Update on MFF Lawsuit re: JFK Records Act

[Mark Knight]

https://open.substack.com/pub/jfkfacts/p/foundation-contests-the-justice-department?r=elbl1&utm_campaign=post&utm_medium=web

[Mark Knight]

Open in app or online The Latest From JFK Facts Foundation Fights the Justice Department on CIA's JFK 'Transparency' Plan A made-in-Langley scheme tests America’s separation of powers. CHAD NAGLE MAY 3     SHARE   The Mary Ferrell Foundation (MFF) is contesting the CIA’s “Transparency Plan” for JFK assassination documents while the Justice Department defends the scheme which revises how still-classified government records related to the assassination of the 35th president will be made public. The dispute is playing out in federal court in San Francisco, where Chief Judge Richard Seeborg presides over the Foundation’s lawsuit against President Biden and the National Archives (NARA) for failure to enforce the JFK Records Act. The Foundation, sponsor of the largest online collection of JFK assassination records, says the actions of Biden and NARA interfere with “MFF’s core mission” to educate the public about a fateful event in U.S. history. The court will hear oral arguments on June 29. In a brief filed in early March, attorneys for the Foundation called on the court to block implementation of President Biden’s December 2022 memo on JFK assassination files. That memo directs agencies to submit their “Transparency Plans” to the National Declassification Center (NDC) at NARA, and not to the Office of the President. In their 44-page brief, attorneys Bill Simpich and Larry Schnapf say the “Transparency Plans” use non-statutory criteria for postponing release of assassination records, and thus violate the JFK Records Act. “A number of the event-based conditions in the CIA Transparency Plan do not require the agencies to comply with all of the requirements of sections 6(2) and (3). The President also appears to have delegated final postponement decisions to the NDC in contravention of the section 9(d)(1) that the President has the sole and non-delegable authority to make disclosure or postponement decisions.” As previously reported by JFK Facts, the “triggering events” in the “Transparency Plans,” authored by the Central Intelligence Agency and adopted by the other agencies, jettison all time constraints and deadlines that are written into the JFK Records Act, which was passed unanimously by Congress in 1992. In fact, these “transparency plans” look very much like a ploy to free these agencies from their obligations under the 1992 law. “The President authorized the government offices to issue Transparency Plans” for determining when assassination records may be publicly disclosed, the Foundation notes, arguing that he has “no right” to do so. “The Act does not authorize these plans, and in some cases the scheme would allow records to remain withheld as late as 2042 or longer, decades beyond the 2017 sunset clause built into the Act.” The JFK Records Act, the Foundation adds, “does not authorize government offices to make the final determination of assassination records.” The President, in the Foundation’s view, cannot simply delegate the duties of his office to the NDC to get the matter “off his hands” (and off the hands of his successors) indefinitely (or forever). The Act, says the Foundation brief, requires agencies to show by “clear and convincing evidence” that the “identifiable harm” from disclosure is of “such gravity that it outweighs the public interest.” It is “the President himself” – and no other agency – who is required by law to certify that the agencies have done so. To do that, the President must examine each record, not rubber-stamp agency recommendations. DOJ Replies In papers filed on March 21, the Justice Department doubled down on the argument that the Foundation has no right to sue “the President himself,” only “the President’s subordinates” [emphasis in original]. By “subordinates,” the Justice Department means executive-branch agencies. The Office of the President, the government asserts in its brief, is exempt or immune from legal action, because that office is not an “agency” at all. This attempt to “cordon off” the Presidency creates an institutional barrier to judicial or legislative review of presidential actions related to JFK’s assassination, and it does so in contravention of the law itself. The JFK Records Act explicitly encompasses all executive branch agencies. The law defines “executive agency” as “any Executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government, including the Executive Office of the President [emphasis added], or any regulatory agency.” The Act does not exempt the Presidency in any way. The government’s argument for a special exemption for the Executive Office of the President thus corrupts the principle of three coequal branches of government under the Constitution by arguing that the judicial branch cannot hold the executive to account. A Remedial Law On April 21, the Foundation and two plaintiffs jointly filed an amended complaint, reiterating the core of the case against the government. The President has exceeded his authority in issuing the Biden Memoranda, which are ultra vires – or outside the constraints of the JFK Records Act – and therefore void. The “Transparency Plans” do not comply with the requirements of the Act, and NARA’s approval of them is “arbitrary and capricious,” the Foundation said, because it circumvents the mandatory, non-discretionary and ministerial duty of the President to review assassination records. The Foundation notes that the JFK Act charges the President with ensuring that agencies and custodians of such records establish by “clear and convincing evidence” that the “identifiable harm” to national security outweighs the public interest in disclosure. Under the “Transparency Plans,” the President simply has no such role to fulfill. The government’s argument that the President is “above the law” with regard to declassification flouts an ancient principle of the Anglo-American legal system that has long been recognized, namely, the canon of “remedial law.” The JFK Records Act is what is known as a “remedial statute,” and such a law “should be liberally construed to effectuate the beneficial purpose for which is was enacted by Congress.” “This canon grew from the ‘mischief rule’ that calls on courts to identify the mischiefs and defects that the legislature identified when it enacted legislation, and then construe the statute in a manner that would suppress the mischief and advance the remedy.” The JFK Records Act was designed to remedy the problem of government secrecy, and in fact the ARRB described it as a “unique solution” in that regard. The problem was that 30 years of government secrecy concerning the assassination of President Kennedy had led the American public to believe that the government was hiding something. The solution (or “remedy”) was the JFK Records Act. DOJ Replies Again On May 1, 2023, the Department of Justice - on behalf of the President and NARA - filed its second “reply brief.” This brief repeats the government’s argument that the JFK Records Act imposes no duty on NARA to fulfill the responsibilities of the Assassination Records Review Board (ARRB). In this argument, the remedial purposes of the law play no role. The government’s case depends on ignoring the history of the law. The JFK Records Act created the ARRB as a “statutory agency” to lead document declassification and the formation of the JFK Collection, to be housed at NARA. After the ARRB’s term expired, NARA was made the “successor in function” of the ARRB under federal law. The government’s lawyers avoid this reality even though it is written into law. Members of the Assassination Records Review Board (ARRB) with President Clinton in 1998. NARA is the successor in function of the ARRB under federal law. The Code of Federal Regulations (CFR) is the codification of general and permanent rules under which agencies of the federal government, including NARA, must act. The CFR, as it pertains to the JFK Records Act and ARRB, reads in part: “NARA continues to maintain and supplement the collection under the provisions of the Act. NARA is, therefore, the successor in function to this defunct independent agency [ARRB]. The Review Board issued regulations at 36 CFR chapter XIV providing guidance on the Act (part 1400) on June 28, 1995. In this final rule we are transferring those regulations without substantive change to a new 36 CFR part 1290 in new subchapter H. Agencies continue to identify records that may qualify as assassination records and need to have this guidance available.” The Department of Justice neatly avoids this provision of federal law, whereby NARA (an executive-branch agency) is to assume the duties of the ARRB (an independent statutory agency) to assist researchers of JFK’s assassination. The Foundation has argued that NARA has shown itself unable to act as a truly “independent agency” vis-a-vis other executive-branch agencies, and thus cannot (or will not) carry out the functions of the JFK Review Board. Banana Republic? The bureaucratic machinations of the White House, the CIA, and NARA exemplify the opacity and non-accountability typical of banana-republic dictatorships, tin-pot absolute monarchies and other tyrannies from history. It makes a mockery of the very concept of “national security” as well. No nation can be truly secure without trust in its public institutions. By attempting to bury and abandon a law passed unanimously by the people’s elected representatives, then sidelining even the President – the only democratically elected official directly involved in the declassification process under the JFK Records Act – executive-branch agencies are subverting the constitutional order and sowing further mistrust. JFK Facts is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

[Benjamin Cole]

Chilling.

The CIA, AG Merrick Garland and President Biden have done a snuff job on the JFK Records Act. 

With media complicity. 

[Matt Allison]

58 minutes ago, Benjamin Cole said:

President Biden have done a snuff job on the JFK Records Act. 

Ben- do you have any evidence Joe Biden has taken part in any of what is described above?

[Guest]

25 minutes ago, Matt Allison said:

Ben- do you have any evidence Joe Biden has taken part in any of what is described above?

Isn’t he the chief executive officer in this do called democracy, Matt? Or, are you positing ‘diminished responsibility’ due to cognitive degeneration? 
 

Interested in your views... 

[Paul Brancato]

47 minutes ago, Matt Allison said:

Ben- do you have any evidence Joe Biden has taken part in any of what is described above?

What? He is the President, and it’s in his name. You’d rather think it’s behind the scenes and he doesn’t know about it? Ok - maybe that’s even worse. Are you a Biden fan? Or just worried about the alternatives? Clarence Thomas? 2003 authorization for the Iraq war? Opening up the Alaskan wilderness to oil drilling? Can’t we do better? 

[Mark Knight]

57 minutes ago, Paul Brancato said:

What? He is the President, and it’s in his name. You’d rather think it’s behind the scenes and he doesn’t know about it? Ok - maybe that’s even worse. Are you a Biden fan? Or just worried about the alternatives? Clarence Thomas? 2003 authorization for the Iraq war? Opening up the Alaskan wilderness to oil drilling? Can’t we do better? 

Presidents have advisors. So who is advising Biden to follow this course of action? I've never thought of Biden as a Langley fan, but only because I never thought about it until recently.

 

[David Josephs]

11 minutes ago, Mark Knight said:

Presidents have advisors.

One would have to think that this JFKA stuff was not a main priority for Biden...  Not trying to protect Trump, Stephen Miller the "advisor" was the spearhead on many of the most egregious activities in his administration... with or without DT's awareness...  may be a handful of plutocrats most affected by these document releases are "doing" first and "advising" later?

60 years and same as it every was...

[Mark Knight]

2 minutes ago, David Josephs said:

One would have to think that this JFKA stuff was not a main priority for Biden...  Not trying to protect Trump, Stephen Miller the "advisor" was the spearhead on many of the most egregious activities in his administration... with or without DT's awareness...  may be a handful of plutocrats most affected by these document releases are "doing" first and "advising" later?

60 years and same as it every was...

I agree.

JFK's "advisors" would've turned the Cuban Missile Crisis into WWIII had JFK not followed his own path. Thirteen months later, he was dead.

Is this the leverage being used on Biden? Was it used on Trump? Likely we'll never know the full truth.

 

[Guest]

3 minutes ago, Mark Knight said:

I agree.

JFK's "advisors" would've turned the Cuban Missile Crisis into WWIII had JFK not followed his own path. Thirteen months later, he was dead.

Is this the leverage being used on Biden? Was it used on Trump? Likely we'll never know the full truth.

 

This will sound cynical but, I’d assume that both Trump and Biden are compromised on some level. And that security agencies keep Hoover-esque files and leverage when necessary. I would expect both to be over a barrel and in a difficult position. I could be wrong. 🤷‍♂️ 

[Benjamin Cole]

Biden is the chief executive, and elected.

While we cannot reasonably hold Biden directly responsible for every decision made anywhere in the vast federal bureaucracy---what sort of wheat quotas are allowed in Kansas this quarter, or whether Joe Smith gets the Social Security benefits he wants---Biden can be assumed to be following the advice or lead of AG Merrick Garland and the CIA in the case of the JFKA Records Act. 

If Biden is bucking the advice of the CIA and the AG---that is, they say "go for full JFK Records release," and Biden says "No way," that is even worse. 

I think, as voter-citizens, we are being fair to hold Biden and Garland responsible for a snuff job on the JFK Records Act. 

If Biden and Garland are not responsible...then what are elections and government? Who is responsible? No one? 

 

 

 

Edited May 4, 2023 by Benjamin Cole

[Benjamin Cole]

Add on:

Sometimes we hear, even in this forum, that "no one cares about the JFK records." 

On some levels, that is true. 

On other levels, the M$M can fabricate and inflame any issue they want.

The media can make race and trans issues the headlines, or Pentagon waste.  BTW, you never read about Pentagon waste anymore, or even about trillions of unaccounted for expenditures. 

A responsible media would have a modicum of sustained coverage of the JFK Records Act. A few M$M'ers could make the JFK Records a cause celebre. 

Instead the M$M feeds the public a string of inflammatory narratives on everything from abortion, to gun rights, pending civil wars, to race relations, to fat rights, to gay rights, to certain foreign enemies. The blue-red pissing wars. Some participants, even in this forum, wallow in these useless diversions. 

So AG Garland and Biden can do a snuff job in the JFK Records Act, while the public fumes about trans bathrooms and athletes. 

There you have it. 

[David Josephs]

1 minute ago, Benjamin Cole said:

So AG Garland and Biden can do a snuff job in the JFK Records Act, while the public fumes about trans bathrooms and athletes. 

There you have it. 

The disenfranchised citizen has finally learned that there is simply no changing the "way it is" as Salandria described all those years ago.  But they can change how the issues of the day affect them locally while watching it unfold globally.   The key word in the definition of a democracy is that those "eligible" to participate elect and change government/governing/laws by majority.  After "eligible" was finally changed to include the Black community and women, the original "eligible" changed that to mean "those with the money and influence".  The republic elects a leader.  The democracy makes those elected do as they are told by the "eligible", or not get elected again.

Just some soapbox philosophy...  in my studies, I found that Plato wrote of the same exact grievances about those in power, making the rules and controlling the resources, as we discuss today... at the core, all these institutions of society are run by fallible humans with everyone else hoping they do a few good things and keep the bad stuff to a minimum.  Tragedy of the Commons IMO.  Without a common human goal shared by all, there is no reward for Altruism... and blahditty-blah-de-blah...

 

            "I'm afraid we were misled," Salandria said sadly.  "All the critics, myself included, were misled very early.  I see that now.  We spent too much time and effort micro-analyzing the details of the assassination when all the time it was obvious, it was blatantly obvious that it was a conspiracy.  Don't you think that the men who killed Kennedy had the means to do it in the most sophisticated and subtle way?  They chose not to.  Instead, they picked the shooting gallery that was Dealey Plaza and did it in the most barbarous and openly arrogant manner.  The cover story was transparent and designed not to hold, to fall apart at the slightest scrutiny.  The forces that killed Kennedy wanted the message clear:  'We are in control and no one -- not the President, nor Congress, nor any elected official -- no one can do anything about it.'  It was a message to the people that their government was powerless.  And the people eventually got the message.  Consider what has happened since the Kennedy assassination.  People see government today as unresponsive to their needs, yet the budget and power of the military and intelligence establishment have increased tremendously.

            "The tyranny of power is here.  Current events tell us that those who killed Kennedy can only perpetuate their power by promoting social upheaval both at home and abroad.  And that will lead not to revolution but to repression.  I suggest to you, my friend, that the interests of those who killed Kennedy now transcend national boundaries and national priorities.  No doubt we are dealing now with an international conspiracy.  We must face that fact -- and not waste any more time micro-analyzing the evidence.  That's exactly what they want us to do.  They have kept us busy for so long.  And I will bet, buddy, that is what will happen to you.  They'll keep you very, very busy and, eventually, they'll wear you down."