Mary Ferrell Foundation's reply to DOJ

[David Boylan]

Open in app or online Thanks to Bill and Larry for doing this!   The Latest From JFK Facts MFF to DOJ: Biden Doesn't Have 'Unfettered Discretion' Over JFK Files Mary Ferrell Foundation counters government in lawsuit over assassination records JEFFERSON MORLEY MAR 8     SAVE     ▷  LISTEN   The legal battle over still-secret JFK assassination files has been joined On Tuesday, the Mary Ferrell Foundation, sponsor of the largest online collection of JFK assassination records, responded to the U.S. government’s motion to dismiss the foundation’s Oct. 2022 lawsuit, which challenges the Biden administration’s handling of thousands of still-secret CIA records related to the murder of President John F. Kennedy 60 years ago. Mff V Biden Opp Mtd 030723 Filed 1.15MB ∙ PDF File Download “Two Presidents have postponed the release of these decades-old assassination records four times,” declared attorneys Bill Simpich and Larry Schnapf in a 53-page brief. “This track record reinforces doubts that the President is willing to hold accountable the agencies cited in this brief to comply with the Act’s plain language requirements. If the court adopts the cramped interpretation of the Act proffered by the Defendants, Plaintiffs and the American people will have no “enforceable” or “accountable” mechanism to assure full public disclosure. The Biden administration contended in a motion filed last month that the foundation is asking the courts to “second-guess” the president’s “considered conclusions in the areas of foreign affairs, law enforcement and national security.” Doj Motion To Dismiss Mffvbiden 020623 311KB ∙ PDF File Download A limited release of JFK files last December yielded at least one new revelation : the CIA’s Miami station conducted a “fairly massive” investigation of JFK’s assassination and never shared the results with the Warren Commission, the official inquiry which found no governmental wrongdoing in the death of the 35th president. In fact, the Heath memo revealed suspicions of Cuban exile involvement in JFK’s murder were rife within the CIA at time when the White House, the FBI, and mainstream news organizations were insisting a “lone gunman” was responsible. (For more on what the Heath Memo tells us about the causes of November 22, listen here.) Judge Richard Seeborg will hear oral arguments in MFF vs. Biden in San Francisco federal court on April 27. Bill Simpich, attorney for the Mary Ferrell Foundation. ‘Denied in Full’ Among the most sensitive of the files not released under Biden’s December 15 order were dozens of documents about a secret CIA program, code named AMSPELL, that involved accused assassin Lee Harvey Oswald three months before Kennedy was killed. As I reported in an event at the National Press Club in Washington, D.C. in December, the CIA retains 44 documents about AMSPELL case officer George Joannides that have been “denied in full” to the public despite their relevance to the JFK story. These documents concern Joannides’ cover and intelligence methods in November 1963. In a Dec. 2022 letter to President Biden, Judge John Tunheim former chair of the Assassination Records Review Board said the CIA had “deliberately misled” the ARRB about the Joannides file, which said “absolutely needs to be released in full.” In talking points given to selected Washington reporters, the CIA said it is “false” to say the Agency is withholding Joannides files. Share For continuing coverage of the JFK files lawsuit, and to support the Mary Ferrell Foundation, subscribe to JFK Facts today. “… the President does not have unfettered discretion under the JFK Record Act. Given the limited discretion granted the President under the JFK Act, the Defendants’ case law is inapposite. Judicial review is appropriate and necessary to determine if the President has complied with the stringent commands of Congress.”

[Joseph Backes]

Okay, folks learn about Donald R Heath, Jr.  Here - https://en.wikipedia.org/wiki/Donald_R._Heath

Also latest released version of 104-10103-10024 - https://www.maryferrell.org/showDoc.html?docId=223159#relPageId=1

Joe

 

[Joseph Backes]

A video of Donald R Heath, Jr. - Donald R Heath, Jr.

Joe

[Tom Gram]

The response in section B(2) to the defendant's citing Dalton v. Spencer that judicial "review is unavailable when a statute in question commits a decision to the discretion of the President" is pretty interesting, IMO. Dalton v. Spencer basically held that judicial review of the President's decision was not available under the Defense Base Closure and Realignment Act of 1990 because the Act gave the President unfettered power to accept or reject recommendations of a commission on closure of military bases. A suit was filed under the Administrative Procedure Act which contains a clause that "final agency actions" are subject to judicial review. The Supreme Court held that the President's decisions under the DBCRA were not "final agency actions" because the President didn't meet the definition of an agency within the APA and rejected the complaint. 

The current suit is filed under the JFK Act, in which section 11(c) states "Nothing in this Act shall be construed to preclude judicial review...of final actions taken or required to be taken under this Act." However, there appears to be a precedent for rejecting claims for judicial review of Presidential authority even if a literal interpretation of statute clearly allows it. C. & S. Air Lines, Inc. v. Waterman S.S. Corp. (1948) contains the following passages:

This Court long has held that statutes which employ broad terms to confer power of judicial review are not always to be read literally. Where Congress has authorized review of "any order" or used other equally inclusive terms, courts have declined the opportunity to magnify their jurisdiction, by self-denying constructions which do not subject to judicial control orders which, from their nature, from the context of the Act, or from the relation of judicial power to the subject matter, are inappropriate for review... 

...It may be conceded that a literal reading of § 1006 subjects this order to reexamination by the courts. It also appears that the language was deliberately employed by Congress, although nothing indicates that Congress foresaw or intended the consequences ascribed to it by the decision of the Court below...

...The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction. The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. 

Could this same sort of logic being employed to grant the motion to dismiss? I have no idea. This comment is about 90-minutes worth of armchair lawyering and I have no idea what I'm doing. The defendants cite similar statements in caselaw in their argument for no jurisdiction, and it does seem like the courts have generally deferred to the President on issues of national security. Larry and Bill cite the 9th circuit decision on Hawaii v. Trump (2017) as a counterargument to this deference, but the Supreme Court reversed that decision, stating:

Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.

Bill and Larry have a very, very good argument that the President contravened statute by not certifying records on a document-by-document basis, but the potential issue I'm seeing is in the word "certify". The defendants state in the motion to dismiss that:

See JFK Act § 5(g)(2)(D) (requiring all assassination records to be released within 25 years “unless the President certifies” the harms prescribed by the statute). The statute does not require that the President take any particular action under Section 5(g)(2)(D); his decision is entirely discretionary. And if the President does decide to postpone the deadline, the underlying basis for that decision is also left entirely to the President’s discretion. It is for the President to decide, first, whether there is an “identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations,” and, second, if there is such a harm, whether it is of “such gravity that it outweighs the public interest in disclosure.” Id. § 5(g)(2)(D)(i)-(ii). The Act thus confers on the President broad latitude to balance the “harm” he has identified to the specified government interests against the “public interest in disclosure,” and entrusts to his judgment whether the former outweighs the latter. This type of judgment call is a quintessentially discretionary decision.

So basically, the way I'm reading this is that even if the court finds in favor of MFF on the jurisdiction issue and requires Biden to issue a new memo explaining how he complied with section 5(g)(2)(D), he could just publish a list of RIFs with a copy-and-pasted "certification" for each record saying that the identifiable harm is of such gravity that it outweighs public interest in disclosure and that would be the end of it. I hope I'm wrong here, and I'm sure my legal analysis is only a notch or two above that of a goat, but I can't say I'm particularly optimistic after reading all this stuff. 

Edited March 9, 2023 by Tom Gram

[Lawrence Schnapf]

Tom Gram- we have a few more tricks up our sleeve before oral argument. stay tuned :)

[Lawrence Schnapf]

If anyone has requested suspected JFK records from NARA and were told to either use FOIA or got no response, send me a note.

[Michaleen Kilroy]

deleted

Edited March 9, 2023 by Michaleen Kilroy

[Michaleen Kilroy]

13 hours ago, Joseph Backes said:

Okay, folks learn about Donald R Heath, Jr.  Here - https://en.wikipedia.org/wiki/Donald_R._Heath

Also latest released version of 104-10103-10024 - https://www.maryferrell.org/showDoc.html?docId=223159#relPageId=1

Joe

 

So that WP is about his dad, a domino theory guy who helped set up the conditions for US involvement in Vietnam.

Not sure what to make of junior but this statement gave me chills:

The CIA were apparently the original conspiracy theorists. And they waited until everyone who was involved in their investigation is dead to let it be known.

[Benjamin Cole]

20 minutes ago, Michaleen Kilroy said:

So that WP is about his dad, a domino theory guy who helped set up the conditions for US involvement in Vietnam.

Not sure what to make of junior but this statement gave me chills:

The CIA were apparently the original conspiracy theorists. And they waited until everyone who was involved in their investigation is dead to let it be known.

Egads. 

Note that he didn't ask for a few names...he wanted a "list." 

Yes, this could be mere semantics. A list could be three people, say. 

The question seems to presume more than handful....

 

[Michaleen Kilroy]

7 hours ago, Benjamin Cole said:

Egads. 

Note that he didn't ask for a few names...he wanted a "list." 

Yes, this could be mere semantics. A list could be three people, say. 

The question seems to presume more than handful....

 

Yes and the fact they were looking for someone who financed men, guns and cars tells you the CIA thought JFKA took a major operation to pull off - the kind of operation LNutters claim is implausible.

The world’s largest spy agency that spent a lot of its time orchestrating assassinations didn’t buy the LN theory from the start. The past 60 years of the JFKA case has been a sad, sick joke.

What makes it worse? The media will ignore this, too.

Edited March 9, 2023 by Michaleen Kilroy

[Tom Gram]

11 hours ago, Lawrence Schnapf said:

Tom Gram- we have a few more tricks up our sleeve before oral argument. stay tuned

Looking forward to it. Also, I enjoyed your appearance on Robbie Robertson’s show. Here’s a link if anyone’s interested:  

https://open.spotify.com/episode/2v4Azr51jvjUngfhwG0jKm?si=JJZYmvfoTBq_kqTB4P8UmA&app_destination=copy-link

EDIT: embedded vid isn’t showing up for me so here’s actual link instead. 

Edited March 9, 2023 by Tom Gram