Andrew Iler

From my view at this stage, there would be immense benefit in the JFKA community weighing in on what form of investigation is most legitimate and functional to be put in place to gather and control all the evidence. I don’t think that it is a stretch to say that absolutely no one trusts any agency of the federal government to investigate itself or to be in charge of gathering, analyzing and interpreting evidence. It would make more sense to form something in line with a state grand jury empaneled with members of the public and subpoena powers to form some preliminary findings about what transpired on the 13th, both in regard to SS and local law enforcement conduct and event security planning, as well as the mechanics of the actual shooting. The JFKA community and this forum have unique insight to how badly things can be done from a historical perspective.

Idk Pat, the suppression of what the Bethesda autopsy staff saw and Northwoods are hardly “nothing-burgers”. There has been a weight of evidence that has trickled out in the six decades since Dallas that has been buried by the media (i.e. the Zapruder film, Admiral Burkley’s attempt to testify, etc….) Sure the MSM will attempt to deflect and diminish, but the overwhelming majority of Americans still don’t buy the LN theory. Many many people have not just moved on and continue to believe that November 22, 1963 was a serious turning point for America and for the rest of the world.

So why did NARA, the other agencies, the White House, and all of their respective legal counsel scramble to deal with the then totally “inconsequential” statutory deadline of October 26, 2017? If the Congress intended that the Intelligence Authorization Act was to supersede the JFK Records Act, Congress would have to explicitly enact provisions to make their intention the law. They apparently did not do so.

I think the problem that you have is that the JFK Records Act is on the books and creates a statutory regime over a very specialized area. Clearly Congress understood that the JFK Records Act existed when they passed the Intelligence Authorization Act and there is a presumption that Congress was aware at the time of section 11(a). The rules around the construction of statutes would require Congress to specifically address section 11(a) of the JFK Records Act and either modify the Intelligence Authorization Act to carve out an exception, or clearly state that the newer Act overrides the older Act. I misused “conflict of laws” to make this point.

Going off memory, I believe that it is a conflict of laws principle that the specific controls the general. I’ll try to find some authority.

Matt, are you suggesting that the rules of statutory interpretation support your argument that the legislative history of the Intelligence Authorization Act supersedes the actual clear unambiguous language of section 11(a) of the JFK Records Act? Justice Scalia is rolling in his grave!!

Part of the problem (which Judge Seeborg’s Orders have appeared to identify) is that the plaintiffs have not sufficiently parsed out and defined the precise discreet ministerial duties in the JFK Records Act and the mandated officials’ specific non-compliance with said ministerial duties, so to give Judge Seeborg any legal traction with which to work. In this respect, the pleadings appear to not have sufficiently itemized or enumerated the discreet explicit ministerial duties in the Act that apply to the President and the National Archivist, and the complaint also appears to have inadequately differentiated these very limited ministerial duties from the President’s and National Activist’s (who was not named in the complaint) broader discretionary duties. The sometimes subtle difference between discretionary duties and ministerial duties, in terms of executive branch and presidential administrative actions is the very narrow slice of ground on which this claim might have been successfully fought. However, one must sufficiently plead causes of action before a court can adjudicate them. It seems apparent from Judge Seeborg’s July 2023 Order, that he found no ministerial duties were sufficiently pleaded. “Since none of the actions challenged are ministerial, there is no jurisdiction to grant injunctive or mandamus relief against the President here. Nor do Plaintiffs state a claim for declaratory relief. Because these are failures of law and any amendment would be futile, Counts 1 and 2 are dismissed without leave to amend.” Judge Seeborg has actually been quite permissive in his Orders, in allowing the plaintiffs’ multiple amendments to attempt to remedy the deficiencies in the original complaint. The fact that the complaint has moved forward at all shows that the judge himself has identified that the JFK Act raises some questions about how the executive branch has handled the post October 26, 2017 postponements, and that at least something needs to be sorted out. What particularly stood out for me was Judge Seeborg’s repeated reference to section 9(d)(1), given the fact that this particular provision of the JFK Records Act was not even mentioned in the original complaint or even in the 1st Amended Complaint.

Matt, two of the many problems with your argument are that: 1. General pieces of legislation like the Intelligence Authorization Act (which does not even mention the JFK Records or the JFK Records Act) don’t supersede specialized, narrowly drafted purpose designed legislation like the JFK Records Act without explicitly stating so. 2. Your argument also runs directly up against section 11(a) of the JFK Records Act. SEC. 11. RULES OF CONSTRUCTION. (a) PRECEDENCE OVER OTHER LAW.—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.

Matt, thanks for your responses. Your interpretation is not grammatically correct or correct in relation to the rules of interpretation. You are also attempting to insert words that are simply not in the provision in question. I could see your interpretation having legs if Congress had drafted 5(g)(2)(D) as follows: (D) Each assassination record shall be publicly disclosed in full and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless, as required by this Act, the President certifies that— (i) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and (ii) the identifiable harm is of such gravity that it outweighs the pubUc interest in disclosure. But that is not the way Congress drafted 5(g)(2)(D). Congress drafted 5(g)(2)(D) as follows: (D) Each assassination record shall be publicly disclosed in full, and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless the President certifies, as required by this Act, that— The Act sets out the specific manner in which the President’s certification must be made. Reading the Act as you suggest would create the absurd result of there being a less stringent postponement criteria under section 5(g)(2)(D)… 25 years after the Act was passed by Congress and signed into law by the President, than in the period prior to the statutes enactment. How can this interpretation be read harmoniously with the purposes of section 2 or the repeated mandate throughout the Act to “downgrade and declassify” each record through periodic review? Again, your interpretation would hold that Congress intended for there to be less stringent postponement criteria or in reality no actual postponement criteria after October 26, 2017. Again to come back to section 12(b) and its application to section 6. You have still not reconciled the continuing operability of section 6.

Matt, it must be coincidental that just like Curtis Gannon you attempt to ignore the part of section 5(g)(2)(D) that says “… as required by this Act.” Your underlining everything but the “… as required by this Act” part draws attention to what you want everyone to forget about. More surplusage I guess. Section 5(g)(2)(D) doesn’t override sections 6 or 9(d). That’s exactly why Congress added the “… as required by this Act” part. Section 5(g)(2)(D) is meant to be read harmoniously with the other sections of the Act that deal with the President’s ministerial duties. This should become even more evident when a fair-minded advocate or judge looks at the overarching purposes of the Act set out in section 2, particularly section 2(a)(5) specifically says that the Executive Branch has prevented the timely disclosure of assassination records. You would think that given the explicit purposes and language of the Act and the “as required by this Act” part of 5(g)(2)(D) that Congress was quite clear Your argument also does not address the rule against surplusage or 12(b)’s application to section 6.

The main problem is that no one has confronted the issue regarding section 12(b) of the Act and the continuing operability of section 6 (section 6 is the only legally mandated criteria for postponing the release of assassination records). This all started with the October 26, 2017 “Gannon Memo”, wherein Office of Legal Counsel Curtis Gannon wrote: “In light of section 5(g)(2)(D), the authority to withhold assassination records under section 6 expires on October 26, 2017. At that point, each remaining record "shall be publicly disclosed in full.. unless the President certifies" that continued postponement is necessary to protect against identifiable harm to national security, law enforcement, or foreign affairs, and that the harm outweighs the public interest in disclosure. JFK Act § 5(g)(2)(D).” What followed this legal opinion by Gannon and continues to this day, is the belief that section 6 is no longer operable law. Ok… now read section 12(b). “(b) OTHER PROVISIONS.-The remaining provisions of this Act shall continue in effect until such time as the Archivist certifies to the President and the Congress that all assassination records have been made available to the public in accordance with this Act.” THE REMAINING PROVISIONS (not dealing with appointments to or operations of the ARRB) SHALL CONTINUE IN EFFECT … UNTIL ALL RECORDS HAVE BEEN MADE PUBLIC. So the elephant question in the room is… Does section 6 of the Act have anything to do with the appointments or operation of the ARRB. If the answer is “yes, section 6 deals with appointments and operations of the ARRB”, then section 6 is toast. If the answer is “no…. section 6 has nothing to do with the appointments or operation of the ARRB”, then section 6 continues to be operable law. Very clearly, section 6 makes no mention whatsoever to the ARRB, its appointments or its operations. So what does this mean? It means that Curtis Gannon’s memo was and continues to be wrong. It provided erroneous legal advice to the President, which has directly resulted in both Presidents Trump and Biden failing to apply the statutory postponement criteria to the remaining secretly held records. Some may argue that section 6 does not apply to the President. But this too is incorrect, since section 9(d)(1) of the Act (which grants the President sole and non-delegable authority over the records once the ARRB has issued a Final Determination for a record), states that the President has to apply section 6 criteria to all postponement decisions. Thankfully, even Judge Seeborg breathed life into section 9(d)(1) when he recognized it in his first order as the authorizing provision that grants the President sole and non-delegable authority over the records. The only official with authority to postpone assassination records is now the President. The “Rule Against Surplusage” Canon of Statutory Interpretation states, “If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” If section 6 remains operable law, then if not to the President, to whom does section 6 apply? Put another way, how can section 6 remain operable, yet apply to no official? Have any of the four versions of the complaint made this argument in order to protect the continuing operability of section 6 of the Act? This issue goes directly to any argument that the plaintiffs might have made against President Biden’s transparency plan and his failure to apply the mandated section 6 postponement criteria. Please forgive my ignorance…. (because I’m not an American attorney), but if an argument is not pleaded in a complaint, can it be a live issue for adjudication and can it be an appealable issue? Can a judge decide an issue that is not pleaded in a complaint or in an amended complaint? This is also why obtaining copies of all of the ARRB Final Determination Notices for all postponed records was imperative. It is surprising, shocking even, that no one has filed a FOIA request to obtain copies of all ARRB Final Determination notices for all of the records that continue to be held in the secret segregated collection. There is also another real problem… and that is the fact that NARA, the agencies and the Executive Office of the President have all failed to comply with the JFK Records Act in respect to filing Identification Aids for each assassination record when each postponement decision is made. This makes tracking records, decisions and reasons all but impossible. Sections 5 (periodic review), 6, 9(d)(1) and 12(b) are together the primary sections of the Act that mandate continuing discreet ministerial duties imposed on the President. Section 9(d)(1) is the only section in the JFK Records Act that places an explicit and discreet ministerial duty on the President to: 1. issue an identification aid for each postponed assassination record; 2. only postpone based on section 6 criteria; and 3. provide written unclassified reasons for each record for which public disclosure is postponed. It should also be noted that Judge Seeborg acknowledged the continuing application of section 9(d)(1) of the JFK Records Act, when he found that 9(d)(1) restricted the President’s authority to only Executive Branch Records. It is surprising that I can’t find any mention of section 9(d)(1) in the original complaint and it appears that Judge Seeborg couldn’t identify any allegations that would amount to non-compliance with respect to the President’s ministerial duties either. In his July 14, 2023 Order, he wrote, “Since none of the actions challenged are ministerial, there is no jurisdiction to grant injunctive or mandamus relief against the President here. Nor do Plaintiffs state a claim for declaratory relief. Because these are failures of law and any amendment would be futile, Counts 1 and 2 are dismissed without leave to amend.”

Well Roger, once again you are very presciently jumping the gun by raising the issue of the Archivist not being part of the lawsuit. If you are good moving onto new ground, I think it’s a good time to talk about ministerial duties. I am glad that we’ve resolved the 12(b) issues. 😁

Roger, it is really about the plain meaning of the statutory language of section 12. 12(b) is a plain and simple sunset clause for the remaining provisions of the Act that do not deal with appointments or operations of the ARRB. The legally consequential part of 12(b) however is that all provisions not pertaining to the ARRB’s appointments and operations shall continue to be operable law until the Archivist certifies that all records have been publicly disclosed. Yes, the Archivist cannot shut down the rest of the provisions of the Act and stop the release of the remaining withheld files. I understand your argument. I do not think that this is a hill for you to die upon.

Roger, this is exactly why I stated that we were “jumping the gun”. Without having closely examined the legal principles and underpinnings surrounding how the courts consider and rule on issues involving ministerial duties, it is very easy to make the mistake of conflating agencies, officials and other entities. This examination will require us to go well outside the JFK Records Act. It is not an easy path to take, but to truly understand the legal reasoning behind Judge Seeborg’s decision, it is required.

Roger, the heading of section 12 is, “Termination of Effect of Act”. If you want to argue that obliquely, section 12(b) impacts the job of releasing the records, that is fine. I do not disagree that it is an oblique element of that section. However the primary importance of section 12(b) really is the continuing operability of all other sections of the Act that do not pertain to the operations of or appointments to the ARRB, and in particular, the vitally important continuing operability of the postponement criteria of section 6.