withheld from the public for 30 years. Even the CIA felt the JFK Records Act was a different breed of declassification law, that had the teeth to go much further than FOIA (Freedom of Information Act) or any previous effort to shed light on deep government secrets. In a 1998 internal CIA Memorandum titled JFK Records Review – Lessons Learned, the CIA stated that, “The level of evidence required by the Board [the Assassination Records Review Board or ARRB] to postpone what was generally considered protectable information was extremely high and usually required documentation of ‘current harm’. Defenses based on general principles such as official cover or sources and methods were not acceptable.”

    The Board closed down in 1998. In 2022, after another 30 years, and in spite of the strongest possible legislation, the President and responsible agencies are still withholding almost 15,000 records that are relevant to the JFK Assassination. Many records are still withheld in full. Others have been “released” with significant redactions. The point of this article is not to analyze which specific records have been withheld in full, which records still have significant redactions, or which records have not been turned over to NARA for inspection and preservation. The point of this article is to explain why legal action was necessary and also unfortunately for the American public, the last and only choice.

    The JFK Records Act established and created the Assassination Records Review Board (ARRB). Upon creation of the JFK Records Act, agencies and government offices were ordered to deliver all assassination records to NARA. An assassination record is defined as any record related to the assassination of President Kennedy that was “created or made available for use by, obtained by, otherwise came into the possession of” (i) the Warren Commission; (ii) the Rockefeller Commission; (iii) the Church Committee; (iv) the Pike Committee; (v) the House Select Committee on Assassinations (HSCA); (vi) any executive agency; and (vii) and other office of the Federal Government, or any state or local law enforcement office that performed work in connection with the federal inquiry in the Kennedy assassination. For anyone looking to understand the full scope of the JFK Records Act and the work of the ARRB, the ARRB’s Final Report is essential reading.

    The above-defined assassination records became known as the JFK Records Collection, or the “Collection”. It was then the job of the ARRB, an independent body, to review the Collection and make legal determinations on which records might still qualify for classification under the standards of the JFK Records Act. What are those standards? For an agency or government office to request continued classification, section 6 of the JFK Records Act put the burden of proof on the objecting agencies. The burden of proof is not on researchers and the American public to demonstrate why an assassination record(s) should be released. For agencies and government offices to make a proper legal case for continued classification and secrecy, they were required to provide the ARRB with clear and convincing evidence that:

    1. the threat to the military defense, intelligence operations, or conduct of foreign relations posed by the public disclosure of the assassination (record) is of such gravity that it outweighs the public interest, and such public disclosure would reveal (i) an intelligence agent whose identify currently requires protection; (ii) an intelligence source or method; or (iii) any other matter currently relating to the military defense or intelligence operations, the disclosure of which would demonstrably impair national security.
    2. the disclosure of the record would reveal the identity of a living person who provided confidential information to the United States;
    3. the disclosure of the record could constitute an unwarranted invasion of privacy;
    4. the disclosure of the record would compromise the existence of a confidentiality agreement between a U.S. government agent and a cooperating individual or foreign government; or
    5. the disclosure would reveal a security or protective procedure currently utilized by the Secret Service or other agency responsible for protecting government officials.[1]

    In other words, an agency still seeking classification (the CIA, FBI or Secret Service, to name a few) were required to provide the ARRB with demonstrably clear and convincing evidence based on the above standards from the JFK Records Act. If they did not, the ARRB had the legal authority to order the declassification of the assassination record. If there was some evidence warranting continued classification, the ARRB issued a final order recommending a date for final declassification. These Final Orders from the ARRB were contained in a form document called a “Final Determination Notification, under its statutory authority. These documents provided the unclassified reasons for postponement for each assassination record that disclosure was postponed in whole or in part, along with the ARRB’s recommended date or triggering event for the release of said record.

    To its credit, the ARRB did a tremendous amount of work from 1994 to 1998, releasing more than 2 million pages of assassination records. In 1998, however, the ARRB’s authority had run its course according to its Congressional mandate and the ARRB was dissolved in late September of that year. NARA, and the American public, were then left with a Collection that still contained tens of thousands of classified records, totaling hundreds of thousands of pages. Agencies were required under the JFK Records Act to perform periodic review pursuant to the recommendations and Final Determinations of the ARRB in order to ensure timely declassification and release of the assassination records.

    What happened after 1998? Virtually nothing. Without the independent ARRB to ensure that agencies and government offices continued their periodic review obligation, it was up to NARA to hope that agencies and government offices would finish the work on declassification. The intent of Congress is that maybe 1% (or less) of the Collection could plausibly still require classification as of 2017. Refer again to the declaration of Congress in the JFK Records Act: “most of the records related to the assassination of President John F. Kennedy are almost 30 years old, and only in the rarest cases is there any legitimate need for continued protection of such records.” That declaration was made in 1992! Reflect on that for a moment.

    October 26, 2017 was in fact the deadline for final declassification. Section 5(g)(2)(d) of the JFK Records Act required the President (Trump at the time) to take specific action to ensure that Congress’s mandate to release all assassination records by the deadline was completed. We are all aware of Trump’s tweets in which he committed to the final release of all assassination records on the eve of this deadline in 2017.

    The President only has power to authorize continued classification of an assassination record if he certifies that “each” specific record continues to pose an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations, as required by the Act; and that such identifiable harm is of such gravity that it outweighs the public interest in disclosure. In other words, the President is required to make decisions with regard to each assassination record under the same constraints and authority as the ARRB. The President was therefore required to finish the ARRB’s job by October 26, 2017, or provide published unclassified reasons, based on clear and convincing evidence for each assassination record withheld under the criteria set out in section 6 of the JFK Records Act, as outlined in detail above.

    What happened instead? President Trump initially issued an order Executive Memorandum on October 26, 2017 delaying the release of assassination records. Plain and simple: This order was illegal and did not comply with the clear standards of the JFK Records Act. Trump’s first order in October 2017 authorized a 6-month delay for agencies and governments to continue their review of assassination records and make recommendations to Trump by April, 2018. Then it got worse. On April 26, 2018, President Trump issued another order Executive Memorandum authorizing another delay of over three (3) years.

    In October of 2021, President Biden declassified about ten per cent of the outstanding documents. He then continued the trend of his predecessor, which is extremely troubling. President Biden issued another order Executive Memorandum giving agencies and government offices until December 15, 2022 to make final decisions on the release of assassination records. Let me say that again. President Biden has now empowered agencies and government offices to make their own decisions on declassification. This is exactly the opposite of how the JFK Records Act was intended to work. Like both of President Trump’s Memoranda, President Biden’s Executive Memorandum is simply unlawful.

    Congress was abundantly clear that the purpose of the JFK Records Act was to publicly disclose all records related to the assassination of President Kennedy through an enforceable process of downgrading and declassification. In all but the “rarest of cases” was any assassination record to be kept secret beyond the final deadline for release on October 26, 2017. It therefore defies both reason and Congress that two Presidents, the Archivist, NARA, and a number of executive agencies have determined that the standards for continuing postponement of the withheld assassination records have somehow become less onerous now after that deadline for release and after 60 years have passed.

    There is no reasonable expectation that President Biden will take appropriate action by December 15, 2022. If anything, he has empowered agencies and government offices to act with more secrecy in regard to the withheld assassination records. Thus the necessity of the legal action.

    The government continues to operate under the findings of the Warren Commission, which is that Lee Harvey Oswald acted alone in the assassination and with no confederates. That Commission also concluded that Jack Ruby assassinated Oswald on his own and with no associates. The House Select Committee on Assassinations (“HSCA”) concluded in 1978 that there was a probable conspiracy in the Kennedy assassination and referred the matter to the U.S. Justice Department for further investigation. However, the Justice Department has done nothing to further investigate the murder of the 35th President of the United States. If Oswald did act alone, or even if he acted with other alleged “pro-Castro sympathizers”, why the continued secrecy? One can only assume that the thousands of withheld records will show a U.S. Intelligence connection to Oswald, which was covered up immediately after the assassination and is still being covered up. That is an article for another day, but it is the only logical conclusion at this time.

    Only time will tell, and hopefully a Court will finally declare that there is no reasonable or legal reason to continue the sixty years of government secrecy.

    _________

    [1] The term “current” is a prevailing theme in section 6 of the JFK Records Act. It is absurd to think that, after what happened to President Kennedy in Dallas, that a current security or protective procedure utilized by the Secret Service in 1963 could be compromised by the release of assassination records. Anyone who has studied this subject is aware that the Secret Service actively destroyed its records pertaining to presidential security in 1963, despite the mandate of the ARRB.

  • Biden Failed to Release a Single JFK Record – What Next?

    Biden Failed to Release a Single JFK Record – What Next?

    On October 26, 2021, President Biden was supposed to authorize the release of the remaining classified JFK assassination records. The classified “JFK Collection” still includes over 15,000 records. Hundreds have never been seen by the American public, while the rest remain in redacted form. Fifty-eight—58—years after the JFK assassination, when the government still relies on its lone gunman narrative, this is what we are facing. The obvious question is: If Lee Harvey Oswald killed President Kennedy, without any confederates, who were part of the U.S. intelligence apparatus, why keep over 15,000 records classified in 2021?

    However, this article is not about a conspiracy. It is about a continuing and flagrant violation of a federal statute that was intended to guarantee transparency regarding the assassination of our 35th president. First, October 26, 2021 was an artificial deadline. The actual deadline for the final release of JFK records was October 26, 2017, as mandated by the John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Act”). In October of 2017, precisely 25 years after the passage of the JFK Act, President Trump was obligated to release the remaining classified records. Trump said he was going to do it.

    However, at the eleventh hour, Trump capitulated to the agencies’ demands for continued postponement—namely, the CIA and FBI. There was no legal authority to do this. By October 26, 2017, President Trump had two options under the JFK Act: 1) Release the remaining classified records in full; or 2) Issue a written certification explaining the reasons for continued postponement, for each record that the agencies wished to withhold. Trump did not exercise either option. Instead, he authorized a 6-month delay for agencies to continue review of the records and report to the National Archivist (NARA). Incredibly, in April of 2018, Trump authorized an additional 3-year period for agencies to do the same job. This was on the heels of a twenty-five (25) year period—1992-2017—for agencies to report to the President on which records should remain classified due to an identifiable harm.

    It makes one wonder: who is really running this country? The President has exclusive authority under the JFK Act to authorize the release of classified JFK Records. In doing so, the President is obligated to explain to the American public, in unclassified form, the specific reasons for a decision on each record. Did either Trump or Biden do that? Not even close. We keep seeing meaningless press releases on why continued postponement is necessary for “national security.” Has Congress done anything? Congress did pass the JFK Act in 1992, almost unanimously. It is a strong law for the American people, and unlike the Freedom of Information Act (FOIA), it is aimed at transparency and putting the burden on the government agencies to prove a case for classification. However, since 1992, Congress has done essentially nothing in the way of oversight, something that Congress has a clear right to do under the JFK Act. What about the courts? That will be the next step, which unfortunately is now necessary. I am working on a lawsuit with a group of lawyers and researchers who are dedicated to compliance with the JFK Act. Our elected officials should be protecting the public interest, but since they are not, the courts will have to get involved.

    So, what did the President do a week ago? It is arguably worse than Trump’s illegal postponement decisions. On October 22, 2021, Biden issued a Memorandum on the “Temporary Certification” regarding disclosure of the JFK Assassination records. Incredibly, Biden has given the agencies even more time. In doing so, President Biden still “assures” the American people that transparency is the goal. We will see. In his memorandum, Biden states: “It is therefore critical to ensure that the United States Government maximizes transparency, disclosing all information in records concerning the assassination, except when the strongest possible reasons counsel otherwise.” Were those reasons disclosed on October 26, 2021, to the American public as required by the JFK Act? No.

    Biden’s memorandum also tells us that the work is being done. Biden states: “since 2018, executive departments and agencies have been reviewing under this statutory standard each redaction they have proposed that would result in the continued postponement in full public disclosure.” Really? For those who are paying attention, after three years, the agencies still have not apprised the President of the reasons for continued postponement. If they have, the reasons for postponement have not been presented to the American public, as required by the JFK Act. The agencies had 25 years following the passage of the JFK Act to get this done. By October 26, 2017, President Trump should have been in a position to either release all records or authorize postponement of a handful of records that arguably could be sensitive to military defense, intelligence operations, law enforcement, or conduct of foreign relations. In 2021, if the final review process really started in 2018, Biden definitely should have been in a position to do the job required by the JFK Act. However, there was no progress. There was no release of a single new document. There was no release of previously withheld documents in unredacted form.

    President Biden then played the COVID-19 card. According to Biden, NARA claimed that it requires “additional time to engage with the agencies and to conduct research within the larger (JFK) collection to maximize the amount of information released.” According to Biden’s memorandum, the Archivist claims that “making these decisions is a matter that requires a professional, scholarly, and orderly process; not decisions or releases made in haste.” Made in haste? The agencies had 25 years to work with NARA on full declassification. Trump then issued an illegal order granting them three more years. And now, almost 30 years after the clear mandate of Congress in the JFK Act, we now need a “scholarly and orderly process” to get the job done, and not to make decisions “in haste”? This is what your government is telling you.

    Biden then goes on to say that he agrees with the Archivist’s recommendations and that “temporary postponement is necessary to protect against identifiable harm to the military defense, intelligence operations, law enforcement, or the conduct of foreign relations that is of such gravity that it outweighs the public interest in immediate disclosure.” That’s nice language, and it comes directly from the JFK Act. The problem is that Biden, like Trump before him, is required under the law to disclose what the identifiable harm is. That identifiable harm is, under the law, supposed to be in a document that is available to the American people and filed in the Federal Register. Instead, the available certifications on particular documents state: “Approved for postponement by the CIA.” Anyone who reads the JFK Act can easily conclude that the CIA does not have this authority. But this is what we face.

    President Biden has approved a “new” release by December 15, 2021, “out of respect for the anniversary of President Kennedy’s assassination” on November 22. What is that release? The approval is for any information currently withheld from public disclosure that agencies have not proposed for continued postponement. Let that sink in. Biden is “instructing” the agencies that they now have to comply with the law, if they feel like it, but not until after November 22.

    In his October 22, 2021 memorandum, President Biden also addresses the records that the agencies still want to withhold. This is where it gets really good. Biden “ordered” an “intensive 1-year review” where agencies “proposing continued postponement and NARA shall conduct an intensive review of each remaining redaction to ensure that the United States Government maximizes transparency, disclosing all information in records concerning the assassination, except when the strongest possible reasons counsel otherwise.” Bear in mind, “strongest possible reasons” is not a legal standard under the JFK Act. Congress in 1992 declared that all assassination records carried a presumption of immediate disclosure. Just like Trump did, Biden is re-writing the law.

    In his memorandum, President Biden does attempt to employ the statutory standards in the JFK Act. Over the 1-year “intensive review” period, agencies are required (by December 15, 2021) to provide an unclassified letter, to be signed by the head of the agency, providing a written description of the reasons for which the agency is proposing continued classification. That’s a start. But that’s what the law has required for 30 years. The problem is that Biden also gave the agencies an option for specifying the release date. Biden’s memorandum allows the agencies to specify a:

    …proposed date identifying for each record when the agency reasonably anticipates that continued postponement of information in such record no longer would be necessary or, if that is not possible, a specific proposed date for each record identifying when the agency would propose to next review again after December 15, 2022…

    After 2022? How many more years will the agencies have to maintain secrecy? Congress already declared in 1992 that all assassination records were to be unclassified except “in the rarest of cases.”

    In a nutshell, Biden’s memorandum simply prolongs a violation of a federal statute that has been treated like an afterthought for well over 20 years. NARA wants these records released, but it does not have any authority under the JFK Act. The President is putting a band aid on the problem by asking NARA to “work” with the agencies. However, the agencies that still seek secrecy are clearly running the show. The Assassination Records Review Board (ARRB), an independent body, had authority in the 1990’s. However, its life span and funding was limited. The solution is simple. Congress needs to act, conduct oversight hearings, and order the formation of a new ARRB that has legal authority to compel the release of records. Your government has told you for nearly 60 years that a lone gunmen killed the President. Yet in 2021 we are still fighting through the declassification process. What does that tell you? One conclusion is that the government obviously had significant ties to Lee Harvey Oswald before the assassination and doesn’t want you to know about it. The other logical conclusion is that the government engaged in a massive cover-up after the assassination and doesn’t want you to know that. By continuing this illegal classification “process”, the government is tacitly admitting to a conspiracy in the murder of President Kennedy and a cover-up after the fact. If that’s not the case, release the records and prove otherwise.

    Please take action and contact your Congressperson to demand oversight. Demand the formation of a new independent body that has authority to make real decisions on the release of assassination records. The President and NARA obviously cannot fix this.

  • Final Deadlines on JFK Records – What is Biden Going to do?

    Final Deadlines on JFK Records – What is Biden Going to do?

    The JFK Assassination Records Collection Act of 1992 (the “JFK Act”) mandated the final release of all assassination records by October 26, 2017. In October of 2017, President Trump publicly committed to authorizing the release of all records, as mandated by the JFK Act. However, on the eve of the October 26, 2017, deadline, President Trump changed course and issued an executive memorandum authorizing an additional delay of six (6) months. We can only assume that agencies protecting these records (namely the CIA and FBI) pressured Trump at the eleventh hour for more time. We will never know exactly what happened. What we do know is that Trump’s executive memorandum was a violation of the JFK Act. At the very least, President Trump was supposed to issue a document that certified the specific reasons for postponement as required by the JFK Act.

    After the six (6) month “extension,” agencies were supposed to provide their final reasons for postponement to the President and the Archivist. Compliance with the JFK Act was to be finally accomplished by April 26, 2018. Inexplicably, President Trump then issued another executive memorandum granting agencies an additional three (3) years to “complete” their review of assassination records. This was on the heels of a twenty-five (25) year mandatory review obligation imposed by the JFK Act and then an additional six (6) month period to complete that review.

    In that same memorandum of April 26, 2018, the President required final action from agencies by April 26, 2021. By that date, the President required that all information on declassification of JFK Records be delivered to the Archivist. That would, according to the executive memorandum, put the Archivist in the position of making final recommendations to President Biden by September 26, 2021. After receiving recommendations from the Archivist, President Biden would then be in an informed position to authorize a final release by October 26, 2021. That was the plan, at least designed by President Trump in 2018 with legal advice from the Office of Legal Counsel.

    What happened instead? We do not know of any action taken by agencies in the three (3) year period between April 2018 and April 2021. We saw no press releases from the Archivist and the President in April 2021 indicating that agencies (protecting these records) did their jobs. We saw no press releases from the Archivist and the President this summer indicating that they were making serious progress, in anticipation of the artificial “deadlines” authorized by President Trump in 2018.

    The Archivist is not to blame here. I sincerely believe that the Archivist wants to see these records released. These records are based on an event that happened in 1963. The problem is that the Archivist is a custodian of records and does not have the authority under the JFK Act to compel the release of assassination records. Only the Assassination Records Review Board (ARRB) had that power under the JFK Act, but unfortunately the ARRB only had authority and funding through 1998.

    Congressional oversight committees had authority to ensure compliance with the JFK Act after the winding-down of the ARRB. Those committees have done nothing that we know of, despite receiving correspondence from lawyers and researchers interested in compliance with the JFK Act. At this stage, President Biden has the authority to ensure compliance. President Biden should no longer entertain continuing and stale requests from agencies to postpone assassination records. In order to do his job under the JFK Act, a federal statute, President Biden needs legitimate and transparent reasons from agencies for continued postponement. If the President receives that information, he can then make an executive decision on continued postponement. If the President authorizes postponement of more records, it must be accompanied by a written and unclassified certification of the reason(s). That is what the JFK Act requires. Vague explanations based on “national security” do not come close to meeting the standards of the JFK Act.

    Congress declared that continued classification of records would be warranted in only “the rarest of circumstances.” That was in 1992, almost 30 years after the assassination. We are now almost 30 years after the passage of the JFK Act, and almost 60 years after the assassination itself.

    I recently signed a letter and legal memorandum to President Biden expressing the importance of this issue. That document can be viewed here. I strongly encourage you to contact the White House with a simple request. Follow the law. Stop the delays based on unfounded (and undisclosed) arguments from agencies that wish to continue hiding these records.

    This effort is not about proving a conspiracy or validating the previous findings of the Warren Commission or House Select Committee on Assassinations. It is about following the law, which was passed by Congress in 1992. It is worth noting that Joe Biden was the Chairman of the Senate Judiciary Committee when the JFK Act was passed by Congress in 1992. The executive branch recently authorized the release of 9/11 records and it has the same chance to earn trust from the American public by authorizing the release of the JFK records. It should not be a difficult decision. It is what the law requires.

  • JFK Assassination Records—The Picture is Getting Clearer

    JFK Assassination Records—The Picture is Getting Clearer

    I have written a series of articles for Kennedys and King  regarding the John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Act”).  The main focus of the previous articles has been the failure of agencies and the Executive Branch to timely release all assassination records by October 26, 2017.  That was the mandated date under the JFK Act for final declassification of all assassination records.  This article will focus on the actual steps taken by agencies and the Executive Branch to delay the process of declassification since 2017. We will also examine what can be done to ensure compliance with the JFK Act at this point in time.

    In recent months, I have been working with a group of skilled lawyers in an effort to determine why, in 2021, the American public still does not have access to tens of thousands assassination records.  Let me say that again.  In 2021, agencies and the Executive Branch are still classifying tens of thousands assassination records: almost 58 years after the Kennedy Assassination.  Even worse, we do not have a valid explanation from the Executive Branch as required by the JFK Act.  We will get back to that point later in the article.

    Brief Early History of the JFK Act and Declassification Efforts

    Congress overwhelmingly passed the JFK Act in October of 1992.  Only one member of Congress did not vote in favor.  The JFK Act required the formation of the Assassination Records Review Board (ARRB): an independent panel of academics, archivists and/or attorneys to begin the declassification process.  In the opening declarations of the JFK Act, Congress made its intent very clear.  Congress stated that all assassination records carried an immediate presumption of disclosure, and that only in the rarest of cases would continued postponement be possibly warranted.  Remember, Congress declared that in 1992, almost 30 years ago.

    The ARRB did a tremendous amount of work between 1994 and 1998.  The result was declassification of thousands of assassination records, which was a significant step for American citizens and researchers who seek to understand the history of the Kennedy Assassination.  It is worth noting that the “Public Interest” was a compelling reason for the creation of the JFK Act.  The JFK Act itself states that the “Public Interest” means the “compelling interest in the prompt public disclosure of assassination records for historical and governmental purposes and for the purpose of fully informing the American people about the history surrounding the assassination of President John F. Kennedy.”

    The ARRB, by Congressional mandate, completed its term by 1998.  Congress then left further declassification efforts in the hands of agencies and the Executive Branch.  That is where we start to see the problem.

    The JFK Act required agencies to engage in a process of “periodic review” after the winding down of the ARRB.  Even if the ARRB had initially determined that an assassination record warranted postponement under the evidentiary standards of the JFK Act, agencies were still required to review those determinations from the 1990’s and “address the public disclosure of additional assassination records.”  The purpose of the “periodic review” by agencies was to continue the downgrade and the declassification of protected assassination records.  Further, for any records initially approved for postponement by the ARRB, agencies were required to deliver to the Archivist (and publish in the Federal Register) an unclassified written description of the reason for continued postponement.

    Brief Explanation of the Mandated Deadline—October 26, 2017

    Agencies and the Executive Branch were given 25 years to complete the declassification process for JFK Records.  As discussed above, this started with disclosures to the ARRB and requests for continued classification.  Then, the agencies had between 1998 and 2017 to complete the declassification process through periodic review and additional disclosures to the Archivist.  As of October 26, 2017, precisely 25 years after the passage of the JFK Act, only the President had authority to postpone the release of certain individual records, based on specific standards in the JFK Act. Specifically, President Trump was required to certify that 1) continued postponement was made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and 2) the identifiable harm was of such gravity that it outweighs the public interest in disclosure. 

    What happened instead?  On October 26, 2017, President Trump authorized a six (6) month “temporary” postponement for government offices and agencies to comply with final disclosure under the JFK Act.   We do not know exactly what President Trump reviewed, or did not review, in terms of actual assassination records that posed an apparent “concern” for agencies.   We do know that President Trump did not issue a record-specific certification for each record that agencies and/or the Executive Branch sought to postpone, as required by the JFK Act. 

    We also now know that a legal rationalization for “temporary postponement” was provided to President Trump on October 26, 2017.  That rationalization was in the form of a legal opinion from Curtis E. Gannon, who was then an Acting Assistant Attorney General in the Office of Legal Counsel. The rationalization proposed, in contravention of the Act, a delay of only “a few months.”  In apparent reliance on the Gannon Memo, President Trump issued an order authorizing a 6-month delay for agencies to complete their review and disclosure obligations and comply with the JFK Act.  As explained in this article, the Gannon Memo does not correctly interpret the JFK Act as written and was, from the outset, clearly designed to justify a certain outcome desired by agencies who wish to continue withholding assassination records from the American public.

    Brief Review of the “Temporary Postponement” Period

    Following the 6-month postponement discussed above, the President should have been in a position to authorize the release of all assassination records. At the very least, the President should have been in a legal position under the JFK Act to certify postponement of a handful of records and with record-specific explanations. That is not what happened. In fact, matters became far worse. On April 26, 2018, President Trump then authorized an additional three year period for agencies to “re-review” withheld assassination records and report to the Archivist on their continued requests for postponement.  In that same executive memorandum of April 2018, President Trump established a new deadline of October 26, 2021 for the Archivist and the President (now President Biden) to make final decisions on the release of assassination records.  Yes, you read that correctly – October 26, 2021.  The 6-month delay, and the multi-year delay, were completely unwarranted under the JFK Act, and mark a clear departure from law.

    It is now clear that President Trump’s decisions in October 2017 and April 2018 were based on the October 26, 2017 Gannon Memo. The Gannon Memo concluded that a delay of a “few months” was warranted based on purported concerns of the Archivist in terms of agencies not following the procedural and evidentiary requirements of the JFK Act.  The Gannon Memo did not, however, discuss the Archivist’s concerns in any detail, nor did the Gannon Memo provide the complete written report or findings of the Archivist.  Regardless, even if the 6-month delay in October 2017 was arguably warranted based on legitimate concerns of the Archivist, there is no legal justification for the President’s decision in April of 2018 for a multi-year postponement of legal obligations under the JFK Act. 

    The Gannon Memo Explored

    Gannon’s analysis is contrary to the provisions of the Act. There is no authority in Section 5 of the JFK Act for a “temporary certification” authorizing postponement.  Section 5(g)(2)(D) of the JFK Act clearly states that all assassination records were to be disclosed in full by October 26, 2017.  The President only had authority to postpone release of records past this date with a written certification “as required by this Act.” 

    The words “as required by this Act,” as cited in Section 5(g)(2)(D) of the Act, are critical to a proper legal interpretation of the JFK Act and explicitly require that Section 5(g)(2)(D) be read in context with the JFK Act as a whole.  Starkly absent from the Gannon Memo is any reference to the applicable provisions in Sections 5, 6, and 9 of the Act, which set forth the specific requirements and standards under which the President may authorize postponement.  Specifically, when the JFK Act was enacted in 1992, each Government office was promptly required to: 1) determine whether its assassination records, and particular information therein, were covered by the standards for postponement of public disclosure; and 2) specify with particularity, in an identification aid, the applicable postponement provision contained in Section 6 of the Act.  An identification aid is a standard form for identifications or findings for use with each assassination record subject to review under the JFK Act.

    In addition to the process referenced in the preceding paragraph, Section 5 of the Act then required a specific reporting action from affected agencies for any continued postponement.  Again, this was required in the early 1990’s. In 2017 and 2018, agencies had no basis to request continued postponement without providing written and unclassified reasons for postponement under the Act.  Specifically, under the agencies’ periodic review obligations, Section 5 of the JFK Act required:

    [A]n unclassified written description of the reason for such continued postponement.  Such description shall be provided to the Archivist and published in the Federal Register upon determination.” 

    In other words, without the unclassified reporting from agencies for each record sought to be postponed, the President was required to release the remainder of the protected JFK collection on October 26, 2017. The “temporary certification” of an unspecified group of records, as recommended by the Gannon Memo, can only be viewed as the Executive Branch acquiescing to last-minute appeals from agencies that did not follow the standards of the JFK Act.

    Gannon Memo Prevents a “Premature” Release Based on a
    “Strong Likelihood of Sensitivities”

    Notwithstanding the clear requirements and procedures set forth in Sections 5, 6 and 9 of the Act, the Gannon Memo, twenty-five (25) years after the creation of the JFK Act, speculated that President Trump was somehow authorized to order a “short-term” postponement necessary to avoid a “premature” release of records.  It was further supposed that said “premature” release would constitute the “identifiable harm” which would satisfy President Trump’s decision under Section 5(g)(2)(D) of the Act—although there is no clear evidence that President Trump was even aware of what specific records were being withheld and what the identifiable harm was with regard to such withheld records.  A vague presumption of a “premature” release is not a specified identifiable harm under the JFK Act. However, that appears to be the legal justification given to President Trump.

    Further, the Gannon memo presupposed a “strong likelihood” that many of the records in question would implicate the kinds of sensitivity about national security, law enforcement, and foreign affairs contemplated by the JFK Act. 

    One searches in vain for any factual or legal basis in the Gannon Memo for such a sweeping presumption. Instead, the unsupported assertion of any such “strong likelihood” that the withheld records pose an identifiable threat stands contrary to both the spirit and letter of the JFK Act.

    The Gannon Memo Creates an Escape

    Finally, and most notably, the Gannon Memo hypothesized that President Trump could satisfy Section 5(g)(2)(D) of the Act by determining that a “group” of records somehow warranted postponement, but that the President was not required to articulate record-specific justifications for further postponement of each individual record.  Again, a proper reading of Sections 5, 6 and 9 of the Act does not support the “temporary postponement” certification for an unspecified “group” of records.

    The JFK Act is void of any authority for a “short-term postponement,” or any postponement at all without the evidentiary findings required by Sections 5, 6 and 9 of the JFK Act.  Agencies had an obligation of periodic review starting with the enactment of the JFK Act in 1992, which “served to downgrade and declassify security classified information.”  By 2017, according to a tacit admission in the Gannon Memo, each record already had gone through “an extensive and individualized multi-year review process to verify that public disclosure would have been harmful in the 1990’s and would continue to be harmful through October 26, 2017.”  The Gannon Memo acknowledges that the ARRB and responsible agencies had already gone through the scrutinizing review process required by the Act, but at the same time the Gannon Memo recommended a “temporary postponement.”  Even worse, President Trump in April of 2018 authorized an additional multi-year extension for final compliance with the Act, relying on the same Gannon Memo.

    The bottom line is that, by October 26, 2017, the Executive Branch should have had at its disposal anything necessary to certify a record-specific postponement based on clear and convincing evidence and unclassified explanations filed in the Federal Register.  Yet, as acknowledged and admitted in the Gannon Memo, there are still approximately 31,000 assassination records (an indeterminable number of pages) withheld in full or in part.  The President has an obligation to either release the JFK assassination records or certify the specific reasons for continued postponement, even if agencies did not fully meet their declassification obligations under Sections 5, 6 and 9 of the JFK Act.  The evidence for postponement is available to the President based on the findings of the ARRB and a 25-year obligation for periodic review by agencies, and the American public is entitled to an unclassified certification for any records that may warrant continued withholding under the standards of the JFK Act.  President Trump, according to the Gannon Memo, had the data necessary in order to issue the proper record-specific certification under Section 5(g)(2)(D) of the JFK Act.  President Biden presumably has access to the same data and the authority to ensure compliance with the Act.

    As of the date of this article, we have not seen anything from the White House or Office of Legal Counsel in terms of resolving the purported “significant concerns” of the Archivist.  Under President Trump’s executive order of April 26, 2018, all agencies were required to report back to the Archivist by April 26, 2021 on their efforts to properly continue declassification of withheld records.  Any such reports’ existence should be a matter of public record. What is of public record, is a letter dated March 26, 2018, from the Archivist, David S. Ferriero, to then President Trump, wherein he clearly stated that, “I further recommend that you only certify further postponements through 26 October 2021, contingent upon any further recommendations for postponement being made in writing, on a document-by-document basis, by 26 April 2021 (to allow sufficient time for review by NARA and consideration by the President).” The Archivist recommended that a postponement certification by the President be contingent on a document-by-document review of a written request.  The Archivist’s statement strongly suggests that he had an interpretation of the Act that departed from the conclusions in the Gannon Memo. The Archivist’s statement is the correct interpretation of the Act.

    If the agencies did not fully or properly perform what was required under the Act, their neglect (whether intentional or not) should not be rewarded with unwarranted postponements.  This in turn places President Biden in the position of having to issue yet another executive order that does not comply with the JFK Act. 

    Crucial Difference between FOIA and JFK Act

    Unlike the Freedom of Information Act (FOIA)—and this is a key point—the burden under the JFK Act is on the government offices and agencies to meet their evidentiary burden on each assassination record before continued classification is legally warranted.  Regardless of the Gannon Memo’s interpretation of the President’s certification authority under Section 5(g)(2)(D) of the Act, the American public is entitled to a record-specific and unclassified explanation of the reasons for postponement under the JFK Act.  A broad and unsubstantiated assumption that the withheld records could contain sensitive information, is contrary to the historical and legal foundation of the JFK Act.  The operative mandate of the JFK Act is that the relevant records are presumed to be declassifiable. 

    The Gannon Memo concludes, however, that President Trump was authorized, under Section 5(g)(2)(D) of the JFK Act, to issue a temporary postponement of a “group” of records without record-specific explanations.  The rationale in the Gannon Memo is that Section 5(g)(2)(D) of the Act is “silent” as to whether the President must make a certification regarding each individual record, or whether he may make a certification applicable to a group of withheld records that raise an unspecified identifiable harm. 

    Again, the rationale in the Gannon Memo fails to account for the entirety of Sections 5, 6 and 9 of the JFK Act.  The entire purpose of the Act is to require declassification and public disclosure of all related assassination records based on specific standards.  Those standards are set forth in Section 6, and the specific statutory reason for postponement must be in unclassified form and available to the American public even if postponement is properly authorized. Section 5(g)(2)(D) of the Act cannot be interpreted in a vacuum, as was attempted in the Gannon Memo.  Doing so would unjustifiably allow the President to authorize postponements in perpetuity based on vague and opaque requests from agencies that seek to maintain secrecy, contrary to the express purpose and provisions of the Act.     

    An example of the crucial difference from FOIA, and an abuse of the JFK Act by agencies, is found in an identification aid discovered by our group of lawyers. This particular record we found listed section 5(g)(2)(D) of the JFK Act as the grounds for postponement. The evidence apparently provided was “Approval by the CIA.” Let that sink in. This is one of the most egregious things I have seen in my research of the JFK Act. What this means is that records have been withheld upon “approval by the CIA.” That is not the legal standard under the JFK Act! Only the ARRB had the legal authority to approve postponements in the 1990’s, and only the President had the authority to approve postponement in October of 2017. And if the President did authorize postponement, such a decision required unclassified written descriptions from the agencies under the JFK Act.

    Continuing Effect of the Gannon Memo

    In the broader scheme of the JFK Act, it would be completely antithetical to the entire purpose of the JFK Act to simply abandon all of the required grounds for postponement under section 6, and the detailed procedural, reporting and transparency requirements under sections 5 and 9 of the Act.  However, that is exactly what the Gannon Memo did.  Such a scheme has encouraged the various agencies to wait out the clock on the release deadlines, and then seek to postpone the release of the records on an ongoing basis for perpetuity. This is what happened at the October 26, 2017 statutory deadline, and also the April 26, 2018 and April 26, 2021 “deadlines” authorized by President Trump. Such actions are in flagrant disregard of the general purposes and the specific procedural requirements of the JFK Act, and contrary to the will of the American people as expressed by Congress when the JFK Act was enacted.

    Conclusions and Remedies

    Congress made its intent very clear in the Declarations of the JFK Act.  Specifically, Congress declared that the “legislation is necessary because Executive Order No. 12356, entitled National Security Information, has eliminated the declassification and downgrading schedules relating to classified information across government and has prevented the timely public disclosure of records relating to the assassination of President John F. Kennedy.”

    Executive Order 12356 was issued by President Ronald Reagan in 1982, in the middle of the Cold War.  Classification levels included “Top Secret” information, “Secret” information, and “Confidential” Information.  Under this Order, the President and agency heads were given classification authority under one or more of these classification levels, all on the grounds of “national security.”  A broad assertion of “national security” is not sufficient for classification under the JFK Act.  In the JFK Act, Congress clearly declared that historical executive orders have prevented the timely disclosure and declassification of assassination records, and that legislative action was required to ensure proper and timely declassification.

    Section 11 of the JFK Act is also crucial for a proper legal review of the President’s obligations under the JFK Act.  Specifically, Section 11(a) of the JFK Act states:

    When this Act requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government.

    In other words, when evaluating the government’s obligations for accounting to the Archivist and disclosing assassination records to the American public, Congress declared that the JFK Act is the law of the United States with only very few and extraordinary circumstances.

    The President can and should meet his legal duty to either 1) release the assassination records in full (now almost 60 years from the date of the assassination), or 2) order agencies to comply with the law and certify continued postponement only in the rarest of cases and based on record-specific findings and the “clear and convincing” evidentiary standard in the JFK Act.  Failure to do so would be an abuse of power and contrary to the intent and clear language in the JFK Act.

    I believe it is appropriate and legally warranted that President Biden rescind any prior executive orders or memoranda issued by President Trump, with respect to the JFK Act, since October 26, 2017. There is clearly a legal basis for rescission of those orders.  Regardless, President Biden should take the appropriate measures to release all assassination records without further delay; or comply with the clear and express language of the JFK Act and issue record-specific and unclassified reasons for continued postponement, based on clear and convincing evidence, as required by the JFK Act.

  • The JFK Records – Will President Biden Obey the Law?

    The JFK Records – Will President Biden Obey the Law?

    If you are interested in the public release of the JFK assassination records, this is a critical point in time. If you have paid a little attention to this subject, the logical questions are: “Weren’t all the JFK records released in 2017 as required by the JFK Records Collection Act?” And, “Why is this a critical point in time?”

    The answer to the first question is that over 15,000 assassination records are still withheld partially or in full by the National Archives. The answer to the second question is that the President, the National Archives, and agencies still withholding these records are facing critical deadlines in 2021.

    You may be asking: “Why is the government facing critical deadlines in 2021, when all records were supposed to be released by 2017?” Here is what happened and I will also explain why the American public should be angry and demand action.

    As I’ve written about previously, the JFK Records Collection Act of 1992 (the “JFK Act”) required the full public disclosure of all assassination records by October 26, 2017. This was not a random deadline. The deadline was precisely twenty-five (25) years following the creation of the JFK Act, which required each assassination record to be publicly disclosed in full by October 26, 2017.

    The only way President Trump could sidestep this complete declassification was through written certification stating that:

    1. continued postponement was necessary because of an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and

    2. the identifiable harm was of such gravity that it outweighed the public interest in full disclosure.

    As investigative journalist Jefferson Morley wrote about last month, some 15,834 assassination-related records are still withheld in full or in part by the Executive Branch and agencies who created these records. You can read Mr. Morley’s excellent article on this subject at the following link: Federal Agencies Face April Deadline on Secret JFK Files (justsecurity.org).

    So, what actually happened in October of 2017? A week before the October 26, 2017 deadline, President Trump tweeted that he was looking forward to the full release of the JFK assassination records and that all records would be released by the deadline. Well, that did not happen. Even worse, Trump and the Executive Branch blatantly violated the JFK Act. On the eve of the deadline, presumably after meeting with CIA Director Mike Pompeo, Trump issued an executive “memorandum” giving the federal agencies another six (6) months to comply with their obligations under the JFK Act. There was no mechanism or authority in the JFK Act for President Trump to do this. To justify postponement past October 26, 2017, Trump was required to issue a written certification explaining, for each and every record, why postponement was proper under the clear standards of the JFK Act. I have written in the past in detail about those clear standards. Essentially, Trump was supposed to explain in writing, for each record, why 1) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and 2) why such identifiable harm is of such gravity that it outweighs the public interest in disclosure.

    Instead, on October 26, 2017, President Trump issued an executive memorandum stating that he had “no choice” but to continue postponement for an additional 180 days because of concerns over “national security, law enforcement and foreign affairs.” Trump, in regards to an assassination that occurred 54 years in the past, asserted that full public disclosure of the JFK Records would allow potentially “irreversible harm” to the Nation’s security. Trump then ordered all agencies to re-review each and every withheld record over that 180-day period and failing a demonstration from the agencies that a record met the standard for proper postponement under the JFK Act, public disclosure would be required for all JFK Records by April 26, 2018.

    A six (6) month delay was frustrating, but seemed reasonable given that the Executive Branch and agencies in charge of these records seemingly did nothing since the winding-up of the Assassination Records Review Board (ARRB) in the 1990’s. So, what happened? On April 26, 2018, based on a recommendation from the (National) Archivist, President Trump issued a second executive memorandum giving agencies an additional three (3) years to review withheld records and make recommendations to the Archivist regarding its intent to postpone disclosure past October 26, 2021. Yes, you read that correctly. October of 2021.

    In that memorandum of April 26, 2018, Trump claimed that all executive departments and agencies had complied with his prior order to review all information within postponed records and inform the Archivist of the specific reason(s) for continued postponement under section 5(g)(2)(D) of the JFK Act. He cites the “identifiable harm” standard from the JFK Act discussed above and then broadly states that he “agreed with the Archivist’s recommendation” that continued postponement is necessary under the standards of the JFK Act. He then ordered agencies again to “re-review” any redactions (in the records) or decisions on complete withholding over the next 3 years. While Trump’s April 26, 2018, statement contained the key “buzz words” in the JFK Act for decisions on postponement, this action again did not come close to meeting the standards of the JFK Act for postponement. By October 26, 2017, at the very latest, all government agencies were required to provide to the Archivist an unclassified “identification aid” stating the specific facts, based on clear and convincing evidence, warranting a legitimate postponement decision. Those facts must deal with a threat to current military or intelligence operations, a current living person or agent who would be at risk from disclosure of records, or other current sources and methods that required legitimate protection in 2018. President Trump essentially let the executive branch and other agencies skip over this critical identification step in the JFK Act, meaning that continued postponement past October 26, 2021 is almost a certainty due to a lack of accountability. Was skipping this step just lethargy, or is it a continued attempt to withhold assassination history from the public? The only way we will know is seeing the records.

    There has been no media attention on the most recent deadline, which was April 26, 2021. In Trump’s April 26, 2018 memorandum, he required each agency (that seeks postponement past October 26, 2021) to identify (to the Archivist) the specific basis for continued postponement under the JFK Act. The Archivist is supposed to make recommendations on continued postponement to President Biden no later than September 26, 2021. Then, President Biden will have 30 days to make final decisions on disclosure by October 26, 2021. This is very interesting because, according to Trump’s memorandum, all agencies had purportedly done their jobs by April 26, 2018, satisfied the Archivist, and then Trump supposedly had agreed with the Archivist’s recommendations on over 15,000 records. If this was the case, why did the agencies get another 3 years to do the same job? And how is the Archivist supposed to do the job by September 26, 2021 without the identification aids from agencies? And how in the world is President Biden supposed to finish the job in 30 days when September 26, 2021 arrives? The simple answer is that the President and the Archivist cannot do their jobs, because the executive branch and other agencies have seemingly ignored the JFK Act and Trump’s executive orders. If they are paying attention to the act and presidential orders, and not ignoring them, the clear reason for inaction is that the agencies don’t want the President, the Archivist, and the American public to know what is in the JFK records.

    If the status quo continues, it is easy to see how the President, the Archivist, and various agencies can keep using their “discretion” to continue these unjustified and illegal delays. They will continue postponement by making it appear that they are complying with the JFK Act, but they are really not. The public is entitled to unclassified and specified written reasons for postponement under specific criteria in the JFK Act. If there are legitimate reasons for postponement under the JFK Act, so be it. The law is the law and it is a very good law in terms of public interest and transparency when it comes to the JFK assassination. This article is not aimed at proving a conspiracy in the assassination. It is simply about compliance with the JFK Act and our government offices and agencies following the law.

    Fortunately, experienced researchers and attorneys are paying attention. Attorney Larry Schnapf has sent a letter and legal memorandum to Rep. Carolyn Maloney, chair of the House Oversight Committee, calling for oversight hearings and enforcement of the JFK Act. That letter can be viewed here: (jfkfacts.org)). I strongly encourage readers of this article to contact these Congressional committees in support of Mr. Schnapf’s excellent and thorough letter. Congressional oversight committees clearly have authority and a duty under the JFK Act to require action from the Executive Branch and government agencies that are withholding these records from the American public. The Public Interest Declassification Board (PIDB), which advises the President on declassification issues, intends to address the status of JFK Act compliance on May 18, 2021. That is a very good development. Hopefully the PIDB will properly advise President Biden on the clear standards of the JFK Act and the need for compliance.

    If Congress and the PIDB do not collectively act on this important issue, there are also legal remedies. I am working with Larry Schnapf and a group of attorneys to develop a plan for private legal action, should that become necessary. Our hope is that there is enough information before Congressional oversight committees and the PIDB, but considering the unjustified and illegal delays we have seen since 2017, there will be a plan in place to get the federal courts involved.

    The one thing I do agree with in Trump’s April 26, 2018, memorandum is the following statement:

    Any agency that seeks further postponement beyond this certification shall take note of the findings of the Act, which state, among other things, that only in the rarest cases is there any legitimate need for continued protection of such records. The need for continued protection can only grow weaker with the passage of time from this congressional finding.

    The President said this in 2018, when Congress had already declared in 1992 that postponement of records should be rare and that clear and convincing evidence was needed to withhold a record from the public.

    We have to remember that two government bodies concluded that Lee Harvey Oswald killed President Kennedy. In 1964, the Warren Commission (WC) concluded that Oswald killed Kennedy on his own and that there was no evidence of a conspiracy. The WC also concluded that there was no connection to the murder of Oswald by Jack Ruby. The House Select Committee on Assassinations (HSCA) also concluded in 1978 that Oswald killed Kennedy, but that there was a probable conspiracy involving two gunmen. The HSCA concluded in its final report that anti-Castro Cuban groups and organized crime, as a group, did not assassinate Kennedy. But the HSCA also concluded that “the available evidence does not preclude” those possibilities. If one or both of these government bodies’ conclusions are correct regarding the JFK assassination, there should have been no legitimate reason for postponing release of records in 1978. In 1992, Congress then declared that protection of JFK Records was legitimate only in the rarest of cases. In 2017 and 2018, it would seem ludicrous for the President and the Archivist to continue to find proper reasons for postponement, especially when you consider the conclusions of the WC and HSCA. Yet, the Executive Branch and agencies got 3 more years to “re-review” the JFK Records. April 26, 2021, has come and gone with no announcement from President Biden or the Archivist confirming that the work has been done by the agencies. Congress has yet to hold any oversight hearings to ensure compliance. Enough is enough, especially after 58 years.