Court Allows MFF to Pursue Some Claims in JFK Records Files Lawsuit

[Roger Odisio]

20 hours ago, Andrew Iler said:

Roger, it is easy to criticize the judge's decision based on the outcome alone. The problem is that the Judge can only decide the case considering the arguments that are put in front of him (within the “four corners” of the Complaint) and on the applicable laws, which as a judge he has a duty to follow. The key part of Judge Seeborg's decision is below.

“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.”

Welcome, Andrew. 

Correct me if I'm wrong, but this language is the key part only to the judge's dismissal of the two counts against Biden.  But not to the problems with NARA.

 

If only the judge had actually decided the case based on what the MFF briefs said and the applicable laws.

 

I think I understand how difficult it is for a district judge to step on the toes of the President.  But not impossible.  Recently I posted about a case where the court slapped down Nixon, in no uncertain terms, when he tried to claim in a signing statement that he was not going to enforce parts of a law.  Your statement is without effect, it said.  IOW, either veto the law or shut up  and enforce it.

 

Biden's duties in this case are not discretionary.  The specific requirements for a President to postpone a release are spelled out in the Act, including that he provide  for each record clear and convincing evidence that the harm of disclosure outweighs the public's right to figure out who killed JFK and why. 

 

The MFF suit argues the President must show postponement is warranted for each record he postpones. Section 6 of the Act (Grounds for Postponement) is written in terms of what must be shown about *the record* being considered  That's singular.  The judge disagrees.  Biden's blanket statement covering all records being postponed on national security grounds, including every redaction within ones partially released, is sufficient, he says.  Biden couldn't possibly know thee truth of his claim that all of the records and redactions he postponed failed because of national security problems. His blanket statement renders the Act's language meaningless.

 

On top of that. the judge accepts Biden's Orwellian definition of the CIA's "Transparency Plan" as designed "to ensure that information would continue to be disclosed over time..."

 

Endorsing Biden's blatant violation of the Act is a distinct, current problem.  But if the next President chooses to follow the law and insist all known records be released to NARA's Collection, that, too, will fit under the judge's ruling.  Small as that chance looks now, if a later President did that it would obliterate some of the damage done by the judge's decision. But not all of it

 

I'm therefore more interested in the roadblock the judge has erected prior to the involvement of the President--his false claims about NARA's lack of responsibilities.  He has ratified NARA's now 25 year record of doing nothing to make the Collection what the Act intended--a central location where people go can go to determine for themselves what happened that day. As the Board emphasized in their final report that was the purpose of the Act.  He has paved the way for the secrecy to continue.

 

To help see the absurdity of the judge's claim that Congress never intended anybody, including NARA, to take over the job of seeking JFK records once the ARRB closed, even though they allowed another 19 years for finishing the job, a brief history. 

 

Poppy Bush signed the JFK Act because he had to. It had passed unanimously amid public uproar about agency secrecy.  The delay in getting the Board started and the meticulousness with which it determined the definition of a "JFK record" (by broadening it as much as possible to include information possessed by anybody, not just government agencies, as the language of the Act indicated, and about which the judge seems unaware), a job which  Congress had delegated to the Board, meant that the final definition was not published until the summer of 1995.  That gave the Board 3 years to do its work (even after getting a one year extension).  Everyone in Washington, certainly Congress, knew that wasn't enough time to do the job.  The Board discusses reasons for its unfinished work in its final report and repeatedly talks about what more needed to be done, as if they expected somebody to be in charge of doing it! That was logical. The judge's claim that nobody was ever intended to replace the ARRB's responsibilities, simply because it was not mentioned in the Act, is nonsense.

 

The judge even claims that the memo of understanding between the Board, NARA, and the CIA at the time of the Board's closing does not contradict his claim because "it did not impose any specific responsibilities upon NARA". (I have not found the memo.  Anyone have a cite?)  

 

Notice the judge's insertion of the word "specific" to change the point.  Did the memo in any way ratify that NARA was to be the functional successor to the the Board, perhaps without going into specifics of the duties to be performed? If not, what other purpose did the memo serve?  The judge doesn't say.

 

To repeat, if the judge's finding stands that NARA is not the successor in function to the ARRB and has no responsibility to seek JFK records for it's Collection, the damage will be substantial.

 

Did I mention that NARA staff told me, after asking the brass, that they *did* accept recommendations for records to be added to its Collection?  This was before the MFF lawsuit was filed. Several MMF briefs mentioned this, however, as an indication that NARA staff at least understood what they were supposed to be doing.  The judge ignored it.

 

 

 

 

[Benjamin Cole]

As a layman who has read the JFK Act, I do not find the Biden snuff job, or the D-Party Judge Seeborg's ruling, to be justified. 

[Roger Odisio]

The more carefully I read the decision the worse it gets.

 

The judge says Congress "specifically and explicitly expressed that ARRB obligations would cease when the ARRB itself terminated." He cites Section 12 (a) of the Act. No problem there; that's kind of obvious isn't it?  

 

He then says neither NARA nor any other agency can "by its own ipse dixit legally assume obligations so terminated by Congress."

 

That's a problem isn't it, if as the judge claims, neither NARA or anyone else is responsible for collecting JFK records not currently in NARA's Collection?  Are we back to 1992 before the AcT?  The judge has nothing to say about this.

 

But, in fact, Congress did not terminate by a date certain (when the ARRB closed) the obligation to make all JFK records available to the public. It terminated the ARRB's part of the job.  The obligation to make all JFK records available to the public remains to this day

 

That's explained in Section 12 (b) of the Act, right under (a), which the judge does not mention: "The remaining provisions of this Act [after the ARRB closes, ed} 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."

 

Thus, the Act clearly mandates that the search for JFK records continue after the ARRB closed until some authority--the Archivist--certifies the job is done.  To Congress as well as the current occupant of the White House. How, may I ask, could the Archivist be in a position to make that determination unless NARA, as the functional successor to the ARRB was responsible for the search? 

 

In short, the judge can only claim that NARA is not the successor in function to the ARRB and, by his decision, justify NARA's documented inaction in searching for records for the last 25 years, by ignoring Section 12 (b), while citing only Section 12(a).