COPA v. DOD

[William Kelly]

When COPA sued the DOD for the Army After Action Reports from Memphis at the time of the MLK assassination, the DOD put up a tremendous legal defense, but then leaked a summary of the AAR to a friendly Memphis media asset, so indirectly COPA got them to spring the leak. COPA lost in appeals court however. I was there when Dan Alcorn made the oral arguments on behalf of COPA pro bono and did a terrific job, himself up against a battery of what I was told were the Justice Departments top legal team (not military lawyers).

Here's part of Phil Melanson's book that deals with this story.

Bill Kelly

bkjfk3@yahoo.com

INTELLIGENCE LOST – From Secrecy Wars by Prof. Phil Melanson, Ph.D. ( p. 153-)

A legal tug-of-war over other King assassination documents continues. On March 21, 1993, the Memphis Commercial Appeal (newspaper) published the findings of its eighteen-month investigation into the presence of Army Intelligence units in Memphis at the time of the shooting. Written by Steve Tomkins, the piece analyzed documents obtained under the FOIA. (24) It revealed that Army Intelligence was indeed present, that it worked closely with the FBI, that it surveilled King, and that Green Berets were dispatched to Memphis and other cities to scout riot-control routes and sniper perches.

These files showed that yet another intelligence organization was added to the Memphis surveillance mix, a conclusion reached not y conspiracy theorizing but by examining federal documents. A Memphis police intelligence squad and “federal agents” (as one police report describes) were around the Lorraine Motel when King was killed there. The federal agents were most likely FBI. There has been speculation (based on CIA files) that the CIA was also present. Now comes evidence that Army Intelligence was on the scene as well, potentially with its own cameras, bugs, and agents. One document had an intriguing reference to a surveillance van parked outside the Lorraine Motel.

On behalf of COPA, a Washington D.C. (citizens watchdog non-profit organization), attorney Dan Alcorn sent a 1997 request letter to the Pentagon for “any and all records related to any surveillance of Dr. Martin Luther King, Jr. during March or April 1968.” Exhibits accompanied the letter from sources showing an Army Intelligence presence in Memphis at the time of the assassination.”

The Pentagon responded that it had no photos or documents – not one. In the intervening years, Alcorn continued to pursue possible files via written exchanges and court petitions and appearances. In another FOIA case, Army Intelligence told a requester that it could find no documents related to the subject. Eight years later, it found 3,000 pages; obviously, its searchers are suspect.

This is the same agency that “routinely” destroyed its file on Lee Harvey Oswald sometime in the 1970s. Alcorn laments that there is no enforcement of the 1968 statute that forbids agencies from destroying any file that is of “historical,” “legal,” or “research” importance and, therefore, no penalty for destruction. A host of reasons exist why a file on King would have historical and research value. Moreover, as Alcorn pointed out in his brief, up until the death of alleged assassin James Earl Ray in 1998, his lawyers had initiated a series of legal actions to which a crime-scene surveillance file would be exceedingly relevant.

Despite all this, the army’s response was that any files on King, if they existed, would have been destroyed in the 1970s (along with all other files on individuals) in the agency’s massive purge of documents. If not destroyed, anything that still existed was allegedly given to the National Archives for preservation and processing. The army was asserting that it kept or had nothing on King. The National Archives informed \Alcorn that it had no army subject file on King. It did, however, find and declassify one army document on King, in response to Alcorn’s request.

The fifty-page, single-spaced “After-Action Report” is a summary of Army Intelligence activities in Memphis from March 28 to April 12, 1968. It shows that the 111th military intelligence unit was in Memphis, as the documents obtained by the Memphis Commercial Appeal indicated. Twelve to sixteen army personnel were there, planning response capabilities for the “civil disorder” associated with King’s visit and with the local strike by garbage workers. This was done as part of project “LANTERN SPIKE,” the army’s 1960’s effort to survril and quell civil unrest.

The report states that the army coordinated its activities with the FBI and “shared all information.” It further says that he Bureau informed them that King was departing Memphis on April 5, via Eastern Airlines. The amount of detail in this summary certainly indicates that either the army surveilled King or it received data from other agencies or both.

The only way to find out would be to see the original items on which this lengthy document was based. There must have been primary-source reports covering this period. They were probably extensive; considering the length of the summary. The King assassination entry reads:

1803 hours. Dr. King was fatally wounded by shots fired from a high-powered rifle with telescopic sights, while he (King) was on the balcony of the Lorraine Motel. The assailant, a white male, sped on foot to an automobile, eluded police cruisers [sic] and escaped without leaving any apparent clues to his identity.

Where did this data come from and what specifics are contained in the original reports on which this “after-action” summary was based? All intelligence and law enforcement summaries vary in their accuracy and scope. Another item states; “2300 hours. Ellis TATE, age 50, was observed behind a liquor store with a rifle in his hands. Police ordered him to drop the weapon. He fried at Patrolman E. T. TREADWAY and Police officers returned fire, wounding TATE several times.” This is clearly based on something more substantive than a headline. The National Archives responded that “any such files would remain with the army.” The army claims that they do not so remain (they were destroyed or given to the Archives). Why did the agency provide the Archives with a summary but destroy or fail to provide the originals?

In 2000 a federal district court judge rejected Alcorn’s argument that the army was failing to disclose its records (Coalition on Political Assassinations v. United States Department of Defense). The government introduced a complex, highly detailed affidavit from Russell A. Nichols, the army’s chief FOIA/Privacy officer. He defended the quality of the search for records, citing various indices, records storage and retrieval processes, and army regulations. The defendant’s lead counsel, U.S. Attorney Wilma A Lewis (working with two assistant U.S. attorneys) asserted:

Plaintiff, however, makes no attempt to show that he search performed was not responsible….Mr. Nichols explains that here is no way to reconstruct what records may have existed such a long time ago, whether they were destroyed, and, if so, how the destruction was authorized. Proving that the army could have, should have, or did keep better track of its files was an uphill battle for Alcorn. He points out that, under federal law, judges are required “to assume government actions are proper unless it is proven otherwise.” (25) He appealed the decision in federal appeals court, asking it to reject the agency’s plea of ignorance and require that it be held accountable for the disposition of its files on King. The government moved for a summary judgment dismissal of Alcorn’s case but it was denied.

Oral arguments and written briefs were scheduled to go to the three-judge appeals court in May, 2001. There were two positive developments for Alcorn’s case. Author Douglas Valentine produced Army Intelligence “unit records” relating to personnel assignments in Memphis at the time of Dr. King’s assassination. The documents had allegedly been furnished to a Memphis reporter by the Pentagon’s Center for Military History, via the army’s public affairs office. This release occurred in 1997 when the FOIA request by COPA was met with the response that nothing could be found. A second indication of the army’s failure to search adequately came in the Justice Department’s 2000 report on new evidentiary developments in the King case. It sated that officials had analyzed Pentagon documents relating to King’s presence in Memphis, some of which were classified. The government argued that such “new” information could not be introduced by Alcorn at the appeals stage, and that COPA should launch a new FOIA request for the “new” documents. Given that there were eighteen months of non-response to COPA’s original request, Alcorn was disinclined to start over. The government also argued that COPA could not prove that the documents it has never seen are responsive to its FOIA request – another legal catch-22 erected by the U.S. attorneys.

Despite COPA’s new discoveries about the existence of documents, it lost the case. On May 25, 2001 the appeals court ruled that the government had “satisfied its obligation under the FOIA to search for records responsive to the appellant’s request”, further, that COPA “had not offered any evidence rebutting the adequacy of the search.” The only legal options remaining for the plaintiff were to file for a rehearing before the appeals court or go to the Supreme Court: Alcorn considered the chances for success exceedingly slim. The legal battle was at an end.