Judge Seeborg's latest decision in the MFF lawsuit (Jan 18)

[Roger Odisio]

 

In his initial decision, Judge Seeborg ignored Section 12 (b) of the JFK Act, citing only 12 (a) that requires the ARRB to close by a date certain. In part because he fingered no one else to do the job, he left the impression that the requirement for record searches mandated by the Act also ended at that time.

 

In any case, he claimed that NARA was not the successor in function to the ARRB. They were separate entities and the duties required of the ARRB cannot be be transferred to NARA after the Board closed without specific authorization, which he said the JFK Act does not provide. 

 

Seeborg in fact didn't even discuss in his original order the threshold question of who exactly has the duty to complete the work started by the Board.

 

Someone must have that duty.  Congress knew the work would not be finished when the Board closed. It had imposed a 2017 deadline for the work (19 years after the Board closed), and also had designated NARA's Archivist to certify to the President and Congress when all JFKA records had been released to the public.

 

Bill and Larry pressed Seeborg on 12(b).  Seeborg merely repeated what he said in his first order without elaboration. Even though he had not mentioned 12 (b) in his first order (which appears to establish that duty), he said he had already explained that NARA had no responsibility to take up after the Board closed.

 

To see the absurdity of Seeborg's claim that NARA had no duty to continue the searches, you need only insert the word "NARA's" in front of  "Archivist", as in "NARA's Archivist".

 

The Archivist runs NARA. From the National Archives' 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 (44 U.S.C. chapters 15, 21, 22, 23, 25, 27, 29, 31, 33), as amended, and other applicable statutes, Executive Orders, and regulations."

 

The absurdity of acknowledging that 12 (b) imposes the duty on NARA's Archivist to certify when the search for records is completed, yet in the next sentence claiming the JFK Act "levies no such command on NARA" to conduct any searches, and that NARA and the Board were envisioned by Congress as two separate entities, yada, yada, yada, is glaring.  As if the Archivist and NARA were also two separate and distinct entities with different responsibilities, just like he claims for the Board and NARA.

 

And once again in his new order, Seeborg offers no explanation as to who is to do the searches Congress envisioned when the Board closed, if not NARA.

 

Later in the order, Seeborg returns briefly to 12 (b): "Section 12(b) only maintains the provisions of the JFK Act inapplicable to the ARRB after its termination, and does not impose an independent duty on NARA to collect all assassination records".  12(b) covers "only JFK Act provisions inapplicable to the ARRB after its termination"?

 

What does that mean, if anything? Is the judge admitting that after the Board's termination 12 (b) *does* maintain the Act's provisions since the Board no longer can?

 

Seeborg commits the same atrocity when discussing the Act's provision requiring periodic reviews of postponed records. The Act, he says, requires only the "originating agency" and NARA's Archivist to do the reviews, so there is no requirement that NARA be involved!

 

His misreading of NARA's responsibilities paves the way for much of the rest of the mistakes in Seeborg's order.  It's hard to imagine that Seeborg's nonsense about NARA could survive an appeal, but of course anything can happen.

 

There are still some benefits that can be gotten from the suit despite Seeborg's order, like the Judge's apparent willingness to force the release of Congressional records. But without the overturning of Seeborg's findings about NARA's responsibilities, there will be much that cannot be gotten. 

 

This note is far from comprehensive; it only covers a couple of Seeborg's missteps.

 

 

[James DiEugenio]

Why do we have two threads on this ?  Roger did not see the other one?

Also, is Roger a lawyer or expert on the FOIA and JFK Act?

Where is the actual decision?  Has anyone posted it?

[Benjamin Cole]

Re the JFK Records Act:

For decades, amplified after the JFKA, shrewd observers have written about "shadow government" or a Potemkin Village of US government. 

I never quite believed them. 

Is Washington merely a facade, a "fake US government"? 

Maybe so. This tangled snarl around the release of the JFK Records Act is inexplicable, and likely permanent.

And I can't understand any of it. 

[Roger Odisio]

16 hours ago, Benjamin Cole said:

Re the JFK Records Act:

For decades, amplified after the JFKA, shrewd observers have written about "shadow government" or a Potemkin Village of US government. 

I never quite believed them. 

Is Washington merely a facade, a "fake US government"? 

Maybe so. This tangled snarl around the release of the JFK Records Act is inexplicable, and likely permanent.

And I can't understand any of it. 

You don't understand the "tangled snarl" that has grown up around the implementation of the JFK Act?  It's really not that difficult.

 

In '92 Congress passed (unanimously in both houses!) the JFK Act to establish the ARRB to search for and release to the public all remaining JFK information (records), so the public could decide for themselves what happened that day.  All JFK records were to be housed in the JFK Collection at NARA.

 

It was to be an enormous task. Congress was wise enough to delegate the responsibility to the new Board to define the records they were to look for.  The board defined record as broadly as possible--all information relative to understanding the murder regardless of the form it takes or who possess it (though it took them until the summer of '95 to issue a final definition). Only in the "rarest" of circumstances, Congress said, should information still be withheld.

 

But, abhorring permanent bureaucracies, Congress gave the new Board a short life to at least begin the job. Initially the Board was to last only 2 years.  That was later expanded to 6 years.  The Board closed in '98.

 

Congress knew the job would not be finished by then, so they set a deadline 25 years in the future when they expected completion (2017).  But they supplemented  that. The Act says, Section 12 (b), that the search and release of records shall continue until NARA's Archivist certifies to the President and Congress that all JFK records have been made available for public view.

 

Whose job, then, has it been to to continue the job the Board started?  Bill and Larry filed the MFF suit claiming it's NARA's job and they haven't been doing it.  

 

No one in the case disputes NARA's (lack of) performance in the last 25+years.

 

Instead, Judge Seeborg rejected out of hand (in both his decisions) the assertion that continuing the record search was NARA's responsibility. The ARRB and NARA were "two distinct entities, separately referenced in the JFK Act, and tasked with separate statutory functions", he said.

 

He pointed to the Section 12 (a) termination of the Board and concluded that neither NARA, nor any other agency, can on its own volition "legally assume obligations so terminated".

 

That was a massive misreading of the Act.  Section 12 (b) explains that the search and release obligations were *not* terminated when the Board closed. They were to continue until NARA's Archivist certifies that all records have been released to the public.  Seeborg never mentioned 12 (b) in his initial decision. 

 

Seeborg never addressed the threshold question of exactly who then is responsible for the work Congress envisioned remaining when the Board closed, if it is not NARA. 

 

By denying to NARA or anyone the responsibility for the job, it was easy for Seeborg to reject all of the important points of the suit itself that argued for an order directing NARA to implement the Act. 

 

In filings after the initial deciosn, Bill and Larry pressed Seeborg on 12 (b).

 

He was forced to quote the 12 (b) language.  Yet, incredibly, he directly followed the acknowledgement of NARA's Archivist's responsibility by simply regurgitating the same nonsense about NARA itself having no further responsibilities. And he added, as I already explained, to turn the knife.

 

As if NARA and its Archivist were distinct and separate entities, with different tasks and responsibilities, like he claimed was the case for the Board and NARA.  The Archivist runs NARA.   

 

In short, Seeborg has erected a massive roadblock toward any efforts to use the JFK Act as it was intended.

 

Smelling blood I presume, Biden has come along with his blatantly illegal "transparency plan" to try to finish the job of eliminating any usefulness of the JFK Act.  Seeborg has waived that through too. 

 

 

[John Cotter]

Deleted.

Edited January 21 by John Cotter

[Benjamin Cole]

6 hours ago, Roger Odisio said:

You don't understand the "tangled snarl" that has grown up around the implementation of the JFK Act?  It's really not that difficult.

 

In '92 Congress passed (unanimously in both houses!) the JFK Act to establish the ARRB to search for and release to the public all remaining JFK information (records), so the public could decide for themselves what happened that day.  All JFK records were to be housed in the JFK Collection at NARA.

 

It was to be an enormous task. Congress was wise enough to delegate the responsibility to the new Board to define the records they were to look for.  The board defined record as broadly as possible--all information relative to understanding the murder regardless of the form it takes or who possess it (though it took them until the summer of '95 to issue a final definition). Only in the "rarest" of circumstances, Congress said, should information still be withheld.

 

But, abhorring permanent bureaucracies, Congress gave the new Board a short life to at least begin the job. Initially the Board was to last only 2 years.  That was later expanded to 6 years.  The Board closed in '98.

 

Congress knew the job would not be finished by then, so they set a deadline 25 years in the future when they expected completion (2017).  But they supplemented  that. The Act says, Section 12 (b), that the search and release of records shall continue until NARA's Archivist certifies to the President and Congress that all JFK records have been made available for public view.

 

Whose job, then, has it been to to continue the job the Board started?  Bill and Larry filed the MFF suit claiming it's NARA's job and they haven't been doing it.  

 

No one in the case disputes NARA's (lack of) performance in the last 25+years.

 

Instead, Judge Seeborg rejected out of hand (in both his decisions) the assertion that continuing the record search was NARA's responsibility. The ARRB and NARA were "two distinct entities, separately referenced in the JFK Act, and tasked with separate statutory functions", he said.

 

He pointed to the Section 12 (a) termination of the Board and concluded that neither NARA, nor any other agency, can on its own volition "legally assume obligations so terminated".

 

That was a massive misreading of the Act.  Section 12 (b) explains that the search and release obligations were *not* terminated when the Board closed. They were to continue until NARA's Archivist certifies that all records have been released to the public.  Seeborg never mentioned 12 (b) in his initial decision. 

 

Seeborg never addressed the threshold question of exactly who then is responsible for the work Congress envisioned remaining when the Board closed, if it is not NARA. 

 

By denying to NARA or anyone the responsibility for the job, it was easy for Seeborg to reject all of the important points of the suit itself that argued for an order directing NARA to implement the Act. 

 

In filings after the initial deciosn, Bill and Larry pressed Seeborg on 12 (b).

 

He was forced to quote the 12 (b) language.  Yet, incredibly, he directly followed the acknowledgement of NARA's Archivist's responsibility by simply regurgitating the same nonsense about NARA itself having no further responsibilities. And he added, as I already explained, to turn the knife.

 

As if NARA and its Archivist were distinct and separate entities, with different tasks and responsibilities, like he claimed was the case for the Board and NARA.  The Archivist runs NARA.   

 

In short, Seeborg has erected a massive roadblock toward any efforts to use the JFK Act as it was intended.

 

Smelling blood I presume, Biden has come along with his blatantly illegal "transparency plan" to try to finish the job of eliminating any usefulness of the JFK Act.  Seeborg has waived that through too. 

 

 

RO-

Thank you for your synopsis of the fake US government's suppression of the JFK Records Act. 

When I say I don't understand what has happened, I mean I do not understand what appear to be entirely specious and fake arguments made by Merrick Garland's Justice Department, or the rank perfidious of Judge Seeborg. 

[Sandy Larsen]

8 hours ago, Roger Odisio said:

The Act says, Section 12 (b), that the search and release of records shall continue until NARA's Archivist certifies to the President and Congress that all JFK records have been made available for public view.

 

Roger,

Thanks for your easy-to-understand explanation.

But it begs the question, who's been doing the work of searching and releasing the records beginning in 1998 when the ARRB closed, up till the latest release?

 

[Bill Simpich]

Sandy asks the right question:  "Who's been doing the work of searching and releasing the records beginning in 1998 when the ARRB closed, up till the latest release?"

NARA stated in the Federal Register in 2000 that it was them.

“NARA continues to maintain and supplement the collection under the provisions of the Act…Agencies continue to identify records that may qualify as assassination records and need to have this guidance available.” 

NARA was wrong.

It turns out that between 1998 to 2017, NARA did virtually nothing to supplement the collection, and agencies did virtually nothing to identify new records.

The agencies waited out the American public - as another example, after the government spent enormous amounts of money to locate hundreds of living sources during the ARRB era of 1994-1998, the agencies lobbied to have their sources' names hidden - and then let these sources die off between 1998 and the present.

Many of us assumed that records were continuing to be released between 1998-2017.  Except for a few documents, we were wrong.

Many of us assumed that the last of the records would be released in 2017.  We were wrong.

What has happened is that the executive agencies used new, made-up standards for release, "Transparency Plans" created by the executive branch, replaced them with the standards for release created in the JFK Records Act, and released the documents that they felt like releasing.

The President then used the new made-up standards to state that the rest of the records will not be released until certain events occur, such as "when diplomatic relations with Mexico will not be affected" and "when nuclear policy changes".

[Roger Odisio]

14 hours ago, Sandy Larsen said:

 

Roger,

Thanks for your easy-to-understand explanation.

But it begs the question, who's been doing the work of searching and releasing the records beginning in 1998 when the ARRB closed, up till the latest release?

 

Not until yesterday did I fully realize what Judge Seeborg is saying in his first decision about what Congress intended to happen after the ARRB closed its door in 1998.  He was *not* ignoring the question of whose job it was to continue the work the Board had started, as I had thought.  In retrospect that makes little sense for a judge to do because notion that there is further work to be done is central to the MFF lawsuit.

No, Seeborg is claiming that Congress intended that the work itself of searching for and releasing JFK records was to end when the Review Board closed.

I reread the following passage in his first order (p. 13).  Congress explicitly said that the Review Board's "obligation [to do record searches] would cease when the ARRB itself terminated" (citing Section 12(a) of the Act). Therefore "(n)either) NARA nor any other agency can, by its own ipse dixit, legally assume obligations so terminated". No one has the responsibility for the work after 1998 because Congress had intended the job should end at that point.

The sleight of hand here is obvious.  Congress did not end the task of searching for and releasing releasing records when the Board closed; it terminated only the Review Board's part of it.  Congress knew the task was too big to be completed in the short amount of time allotted to the Board.  So the Act established a deadline 25 years in the future for the work to be completed. It also directed NARA's Archivist to certify to the President and Congress when all JFK records had been released.  When the job was done.

Seeborg could make his ludicrous reading of the Act only by ignoring those two provisions in the Act.

Bill and Larry called him on it by "putting 12 (b) on the table" after Seeborg had ignored it , and asking the judge to decide the case thru its lens.  Seeborg's answer is pathetic. He is caught flatfooted.

In his second decision, Seeborg does not repeat the false claim that Section 12 (a), by ending the life of the ARRB, also ended all responsibility for anyone to continue searches.

Instead he falls back on this: his previous order "already explained that NARA and the ARRB are two distinct entities and any legal duties formerly tasked to the ARRB cannot be legally assumed by NARA or any other executive agency". 

Read that this way: Ok, maybe I was wrong to claim that ending the life of the Review Board ended any obligation for further record searches, but if such an obligation remained (Section 12 (b) surely establishes that it does), Congress never said it was to be borne by NARA.   

There are several answers to this false claim, but probably the most direct is: Yes, Congress did indicate that. It's in 12 (b) that directs NARA's Archivist to certify when the job is done.  That is, unless Seeborg can claim that NARA and it's Archivist, who runs NARA, are two distinct entities with different tasks, like he claims for the Review Board and NARA.  

In short, Seeborg's decisions are even worse than I first realized.

 

[Lawrence Schnapf]

 NARA said it was the "successor in function" to the ARRB when it published it regulation in 2000 and that it continued to "supplement" the JFK Collection. There is no disupte that the ARRB had the authority to compel agencies to search for Assassinatin Records.

After NARA failed to pursue any of the outstanding ARRB searches, MFF sought an injunctive relief and asked the court to simply order NARA to do what it said it would do- carry out the duties of the ARRB as its "successor in function." Remedial statutes such as the JFK Act are supposed to be broadly intepreted to achieve the goals of the statute. And courts are supposed to give deference to the intepretation of agencies that are tasked with administering a statute. Despite the fact that the JFK Act is a remedial statute and that NARA told the American people that it was the successor in function when it adopted the JFK Act regulations in 2000, the court said the NARA really did not mean it was a successor in function.  The decision reminded me of the Wizard of Oz's admonition to Dorothy to ignore the man behind the curtain. 

[Lawrence Schnapf]

@Jim DiEugenio- While Roger is not a lawyer, his analysis is superior to that of Canadian lawyer Andrew Iler who does not undestand US administrative law and whose analysis continues to be encumbered by his emotional need to  grind his bitter axe.    

[Roger Odisio]

10 hours ago, Bill Simpich said:

Sandy asks the right question:  "Who's been doing the work of searching and releasing the records beginning in 1998 when the ARRB closed, up till the latest release?"

NARA stated in the Federal Register in 2000 that it was them.

“NARA continues to maintain and supplement the collection under the provisions of the Act…Agencies continue to identify records that may qualify as assassination records and need to have this guidance available.” 

NARA was wrong.

It turns out that between 1998 to 2017, NARA did virtually nothing to supplement the collection, and agencies did virtually nothing to identify new records.

The agencies waited out the American public - as another example, after the government spent enormous amounts of money to locate hundreds of living sources during the ARRB era of 1994-1998, the agencies lobbied to have their sources' names hidden - and then let these sources die off between 1998 and the present.

Many of us assumed that records were continuing to be released between 1998-2017.  Except for a few documents, we were wrong.

Many of us assumed that the last of the records would be released in 2017.  We were wrong.

What has happened is that the executive agencies used new, made-up standards for release, "Transparency Plans" created by the executive branch, replaced them with the standards for release created in the JFK Records Act, and released the documents that they felt like releasing.

The President then used the new made-up standards to state that the rest of the records will not be released until certain events occur, such as "when diplomatic relations with Mexico will not be affected" and "when nuclear policy changes".

Well put.  I'd like to add one point that you and Larry have made in your filings. Not only has NARA done virtually nothing to supplement the JFK Collection, it's apparent that it has no coherent policy about what to do.

When one researcher contacted NARA about a record, she was told to file a FOIA request.  Even though Section 2(a)(5) of the Act, right up front, explicitly says the JFK Act was necessary because FOIA was not doing the job.  You asked Seeborg to order NARA to stop doing that.

When I contacted a different NARA staffer asking whether NARA accepted requests for records to be added to the Collection, I was told, yes, it did. I was told to make the request to NARA's general counsel, which I did the next day.  That was more than a year ago.  Since then, silence.  Apparently NARA's general counsel has been stonewallng other requests. 

This is the sort of incompetence and malfeasance Seeborg is protecting by claiming NARA has no role to play in implementing the JFK Act.

[Sandy Larsen]

@Bill Simpich @Roger Odisio

Thanks for your replies.

So, technically speaking, there is no provision in the Act for continuing the search for and identification of additional relevant records beyond the life of the ARRB, which ceased to exist in 1998. (Other than "remedial statute" considerations.)

In 2000 NARA declared itself to be the successor to the ARRB in terms of searching and identifying new records, but actually did nothing.

Do you guys believe that NARA's declaration was intentionally done to placate researchers, knowing full well that they had no intention of searching for new records?

 

[James DiEugenio]

2 hours ago, Lawrence Schnapf said:

@Jim DiEugenio- While Roger is not a lawyer, his analysis is superior to that of Canadian lawyer Andrew Iler who does not undestand US administrative law and whose analysis continues to be encumbered by his emotional need to  grind his bitter axe.    

Larry,

That is kind of a cheap shot is it not?  Roger just admitted that he is now just understanding the rulings. Andrew has been following them step by step and predicted what Seeborg would do a week before he did it based on the prior filings.

You and Bill picked this court.

I mean this is as bad as your remarks about Tanenbaum at the Houston mock trial.

Edited January 22 by James DiEugenio

[Roger Odisio]

15 minutes ago, Sandy Larsen said:

@Bill Simpich @Roger Odisio

Thanks for your replies.

So, technically speaking, there is no provision in the Act for continuing the search for and identification of additional relevant records beyond the life of the ARRB, which ceased to exist in 1998. (Other than "remedial statute" considerations.)

RO:  No, that's Seeborg's position. The Act provides another 19 years for the work to continue  after the ARRB closed (25 years when the law was passed), and directs NARA's Archivist to certify to the President and Congress when in fact the job is done.  Those are the provisions Seeborg tried to ignore when he was claiming in his first decision that Congress intended for the work to stop after the ARRB closed.

In 2000 NARA declared itself to be the successor to the ARRB in terms of searching and identifying new records, but actually did nothing.

Do you guys believe that NARA's declaration was intentionally done to placate researchers, knowing full well that they had no intention of searching for new records?

RO: I can see clearly NARA's perfidy today in its response to the suit. I don't know about 2000, but it seems apparent they never geared up for the responsibilities transferred to them.