Major Blow to JFK Records Act

[Roger Odisio]

12 hours ago, James DiEugenio said:

Andrew,

Are you saying  that the MFF suit did not argue that point about the Gannon memo vs the combination of Section 6 and 12?

If so this is what I meant about having to knock out the Gannon memo.

My other point is this:  the archivist does not have the powers invested in the ARRB.  No one ever did.  I thought this was why when the CIA and FBI went in and read Trump the riot act, they could not do anything about it.

But what I think you are saying is that the combination of 6 and 12 could contravene the president.

When it created the ARRB, Congress originally gave it only a 2 year life, with the possibility of a one year extension.  Off to a slow start, the Review Board didn't even publish its final definition of a "JFKA record" until the  summer of '95 or roughly when it was supposed to close. 

Point is, Congress knew the disclosure problems well enough to know there was no chance that all records would be released by time the Board closed.  That became even clearer when the Board decided to define "record" as broadly as possible by including any information relevant to understanding the murder..

That's why Congress set a 2017 deadline for completion. More importantly, that's why they also said the job would not be done until NARA's Archivist certified that all records had been released for public view (12(b)).

I think they chose NARA's Archivist for the job, rather than the President or a committee of themselves, because they wanted to remove the decision from the politics that had so hamstrung document releasing in the first place.

Giving the job of certifying the end to NARA's Archivist was just one way Congress was indicating that NARA was to take up where the Board left off.  Bill and Larry offer others.

That NARA was intended to be the successor agency to the Board with all necessary powers to finish the job is in fact the heart of the MFF lawsuit.

 

[Roger Odisio]

15 minutes ago, James DiEugenio said:

Roger keeps on saying this:

12(b) mandates that all provisions of the Act not pertaining to appointments to the ARRB and ARRB operations SHALL remain in full force and effect.  

 What were the operations of the ARRB?  They were given to the Board by congress.  On its own NARA did not have those kinds of powers. That is why Trump called for the delay and then used the Gannon memo.

 

Thanks to Paul Bacon for getting what I said.

In his first order, Judge Seeborg said the*obligations* (his word) that Congress gave to the ARRB ended when the Board closed. Therefore, neither NARA nor any other agency, on its own volition, can "legally assume obligations so terminated by Congress" (p. 13, original order)  The MFF lawsuit fails because NARA does not have the power to do the job the MFF wants it to do.

Do you agree with him, Jim?  That's what you are saying.  Do you disagree with the lawsuit when it seeks an order to compel NARA to do the job it claims they have?

Seeborg is wrong.  Congress did not terminate the obligation it created to release records when it terminated the Board; it just terminated the Board's role in the process at a certain point. That's what 12 (b) means when it says the job of releasing records to the public shall continue until NARA's Archivist certifies that all records have been released.  Seeborg has tried to ignore 12(b).

 

 

[James DiEugenio]

Roger, and you keep on leaving out the clause in 12 b about "operations" of the Board.

[Roger Odisio]

1 hour ago, James DiEugenio said:

Roger, and you keep on leaving out the clause in 12 b about "operations" of the Board.

The word "operations" is not in 12(b), Jim, which is titled "Other Provisions".  "The remaining *provisions* of this Act shall continue until such time..."

Nor does 12(b) refer to the Board.  It says the job of releasing records shall continue (after the Board closes per 12(a)) until NARA's Archivist certifies to the President and Congress that all JFKA records  have been made available to the public. Bill and Larry say that job fell to NARA after 1998.  

Even so, what is your point?

When you say "on its own" NARA did not, and presumably does not, have the powers wielded by the Board, you are agreeing with Seeborg's take  and disagreeing with the MFFsuit.  Whether you realize or not.

But Seeborg is wrong, as I said. He misinterpreted 12(a) and tried to ignore12(b), which contradicts his claims

 

[Andrew Iler]

Roger, neither section 12(a) or 12(b), nor any other section of the JFK Records Act uses the phrase “NARA’s Archivist”. 
 

Legally speaking, “The Assassination Records Review Board - ARRB”, “The Archivist” and “NARA - The National Archives and Records Administration” are statutorily defined distinctive legal entities, with specific and unique roles mandated pursuant to the JFK Records Act and other legislation. 
 

To try to conflate any of these entities is legally perilous, especially when attempting to subject ministerial duties to a mandamus claim or under judicial review. 
 

But this is a story for another day. 

[Andrew Iler]

23 minutes ago, Roger Odisio said:

Nor does 12(b) refer to the Board.  It says the job of releasing records shall continue (after the Board closes per 12(a)) until NARA's Archivist certifies to the President and Congress that all JFKA records  have been made available to the public. Bill and Larry say that job fell to NARA after 1998.  

Roger, I don’t necessarily agree with this statement regarding sections 12(a)&(b). 
 

Neither subsection (a) or (b) speak to the “job of releasing records”. 
 

Those sections deal only with the termination of the various provisions of the Act. 
 

Also, not to be argumentative, I do not believe that 12(b) establishes a “deadline” for the release of records, as has been mentioned earlier. Statutorily speaking, I think what you are saying is that 12(b) establishes a final “sunset clause” for the JFK Records Act that occurs when the Archivist certifies that all of the records in the collection have been fully publicly disclosed. 
 

I am not trying to nitpick. I am just being precise with legal concepts and language, so that we are all on the same page. 

[Roger Odisio]

9 minutes ago, Andrew Iler said:

Roger, neither section 12(a) or 12(b), nor any other section of the JFK Records Act uses the phrase “NARA’s Archivist”. 
 

Legally speaking, “The Assassination Records Review Board - ARRB”, “The Archivist” and “NARA - The National Archives and Records Administration” are statutorily defined distinctive legal entities, with specific and unique roles mandated pursuant to the JFK Records Act and other legislation. 
 

To try to conflate any of these entities is legally perilous, especially when attempting to subject ministerial duties to a mandamus claim or under judicial review. 
 

But this is a story for another day. 

Here is the definition of the Archivist's job from their website:  "The Archivist plans, develops, and administers all programs and functions of the National Archives and Records Administration (NARA or the agency), in accordance with the National Archives and Records Administration Act of 1984."

So you're saying that the Archivist, when acting in her official capacity running NARA, is nevertheless a distinct entity separate from NARA itself.  Could NARA the entity come to a different conclusion about some aspect  of the duties proscribed under the JFK Act than its administrator?  What would happen if it did? How would that work?  If not, that is evidence that they are in fact one in the same entity.

You say this distinction is "statutorily defined".  What statute?

You say the "specific and unique roles" are mandated by the JFK Act. Is that the statute you mean? Where does the JFK Act specify these different and distinct roles of the Archivist vs. NARA itself?

I have said, repeatedly, NARA's Archivist because I believe they are one, inseparable entity.  When the Archivist does something in her official capacity she acting for NARA.

 

 

 

[Andrew Iler]

12 minutes ago, Roger Odisio said:

You say this distinction is "statutorily defined".  What statute?

You say the "specific and unique roles" are mandated by the JFK Act. Is that the statute you mean? Where does the JFK Act specify these different and distinct roles of the Archivist vs. NARA itself?

Roger!! You are jumping the gun on me!!!

It was my hope to first establish the laws around ministerial duties, so that we could frame our discussion with the legal underpinnings before applying them to the JFK Records Act. 
 

I will quickly answer your question, and then if you don’t object, I will go back and lay the legal foundation to set up our discussion about how ministerial duties might apply to the JFK Records Act. 
 

So the short answer is that section 3 of the JFK Records Act separately defines “the Archivist” and “NARA”. See below. 
 

 

 

This statutory legal distinction is important, as we will discuss in a later post. 
 

To see how the JFK Records Act imposes separate and distinct roles and duties, one only need look at section 4. See below. 
 

 

One must very carefully parse a statute and fully appreciate the difference between discretionary duties and ministerial duties and the very distinct officials and agencies to which those duties are mandated. 
 

But again, we are getting ahead of ourselves. 

[Roger Odisio]

28 minutes ago, Andrew Iler said:

Roger, I don’t necessarily agree with this statement regarding sections 12(a)&(b). 
 

Neither subsection (a) or (b) speak to the “job of releasing records”. 
 

Those sections deal only with the termination of the various provisions of the Act. 
 

Also, not to be argumentative, I do not believe that 12(b) establishes a “deadline” for the release of records, as has been mentioned earlier. Statutorily speaking, I think what you are saying is that 12(b) establishes a final “sunset clause” for the JFK Records Act that occurs when the Archivist certifies that all of the records in the collection have been fully publicly disclosed. 
 

I am not trying to nitpick. I am just being precise with legal concepts and language, so that we are all on the same page. 

My statement about 12(b) is virtually verbatim from the section. How can you disagree with it?

No, both (a) and (b) do not deal with termination of provisions.  (a) does. (b) deals with what Act provisions shall continue after the ARRB terminates.  You know that.

Of course (b) deals with the "job of releasing records". That's what the Act is about!  Provisions for doing that job are what is to continue after the Board closed. Which I believe you yourself said yesterday or the day before.   

Section 12(b) establishes the grounds for when the release of records ends. It's more specific and obviously binding than picking a calendar day, as anyone who knows anything about Washington can understand. That's what is important.

Where is Andrew?  What have you done with him?

[Roger Odisio]

3 hours ago, Andrew Iler said:

Roger!! You are jumping the gun on me!!!

It was my hope to first establish the laws around ministerial duties, so that we could frame our discussion with the legal underpinnings before applying them to the JFK Records Act. 
 

I will quickly answer your question, and then if you don’t object, I will go back and lay the legal foundation to set up our discussion about how ministerial duties might apply to the JFK Records Act. 
 

So the short answer is that section 3 of the JFK Records Act separately defines “the Archivist” and “NARA”. See below. 
 

 

 

This statutory legal distinction is important, as we will discuss in a later post. 
 

To see how the JFK Records Act imposes separate and distinct roles and duties, one only need look at section 4. See below. 
 

 

One must very carefully parse a statute and fully appreciate the difference between discretionary duties and ministerial duties and the very distinct officials and agencies to which those duties are mandated. 
 

But again, we are getting ahead of ourselves. 

Whoa. That the Act defined Archivist and NARA in separate sentences does not establish they have separate and unique roles!  The Archivist is a part of NARA, and in fact your cite says that in defining NARA:  (7) National Archives means NARA and "all components thereof".  

Neither does the Section 4 passage of the Act you cite explain how the Act imposes separate and distinct and duties on NARA and the Archivist. It merely says NARA shall establish the JFK Collection and charges the Archivist with some duties in that process: to ensure the physical integrity and original provenance of the records put there, and while he's at it to publish a guidebook and index of the Collection.

But of course it was  NARA's Archivist who set up the Collection on the site he administered as required by the Act.

[John Kowalski]

On 1/21/2024 at 6:38 PM, Lawrence Schnapf said:

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.  

What is your source for these accounts?

[Andrew Iler]

18 hours ago, Roger Odisio said:

My statement about 12(b) is virtually verbatim from the section. How can you disagree with it?

No, both (a) and (b) do not deal with termination of provisions.  (a) does. (b) deals with what Act provisions shall continue after the ARRB terminates.  You know that.

Roger, the heading of section 12 is, “Termination of Effect of Act”. If you want to argue that obliquely, section 12(b) impacts the job of releasing the records, that is fine. I do not disagree that it is an oblique element of that section. However the primary importance of section 12(b) really is the continuing operability of all other sections of the Act that do not pertain to the operations of or appointments to the ARRB, and in particular, the vitally important continuing operability of the postponement criteria of section 6. 

[Andrew Iler]

14 hours ago, Roger Odisio said:

Whoa. That the Act defined Archivist and NARA in separate sentences does not establish they have separate and unique roles!  The Archivist is a part of NARA, and in fact your cite says that in defining NARA:  (7) National Archives means NARA and "all components thereof".  

Neither does the Section 4 passage of the Act you cite explain how the Act imposes separate and distinct and duties on NARA and the Archivist. It merely says NARA shall establish the JFK Collection and charges the Archivist with some duties in that process: to ensure the physical integrity and original provenance of the records put there, and while he's at it to publish a guidebook and index of the Collection.

But of course it was  NARA's Archivist who set up the Collection on the site he administered as required by the Act.

Roger, this is exactly why I stated that we were “jumping the gun”. 
 

Without having closely examined the legal principles and underpinnings surrounding how the courts consider and rule on issues involving ministerial duties, it is very easy to make the mistake of conflating agencies, officials and other entities. 
 

This examination will require us to go well outside the JFK Records Act. It is not an easy path to take, but to truly understand the legal reasoning behind Judge Seeborg’s decision, it is required. 

[James DiEugenio]

If NARA had the powers the ARRB had, then why did they not overrule the Gannon Memo?

That memo was an alteration of the law was it not?

 

[Roger Odisio]

22 hours ago, Andrew Iler said:

Roger, the heading of section 12 is, “Termination of Effect of Act”. If you want to argue that obliquely, section 12(b) impacts the job of releasing the records, that is fine. I do not disagree that it is an oblique element of that section. However the primary importance of section 12(b) really is the continuing operability of all other sections of the Act that do not pertain to the operations of or appointments to the ARRB, and in particular, the vitally important continuing operability of the postponement criteria of section 6. 

Section 12 is titled Termination because (a) terminates the ARRB's role in the obligations that Act establishes, and after that (b) establishes how the task itself shall end--when the Archivist notifies the President and Congress that all records have been released.

I am not arguing "obliquely" about the impact of (b).  It's straightforward.  That is not just the primary importance of (b); it is its purpose.