Andrew Iler Posted June 7 Share Posted June 7 Matt, it must be coincidental that just like Curtis Gannon you attempt to ignore the part of section 5(g)(2)(D) that says “… as required by this Act.” Your underlining everything but the “… as required by this Act” part draws attention to what you want everyone to forget about. More surplusage I guess. Section 5(g)(2)(D) doesn’t override sections 6 or 9(d). That’s exactly why Congress added the “… as required by this Act” part. Section 5(g)(2)(D) is meant to be read harmoniously with the other sections of the Act that deal with the President’s ministerial duties. This should become even more evident when a fair-minded advocate or judge looks at the overarching purposes of the Act set out in section 2, particularly section 2(a)(5) specifically says that the Executive Branch has prevented the timely disclosure of assassination records. You would think that given the explicit purposes and language of the Act and the “as required by this Act” part of 5(g)(2)(D) that Congress was quite clear Your argument also does not address the rule against surplusage or 12(b)’s application to section 6. Link to comment Share on other sites More sharing options...
Roger Odisio Posted June 7 Share Posted June 7 7 hours ago, Matt Cloud said: "Biden's jurisdiction over JFK record release is limited; It covers only executive branch records. He has no say over other government records such as those held by Congress." False. With respect to government documents, the issue is more classification; less so possession. Classification is a function of Executive Branch authority, with a small exception for the "born classified" material as defined in the Atomic Energy Act. Congress is not holding documents here. They are in NARA possession now. "Nor over records held by nongovernmental entities. Example: the Darnell and Weigman films currently being hidden by NBC." Yes, some materials may be in private hands, but I would not discount the possibility of duplications within NARA records. "Section 12 (b) of the Act specifies the circumstances under which the search and release of records shall end. It reads: ^The remaining provisions of this Act 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." "Remaining provisions" refers to all sections of the Act except those pertaining to the appointment and operation of the Review Board under 12 (a). Thus it is NARA's Archivist's job to tell Biden and Congress when all records have been released. No matter what Biden and the CIA think they have done with the "transparency plan", they have no authority to end all record release." Again, I'll cite the letter from Ezra Cohen of the Public Interest Declassification Board: "Although the JFK Act broadly required the public disclosure of Kennedy assassination records under NARA’s custody, it permitted an independent Assassination Records Review Board (ARRB) to review and approve temporary postponements of public disclosure following narrow and specified exemption criteria. When temporary disclosure postponements approved by the ARRB expired on October 26, 2017, the JFK Act permitted agencies to request extended postponements. Then-President Trump approved postponements for approximately 14,000 records through October 26, 2021." Relevant "stake-holding" agencies have requested, as permitted under the JFK Records Act, to postpone full release of certain documents. This request was "honored" you might say by President Trump, and then President Biden. Your statement that "[Biden and the CIA] have no authority to end all record release," is not exactly accurate. The President may decide to "approve temporary postponements of public disclosure following narrow and specified exemption criteria," as defined under the JFK Records Act. “Biden's jurisdiction over JFK record release is limited; It covers only executive branch records. He has no say over other government records such as those held by Congress.” False. With respect to government documents, the issue is more classification; less so possession. Classification is a function of Executive Branch authority, with a small exception for the "born classified" material as defined in the Atomic Energy Act. Congress is not holding documents here. They are in NARA possession now. RO: It's an established fact that Biden's does not have jurisdiction over the release of nonexecutive branch records, nor records held by non government entities. Even judge Seeborg in the MFF lawsuit has acknowledged that. Yes a record is a record no matter who possesses it. I don't know where you got the idea that NARA has all relevant Congressional records. "Section 12 (b) of the Act specifies the circumstances under which the search and release of records shall end. It reads: ^The remaining provisions of this Act 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." "Remaining provisions" refers to all sections of the Act except those pertaining to the appointment and operation of the Review Board under 12 (a). Thus it is NARA's Archivist's job to tell Biden and Congress when all records have been released. No matter what Biden and the CIA think they have done with the "transparency plan", they have no authority to end all record release." Again, I'll cite the letter from Ezra Cohen of the Public Interest Declassification Board: "Although the JFK Act broadly required the public disclosure of Kennedy assassination records under NARA’s custody, it permitted an independent Assassination Records Review Board (ARRB) to review and approve temporary postponements of public disclosure following narrow and specified exemption criteria. When temporary disclosure postponements approved by the ARRB expired on October 26, 2017, the JFK Act permitted agencies to request extended postponements. Then-President Trump approved postponements for approximately 14,000 records through October 26, 2021." RO: It's hilarious that you think you can get away with citing Ezra Cohen of the PID Board as the authority on the JFK Records Act. Yes, he's right alongside Prof. Irwin Corey, the world's foremost authority (one of my favorite comedians) Cohen's mistake filled "explanation" of what the JFK Act does indicates neither of you knows what you are talking about. I'm guessing you haven't followed the MFF law suit where the requirements of the JFK Act are being hashed out. Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 7 Share Posted June 7 3 minutes ago, Roger Odisio said: “Biden's jurisdiction over JFK record release is limited; It covers only executive branch records. He has no say over other government records such as those held by Congress.” False. With respect to government documents, the issue is more classification; less so possession. Classification is a function of Executive Branch authority, with a small exception for the "born classified" material as defined in the Atomic Energy Act. Congress is not holding documents here. They are in NARA possession now. RO: It's an established fact that Biden's does not have jurisdiction over the release of nonexecutive branch records, nor records held by non government entities. Even judge Seeborg in the MFF lawsuit has acknowledged that. Yes a record is a record no matter who possesses it. I don't know where you got the idea that NARA has all relevant Congressional records. "Section 12 (b) of the Act specifies the circumstances under which the search and release of records shall end. It reads: ^The remaining provisions of this Act 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." "Remaining provisions" refers to all sections of the Act except those pertaining to the appointment and operation of the Review Board under 12 (a). Thus it is NARA's Archivist's job to tell Biden and Congress when all records have been released. No matter what Biden and the CIA think they have done with the "transparency plan", they have no authority to end all record release." Again, I'll cite the letter from Ezra Cohen of the Public Interest Declassification Board: "Although the JFK Act broadly required the public disclosure of Kennedy assassination records under NARA’s custody, it permitted an independent Assassination Records Review Board (ARRB) to review and approve temporary postponements of public disclosure following narrow and specified exemption criteria. When temporary disclosure postponements approved by the ARRB expired on October 26, 2017, the JFK Act permitted agencies to request extended postponements. Then-President Trump approved postponements for approximately 14,000 records through October 26, 2021." RO: It's hilarious that you think you can get away with citing Ezra Cohen of the PID Board as the authority on the JFK Records Act. Yes, he's right alongside Prof. Irwin Corey, the world's foremost authority (one of my favorite comedians) Cohen's mistake filled "explanation" of what the JFK Act does indicates neither of you knows what you are talking about. I'm guessing you haven't followed the MFF law suit where the requirements of the JFK Act are being hashed out. RO: It's an established fact that Biden's does not have jurisdiction over the release of nonexecutive branch records, nor records held by non government entities. Even judge Seeborg in the MFF lawsuit has acknowledged that. Yes a record is a record no matter who possesses it. I don't know where you got the idea that NARA has all relevant Congressional records. Cite me the law of this "Established Fact." That's what were talking about now here, the law. RO: It's hilarious that you think you can get away with citing Ezra Cohen of the PID Board as the authority on the JFK Records Act. Cohen's mistake filled "explanation" of what the JFK Act does indicates neither of you knows what you are talking about. What is it you think I think I'm getting away with? And instead of merely alleging "mistakes," why not identify them, explain them, rather than leap to ad hominen attack, whether at me or anyone else? Then we can actually identify who knows what they are talking about and who may not. But your approach, now in at least our third go-around together, conveniently avoids that potential outcome. Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 7 Share Posted June 7 16 minutes ago, Andrew Iler said: Matt, it must be coincidental that just like Curtis Gannon you attempt to ignore the part of section 5(g)(2)(D) that says “… as required by this Act.” Your underlining everything but the “… as required by this Act” part draws attention to what you want everyone to forget about. More surplusage I guess. Section 5(g)(2)(D) doesn’t override sections 6 or 9(d). That’s exactly why Congress added the “… as required by this Act” part. Section 5(g)(2)(D) is meant to be read harmoniously with the other sections of the Act that deal with the President’s ministerial duties. This should become even more evident when a fair-minded advocate or judge looks at the overarching purposes of the Act set out in section 2, particularly section 2(a)(5) specifically says that the Executive Branch has prevented the timely disclosure of assassination records. You would think that given the explicit purposes and language of the Act and the “as required by this Act” part of 5(g)(2)(D) that Congress was quite clear Your argument also does not address the rule against surplusage or 12(b)’s application to section 6. No, you're not reading the statute correctly. The clause, "unless the President certifies," lays out the two-part requirements that must be met for the President to not comply with the JFK Records Act. If it were otherwise, the clause would be utterly superfluous and without meaning or purpose for inclusion in the statute. Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 7 Share Posted June 7 2 minutes ago, Matt Cloud said: No, you're not reading the statute correctly. The clause, "unless the President certifies," lays out the two-part requirements that must be met for the President to not comply with the JFK Records Act. If it were otherwise, the clause would be utterly superfluous and without meaning or purpose for inclusion in the statute. The "as required by this Act" clause, to which you refer, is subsidiary, in other words, to the preceding clause, which restates -- as it MUST constitutionally -- that the president retains sole executive authority as to the discretion of that office-holder whether to declassify (disclose) or not. If it were otherwise, in addition to the reason set forth immediately above, the statute would be unconstitutional, as an infringement on the Article II powers of the Executive. That's the law. Link to comment Share on other sites More sharing options...
Andrew Iler Posted June 8 Share Posted June 8 Matt, thanks for your responses. Your interpretation is not grammatically correct or correct in relation to the rules of interpretation. You are also attempting to insert words that are simply not in the provision in question. I could see your interpretation having legs if Congress had drafted 5(g)(2)(D) as follows: (D) Each assassination record shall be publicly disclosed in full and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless, as required by this Act, the President certifies that— (i) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and (ii) the identifiable harm is of such gravity that it outweighs the pubUc interest in disclosure. But that is not the way Congress drafted 5(g)(2)(D). Congress drafted 5(g)(2)(D) as follows: (D) Each assassination record shall be publicly disclosed in full, and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless the President certifies, as required by this Act, that— The Act sets out the specific manner in which the President’s certification must be made. Reading the Act as you suggest would create the absurd result of there being a less stringent postponement criteria under section 5(g)(2)(D)… 25 years after the Act was passed by Congress and signed into law by the President, than in the period prior to the statutes enactment. How can this interpretation be read harmoniously with the purposes of section 2 or the repeated mandate throughout the Act to “downgrade and declassify” each record through periodic review? Again, your interpretation would hold that Congress intended for there to be less stringent postponement criteria or in reality no actual postponement criteria after October 26, 2017. Again to come back to section 12(b) and its application to section 6. You have still not reconciled the continuing operability of section 6. Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 8 Share Posted June 8 (edited) 1 hour ago, Andrew Iler said: Matt, thanks for your responses. Your interpretation is not grammatically correct or correct in relation to the rules of interpretation. You are also attempting to insert words that are simply not in the provision in question. I could see your interpretation having legs if Congress had drafted 5(g)(2)(D) as follows: (D) Each assassination record shall be publicly disclosed in full and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless, as required by this Act, the President certifies that— (i) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and (ii) the identifiable harm is of such gravity that it outweighs the pubUc interest in disclosure. But that is not the way Congress drafted 5(g)(2)(D). Congress drafted 5(g)(2)(D) as follows: (D) Each assassination record shall be publicly disclosed in full, and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless the President certifies, as required by this Act, that— The Act sets out the specific manner in which the President’s certification must be made. Reading the Act as you suggest would create the absurd result of there being a less stringent postponement criteria under section 5(g)(2)(D)… 25 years after the Act was passed by Congress and signed into law by the President, than in the period prior to the statutes enactment. How can this interpretation be read harmoniously with the purposes of section 2 or the repeated mandate throughout the Act to “downgrade and declassify” each record through periodic review? Again, your interpretation would hold that Congress intended for there to be less stringent postponement criteria or in reality no actual postponement criteria after October 26, 2017. Again to come back to section 12(b) and its application to section 6. You have still not reconciled the continuing operability of section 6. Guess what? Not only is the OLC and my interpretation the correct one; it is in fact what has happened in practice by now two presidents. But your welcome to play legal draftsman all you want. You are wrong. Your re-wording "unless, as required by this Act, the President certifies ...," makes "as required by this Act," superfluous. Of course it would be "by this Act." That drafting would be like saying "The President must do A, B and C as required by this Act." We already know the Act is requiring someone to do something. It needn't be repeated. Your characterization of the result being "absurd" is just that -- a characterization. That is the effect of the law. You might say it was designed to save the best for last. In any case, not only are you misreading the text as written, and offering a poorly worded substitute of your own, you are failing to apply constitutional principles -- the separation of powers -- which all statutes of course must comply. Classification exists for the benefit of the executive -- it is his and only his to apply or take away. Them's the rules. Congress cannot remove that power or tell the president how it can be exercised. The clause saves the statute from constitutional challenge by essentially re-stating (rather like the Presidential Records Act does) what is already the President's inherent Article II authority. My interpretation and that of OLC comports with this understanding. Your does not. The only classification and declassification authority in the United States is the President of the United States, with the Atomic Energy Act being a narrow exception for certain materials "born classified." If you want to get into ironies, or absurdities, we have a case in Florida -- which many here probably are in favor of (i.e. take the prosecution's side) -- in which it is being argued that an executive branch agency, an unelected body, the guardian of the deep state's secrets, has the authority over and above the president. That's absurd -- because it's unconstitutional. And such a position is NOT in the interest of disclosure. So the irony here is that those favoring the prosecution in that case are actually favoring the creation of an official secrets act in effect, a hallmark of totalitarian regimes -- that is, a body of classified info that is effectively unaccountable, unknowable and off-limits to the United States people. Edited June 8 by Matt Cloud Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 8 Share Posted June 8 2 minutes ago, Matt Cloud said: Guess what? Not only is the OLC and my interpretation the correct one; it is in fact what has happened in practice by now two presidents. But your welcome to play legal draftsman all you want. You are wrong. Your re-wording "unless, as required by this Act, the President certifies ...," makes "as required by this Act," superfluous. Of course it would be "by this Act." That drafting would be like saying "The President must do A, B and C as required by this Act." We already know the Act is requiring someone to do something. It needn't be repeated. Your characterization of the result being "absurd" is just that -- a characterization. That is the effect of the law. You might say it was designed to save the best for last. In any case, not only are you misreading the text as written, and offering a poorly worded substitute of your own, you are failing to apply constitutional principles -- the separation of powers -- which all statutes of course must comply. Classification exists for the benefit of the executive -- it is his and only his to apply or take away. Them's the rules. Congress cannot remove that power or tell the president how it can be exercised. The clause saves the statute from constitutional challenge by essentially re-stating (rather like the Presidential Records Act does) what is already the President's inherent Article II authority. My interpretation and that of OLC comports with this understanding. Your does not. The only classification and declassification authority in the United States is the President of the United States, with the Atomic Energy Act being a narrow exception for certain materials "born classified." If you want to get into ironies, or absurdities, we have a case in Florida -- which many here probably are in favor of (i.e. take the prosecution's side) -- in which it is being argued that an executive branch agency, an unelected body, the guardian of the deep state's secrets, has the authority over and above the president. That's absurd -- because it's unconstitutional. And such a position is NOT in the interest of disclosure. So the irony here is that those favoring the prosecution in that case are actually favoring the creation of an official secrets act in effect, a hallmark of totalitarian regimes -- that is, a body of classified info that is effectively unaccountable, unknowable and off-limits to the United States people. And by the way, I didn't "attempt[] to insert words that are simply not in the provision in question," as you write (but provide no example of). I'm the one that cited the provision in question and inserted it here. I added nothing. First you accused me of omitting things. Now it's adding things. I added nothing; I omitted nothing. Instead I actually read the language at issue, including the commas, and the implications of their placement along with general principles of statutory interpretation and constitutional law. Link to comment Share on other sites More sharing options...
Roger Odisio Posted June 8 Share Posted June 8 15 hours ago, Matt Cloud said: RO: It's an established fact that Biden's does not have jurisdiction over the release of nonexecutive branch records, nor records held by non government entities. Even judge Seeborg in the MFF lawsuit has acknowledged that. Yes a record is a record no matter who possesses it. I don't know where you got the idea that NARA has all relevant Congressional records. Cite me the law of this "Established Fact." That's what were talking about now here, the law. RO: It's an established fact that Biden's does not have jurisdiction over the release of nonexecutive branch records, nor records held by non government entities. Even judge Seeborg in the MFF lawsuit has acknowledged that. Yes a record is a record no matter who possesses it. I don't know where you got the idea that NARA has all relevant Congressional records. Cite me the law of this "Established Fact." That's what were talking about now here, the law. RO: Yes, let's look at the law. Specifically what Judge Richard Seeborg said in his decision in the MMF lawsuit, when he looked into the question of the limitation on Biden's authority. Quoting from his decision, issued 7/14/23, p.12 Case No22-cv-06176-RS: Likewise Plaintiffs' challenge to NARA's failure to release all legislative branch records in 2017 also has merit since the Presidential authority claimed for the postponements seems limited to records originated by the executive branch. The language and structure of Section 9 support this conclusion. Section 9(c)(4)(B) provides that after the ARRB makes its determination as to whether an assassination record should be publicly disclosed, it should notice the President for "determinations regarding executive branch records" and "the [Congressional] oversight committees....in the case of legislative branch records." Section 9(d)(1) imbues the President with the "sole and undelegable authority to require the disclosure or postponement" of records that are either: (1) "an executive branch assassination record" or (2) "information contained in an assassination record, obtained or developed solely within the executive branch," but no others. This siloed structure--requiring notification to the executive and legislative bodies, respectively, and cabining the President's ability to override the ARRB's determinations regarding to executive branch records--comports with basic separation of powers principles. Moreover, the interpretation that the President's postponement authority in Section 5(g)(2)(D) is limited to executive branch records is also bolstered by the JFK Act's legislative history. The Senate committee report on the ACT clearly stated that the President's ability to postpone release of records after 25 years only applies "in the case of executive branch records" S. Rep. 102-328...(requiring Congressional resolutions in the event Congress disagrees with ARRB determinations "for congressional records". Clear enough? I had forgotten the obvious point about the separation of powers when I had read this before. RO: It's hilarious that you think you can get away with citing Ezra Cohen of the PID Board as the authority on the JFK Records Act. Cohen's mistake filled "explanation" of what the JFK Act does indicates neither of you knows what you are talking about. What is it you think I think I'm getting away with? And instead of merely alleging "mistakes," why not identify them, explain them, rather than leap to ad hominen attack, whether at me or anyone else? Then we can actually identify who knows what they are talking about and who may not. But your approach, now in at least our third go-around together, conveniently avoids that potential outcome. I admit to being pissed when, after I made a few run of the mill observations about the Act that I had posted before, you popped on here to assert I was wrong about both the facts and the law. Without offering an explanation or elaboration. As if you expected to be taken at your word. In any case. citing Cohen of the PID Board as an authority on the JFK Act is ludicrous. Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 8 Share Posted June 8 (edited) 35 minutes ago, Roger Odisio said: RO: It's an established fact that Biden's does not have jurisdiction over the release of nonexecutive branch records, nor records held by non government entities. Even judge Seeborg in the MFF lawsuit has acknowledged that. Yes a record is a record no matter who possesses it. I don't know where you got the idea that NARA has all relevant Congressional records. Cite me the law of this "Established Fact." That's what were talking about now here, the law. RO: Yes, let's look at the law. Specifically what Judge Richard Seeborg said in his decision in the MMF lawsuit, when he looked into the question of the limitation on Biden's authority. Quoting from his decision, issued 7/14/23, p.12 Case No22-cv-06176-RS: Likewise Plaintiffs' challenge to NARA's failure to release all legislative branch records in 2017 also has merit since the Presidential authority claimed for the postponements seems limited to records originated by the executive branch. The language and structure of Section 9 support this conclusion. Section 9(c)(4)(B) provides that after the ARRB makes its determination as to whether an assassination record should be publicly disclosed, it should notice the President for "determinations regarding executive branch records" and "the [Congressional] oversight committees....in the case of legislative branch records." Section 9(d)(1) imbues the President with the "sole and undelegable authority to require the disclosure or postponement" of records that are either: (1) "an executive branch assassination record" or (2) "information contained in an assassination record, obtained or developed solely within the executive branch," but no others. This siloed structure--requiring notification to the executive and legislative bodies, respectively, and cabining the President's ability to override the ARRB's determinations regarding to executive branch records--comports with basic separation of powers principles. Moreover, the interpretation that the President's postponement authority in Section 5(g)(2)(D) is limited to executive branch records is also bolstered by the JFK Act's legislative history. The Senate committee report on the ACT clearly stated that the President's ability to postpone release of records after 25 years only applies "in the case of executive branch records" S. Rep. 102-328...(requiring Congressional resolutions in the event Congress disagrees with ARRB determinations "for congressional records". Clear enough? I had forgotten the obvious point about the separation of powers when I had read this before. RO: It's hilarious that you think you can get away with citing Ezra Cohen of the PID Board as the authority on the JFK Records Act. Cohen's mistake filled "explanation" of what the JFK Act does indicates neither of you knows what you are talking about. What is it you think I think I'm getting away with? And instead of merely alleging "mistakes," why not identify them, explain them, rather than leap to ad hominen attack, whether at me or anyone else? Then we can actually identify who knows what they are talking about and who may not. But your approach, now in at least our third go-around together, conveniently avoids that potential outcome. I admit to being pissed when, after I made a few run of the mill observations about the Act that I had posted before, you popped on here to assert I was wrong about both the facts and the law. Without offering an explanation or elaboration. As if you expected to be taken at your word. In any case. citing Cohen of the PID Board as an authority on the JFK Act is ludicrous. Seeborg's passage there is not a definitive statement of the law. Note his observation that the "Presidential authority claimed for the postponements seems limited to records originated by the executive branch." It is not settled. The executive branch disagrees with him in that interpretation. We have no ruling by a higher court establishing that that is in fact the correct interpretation. All he's saying in other words, at this stage of the litigation, is that he sees the possibility for a meritorious claim and he would allow the suit to go forward. That decision could well be reversed. All you have done here is simply state one's judge's decision -- at the pleading stage -- and attempted to convert that into some final, black-letter interpretation of the law. You have jumped the gun. As far as I am aware, NARA -- an executive branch agency -- has possession of both executive branch records and congressional records such as those developed during the HSCA hearings and the like. Most of the latter have been released, in accordance with the JFK Records Act. However, even those documents still contain redactions, the classification of which is entirely the province of the executive branch, notwithstanding Seeborg's claim that the JFK Records Act sufficiently addresses separation of powers concerns. If Congress is in charge of those records: (a) they don't have possession; (b) which member of the Congress today would have authority over the release of documents created 40 years ago?; (c) the releases that have occurred already confirm that executive branch interests control -- they take priority. As to the introduction of better-orienting points of view, i.e. my posting here the letter from the Public Declassification Board AND the National Archives on the subject, I did not expect to be taken at my word -- because I added few words at all -- but at their words. You don't like Cohen. Fine. But whether or not you like him, he is the chair of the PIDB, an entirely relevant governmental body on tis subject, notwithstanding your claim that both of those citations by me were "non-sequiturs." In addition, others persons of perhaps different political persuasions also sit on the board. I would point now to the hearing from last year by Mark A. Bradley, who had been executive director of the PIDB until his resignation on the day Biden classified documents were found, before the House Intelligence Committee, which provides a useful primer on the complexities of the declassification process generally as well as some interesting and illuminating bits of information regarding the management of presidential records more specifically. It would be worth your time to read through and become familiar with the bureaucracies and players involved in this subject. https://www.justsecurity.org/wp-content/uploads/2023/05/house-intell-3.1.23_nara_briefing_transcript.pdf Edited June 8 by Matt Cloud Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 8 Share Posted June 8 14 hours ago, Matt Cloud said: Guess what? Not only is the OLC and my interpretation the correct one; it is in fact what has happened in practice by now two presidents. But your welcome to play legal draftsman all you want. You are wrong. Your re-wording "unless, as required by this Act, the President certifies ...," makes "as required by this Act," superfluous. Of course it would be "by this Act." That drafting would be like saying "The President must do A, B and C as required by this Act." We already know the Act is requiring someone to do something. It needn't be repeated. Your characterization of the result being "absurd" is just that -- a characterization. That is the effect of the law. You might say it was designed to save the best for last. In any case, not only are you misreading the text as written, and offering a poorly worded substitute of your own, you are failing to apply constitutional principles -- the separation of powers -- which all statutes of course must comply. Classification exists for the benefit of the executive -- it is his and only his to apply or take away. Them's the rules. Congress cannot remove that power or tell the president how it can be exercised. The clause saves the statute from constitutional challenge by essentially re-stating (rather like the Presidential Records Act does) what is already the President's inherent Article II authority. My interpretation and that of OLC comports with this understanding. Your does not. The only classification and declassification authority in the United States is the President of the United States, with the Atomic Energy Act being a narrow exception for certain materials "born classified." If you want to get into ironies, or absurdities, we have a case in Florida -- which many here probably are in favor of (i.e. take the prosecution's side) -- in which it is being argued that an executive branch agency, an unelected body, the guardian of the deep state's secrets, has the authority over and above the president. That's absurd -- because it's unconstitutional. And such a position is NOT in the interest of disclosure. So the irony here is that those favoring the prosecution in that case are actually favoring the creation of an official secrets act in effect, a hallmark of totalitarian regimes -- that is, a body of classified info that is effectively unaccountable, unknowable and off-limits to the United States people. To wit, and now I'll quote Seeborg: "As was held previously, these provisions of the JFK Act [Sections 6 & 9(D)] apply only to postponement after an initial determination by the ARRB, whereas Section 5(g)(2)(D) is a separate statutory provision that provides the President with postponement authority after the 25-year deadline. In the [Third Amended Complaint], Plaintiffs once again incorrectly seek to cabin the President’s authority to Sections 6 and 9(d), neglecting the distinct authority the JFK Act provides the President in Section 5(g)(2)(D). ... Section 6 and Section 5(g)(2)(D) are distinct statutory grounds for postponement. Plaintiffs repeated attempts to blur the lines between the two are unavailing. The president’s broad discretion under Section 5(g)(2)(D) allows him to use any criteria for postponement, as long as the 5(g)(2)(D) statutory criteria are identified in his certification, which they were. ... IT IS SO ORDERED. Dated: January 18, 2024 RICHARD SEEBORG Chief United States District Judge" https://aarclibrary.org/wp-content/uploads/2024/01/MF-v.-Biden-order-1-18-24.pdf p. 5, 7, 11. Take it up with Judge Seeborg, your claim of "absurdity." Link to comment Share on other sites More sharing options...
Roger Odisio Posted June 8 Share Posted June 8 1 hour ago, Matt Cloud said: Seeborg's passage there is not a definitive statement of the law. Note his observation that the "Presidential authority claimed for the postponements seems limited to records originated by the executive branch." It is not settled. The executive branch disagrees with him in that interpretation. We have no ruling by a higher court establishing that that is in fact the correct interpretation. All he's saying in other words, at this stage of the litigation, is that he sees the possibility for a meritorious claim and he would allow the suit to go forward. That decision could well be reversed. All you have done here is simply state one's judge's decision -- at the pleading stage -- and attempted to convert that into some final, black-letter interpretation of the law. You have jumped the gun. RO: You're grasping at straws. I thought you might glom on to the word "seems" that Seeborg uses when he first introduces the topic. You need to keep reading what he says. The very next sentence Seeborg asserts "The language and structure of Section 9 support this conclusion", and then discusses the full range of support he found for his conclusion in researching the topic. Yes, Matt that's Seeborg's conclusion; he is not merely suggesting a "possibility" that Biden's authority is limited. He quotes specific language in the Act on which his conclusion is based. He shows the legislative history supports his conclusion. He points to the fact that the separation of powers in the Constitution demands his conclusion. It's all there for you to read again. Your claim the Seeborg is merely saying he sees the *possibility* that Biden's authority may be limited to executive branch records and so is willing for the issue to proceed, is wrong. Of course Biden's lawyers disagree. You needn't bother us with such platitudes. Of course Seeborg's conclusion can be overturned. But on what grounds? You need to go through Seeborg's discussion--I posted it all there in one paragraph as it is laid out in the decision--and show where he is wrong. You need to show why Biden has the authority to decide about the release of all JFK records, not just those held by the executive branch of the federal government. Btw, I assume you know that the term JFK record includes a lot more than the records of the executive and legislative branches of the federal government. It includes all information relevant to understanding the murder, regardless of who possesses it. The term was defined as broadly as possible by the ARRB in the course of their work (the definition is not in the Act). See the discussion of this in the Final Report of the ARRB. That includes the Zapruder film, which NARA has, but also the Darnell and Wiegman films of the immediate aftermath of the murder, currently held by NBC, which NARA has resisted including in the Collection. It also includes, for example, the files on Jean Rene Souetre, held by the CIA, but also separate files the French have. Particularly the March, 1964 investigation into Soueter's whereabouts done by the French. Fensterwald tried to get those files in the 80s, but the French wouldn't let him see them because Souetre was still alive. He's dead now. Is it your position that Biden has the authority to decide about releasing *all* JFK records, not just those held by the executive and legislative branches of the federal government? Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 8 Share Posted June 8 (edited) 1 hour ago, Roger Odisio said: You are the one that is "grasping" here, not me. It's not clear at all what your point of contention is. Let me do you the favor and try to summarize to the extent I am able to help -- yet again -- orient your thinking. It seems you are contending that the President of the United States does not have the authority to release -- however that may be defined -- all information anywhere in the universe that may pertain to the Kennedy assassination. Is that a correct summation of your position? If so, we are in agreement. More narrowly, it seems you are also contending that the President of the United States does not have the authority to release congressional materials specifically, which pertain to the JFKA. Am I right again? Let's assume for now I am. The question over "control" of congressional documents is an interesting one. Which is to say, who maintains control over such materials over long periods of time that may have originated from a legislative body? To that end, the JFK Records Act sought, inter alia, to help resolve that bureaucratic conundrum by establishing a board to first identify and obtain control/possession of these materials and, I believe, to transfer custodial responsibility of them to the National Archives. Am I right? In addition, this statutorily-created board was charged with working with various interested agencies with respect to the release of these and other documents to the extent such materials were deemed -- by the President -- not to violate national security protocols. So, according to this understanding, expressed in the granting of a pre-trial motion to avoid dismissal, which is to say it does not include any analysis on the merits of the actual claim, but rather merely indicates that plaintiffs have stated a cognizable action, it is NARA that has authority over these legislative materials that are said to be wrongfully withheld. Well, NARA is an agency part of the executive branch. You are trying to argue, as MFF is, that NARA has independent authority over the release of legislative documents, authority independent from the president's authority over classification. That's where we are? Right? And on January 18, 2024, the Court dismissed some claims of MFF et al. but preserved their claim regarding the release of allegedly improperly withheld legislative documents. Seeborg wrote: "Defendants’ motion is also granted as to Claim 2, except to the portions of Claim 2 concerning the legislative records and NARA’s maintenance of the identification aids." Okay. Guess what? We don't know the answer to this yet. Your statement that it is an "established fact" that Biden has no authority over release of congressional documents is, I will state again, pre-mature. There is no such legal determination at this time. Period. Any claim by you to the contrary is just that, a claim. It is not law, even if the statute says it is law. Without judicial interpretation of this issue, it remains an open issue. I would note further, that Seeborg DENIED MFF's preliminary injunction motion seeking the court to compel NARA to release all legislative records. I would also note the following passage from his analysis: "Plaintiffs have filed three motions for injunctive relief, seeking preliminary injunctions: ... (3) for NARA publicly to disclose legislative records pursuant to the JFK Act. All three of Plaintiffs motions are denied. ... Plaintiffs’ third motion fares no better because Plaintiffs are unable to show they will suffer irreparable injury should their motion be denied. Plaintiffs’ general argument that “witnesses are dying” is not sufficient to move the needle, as the records Plaintiffs seek have been withheld for decades. Furthermore, the national security concerns raised by Defendants considerably tip the balance of hardships in Defendant’s favor." https://aarclibrary.org/wp-content/uploads/2024/01/MF-v.-Biden-order-1-18-24.pdf (pp. 10-11). Now. With all that in mind, there is a very interesting interplay going on right now between the MFF lawsuit and the Trump classified documents case in Florida. To think that the latter will not -- is not -- have[ing] an impact on the analysis of the former is naive. In the classified docs case, it is indirectly alleged by the prosecution that NARA has responsibility for maintenance of classified material separate from the President. (I say indirectly because DOJ brought the case under the Espionage Act.) However the prosecution is steadfastly denying any claim by the former president that the Presidential Records Act -- which identifies that the president has sole authority of the determination of which documents he leaves office with -- controls the disposition of these documents. So what are the angles here? In one case, Trump claims that Congress expressly recognized the president's authority to leave office with any materials and that NARA cannot infringe on that decision. In the other case, Biden claims that Congress cannot compel NARA to release even legislative records. Ironically, --- ssshh -- both of these positions are in alignment: Congress cannot tell NARA what to do. Where am I going with this? What's really happening here? Again, what is happening is judicial establishment of certain long overdue principles in US Constitutional law. Both cases will resolve -- I predict -- in favor of Executive Authority as against Congressional and bureaucratic. In addition, The Mary Ferrell Foundation, and Jefferson Morley, are trying to force the disclosure of the remaining JFK records before Trump does. That's what this is really about. Preventing Trump from getting the credit. You will find, eventually, that both of these suits involve many of the same documents. You really can't understand one without the other. I could go and there is a more in-depth and fascinating dynamic from a legal analysis standpoint across these two simultaneous cases, no doubt a worthy subject for a law review article some day. In any case, it is not established -- as a matter of law -- just who has responsibility for the release of the legislative documents. MFF says NARA must; Biden says NARA must defer to national security interests. That's one reason why we have lawsuits here. To settle questions like this. Your position -- that it is in fact already settled -- is, now for the last time by me -- WRONG. Thank you. Edited June 8 by Matt Cloud Link to comment Share on other sites More sharing options...
Roger Odisio Posted June 9 Share Posted June 9 5 hours ago, Matt Cloud said: You are the one that is "grasping" here, not me. It's not clear at all what your point of contention is. Let me do you the favor and try to summarize to the extent I am able to help -- yet again -- orient your thinking. It seems you are contending that the President of the United States does not have the authority to release -- however that may be defined -- all information anywhere in the universe that may pertain to the Kennedy assassination. Is that a correct summation of your position? If so, we are in agreement. More narrowly, it seems you are also contending that the President of the United States does not have the authority to release congressional materials specifically, which pertain to the JFKA. Am I right again? Let's assume for now I am. The question over "control" of congressional documents is an interesting one. Which is to say, who maintains control over such materials over long periods of time that may have originated from a legislative body? To that end, the JFK Records Act sought, inter alia, to help resolve that bureaucratic conundrum by establishing a board to first identify and obtain control/possession of these materials and, I believe, to transfer custodial responsibility of them to the National Archives. Am I right? In addition, this statutorily-created board was charged with working with various interested agencies with respect to the release of these and other documents to the extent such materials were deemed -- by the President -- not to violate national security protocols. So, according to this understanding, expressed in the granting of a pre-trial motion to avoid dismissal, which is to say it does not include any analysis on the merits of the actual claim, but rather merely indicates that plaintiffs have stated a cognizable action, it is NARA that has authority over these legislative materials that are said to be wrongfully withheld. Well, NARA is an agency part of the executive branch. You are trying to argue, as MFF is, that NARA has independent authority over the release of legislative documents, authority independent from the president's authority over classification. That's where we are? Right? And on January 18, 2024, the Court dismissed some claims of MFF et al. but preserved their claim regarding the release of allegedly improperly withheld legislative documents. Seeborg wrote: "Defendants’ motion is also granted as to Claim 2, except to the portions of Claim 2 concerning the legislative records and NARA’s maintenance of the identification aids." Okay. Guess what? We don't know the answer to this yet. Your statement that it is an "established fact" that Biden has no authority over release of congressional documents is, I will state again, pre-mature. There is no such legal determination at this time. Period. Any claim by you to the contrary is just that, a claim. It is not law, even if the statute says it is law. Without judicial interpretation of this issue, it remains an open issue. I would note further, that Seeborg DENIED MFF's preliminary injunction motion seeking the court to compel NARA to release all legislative records. I would also note the following passage from his analysis: "Plaintiffs have filed three motions for injunctive relief, seeking preliminary injunctions: ... (3) for NARA publicly to disclose legislative records pursuant to the JFK Act. All three of Plaintiffs motions are denied. ... Plaintiffs’ third motion fares no better because Plaintiffs are unable to show they will suffer irreparable injury should their motion be denied. Plaintiffs’ general argument that “witnesses are dying” is not sufficient to move the needle, as the records Plaintiffs seek have been withheld for decades. Furthermore, the national security concerns raised by Defendants considerably tip the balance of hardships in Defendant’s favor." https://aarclibrary.org/wp-content/uploads/2024/01/MF-v.-Biden-order-1-18-24.pdf (pp. 10-11). Now. With all that in mind, there is a very interesting interplay going on right now between the MFF lawsuit and the Trump classified documents case in Florida. To think that the latter will not -- is not -- have[ing] an impact on the analysis of the former is naive. In the classified docs case, it is indirectly alleged by the prosecution that NARA has responsibility for maintenance of classified material separate from the President. (I say indirectly because DOJ brought the case under the Espionage Act.) However the prosecution is steadfastly denying any claim by the former president that the Presidential Records Act -- which identifies that the president has sole authority of the determination of which documents he leaves office with -- controls the disposition of these documents. So what are the angles here? In one case, Trump claims that Congress expressly recognized the president's authority to leave office with any materials and that NARA cannot infringe on that decision. In the other case, Biden claims that Congress cannot compel NARA to release even legislative records. Ironically, --- ssshh -- both of these positions are in alignment: Congress cannot tell NARA what to do. Where am I going with this? What's really happening here? Again, what is happening is judicial establishment of certain long overdue principles in US Constitutional law. Both cases will resolve -- I predict -- in favor of Executive Authority as against Congressional and bureaucratic. In addition, The Mary Ferrell Foundation, and Jefferson Morley, are trying to force the disclosure of the remaining JFK records before Trump does. That's what this is really about. Preventing Trump from getting the credit. You will find, eventually, that both of these suits involve many of the same documents. You really can't understand one without the other. I could go and there is a more in-depth and fascinating dynamic from a legal analysis standpoint across these two simultaneous cases, no doubt a worthy subject for a law review article some day. In any case, it is not established -- as a matter of law -- just who has responsibility for the release of the legislative documents. MFF says NARA must; Biden says NARA must defer to national security interests. That's one reason why we have lawsuits here. To settle questions like this. Your position -- that it is in fact already settled -- is, now for the last time by me -- WRONG. Thank you. In my last note I copied the passage of Judge Seeborg's decision in which he explain how he reached the conclusion that Biden's jurisdiction over record release decisions extends only to records of the executive branch of the federal government. There was nothing unusual about the judge's explanation. He cited language in the Act to support his conclusion. He determined the Act's legislative history supported it as well. And he pointed to the separation of powers between the branches under the Constitution. Here you are back again claiming this never happened. You say the judge merely granted a pre-trial motion to avoid dismissal, but did not include *any analysis* on the merits of the question. That's clearly false. No discussion can proceed without an agreement on the basic facts. I see no reason to continue this one. . Link to comment Share on other sites More sharing options...
Matt Cloud Posted June 9 Share Posted June 9 (edited) 12 hours ago, Roger Odisio said: In my last note I copied the passage of Judge Seeborg's decision in which he explain how he reached the conclusion that Biden's jurisdiction over record release decisions extends only to records of the executive branch of the federal government. There was nothing unusual about the judge's explanation. He cited language in the Act to support his conclusion. He determined the Act's legislative history supported it as well. And he pointed to the separation of powers between the branches under the Constitution. Here you are back again claiming this never happened. You say the judge merely granted a pre-trial motion to avoid dismissal, but did not include *any analysis* on the merits of the question. That's clearly false. No discussion can proceed without an agreement on the basic facts. I see no reason to continue this one. . You need to understand what's called the "procedural posture" in litigation -- what stage are we at in this litigation? All Seeborg did was decline to dismiss MFF's lawsuit before a trial because he found that MFF had stated a reasonably cognizable claim. He sees support for their claim, yes. However, I would note that his denial of injunctive relief on those grounds is perhaps telling as to the ultimate disposition of the case. That is to say, the judge deferred to "national security interests" ultimately, not plaintiffs' claim of what they say is the plain meaning of the statutory text. The issue you say is settled is the surviving claim in the lawsuit which was otherwise dismissed. You don't seem to get this. If it was settled law that Biden had no jurisdiction over leg records, the court would have already granted an injunction compelling NARA to turn over the documents. There would be no trial, no case to resolve. But he didn't! Because it isn't! It is a question of law which will need to be settled IN THIS CASE. You will find, I predict, that the ultimate disposition of this case will result in the judicial branch being unwilling to support a statute by the legislative branch which compels the overriding of the executive branch's prerogative with respect to matters of national security. That's to say, the executive branch's interests control here, not congress'. If your description of the law and this case was accurate we would already have the release of these leg records. But we don't -- because the law is not settled. Edited June 9 by Matt Cloud Link to comment Share on other sites More sharing options...
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