Major Blow to JFK Records Act

[Gerry Down]

I wonder if a movie will be made about this legal battle some day. 

[Benjamin Cole]

2 hours ago, Gerry Down said:

I wonder if a movie will be made about this legal battle some day. 

About the Transparency Board? I find the topic opaque. 

[Dan Currie]

See "JFK Assassination Records Suit Gets Partial Green Light" via Bloomberg Law at https://news.bloomberglaw.com/litigation/claims-in-jfk-assassination-records-suit-get-partial-green-light

[Gerry Down]

8 hours ago, Benjamin Cole said:

About the Transparency Board? I find the topic opaque. 

About Bill and Larry's battle against the CIA.

Perhaps there are others too. Rex Bradford and Jim Lezar.

[Lawrence Schnapf]

and here is an objective and more accurtate article from Bloomberg News by a reporter without an axe to grind as andrew does.

JFK Assassination Records Suit Gets Partial Green Light (1)

Peter Hayes

Reporter

Documents

N.D. Cal. Opinion

N.D. Cal. Docket

• Plaintiffs may pursue claims for ‘destroyed’ records
• Court denies ‘repackaged’ claim for missing records

Archivists seeking records related to the assassination of President John F. Kennedy can proceed with claims under the Federal Records Act against the National Archives and Records Administration related to destroyed documents, but not missing ones, the Northern District of California ruled.

The plaintiffs sued the National Archives and Records Administration under the Federal Records Act, saying that the agency improperly failed to request that the US Attorney General recover records related to the assassination.

The plaintiffs may pursue claims for “destroyed” records because they sufficiently allege that there are ways these documents could be recovered, including retention of a “computerized version,” Judge Richard Seeborg of the US District Court for the Northern District of California ruled Thursday.

NARA, however, has no duty to pursue “missing” records, Seeborgsaid. A claim for “missing” records is a “repackaged version” of the plaintiffs’ failed effort to compel NARA to pursue outstanding record searches, he said.

The court reiterated its July 14 ruling that NARA has no obligation to complete searches begun by the Assassination Records Review Board, which was terminated in 1998 after issuing a final report.

The board was an independent federal agency created to oversee the identification and release of records related to the assassination of Kennedy. It was established by the President John F. Kennedy Assassination Records Collection Act of 1992.

Plaintiffs Mary Ferrell Foundation Inc., Josiah Thompson and Gary Aguilar filed the lawsuit on Oct. 19, 2022. They filed a third amended complaint on Sept. 11, 2023, alleging violations of the Administrative Procedure Act, the JFK Act, and the FRA.

The court also dismissed the plaintiffs’ claim that NARA acted arbitrarily and capriciously in violation of the APA.

The plaintiffs’ motion to compel agency action under the APA also fails, with the exception of the claim that NARA failed to maintain identification aids for each assassination record and to release legislative records, Seeborg ruled.

Lawrence Schnapf of New York and William Morris Simpich in Oakland, Calif., represent the plaintiffs.

The case is Mary Ferrell Foundation Inc., v. Biden, N.D. Cal., No. 22-cv-06176, 1/18/24.

(Story updated with additional reporting throughout)

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloombergindustry.com

To contact the editor responsible for this story: Patrick L. Gregory at pgregory@bloombergindustry.com

[Roger Odisio]

Yes, the article's description is accurate of the Judge's decision to allow pursuit of records said to be destroyed (in fact the JFK act specifically prohibited such destruction) but not missing records.  The judge's parsing is also incoherent.

Take for example, the stenotapes of the testimony of Adams, Shelley, and Lovelady.  NARA first told Barry Ernest, they had a box for them but the tapes were missing.  Ernest said he later found out they were destroyed. Under Judge Seeborg's distinction, does that move the search for them from not required to required?  Wouldn't that induce NARA to claim that all information it should have but doesn't is missing, but none of it was destroyed? 

I might add that Seeborg's claim that arguing for a search for missing records is a “repackaged version” of the plaintiffs’ failed effort to compel NARA to pursue outstanding record searches is entirely dependent on his mistaken view that NARA has no responsibility at all to search for records. 

[Tom Gram]

1 hour ago, Roger Odisio said:

Under Judge Seeborg's distinction, does that move the search for them from not required to required?  Wouldn't that induce NARA to claim that all information it should have but doesn't is missing, but none of it was destroyed? 

I was wondering the same thing. Other than stuff like the SS records that agency admitted to destroying, how the heck do you determine if something was actually destroyed or is just missing? 

[Lawrence Schnapf]

@Tom Gram we have some ideas about missing or destroyed records. For example, there are footnoes in Book V of the Church Committee Report that cites documents that are not in the JFK Collection or the current Church Committee records. The LHO mexico city tapes were destroyed but we know Mexican Government was given dupes. We are asking for them. The Sheridan files were physically removed from the JFK Library (technically a part of the NARA presidential records system) and given to NBC. 

What happened to the reports sumarizing the investigation conducted Donald Heath over the weekend of the assassination  into potential exile and cuban involvement in the assassination. his memo said he saw those reports in 1973 in a storage cabinet at Langley. What happened to them? were they destroyed?

We have accounts that a ONI investigation on oswald was done in the weeks after the assassination and the investigatve materials were stored at naval bases around the world so they would not be found if a record search was done  in DC.  

we also want to find out what records were actually searched at CIA. did they actually search every nook where records could have been stored?  It is unclear. I'd like to depose CIA officials to see where they looked. 

Just some examples. I'm sure others have ideas/suggestions. if you do, please contact Bill Simpich and me. 

BTW- not only did NBC refuse to turn over the Sheridan files to ARRB (who commenced lawsuit that was terminated when ARRB went out of business) but it has also refused to share the Darnall film so that it can be analyzed usingmodern forensic techniques. There should be an outcry launched against NBC for withholding these materials that have been identified as "assassination" records.    

[Benjamin Cole]

18 minutes ago, Lawrence Schnapf said:

@Tom Gram we have some ideas about missing or destroyed records. For example, there are footnoes in Book V of the Church Committee Report that cites documents that are not in the JFK Collection or the current Church Committee records. The LHO mexico city tapes were destroyed but we know Mexican Government was given dupes. We are asking for them. The Sheridan files were physically removed from the JFK Library (technically a part of the NARA presidential records system) and given to NBC. 

What happened to the reports sumarizing the investigation conducted Donald Heath over the weekend of the assassination  into potential exile and cuban involvement in the assassination. his memo said he saw those reports in 1973 in a storage cabinet at Langley. What happened to them? were they destroyed?

We have accounts that a ONI investigation on oswald was done in the weeks after the assassination and the investigatve materials were stored at naval bases around the world so they would not be found if a record search was done  in DC.  

we also want to find out what records were actually searched at CIA. did they actually search every nook where records could have been stored?  It is unclear. I'd like to depose CIA officials to see where they looked. 

Just some examples. I'm sure others have ideas/suggestions. if you do, please contact Bill Simpich and me. 

BTW- not only did NBC refuse to turn over the Sheridan files to ARRB (who commenced lawsuit that was terminated when ARRB went out of business) but it has also refused to share the Darnall film so that it can be analyzed usingmodern forensic techniques. There should be an outcry launched against NBC for withholding these materials that have been identified as "assassination" records.    

Thank you Larry Schnapf for your efforts to recover records that belong to the public, now suppressed by the US government, which is instituting increasingly depraved arguments and tactics to do so.

[Greg Doudna]

1 hour ago, Lawrence Schnapf said:

BTW- not only did NBC refuse to turn over the Sheridan files to ARRB (who commenced lawsuit that was terminated when ARRB went out of business) but it has also refused to share the Darnall film so that it can be analyzed usingmodern forensic techniques. There should be an outcry launched against NBC for withholding these materials that have been identified as "assassination" records.    

Larry, given your and Bill Simpich's standing in this case and in the media, would it be possible for you to assemble say, three reputable forensic analysts capable of studying the original of the NBC Darnell film, and submit a concrete request to NBC? Not only is there some chance that requests of this nature might be honored, but the alternative of a refusal on the record could have legal value down the road and itself could enter into NBC's calculus on deciding how to answer. (As opposed to now: is there evidence NBC has ever refused a concrete legitimate request formally made? or only hearsay reports through intermediaries?) 

Also, there were reports in prior years--at the time, claimed to be legitimate and compelling ones--that there did exist secret tape recordings of Oswald's interrogations made by Fritz with I think the help of one of Fritz's assistants but known by no one else, and that several researchers knew of this and said that the source who knew of these tapes was highly credible. There was anticipation that those tapes would come forth soon. Obviously, such tapes would be extremely valuable to history. 

But then, not another word was heard of that. Neither the alleged credible source nor the the names of the alleged researchers who knew and vouched for the source and the truth of the claim, supposedly researcher names that would be familiar, are known to my knowledge. (If anyone here knows, please say.) 

I do not know if that is anything that can be included in your purview now or at some point going forward, but if you see opportunity please consider that, thanks.

Also, though I know you already have this on your radar: the Marcello FBI tapes. Although most here seem to pooh-pooh the idea of a Marcello involvement, he was the mob boss in control of the city of the scene of the crime, had connections to Jack Ruby nobody disputes, and late in life confessed--his confession was what triggered the FBI to respond to that confession by announcing it was belatedly but finally closing the inactive but until then still-open investigation on the assassination of JFK, on the grounds that further investigation, such as of Marcello whose confession triggered this response, was unlikely to turn up anything new, since before the Marcello confession no evidence had been found against Marcello. (Yes, that was the reasoning given. Its like imagine police long have a suspect but could never pin anything on him. Finally, the suspect confesses and the police decide its time now to close the case because if there had been any evidence on the suspect who just confessed they would have known it before then. Therefore, when a suspect confesses is the logical time to decide that suspect is exonerated and end an investigation.) 

Finally, is there any mechanism by which Myers could be subpoenaed and asked to disclose the name of his anonymous source who told Myers that an unnamed police officer was a witness to the killing of officer Tippit, was at the scene of the crime and saw the killing happen, but never came forth? Myers reports the story, knows the identity of the source who told him, but has not disclosed. I realize Myers probably is honoring a promise on that or something, and reporters have some protections from being forced to disclose sources. But it is material evidence, it is not even clear the officer who may have been at the Tippit crime scene (if the story is true) or Myers' source are still alive at this point, and the interests of history could be argued to override such a promise. It is a shame Myers cannot find a way himself to bring this information to light (and the assumption that a promise to the source is the reason for Myers' non-disclosure is not to my knowledge even itself confirmed by Myers, who has never given a reason). I doubt there is a legal way to get at that information absent Myers' cooperation, just expressing frustration on that point to call to your attention.

Thanks for your work on what you have been doing. 

[Tom Gram]

16 hours ago, Lawrence Schnapf said:

@Tom Gram we have some ideas about missing or destroyed records. For example, there are footnoes in Book V of the Church Committee Report that cites documents that are not in the JFK Collection or the current Church Committee records. The LHO mexico city tapes were destroyed but we know Mexican Government was given dupes. We are asking for them. The Sheridan files were physically removed from the JFK Library (technically a part of the NARA presidential records system) and given to NBC. 

What happened to the reports sumarizing the investigation conducted Donald Heath over the weekend of the assassination  into potential exile and cuban involvement in the assassination. his memo said he saw those reports in 1973 in a storage cabinet at Langley. What happened to them? were they destroyed?

We have accounts that a ONI investigation on oswald was done in the weeks after the assassination and the investigatve materials were stored at naval bases around the world so they would not be found if a record search was done  in DC.  

we also want to find out what records were actually searched at CIA. did they actually search every nook where records could have been stored?  It is unclear. I'd like to depose CIA officials to see where they looked. 

Just some examples. I'm sure others have ideas/suggestions. if you do, please contact Bill Simpich and me. 

BTW- not only did NBC refuse to turn over the Sheridan files to ARRB (who commenced lawsuit that was terminated when ARRB went out of business) but it has also refused to share the Darnall film so that it can be analyzed usingmodern forensic techniques. There should be an outcry launched against NBC for withholding these materials that have been identified as "assassination" records.    

Thanks for the reply Larry. The missing Church Committee records are particularly interesting in my opinion. I really hope you can get some traction in going after those documents.

Just on the INS/Customs transcripts, the Book V drafts cite depositions of Wendell Roache and Ron Smith as INS Investigator 12/9/75 and 12/11/75 if I recall, plus Peña in late November, but there’s also a Church Committee memo that confirms INS New Orleans Chief Investigator Art Bero was scheduled to give executive session testimony on 12/15/75 at 10am. Bero was involved in the investigation from day one regarding Marina’s INS records, and I believe he dealt directly with the OS guy CIA sent down to New Orleans under DIA cover ostensibly to collect those records right after the assassination. I think the CIA guy’s name was Chester Bolling.

Bero was also head of the Investigative Division, so he was Roache’s boss and would’ve known everything going on regarding Cuban surveillance etc. in the summer of ‘63. That one memo is the only reference I’ve ever seen anywhere to his testimony, so I think there’s a good chance he said some really sensitive stuff. Either that or he bailed out and never testified, but I kind of doubt it: 

https://www.maryferrell.org/showDoc.html?docId=148877#relPageId=48

EDIT: For anyone interested, if you scroll down in the document above there’s another memo titled “Notes on Testimony of Windle G. Roache, 12/9/1975”. At the bottom is a note saying: 

Roache strongly hinted that we follow up activities of the INS investigative section with regard to matters discussed with him. 

Above that is a list of names that Roache recommended the committee talk to from that section. The first name on the list is Art Bero, misspelled “Art Barrels”. Another thing that’s interesting IMO is the committee would screen these guys and only have them testify if they had “anything of substance” to say. So it seems clear that Wallach et al. followed up with Bero after Roache’s testimony and Bero did tell them something interesting, so they scheduled him for an executive session to get it on the record. We at least have the pre-interview reports and follow up memos on Roache and Smith, but any trace of committee contact with Bero has disappeared. 

Wallach died in 2001 at the age of 54, but the research assistant on all this stuff Dan Dwyer might still be alive. This is from 9 years ago, apparently he became a rare book seller. I don’t think anyone’s ever tried to talk to him - he could have some information on what happened to the records: 

https://www.abaa.org/bookseller_interview/details/dan-dwyer-johnnycake-books

Edited January 22 by Tom Gram

[Lawrence Schnapf]

@Greg Doudna The Darnell film is one of the issues we are pressing. NBC is in possession of this "assassination record" and refuses to allow it to be analyzed. perhaps a media blitz can be directed towards NBC to embarass it to fork over this film and the Sheriden records.  but both of these issues are subject of our lawsuit 

[Roger Odisio]

16 hours ago, Greg Doudna said:

Larry, given your and Bill Simpich's standing in this case and in the media, would it be possible for you to assemble say, three reputable forensic analysts capable of studying the original of the NBC Darnell film, and submit a concrete request to NBC? Not only is there some chance that requests of this nature might be honored, but the alternative of a refusal on the record could have legal value down the road and itself could enter into NBC's calculus on deciding how to answer. (As opposed to now: is there evidence NBC has ever refused a concrete legitimate request formally made? or only hearsay reports through intermediaries?) 

Also, there were reports in prior years--at the time, claimed to be legitimate and compelling ones--that there did exist secret tape recordings of Oswald's interrogations made by Fritz with I think the help of one of Fritz's assistants but known by no one else, and that several researchers knew of this and said that the source who knew of these tapes was highly credible. There was anticipation that those tapes would come forth soon. Obviously, such tapes would be extremely valuable to history. 

But then, not another word was heard of that. Neither the alleged credible source nor the the names of the alleged researchers who knew and vouched for the source and the truth of the claim, supposedly researcher names that would be familiar, are known to my knowledge. (If anyone here knows, please say.) 

I do not know if that is anything that can be included in your purview now or at some point going forward, but if you see opportunity please consider that, thanks.

Also, though I know you already have this on your radar: the Marcello FBI tapes. Although most here seem to pooh-pooh the idea of a Marcello involvement, he was the mob boss in control of the city of the scene of the crime, had connections to Jack Ruby nobody disputes, and late in life confessed--his confession was what triggered the FBI to respond to that confession by announcing it was belatedly but finally closing the inactive but until then still-open investigation on the assassination of JFK, on the grounds that further investigation, such as of Marcello whose confession triggered this response, was unlikely to turn up anything new, since before the Marcello confession no evidence had been found against Marcello. (Yes, that was the reasoning given. Its like imagine police long have a suspect but could never pin anything on him. Finally, the suspect confesses and the police decide its time now to close the case because if there had been any evidence on the suspect who just confessed they would have known it before then. Therefore, when a suspect confesses is the logical time to decide that suspect is exonerated and end an investigation.) 

Finally, is there any mechanism by which Myers could be subpoenaed and asked to disclose the name of his anonymous source who told Myers that an unnamed police officer was a witness to the killing of officer Tippit, was at the scene of the crime and saw the killing happen, but never came forth? Myers reports the story, knows the identity of the source who told him, but has not disclosed. I realize Myers probably is honoring a promise on that or something, and reporters have some protections from being forced to disclose sources. But it is material evidence, it is not even clear the officer who may have been at the Tippit crime scene (if the story is true) or Myers' source are still alive at this point, and the interests of history could be argued to override such a promise. It is a shame Myers cannot find a way himself to bring this information to light (and the assumption that a promise to the source is the reason for Myers' non-disclosure is not to my knowledge even itself confirmed by Myers, who has never given a reason). I doubt there is a legal way to get at that information absent Myers' cooperation, just expressing frustration on that point to call to your attention.

Thanks for your work on what you have been doing. 

Greg,

Yes, in 2017 Greg Parker sent a letter to NBC asking that the originals or first generation copies of the Darnell and Wiegman films be made available, so that scans can be done that should identify who was on the steps soon after the murder.  He added "(o)f no less importance, however, is that scanning would preserve these films (anticipating the claim that the films must remain hidden for safety reasons)". I don't remember whether his request was rejected or ignored.  In any case it went nowhere.

On pp. 27-31, in Prayerman, Bart Kamp recounts other attempts to get access to the films. Of particular note, he quotes from a letter Ed Ledoux received in 2015 from NBC when he asked for access. "I just received a call from the powers that be and sadly they do not want to authorize  any film transfers from the original footage.  They are pretty protective of the original and hence the reason we have the dubs that we are able to license from."  

Think about that.  NBC is a news organization whose affiliates have the public interest responsibility under their license to bring the news to the public.  Instead they want to hide this particular (monumental) news from the public to preserve it (until when ? for what purpose if no one ever gets to see it?). It's another version of we had to destroy that village in Vietnam in order to save it.

Put yourself in NBC's shoes.  They allegedly sent both films to their New York office the weekend of the murder.  They must have looked at them  They must know what they show. 

If they showed Oswald on the steps would you let anyone else see them? This is NBC, the corporation that told Alec Baldwin their policy was to back the findings of the WR, when explaining why they didn't want to run his stuff. 

It's going to be no small task to pry the films from them.

 

 

 

 

 

 

 

 

 

 

Put yourself 

[Andrew Iler]

Roger, I appreciate all the work you’ve done to advance your knowledge of the JFK Records Act and to understand the rationale behind Judge Seeborg’s decisions in the case. I think you are working in the right direction and I don’t think Jim D is being critical of most of your thought processes. He is perhaps trying to help you further connect the dots to complete your understanding. 

Let me ask you a question. At what point did the plaintiffs first raise the issue of non-executive branch (“legislative”) records? Was it in their original Complaint?…… their First Amended Complaint? ….. their Second Amended Complaint?….. or their Third Amended Complaint?  
 

In his Declaration filed on 01/08/2024, but dated January 18, 2024 (ECF #101) Attorney Simpich stated the following….

Edited January 24 by Andrew Iler

[James DiEugenio]

This is the second paragraph of the ruling, and it directly relates to what Andrew is pointing out above.

1 In the future, Plaintiffs must submit all the relevant documents in one filing on ECF by the deadline, unless ordered otherwise. Relevant documents include any declarations, tables of contents, and tables of authorities, which must be submitted as attachments to Plaintiffs’ briefs, not as separate filings. Plaintiffs are also required to submit any proposed orders by the briefing deadline. The haphazard nature of Plaintiffs’ filings makes it challenging for other parties and the court to follow Plaintiffs’ briefing.