Morley Beats the CIA in Ct of Appeals!

[Tim Gratz]

From Prof McAdams, here is an e-mail sent out by Jefferson Morley.

I wanted to let you and the group know that the U.S. Court of Appeals

today reversed Judge Richard Leon's decision to deny release of

records related to George Joannides' service in 1963.

Congratulations and thanks to Jim Lesar. His fine legal work has been

vindicated.

The gist of the appellate court's decision is that the CIA has to

search its operational files for Joannides material and must explain

the absence of the monthly reports on the DRE during the period that

Joannides handled the group in 1962-64.

A key passage:

"The evidence here similarly indicates that there is a factual

question as to whether or not the "missing" monthly reports still

exist. Although the CIA indicates these documents are

responsive, it has provided neither Morley nor the court with an

explanation regarding the reports' whereabouts. Cf. Maynard v.

CIA, 986 F.2d 547, 565 (1st Cir. 1993). On remand the CIA

must supplement its explanation."

The decision, attached, should shed new light on the Joannides file

and the events of 1963.

********************************************************************************

**********************************************

JM deserves great credit for discovering Joannides and as he indicates Jim Lesar deserves great credit for his legal work!

It would not surprise me if the CIA stalls by asking the Supreme Court to grant cert but I would think the Supreme Court would not.

Certainly the CIA's position is not improved by the recent disclosure of its destruction of evidence, a revelation that I am sure shocked most of us that the CIA would so brazenly break the law!

Whether the mainstream media covers this story remains to be seen.

Edited December 8, 2007 by Tim Gratz

[Paul Rigby]

Certainly the CIA's position is not improved by the recent disclosure of its destruction of evidence, a revelation that I am sure shocked most of us that the CIA would so brazenly break the law!

Tim,

I'm impressed with the speed of your recovery; and feel sure many of us will, in the fullness of time, learn to live with the profound shock of it all.

Whether the mainstream media covers this story remains to be seen.

The NYT and Washington Post await guidance - er, from Langley.

[Tim Gratz]

By the way, do you know who recently posted in the Huffington blog about the CIA's destruction of the torture videotapes? Our old friend Gerald Posner. Of course he did join in the group that asked the CIA to release all of the Joannides documents so he is consistent.

I wonder if VB was asked to join the group of authors whose letter was published in the New York Review of Books and declined or if he was not asked because his book was not yet out.

And Paul, you are correct, my shock at the CIA's evidence destruction was only momentary. Perhaps even now the graveyard shift at Langley is busy sanitizing the Joannides records..

Can there be any doubt that Richard Helms is doing cartwheels in his grave?

Edited December 8, 2007 by Tim Gratz

[Tim Gratz]

I forgot to mention that there is another legal manuever the CIA can attempt before an appeal to the Supremes.

It can request a review of the current decision of a three judge panel by the entire members of the DC Court of Appeals. This is called en banc. I suspect the CIA will surely request an en banc review (what does it have to lose?) but I doubt it will be granted.

The CIA's legal staff must be busy these days.

[Michael Hogan]

JM deserves great credit for discovering Joannides and as he indicates Jim Lesar deserves great credit for his legal work!

It would not surprise me if the CIA stalls by asking the Supreme Court to grant cert but I would think the Supreme Court would not.

Certainly the CIA's position is not improved by the recent disclosure of its destruction of evidence, a revelation that I am sure shocked most of us that the CIA would so brazenly break the law!

Whether the mainstream media covers this story remains to be seen.

Jim Lesar is one of the relatively unsung heroes in all of this. Thanks to Tim Gratz for providing information from alt.assassination.jfk.

Surprising that this potentially important development has not received more comments.

http://pacer.cadc.uscourts.gov/docs/common...12/06-5382a.pdf

[William Kelly]

JM deserves great credit for discovering Joannides and as he indicates Jim Lesar deserves great credit for his legal work!

It would not surprise me if the CIA stalls by asking the Supreme Court to grant cert but I would think the Supreme Court would not.

Certainly the CIA's position is not improved by the recent disclosure of its destruction of evidence, a revelation that I am sure shocked most of us that the CIA would so brazenly break the law!

Whether the mainstream media covers this story remains to be seen.

Jim Lesar is one of the relatively unsung heroes in all of this. Thanks to Tim Gratz for providing information from alt.assassination.jfk.

Surprising that this potentially important development has not received more comments.

http://pacer.cadc.uscourts.gov/docs/common...12/06-5382a.pdf

Michael,

It's a legal document that takes a few readings to properly digest.

In addition, I thought it healthy to wait until we hear directly from Jeff Morley and/or Jim Lesar, as such news brought by MciAdams and Gratz has certainly been filtered through murky mediums.

Thank God for small victories, but there's no sense in standing up and cheering for something that should have been released fifteen years ago - and still might not be released if the CIA appeals, which they will probabaly do just to stall even if they don't think they have a shot.

Kudos to Jeff and Jim, but we must now put on a public relations campaign to get the CIA to just come clean and release the records.

Bill Kelly

[Michael Hogan]

Michael,

It's a legal document that takes a few readings to properly digest.

In addition, I thought it healthy to wait until we hear directly from Jeff Morley and/or Jim Lesar, as such news brought by MciAdams and Gratz has certainly been filtered through murky mediums.

Thank God for small victories, but there's no sense in standing up and cheering for something that should have been released fifteen years ago - and still might not be released if the CIA appeals, which they will probabaly do just to stall even if they don't think they have a shot.

Kudos to Jeff and Jim, but we must now put on a public relations campaign to get the CIA to just come clean and release the records.

McAdams and Gratz can't filter that document. It comes directly from the U.S. Court of Appeals, D.C. Circuit.

http://www.cadc.uscourts.gov/internet/home.nsf (See opinions)

I wasn't suggesting standing up and cheering. I simply stated it was a potentially important development, which it is.

It's not clear to me how a public relations campaign (which was attempted in the past) will coerce the Agency to do squat.

I thought it was you that continually impresses the importance and necessity of the judicial system if this case is ever to be solved.

[William Kelly]

Michael,

It's a legal document that takes a few readings to properly digest.

In addition, I thought it healthy to wait until we hear directly from Jeff Morley and/or Jim Lesar, as such news brought by MciAdams and Gratz has certainly been filtered through murky mediums.

Thank God for small victories, but there's no sense in standing up and cheering for something that should have been released fifteen years ago - and still might not be released if the CIA appeals, which they will probabaly do just to stall even if they don't think they have a shot.

Kudos to Jeff and Jim, but we must now put on a public relations campaign to get the CIA to just come clean and release the records.

McAdams and Gratz can't filter that document. It comes directly from the U.S. Court of Appeals, D.C. Circuit.

http://www.cadc.uscourts.gov/internet/home.nsf (See opinions)

HI MICHAEL,

I WASN'T REFERRING TO YOU OR YOUR TIMELY POSTING OF THE LINK TO THE OFFICIAL RECORD, I WAS REFERRING TO GRATZ' CREDITING MCADAMS FOR BREAKING THIS STORY, AND HIS TITLE OF THE THREAD TO 'STAND UP AND CHEER.'

AS YOU CAN SEE, THESE THINGS TAKE YEARS TO PROCESS, AS MORLEY STARTED HIS CASE IN 2003, AND IT SEEMS IT TOOK FOUR TO SIX MONTHS FOR EVERY LEGAL RESPONSE TO KICK IN, AND THE APPEAL OF THIS DECISION WILL ALSO TAKE MONTHS, TAKING US INTO NEXT YEAR.

I THINK A CONCERTED EFFORT TO GET THE CIA TO ACCEPT THIS RULING, SEARCH ITS FILES AND RELEASE ITS RELEVANT RECORDS COULD BE SUCCESSFUL.

OF COURSE THE WHEELS OF JUSTICE GRIND SLOW, UNLESS THERE IS SOMETHING TO PUSH IT ALONG, LIKE A GROUNDSWELL OF PUBLIC INTEREST.

AND IT IS INDEED A SIGNIFICANT EVENT THAT WE SHALL BE EVALUATING MORE CLOSELY IN THE NEXT FEW WEEKS.

AS I SAID, NOW THAT WE'VE HEARD FROM MCADAMS AND GRATZ, BEFORE REACTING LET'S HEAR FROM MORLEY AND LESAR TO SEE WHAT THEY HAVE TO SAY.

BK

I wasn't suggesting standing up and cheering. I simply stated it was a potentially important development, which it is.

It's not clear to me how a public relations campaign (which was attempted in the past) will coerce the Agency to do squat.

I thought it was you that continually impresses the importance and necessity of the judicial system if this case is ever to be solved.

[Tim Gratz]

It is more and more clear that BK has no idea where I am coming from.

With my assistance, Mark Howell publicized the Joannides case and Morley's FOIA legal action in the "Key West Citizen", so the "Key West Citizen" was one of the few newspapers to cover the issue. And of course it was I who posted Mr. Morley's excellent Internet article on the current status of the case.

(In the past, Bill has minimized Morley's work because Morley disagrees with him about Morales and Campbell being in the Ambassador Hotel.)

And Michael is absolutely correct that public attention and focus will have no affect on the CIA. It has not for years, why should it start now? What might affect the CIA is pressure from Congress which is sure to be focused on CIA's destruction of the torture tapes.

And again Bill does not understand the legal process. The CIA actually has three legal options now. (1) It can ask for a rehearing before the three judge panel (it is the decision of the three judge panel whether to grant a rehearing); (2) it can petition the entire D.C. Court of Appeals for a hearing en banc (i.e. before the entire membership of the D.C. Court of Appeals). (3) Finally, either before or after it has taken either or both of these steps it can file a petition with the U.S. Supreme Court for a writ of certiorari, which essentially ASKS the S Court to hear the appeal; the CIA has no absolute right to a hearing before the Supreme Court (unless perhaps there is a special statute of which I am unaware allowing an appeal by a federal agency). The rule is that certiorari is granted if four of the five S Ct Justices request it. All of these steps require permission by the Court, none is given as a matter of right.

In my opinion, looking solely at the law, neither a rehearing, hearing en banc or appeal to the S Ct is LIKELY to be granted. Normally, a decision of the Court of Appeals is the end of it. One qualification is if there is a general issue and there is a "conflict in the circuits" over the issue. A second would be if the matter was of major national importance e.g. the Watergate tapes and the 2000 election issues.

If the CIA DOES comply with the decision, further developments are likely to be VERY interesting. It must be assumed there was a reason the CIA fought disclosure of these documents so long and so hard. It is pointless to speculate what the reason is and it is possible it will even take lengthy review of the documents produced to figure it out. It may be that the documents are significant because they may lead to even more documents that should be produced and the damaging material may be in the second set of documents.

Edited December 8, 2007 by Tim Gratz

[Tim Gratz]

The case was decided by three of the thirteen judges on the DC Court of Appeals.

Judge Henderson is a female judge appointed by GHWB. Judge Rogers is a female judge appointed by President Clinton. Judge Tatel is a male, black and blind judge appointed by Judge Clinton. Aa is to be expected, all have distinguished careers.

Tonight I will read the opinion with care (I have barely looked at it) and for those open enough to trust my judgment offer my opinion on what it means and what will happen next. A quick reading says it was remanded (ie returned) to the Circuit Court Judge with clear instructions on what the judge was to do. More later.

[Tim Gratz]

The opinion certainly contains detailed statutory construction that would be worthwhile to summarize for assassination researchers and the holdings of the Court of Appeal has significance for Congressional statutory review as BK has suggested. I am frankly too tired tonight to summarize all of statutory procedures and loopholes.

But this is an intereting fact. The CIA admitted in the proceeding that there are 1,100 (exactly?) CIA documents in NARA's "protected collection" that will not be released until 2017. 1,100 documents!! Query what agency if any (the ARRB or NARA) reviewed the CIA's determination that such documents should be held in the "protected collection"?

[Tim Gratz]

More tonight but the decision is not as clear cut a victory as I had assumed based on Mr. Morley's e-mail. CIA still has some manuevering room.

[Tim Gratz]

This is somewhat complicated but here we go with the first “step” in looking at the decision of the Court of Appeals. The decision you can see at the PDF is, as I recall, called a “slip opnion”. I will call it a slip opinion in identifying page numbers.

The Morley case was filed as a Freedom of Information Act request for assassination-related files. The Court held that despite the existence of the JFK Act, the CIA properly conceived of Morley’s request as requiring the more conservative disclosure standards of the FOIA than the "more relaxed" standards of the JFK Act. “Morley cannot invoke the Congressional purpose [in passing the JFK Act] . . .on to FOIA requests”, citing a 1996 9th Circuit decision. Slip Opinion at pages 6-7.

In other words, once the ARRB ceased operations in 1998, any FOIA requests would have to meet the more restrictive FOIA standards for disclosure. In a 1995 decision by the same court (the D.C. Court of Appeals) with Mr. Lesar’s organization as plaintiff, the court stated: “There is no evidence that Congress intended that the JFK Act standards be applied to FOIA review of documents involving the Kennedy assassination.” That decision was rendered while ARRB was still in operation. ..

Morley had contended that after the termination of the ARRB, the so-called “MOU” should govern the release of assassination related records. The MOU is the Memorandum of Understanding Regarding Continued Obligations of the CIA under the JFK Act, dated September 30, 1998 and executed by the ARRB, NARA and the CIA.

The Court stated that if Morley wanted to avoid FOIA strictures he would have to follow the enforcement mechanism of the MOU. The Court noted that the MOU “merely provides that the appropriate records shall be released [by the CIA] to NARA.” The Court went on: “If Morley has identified new assassination-related records, then NARA can seek their release pursuant to the MOU.”

I have not of course read the entire MOU. But the Court is stating that Mr. Morley should notify NARA and NARA, not Morley, should seek the documents from the CIA. The Court did not discuss Morley’s judicial remedy if NARA simply refused to act.

Obviously Morley (we) are in this position because the CIA failed to reveal to the HSCA just who Joannides was. If anyone had known who Joannides was while ARRB was still operating, no doubt the ARRB would have vigorously fought for the release of the Joannides documents.

Now I am sure we all agree that when Congress passed the JFK Act in 1992 it did not intend for this morass.

Bill Kelly had asked for Congressional oversight regarding government compliance with the JFK Act. But the Court seems to be saying that after the termination of the ARRB, the provisions of the JFK Act do not apply; instead the provisions of the MOU do.

It seems to me that what might be more important than oversight hearings would be a Congressional determination that after termination of the ARRB, private citizens such as Morley can seek release of assassination-related materials through a FOIA-typre request but the standard for compliance will not be the standards of the FOIA but rather the standards of the JFK Act. A carefully drafted act so specifying could end the morass that now exists. I know that Jim Lesar also suggests that Congress should simply move the final release date of the documents from 2017 to 2008.

Edited December 9, 2007 by Tim Gratz

[Tim Gratz]

The Court then went on to discuss how the FOIA applied to Morley's document requests. It is possible some documents will have to be released even under the provisions of the FOIA but then again maybe not. More on this aspect tonight.

[Tim Gratz]

For reasons that I will develop in this post, the appellate court decision was far from a victory for the forces of truith and justice, although it does at least keep the case open.

I am going to edit this post throughout the night as I work on it. You might want to wait reading it untik I have finished it. I will post right below this sentence, in bold, when it is finished. Thanks!

My summary is complete enough for now. Tomorrow I will try to give a quick summary of the exemptions to disclosure relied upon, in most instances successfully, to refuse document production.

The opinion of the Court of Appeals dealt at length with the adequacy of the CIA's search for Joannides related records. It was in this area that Morley won some victories.

First, the court ruled the CIA must search its operational files for Joannides-related documents.

The CIA did not search its operational files because the CIA Act exempts such files from FOIA disclosures. Morley argued that an exception to that exemption applied, specifically sub-section (3) of section c of Section 431 of Title 50 of the United States Code:

Notwithstanding subsection (a) of this section, exempted operational files shall continue to be subject to search and review for information concerning—

. . .

(3) the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.

The Court determined that the Chuirtch Committee fit into the exception to the exemption of CIA operational files and ruled that on remand to the district court the CIA must search its operational files for Joannides documents. Note however that the search itself does not trigger automatic release of the files so identified.

Second, the court ruled the CIA must search for Joannides files even if it had already turned such files over to NARA.

There is a 1989 U.S. Supreme Court decision that holds that a government agency has wrongfully "withheld" a document under its control when it denies an otherwise valid FOIA request by directing the requester to a "pace outside the agency where the document may be piblicly available." If you want to see the reference to the US Supreme Court case, see the Morley Slip Opinion at Page 13. Despite this clear Supreme Court directive, the CIA refused to search through documents it had turned over to NARA. The Court of Appeals ordered the CIA to conduct such a dearch. If nothing else, the search will held Morley find Joannides files within the numerous NARA records.

Third, as noted in a different thread, the Court of Appeals ordered the CIA to submit a detailed explanation re why the monthly progress reports of the DRE case officer were missing from December of 1962 through April of 1964.

Fourth, the Court of Appeals concluded that the CIA had provided too cursory an explanation of how it conducted its search for Joannides documents and ordered the CIA to "expand the description of the search it conducted.

Fifth the Court of Appeals ruled that the CIA need not identify the statutory exemption under the FOIA for each redaction in a released document. It was adequate if it supplied exemption exceptions applicable to all the redactions in a singe document.

Sixth the court ruled that the district court erred in failing to determine whther there were segments of a withheld document that were "reasonably segregable" and thus producible. The Court of Appeals cited two of its previous rulings in FOIA cases that such a determination MUST be made whenever a court approves a government withholding. So the district court failed to follow the rulings of the D.C. Court of Appeals! (Note such rulings are not binding on other district courts but they are binding on the D.C. district court.)

For tonight I am going tyo simply summarize the court's ruling on the exemptions the CIA proferred for refusing to release documents. The CIA relied on Exemptions 1, 3 and 7(E) of the FOIA. The Court of Appeals AFFIRMED the CIA's release on these exemptions.

The Court of Appeals ruled it had insufficient information to determine if the CIA's reliance on Exemptions 2, 5 and 6 was appropriate. It ordered the CIA to "supplement" its explanation why these exemptions applied.

BOTTOM LINE HERE: IF THE CIA PROVIDES AN EXPLANATION ON THE SEGRABILITY ISSUE AND PROVIDES A BETTER EXPLANATION FOR THREE OF THE STATUTORY EXEMPTIONS ON WHICH IT RELIED, THEN THE CIA HAS ESSENTIALLY WON THE ENTIRE CASE.

Don't stand up and applaud. Sit down and weep.

Edited December 10, 2007 by Tim Gratz