The Trump/Napolitano/Carlson JFK connection

[Matt Cloud]

1 hour ago, Andrew Iler said:

Going off memory, I believe that it is a conflict of laws principle that the specific controls the general. I’ll try to find some authority. 

That's not applicable as between your contrived distinction between some statutes versus others.  "These are the statutes that really have purpose and these others, well, you know, apply them as you see fit."  That's a novel one in American jurisprudence.  Statutes are statutes.  Had this been about a mere Joint Resolution or Sense of the Congress expression or something of that sort you might have a point.  But that's not what's going on here.  Two laws, passed by both houses of congress, signed by the President.  That's a statute.  

 

In any case, i'll ask rhetorically: Would it matter if the PIDB legislation originated as "specialized, narrowly drafted purpose designed legislation" whatever significance you think attaches to that?  Because it did.  That it was included in some omnibus authorizing act in no relegates it some some subsidiary status.  If that were so, we would have a lot of problems regarding a lot of laws, especially today as more and more pieces of legislation that once originated as unique bills are folded into larger omnibus spending bills -- a practice or habit or failure I disagree with as a matter of a functioning legislative body, but that objection in not is based on some -- again, contrived -- understanding that the provisions contained in such bills are any less lawful or effectual than another.

 

 

Edited June 10 by Matt Cloud

[Matt Cloud]

The conflict of laws principle to which you refer is applied within the terms of a statute itself, generally speaking.  That is to say for example one part of a given statute says something broad and another part of the same statute says something narrow.  In that scenario, yes, the narrow govern in most cases.

 

If your understanding were applied broadly across statutes and other binding legal documents. statutes would swallow the constitution, the latter being broader than the former.

Edited June 10 by Matt Cloud

[Matt Cloud]

Even more to the point: the conflict as between say a narrow provision and a general one, whether within a given statute or across multiple statutes, is not in any way ever based on some conception of the distinction as you have presented it.  That is, it is NOT based on whether the law on one hand was a general law versus a narrow, which you evidently define by a title .. or something.  The resolution of any conflict as between a general provision and a more narrow one is based on the terms -- the language -- actually with the statute(s) at issue.  Not whether one was merely an appropriations bill and another a "purposeful" bill.  This is silly.

[Andrew Iler]

I think the problem that you have is that  the JFK Records Act is on the books and creates a statutory regime over a very specialized area.
 

Clearly Congress understood that the JFK Records Act existed when they passed the Intelligence Authorization Act and there is a presumption that Congress was aware at the time of section 11(a). 
 

The rules around the construction of statutes would require Congress to specifically address section 11(a) of the JFK Records Act and either modify the Intelligence Authorization Act to carve out an exception, or clearly state that the newer Act overrides the older Act. 
 

I misused “conflict of laws” to make this point. 

[Matt Cloud]

4 minutes ago, Andrew Iler said:

I think the problem that you have is that  the JFK Records Act is on the books and creates a statutory regime over a very specialized area.
 

Clearly Congress understood that the JFK Records Act existed when they passed the Intelligence Authorization Act and there is a presumption that Congress was aware at the time of section 11(a). 
 

The rules around the construction of statutes would require Congress to specifically address section 11(a) of the JFK Records Act and either modify the Intelligence Authorization Act to carve out an exception, or clearly state that the newer Act overrides the older Act. 
 

I misused “conflict of laws” to make this point. 

The "rules around the construction of statutes" have no bearing on what Congress does whatsoever.  None.  Those are judicial canons of interpretation.  They are for the judicial branch to use in deciphering the usually byzantibe laws that Congress through it's messy processes passes.

 

Let me reverse your scenario and I think that should settle the point: 

The JFK Records Act could have, for any number of reasons -- i.e. too controversial, Congress was distracted, it forgot  -- could have been passed just as the PIDB legislation was passed.  That is to say, at the last minute, stuck in some general appropriations bill.  And it would have had the same effect at law that it does in its present form.  Your distinction is no distinction at all in the eyes of the law.  They are the same.  I don't have a problem.  You're the one with the problem.  You don't understand what you are talking about. 

[Matt Cloud]

14 minutes ago, Matt Cloud said:

The "rules around the construction of statutes" have no bearing on what Congress does whatsoever.  None.  Those are judicial canons of interpretation.  They are for the judicial branch to use in deciphering the usually byzantibe laws that Congress through it's messy processes passes.

 

Let me reverse your scenario and I think that should settle the point: 

The JFK Records Act could have, for any number of reasons -- i.e. too controversial, Congress was distracted, it forgot  -- could have been passed just as the PIDB legislation was passed.  That is to say, at the last minute, stuck in some general appropriations bill.  And it would have had the same effect at law that it does in its present form.  Your distinction is no distinction at all in the eyes of the law.  They are the same.  I don't have a problem.  You're the one with the problem.  You don't understand what you are talking about. 

More, you write "the JFK Records Act is on the books and creates a statutory regime over a very specialized area."

The PIDB legislation also creates a statutory regime -- over the same very specialized area -- and more.  Indeed, yes, Congress was aware of the JFK Records Act when it passed the Intel Auth Act.  This is my point.  Everyone here wants to act like the latter Act didn't happen.  It did.  And plainly -- by the behavior of the parties responsible here -- NARA and the PIDB and four presidents -- they see it that it way too.  The only people who don't are those that insist that the PIDB is irrelevant.  They're wrong.  As the functioning of the government since it's enactment, and continued reauthorization and indeed expansion since 2001 -- by Congress -- demonstrates.  

Edited June 10 by Matt Cloud

[Matt Cloud]

11 minutes ago, Matt Cloud said:

More, you write "the JFK Records Act is on the books and creates a statutory regime over a very specialized area."

The PIDB legislation also creates a statutory regime -- over the same very specialized area -- and more.  Indeed, yes, Congress was aware of the JFK Records Act when it passed the Intel Auth Act.  This is my point.  Everyone here wants to act like the latter Act didn't happen.  It did.  And plainly -- by the behavior of the parties responsible here -- NARA and the PIDB and four presidents -- they see it that it way too.  The only people who don't are those that insist that the PIDB is irrelevant.  They're wrong.  As the functioning of the government since it's enactment, and continued reauthorization and indeed expansion since 2001 -- by Congress -- demonstrates.  

Notably perhaps, the JFK Records Act received no such infusion of life support after it's 1992 enactment, even in the face of its impending outdatedness and alleged failures of compliance.  It was ignored.  

Edited June 10 by Matt Cloud

[Andrew Iler]

2 minutes ago, Matt Cloud said:

Notably perhaps, the JFK Records Act received no such infusion of life support after it's 1992 enactment, even in the face of its impending outdatedness and alleged failures of compliance.  It was ignored.  

So why did NARA, the other agencies, the White House, and all of their respective legal counsel scramble to deal with the then totally “inconsequential” statutory deadline of October 26, 2017?  
 

If the Congress intended that the Intelligence Authorization Act was to supersede the JFK Records Act, Congress would have to explicitly enact provisions to make their intention the law. They apparently did not do so.

[Matt Cloud]

24 minutes ago, Andrew Iler said:

So why did NARA, the other agencies, the White House, and all of their respective legal counsel scramble to deal with the then totally “inconsequential” statutory deadline of October 26, 2017?  
 

If the Congress intended that the Intelligence Authorization Act was to supersede the JFK Records Act, Congress would have to explicitly enact provisions to make their intention the law. They apparently did not do so.

"inconsequential." That's your word, right?  It's not mine.  I never said that.  The JFK Records Act was still valid and there were compliance issue if they fell out.  That's why.  

As to superseding, I offered that as one possible view.  But while I did that, I offered the preferable interpretation of both acts working in concert, to the extent possible.  Which is what has happened.

You keep making statement without foundation as to some sort of restraint on Congress -- what they must have done.  No, Congress need not tell you their intentions.  Intentions may even be irrelevant as regards judicial interpretation.  Cf. Scalia.  

As I said previously, the PIDB legislation was extremely controversial within a small group of persons at least knowledge about this subject matter.  The fact that historians and JFKA researchers didn't go screaming from the rafters is their fault and should be taken up with them.  It was passed quickly and almost silently during the 2000 election controversy.  The aforementioned Goss, along with Rumsfeld, Cheney and Tenet all playing key roles.  (The Federation of American Scientists did object by the way, and feigned ignorance I would suggest as to why.)

Let me quote Arthur Schlesinger's leter to Moynihan.

 

23 January 2000

Dear Pat:

There is considerable concern in the historical community about the present version of The Public Interest Declassification Act (S. 2345).  I understand that in the course of bureaucratic compromise the commitment to "systematic declassification" review, provided for in the Executive Order on Information Security, has mysteriously disappeared from the bill.  This will of course strengthen the hand of the agencies that chronically resist and sabotage the declassification process.

As you know, the State Department Historical Advisory Committee has been wholly respectful of legitimate national security issues, and, as you well know, classifiers too often drag their feet when it comes to declassification even of innocuous stuff.  Actually systematic declassification review poses no threat to national security since agencies would retain declassification authority.  Can not the commitment be restored to the bill?

If you want more information on this struggle, I would recommend that you call in (or up) Professor Warren Kimball of Rutgers/Newark, a very able diplomatic historian, editor of the FDR-Churchill correspondence and Chairman of State's Historical Advisory Committee.

Yours for the open society!

 

Arthur

 

This was a slight of hand.  But Congress need not tell you that.  I am telling you that, so that you can better understand what's going on here.  There still is much to be explained but this is at least a start, on this topic.

  

 

 

Edited June 10 by Matt Cloud

[Matt Cloud]

Here, from FAS:

 

---

 

 

Department of History
American University
Washington, DC

January 6, 2000

 

Mark Bradley
Office of Sen. Daniel Patrick Moynihan
Russell Office Building, Room 464
U.S. Senate
Washington, DC 20510

Dear Mr. Bradley,

I am an historian who has spent 20 frustrating years in the endless effort to declassify historical documents. I have been a member of the State Department Historical Advisory Committee and as one of the five members of the John F. Kennedy Assassination Records Review Board (ARRB) I participated in one of the open meetings of the Moynihan Commission. I also had a personal meeting with Senator Moynihan to discuss some of his ideas. Therefore, I was quite pleased to learn that the Senator had submitted a bill for declassification.

Like my fellow historians, I am a proponent of systematic declassification because it places a document in the context of other events and policy decisions, but I understand why Senator Moynihan chose the different route to declassification stated in the Public Interest Declassification Act. On the surface, it appears to promise the release of more documents more quickly than the systematic system.

From my early experience as an outsider and my recent one as an insider (with the highest security clearance), I have grave misgivings about the proposed act as it is now written. I frankly do not believe that it can achieve the goal of rapidly declassifying categories of records to satisfy public interest.

For example, the Declassification Board has no real power. It is completely dependent upon the cooperation of the agencies. Given past performance, it is highly unrealistic to assume that agencies, particularly Defense and the CIA, will be completely forthcoming or that the Archives will ever question agency decisions. Under the JFK Act agencies released some heavily redacted records that the Review Board later released in full. In addition, an empowered ARRB staff found many important records that the agencies "overlooked." Agency declassification of selected, heavily redacted records will not serve the public interest. It will only breed more suspicion.

I will be happy to discuss with you these and other concerns before the bill is in final form. Historians have always been vocal supporters of declassification and we will want to continue to work with the Congress for the best possible solution to its inherent problems.

• Sincerely,

  • Anna K. Nelson

     

cc: Thomas Newcomb
House Permanent Select Committee on Intelligence

 

https://sgp.fas.org/news/2000/02/nelson.html

 

Office of the Executive Director
Organization of American Historians
112 North Bryan Street
Bloomington, Indiana 47408-4199
http://www.oah.org/

28 January 2000

 

The Honorable Daniel Patrick Moynihan
United States Senate
Washington, DC 20510-3201

 

• RE: S. 1801, Public Interest Declassification Act

   

Dear Senator Moynihan:

The Organization of American Historians (OAH) urges you to withdraw Senate Bill 1801, the Public Interest Declassification Act, introduced last October by yourself and Representative Porter J. Goss. The bill proposes to establish with the National Archives a nine-member board (to be named the Public Interest Declassification Board) appointed by the president. The board's responsibility will be to recommend to the Archivist records or materials for declassification.

The OAH applauds the "findings" of the bill. These include the need for a "comprehensive reform" of the federal government's system of classifying and declassifying records, establishing an "on-going systematic declassification of classified information," and developing a means of access to information that will strike "the balance between secrecy and the openness that is central to the proper functioning of the political institutions of the United States." The OAH fears, however, that the provisions of the bill will not create a declassification system that will achieve these objectives.

One of the bill's most serious flaws is that is institutionalizes "targeted" or special reviews of classified material as opposed to establishing a systematic declassification system. The aim is "to establish an effective, coordinated, and cost-effective means by which records on specific subjects of extraordinary public interest" will be reviewed and released. Confining the board's operations to "subjects of extraordinary public interest" will encourage selective declassification, run the risk of "politicizing" the declassification process, and favor the declassification of records for which it is possible to arouse extensive media attention.

Such a policy runs counter to the current executive order covering declassification and to the findings of your 1997 Commission on Protecting and Reducing Government Secrecy. Furthermore, as anyone who has worked in the collections of the National Archives will know, it can take years of persistent research to identify all of the records and documents pertaining to an important subject. Selective declassification will very likely result in keeping some records in some agencies classified that may have an important bearing on a subject, and this will mean denying historical researchers and the public full access to records.

A second serious concern with the bill is its budgetary provisions. It requires the Board to request the Archivist to pursue funding. The Archivist, in turn, must request the administration to submit a request to Congress. And it is then up to Congress to authorize and appropriate special expenditures to undertake the reviews and declassification of pertinent records. This is, to say the least, a cumbersome process. Even under ideal circumstances it will mean delays of many years before actual declassification can proceed. It also creates multiple points at which the Board's requests can be delayed or defeated. If the Board's funding is not forthcoming, the Board will be limited in its ability to request declassification projects from individual agencies. This budgetary process in effect creates the possibility that the Board could be essentially toothless in ensuring the smooth flow of declassified records.

The OAH is also disappointed that S. 1801 does not establish a higher standard for openness than what is now called for under the Freedom of Information Act. Legislation affecting the State Department and the Kennedy Assassination Review Panel required a higher standard for opening records, and S. 1801 should aspire to these models.

For these reasons, the OAH believes that S. 1801 is inadequate and in many ways detrimental to the cause of historical inquiry and minimizing government secrecy. We urge you to withdraw the bill before it is considered at congressional hearings in the near future.

 

• Sincerely,

  David Montgomery
  OAH President

  Lee Formwalt
  OAH Executive Director

https://sgp.fas.org/news/2000/02/oah.html

___

 

Chairman THOMPSON. One of the criticisms that has been raised is that perhaps, under this bill, the proposed board would be able to make recommendations to the President to declassify records in response to the interest of the public in a national security matter. Does this mean that the board itself could end up becoming the source of additional special search requests?

Senator MOYNIHAN. Well, I would hope that legislative history would make it clear that we do not intend that. That is one of the problems we are trying to deal with, and this board has no power of its own to declassify anything. When you say they will recommend it to the President, what you mean is they will recommend it to the National Security Adviser. Every so often, some things may come along which should be opened up. Sir, put it this way, more is at issue here than the efficiency of our bureaus and agencies. A majority of American people, the American public, think that the CIA was involved in the assassination of John F. Kennedy, and that was before that movie which showed it happening. I was in the White House in that Southwest Room, just down the hall from the Oval Office, with about eight people when the word came the President was dead. Pretty dicey moment. Half the Cabinet was in a plane crossing the Pacific on the way to a Cabinet meeting with the Japanese; the President and Vice President in Dallas. In the afternoon, we picked up on the news that the Dallas police had arrested a man who was known to be involved with Fair Play for Cuba. I met the Cabinet plane that arrived. They just turned around and came back to Andrews that evening, and I stood there at the bottom of the ramp, saying, ‘‘We have got to get hold of this man. He will not get out of that jailhouse alive. The FBI has to go in there or the Secret Service and get him; and if we do not get him, what will we have? A conspiracy theory we will live with forever—I mean, for ages.’’ Then he was shot—Oswald. Then the President appointed the Warren Commission. I went around, seeing people on the Warren Commission. I had with me a just-republished volume, about 5 years earlier, of the 1880’s, which demonstrated that the Jesuits had been behind the assassination of Lincoln. A century gone by, it was still in circulation. I said, ‘‘Do you want more of this?’’ We do not. But the Warren Commission kept its papers classified. You could start weeping at this. It matters that people do not trust government. I do not have to tell that to you, sir. Sorry. I do not want to get carried away. We have some important witnesses to hear.

 

https://www.govinfo.gov/content/pkg/CHRG-106shrg66249/pdf/CHRG-106shrg66249.pdf p. 17.

 

Steven Aftergood of FAS:

The Present Bill

The present bill would not do much to solve the problem. The secrecy legislation that was first introduced in 1997 has been watered down in each subsequent iteration to the point that the present bill would have no direct impact on secrecy policy whatsoever. The bill would create a "Public Interest Declassification Board" that has no independent authority to declassify or compel declassification. Its "advice" and "recommendations" would create no obligation on the part of the recipient. We know from experience that such declassification advisory bodies can make a positive contribution when they have independent declassification authority, as in the case of the JFK Assassination Records Review Board. Lacking such authority, as in the case of the CIA Historical Review Panel, for example, they are purely cosmetic and without effect. It is hard for those who have read and admired the Report of Sen. Moynihan’s Commission on Protecting and Reducing Government Secrecy not to be disappointed with this meager outcome. If the final result of the process were nothing more than a mere advisory body, then the entire Commission would have been largely a waste of time, as would the related efforts of this Committee over the years. But that need not be the case. I believe that the S. 1801, the Public Interest Declassification Act, could still serve as a vehicle for advancing more ambitious goals, and should be enacted.

 

https://www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/aftergood.pdf p. 3.

 

Also perhaps of interest:

https://www.google.com/books/edition/S_1801_Public_Interest_Declassification/YmIaoh3DmRoC?hl=en&gbpv=1&dq="Public+interest+declassification+act"+Kennedy+assassination&pg=PA32&printsec=frontcover

(See esp pp. 31-32 (Porter Goss' testimony that the PIDB would enhance and augment where the JFK Records Act and other "special purpose disclosure laws" failed. ))

 

https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1768&context=fac_pubs

 

https://www.openthegovernment.org/wp-content/uploads/other-files/otg/govtsecrecy.pdf

 

 

 

"

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.

We understand that agencies are asking you to extend the postponement of public disclosure for parts of many records subject to the JFK Act.

The PID Board is charged under section 703(b) of the Public Interest Declassification Act of 2000, as amended, to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant United States national security activities to respond to the interest of the public in national security matters, and to advise the President on the declassification of historically important records.

Consistent with this duty and to abide by the letter and spirit of the JFK Act and bolster the American people’s confidence and trust in their government, the Board unanimously recommends that you limit any further postponements of public disclosures of the Kennedy assassination records to the absolute minimum."

Edited June 10 by Matt Cloud