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

[Roger Odisio]

2 minutes ago, James DiEugenio said:

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.

You and Larry picked this court.

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

You're distorting what I said, Jim.  It was not that I did not understand the rulings, as anyone can see. Seeborg never addressed who was to follow up after the ARRB closed, which is a major problem, and I now think it was because he was claiming the Act intended the work to stop when the Board closed. A plainly nonsensical conclusion, directly contradicted by the Act.

Here's a suggestion. Try reading what everyone says and judge for yourself what makes sense.  Instead of being some kind of gatekeeper, deciding who is an "expert" and who isn't, or even who is qualified to speak at all.

 

Instead of beingsome kind ofgatekeeper trying 

[Sandy Larsen]

@Roger Odisio What you said is what I meant. I will clarify what I said accordingly:

 

So, technically speaking, there is no provision in the Act on what body would 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 mentioned by Larry.) The Act provides only that the searching and identifying would (somehow) continue through 2017.

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

 

[Sandy Larsen]

Just now, Sandy Larsen said:

The Act provides only that the searching and identifying would (somehow) continue through 2017.

 

@Lawrence Schnapf @Roger Odisio

 

Given that the 2017 deadline has passed, can a legal case be made that work that should have been done before that deadline, but wasn't, be continued henceforth?

Is that one of those "remedial statute" considerations mentioned by Larry?

 

[Roger Odisio]

13 minutes ago, Sandy Larsen said:

@Roger Odisio What you said is what I meant. I will clarify what I said accordingly:

 

So, technically speaking, there is no provision in the Act on what body would 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 mentioned by Larry.) The Act provides only that the searching and identifying would (somehow) continue through 2017.

RO:  No, again. The Act identifies NARUC's Archivist as the entity required to determine when all JFK records have been released to the public and so notify the President and Congress. How can she do that without being involved in the search process after 1998?  Is there someone else who will be waiting to whisper in her ear?

The Archivist's job is to run NARA.  Unless you want to argue the NARA and the Archivist are somehow separate and distinct entities with different tasks, as the judge does ridiculously with NARA and the ARRB), how can you *not* argue that means it's NARA's job, led by the Archivist, to continue the work left unfinished by the ARRB?  We know the JFK Collection into which records are to be placed is right there at NARA. We also know that NARA admitted it had the job in 2000.

In his second order, the judge is left without a reason to reject NARA's role (no matter how much he wants to), once he admitted the existence of 12(b), which he tried ignore in his first order.

 

 

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

 

 

[Roger Odisio]

36 minutes ago, Sandy Larsen said:

 

@Lawrence Schnapf @Roger Odisio

 

Given that the 2017 deadline has passed, can a legal case be made that work that should have been done before that deadline, but wasn't, be continued henceforth?

RO:  Yes, because 12(b) says the work shall continue until NARA's Archivist certifies that all JFK records have been released.  Imo, the 25 year deadline in the Act was mostly a politician's wish. We see how easy it has been to set aside.  The actual end of the process is supposed to be determined by NARA's Archivist.

She hasn't spoken. There are some problems with this approach.  Only in the job since last spring, I'm not even sure she knows she has that job. But that's another story.

 

 

Is that one of those "remedial statute" considerations. mentioned by Larry?

 

 

[Sandy Larsen]

@Roger Odisio

I'm just going on what you said earlier about provision 12(b). You said:

"12 (b) imposes the duty on NARA's Archivist to certify when the search for records is completed."

From that, as far as I can see, the only obligation on NARA -- other than archiving the records given to it -- is that its Archivist would certify when the search for records is completed.

If that's true, then NARA isn't obliged to do any searching or identifying.

Are you saying that, in order for the Archivist to do her task of certification, NARA must be involved in the search?

Suppose the search had been completed before ARRB shut down. I imagine that NARA would have informed the Archivist that the search was finished, and the Archivist would have certified that to be the case. I can't believe that the Act would have required NARA to get involved in the already-finished search for the sole purpose of certifying that it was complete.

 

[Sandy Larsen]

6 minutes ago, Sandy Larsen said:

If that's true, then NARA isn't obliged to do any searching or identifying.

 

On the other hand, according to Larry:

NARA said it was the "successor in function" to the ARRB when it published it[s] regulation in 2000

I don't know if that is mandated in the Act, but it does (in my view) oblige NARA to take on the search function of ARRB through the date of certification. If it's not mandated in the act, then it seems that NARA obligated itself to accomplish the search function.

 

[James DiEugenio]

Roger, I did not distort what you said.

Here you go, back at you:  "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. "

No one, and I mean no one, has published more or more detailed articles than Kennedys and King have on this subject.  There is no site even in second place.

Mark A and Andrew E (I forgot he's Canadian, therefore cannot read English), have done about five in depth articles on this subject for us.  And its Mark who first understood the importance and primacy of the Gannon Memo signed under Trump.  That was the key turning point in this whole battle.

Do you even know what it is?  Because if you do not understand the Gannon Memo you do not understand Seeborg's decision.

Secondly, the other issue is that of ministerial duties, and who does them. Mark A and Andrew also realized the key importance of that part of the dispute. Why did you not quote the second paragraph of Seeborg's decision?  

Just recall, Bill and Larry picked this court to file in--for obvious reasons.  

PS Sandy is starting to uncover the problem.  Congrats.

 

 

Edited January 23 by James DiEugenio

[Roger Odisio]

2 hours ago, Sandy Larsen said:

@Roger Odisio

I'm just going on what you said earlier about provision 12(b). You said:

"12 (b) imposes the duty on NARA's Archivist to certify when the search for records is completed."

From that, as far as I can see, the only obligation on NARA -- other than archiving the records given to it -- is that its Archivist would certify when the search for records is completed.

If that's true, then NARA isn't obliged to do any searching or identifying.

Are you saying that, in order for the Archivist to do her task of certification, NARA must be involved in the search?

Suppose the search had been completed before NARA shut down. I imagine that NARA would have informed the Archivist that the search was finished, and the Archivist would have certified that to be the case. I can't believe that the Act would have required NARA to get involved in the already-finished search for the sole purpose of certifying that it was complete.

 

NARA's Archivist embodies NARA. She's the authority. When she does something, like certifying the job is done, that is NARA doing it. 

I think you meant "before the ARRB shut down". Assuming the Archivist agrees that all JFK records have been made available to the public, yes.  12 (b) means what it says.

[Roger Odisio]

3 hours ago, James DiEugenio said:

Roger, I did not distort what you said.

Here you go, back at you:  "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. "

No one, and I mean no one, has published more or more detailed articles than Kennedys and King have on this subject.  There is no site even in second place.

Mark A and Andrew E (I forgot he's Canadian, therefore cannot read English), have done about five in depth articles on this subject for us.  And its Mark who first understood the importance and primacy of the Gannon Memo signed under Trump.  That was the key turning point in this whole battle.

Do you even know what it is?  Because if you do not understand the Gannon Memo you do not understand Seeborg's decision.

Secondly, the other issue is that of ministerial duties, and who does them. Mark A and Andrew also realized the key importance of that part of the dispute. Why did you not quote the second paragraph of Seeborg's decision?  

Just recall, Bill and Larry picked this court to file in--for obvious reasons.  

PS Sandy is starting to uncover the problem.  Congrats.

 

 

I explained how my thinking changed, in part made clear by how the judge flailed around in his second order without an answer when Bill and Larry challenged his attempt to ignore the crucial language of 12 (b).  When I said you distorted what I said, it's no answer for you to simply quote a passage from me  and reassert it shows I admitted I was just now understanding the judge's decisions. Do you see the difference?

My posts have been voluminous, to say the least, with many points.  You have not disagreed with any of them. Absent that, it won't work for you to resort to the ploy, without elaboration, of saying if I don't know about the importance of the Gannon memo, I don't understand Seeborg's decisions.

Btw, how was that memo the key turning point is this whole battle?  Has the battle turned?

Otherwise, get back to me when you're ready to discuss substantively the issues raised by Seeborg's decisions.

[James DiEugenio]

The best analysis of the Gannon Memo anywhere.

https://www.kennedysandking.com/john-f-kennedy-articles/jfk-assassination-records-the-picture-is-getting-clearer

Trump used this pile of rubbish to initiate the first 6 month delay.

I have already talked about Seeborg's ruling on email with Mark and Andrew. 

How could Andrew have predicted it if he had not analyzed all the filings up to that time.

[Roger Odisio]

12 hours ago, James DiEugenio said:

The best analysis of the Gannon Memo anywhere.

https://www.kennedysandking.com/john-f-kennedy-articles/jfk-assassination-records-the-picture-is-getting-clearer

Trump used this pile of rubbish to initiate the first 6 month delay.

I have already talked about Seeborg's ruling on email with Mark and Andrew. 

How could Andrew have predicted it if he had not analyzed all the filings up to that time.

Mark's article focusing on the Gannon memo is fine, as far as it goes.  But it doesn't justify your claim, Jim, that unless you understand that memo, you don't understand what Judge Seeborg has done.

 

As Mark explains,  the Gannon memo offered a (false) justification for Trump's original, supposedly temporary, 6 month delay in releasing JFK records. Which grew into another 3 year delay from Trump, and finally into Biden' atrocious "transparency plan", which threatens to kill the usefulness of the Act altogether

 

So, yes, you can claim if you want to, that  the memo was the "turning point" in the malfeasance that followed in the sense that the memo offered a basis to begin it. But there was a whole lot of bad things that followed that did not depend on what Gannon said.

 

Seeborg didn't mention the memo as a basis for his decisions. Granted he would have been unlikely to do so. He almost certainly knew about it. But I see no evidence it had an important effect on those decisions.  

 

Seeborg made mistakes; he misread the Act sometimes.  His motivation for doing so is mostly unclear, at least to me. But I can understand what Seeborg has done without fully understanding why he did it.

 

What did I mean by "as far as it goes"?  Two things.  Mark doesn't mention 12(b), which I  believe sets the real deadline for record release.  Washington politicians often set action deadlines or require periodic reports that are then ignored and recede into a dark hole.  This case was too prominent to be ignored that way, but as we have seen, the 2017 "deadline" has been easily ignored.

 

The Act was complete with just the first two deadlines:  when the ARRB was to close, and by how many years after that were all records to be released. Why do you think they added 12(b), another version of a deadline? 

 

It was to show they were serious about the mandate for releasing all records. Serious enough to root a deadline in the actual completion of the task. They gave the responsibility to determine when the job was done to NARA's Archivist, not the  President or themselves, to try to get around the political roadblocks to release that they knew all too well. 

 

That's why 12(b) is so important. It is NARA's Archivist who is supposed to determine when all records are released and so tell the president and Congress.

 

To borrow a phrase from you, the purpose of the JFK Act cannot not be fully understand without understanding 12(b). Trying to ignore 12(b) in his first decision was at the heart of Judge Seeborg's problem, and led to his incoherent response in his second decision when called on it by Bill and Larry.

 

Finally, Mark's discussion of releasing records is too cramped.  The term JFK record is not confined to the information held by federal government agencies. With a few minor exceptions, it is true that the Act is written in terms of the records those agencies were withholding.

 

But this was a temporary, working definition. Congress was wise enough to realize it should leave the definition of what information they were to look for to the Board they were creating. After hearings, in the summer of '95, the Board issued its final definition. It was framed as broadly as possible. A record was something possessed not just by government agencies, but by anyone, including private individuals. It was not just papers, etc. but could take any form. The only criterion was that it was relevant to understanding the murder.  All belonged in the JFK Collection at NARA.

 

The broad definition provided the basis for the Board's taking the Zapruder film from the family.  It's why Larry, above, is talking about seeking the Darnell and Wiegman films from NBC Universal in the law suit.

 

Btw, Biden's involvement in record release decisions, bad as it has been, extends only to records held by executive branch agencies of the federal government.  That's an issue in the law suit where Bill and Larry are pressing for release of, for example, legislative records, among many nongovernmental records.