the MFF appeal of Judge Seeborg's decision about the JFK Act

[Roger Odisio]

Chad Nagel has posted an excellent summary of the MFF's appeal of Judge Seeborg's horrendous decision about enforcement of the JFK Act, filed last month at the US Court of Appeals for the NInth Circuit.  https://jfkfacts.substack.com/ 

At the heart of the matter is Seeborg's claim that when the ARRB closed its doors in 1998, the Act did not mandate anyone, including NARA, as the "successor in function" to finish the job.  He could only do that by, among other things, ignoring Section 12 (b) of the Act which requires NARA's Archivist to certify to the President and Congress when all JFK records had been released for public view. When Bill and Larry pointed this out, he acknowledged the point, did not admit his omission, and simply waved his arms and repeated his false interpretation. 

Bill and Larry's appeal is loaded with good points.  One can only hope it gets a fair hearing on appeal.

[Robert Morrow]

15 minutes ago, Roger Odisio said:

Chad Nagel has posted an excellent summary of the MFF's appeal of Judge Seeborg's horrendous decision about enforcement of the JFK Act, filed last month at the US Court of Appeals for the NInth Circuit.  https://jfkfacts.substack.com/ 

At the heart of the matter is Seeborg's claim that when the ARRB closed its doors in 1998, the Act did not mandate anyone, including NARA, as the "successor in function" to finish the job.  He could only do that by, among other things, ignoring Section 12 (b) of the Act which requires NARA's Archivist to certify to the President and Congress when all JFK records had been released for public view. When Bill and Larry pointed this out, he acknowledged the point, did not admit his omission, and simply waved his arms and repeated his false interpretation. 

Bill and Larry's appeal is loaded with good points.  One can only hope it gets a fair hearing on appeal.

Good luck!!

[Bill Simpich]

 

 

 

 

JFK Researchers Appeal for Justice in Federal Court

Ninth Circuit to examine district court’s faulty interpretation of JFK Act - by Chad Nagle

 

 

 

The nonprofit Mary Ferrell Foundation (MFF), which maintains the largest online repository of records related to the assassination of President John F. Kennedy, filed suit against President Biden and the National Archives and Records Administration (NARA) in October 2022, charging the defendants with failure to enforce the President John F. Kennedy Assassination Records Collection Act (“JFK Records Act” or “JFK Act”).

The JFK Act, a sweeping law Congress passed unanimously in 1992, mandates the public release of all assassination-related material in the government’s possession. Thirty-two years after it was passed, thousands of records are still withheld.

In January 2024, Chief Judge Richard Seeborg of the U.S. District Court for the Northern District of California dismissed all but three of MFF’s claims — i.e., litigation over (1) congressional JFK records, (2) destroyed JFK records, and (3) archival finding aids.

The plaintiffs believe Judge Seeborg has made serious errors of judgment and now challenge his decision. On May 28, MFF filed an interlocutory appeal in the United States Court of Appeals for the Ninth Circuit, asking the appellate court to address issues the lower court dismissed or ignored, even as the lower court settles the surviving claims.

The Foundation’s appeal asks the Ninth Circuit to block the Archives from enforcing a scheme — the “Transparency Plan” — designed by the CIA to govern declassification of records related to President Kennedy’s murder. President Biden formally approved the CIA’s scheme in December 2022, and MFF is arguing that this violates the JFK Act, which gives all JFK files “a presumption of immediate disclosure.”

 

 

The decision of the White House and Archives to adopt the “Transparency Plan” delays release of the remaining 3,648 withheld JFK files indefinitely — and possibly forever. If successful, the interlocutory appeal will reverse the district court’s orders and direct it to review claims that were dismissed in January. Reversal would halt the use of the “Transparency Plan” before — hopefully — consigning it to the dustbin of history.

 

 

Courtroom One in the Ninth Circuit Courthouse (Curbed SF)

A Remedy for Mischief

 

“The purpose of this appeal is to ask the Ninth Circuit to use its power to tell the District Court to interpret the JFK Records Act as a remedial statute,” Bill Simpich, lead counsel for the plaintiffs, told JFK Facts.

“The purpose of the Act was to remedy the weaknesses of the Freedom of Information Act (FOIA) by ensuring we obtained the full history of the JFK assassination,” he added.

 

 

Section 2(a)(5) of the JFK Records Act of 1992

In other words, FOIA was obstructing the selection, collection and release of assassination-related files, and the JFK Act was meant to “remedy” that problem. As the plaintiffs explained in their March 2023 brief, courts should interpret remedial laws expansively, “to effectuate the beneficial purpose” Congress intended.

Specifically, when reviewing a remedial law, a court is supposed to apply the “mischief rule.” This ancient Anglo-American legal principle requires courts to pinpoint the mischiefs and defects that the legislature identified when it enacted the law, then construe that law broadly, to suppress the mischief and advance the remedy.

 

 

Excerpt from “Heydon’s Case” (1584), explaining the “mischief rule”

The “mischief” that Congress targeted with the Act — i.e., ongoing secrecy over President Kennedy’s murder — had exacerbated public mistrust of government up to the 1990s, and it continues to do so today thanks to official evasions of federal law.

Now, the district court is construing the JFK Act narrowly, discharging the Archives of any duty to perform the ARRB’s functions, and forcing researchers to rely on FOIA again. In short, the district court is sanctioning the mischief that the JFK Act was designed to eliminate, and this is what MFF is trying to stop.

In granting the president discretion to withhold JFK files in spite of Congress’ mandate, Judge Seeborg’s ruling serves to protect the CIA, which is still concealing significant JFK assassination files, e.g., records of a psychological warfare operation involving accused assassin Lee Harvey Oswald and a 1961 White House memo on reorganizing the CIA.

The Archives’ Duty

 

In 1998, as time neared for the ARRB’s dissolution, several agencies waited out the board, failing to submit signed “declarations of compliance” confirming they had located all JFK-related documents and transferred them to the Archives. 

This bureaucratic foot-dragging recalled the actions of CIA counterintelligence chief James Angleton, reported in a March 1964 memorandum as saying he wanted to “wait out” the Warren Commission, which was investigating President Kennedy’s assassination. 

 

 

Left: Former CIA counterintelligence chief James Angleton (Steven Hager); Right: The President’s Commission on the Assassination of President John F. Kennedy (the Warren Commission) in 1964 (Abdon Daoud Ackad, Sr.)

The JFK Act created an independent civilian panel called the Assassination Records Review Board (ARRB) to oversee implementation of the law in the 1990s. When the ARRB dissolved in 1998, the Archives set about collecting, reviewing and releasing files under the JFK Act, albeit at a much slower rate than the ARRB had.

The plaintiffs explain that, with the Archives standing in as “successor in function” to the ARRB, “the torrent of collected documents was reduced to a trickle, and a backlog of un-released documents sat in limbo.” Researchers and historians could not do their jobs.

The ARRB expected the Archives to assume its duties: Sections 5 and 7 of the JFK Act require NARA “to review, identify and transmit possible assassination records to the JFK Collection when ‘an office has any uncertainty as to whether a document is an assassination record’ or when the ‘Review Board’ [i.e., NARA] has ‘reason to believe’ that a document must be reviewed.” Such duties are supposed to be broadly assumed.

 

 

Excerpt from p. 34 of the interlocutory appeal filed by the Mary Ferrell Foundation with the Ninth Circuit Court of Appeals on May 28, 2024

The district court ignored what the JFK Act said about the Archives’ duties. The only sections of the law that terminated with the ARRB concerned its administration, staffing, and day-to-day functioning. Indeed, it was precisely because the Archives and the CIA understood that the obligations spelled out in the JFK Act remained in force, that the two agencies entered into a “Memorandum of Understanding” with the ARRB in 1998.

 

 

Excerpt from the preamble of the memorandum of understanding (“MOU of 1998”) signed by the CIA, the National Archives and the Assassination Records Review Board

The U.S. Code transferred these duties to NARA as the “successor in function” to the ARRB. The district court has rejected the plain meaning of the law, not just in the form of a federal statute that Congress never repealed, but also clearly worded federal regulations.

 

 

Excerpt from Federal Register, Vol. 65, No. 124, p. 39550 - Rules and Regulations / National Archives and Records Administration / John F. Kennedy Assassination Records Collection Rules, identifying NARA as “successor in function” to ARRB

Undermining Public Interest

 

As MFF has repeatedly highlighted, Section 5(g)(2)(D) of the JFK Act requires that any agency seeking to withhold an assassination record from the public has to demonstrate that the “identifiable harm” from releasing that document is “of such gravity that it outweighs the public interest in disclosure.”

 

 

Excerpt from pp. 43-44 of the interlocutory appeal filed by the Mary Ferrell Foundation with the Ninth Circuit Court of Appeals on May 28, 2024

Furthermore, it has to do so — under Section 6 — by “clear and convincing evidence.”

 

 

Preamble to Section 6 of the JFK Records Act of 1992

Yet as the plaintiffs note: “The nature of the ‘identifiable harm’ remains hidden — and hence unidentifiable — to this day.” NARA cites no “clear and convincing evidence.” It just relies on “the words of the statute” in President Biden’s June 30, 2023 executive order.

 

 

Excerpt from “Memorandum on Certifications Regarding Disclosure of Information in Certain Records Related to the Assassination of President John F. Kennedy,” issued by President Joseph R. Biden, Jr., on June 30, 2023

The president offered no evidence at all to justify his decree. He simply announced he had certified postponement. Yet Section 5(g)(2)(D) requires him to certify “as required by this Act,” a statute Congress enacted with the help of his vote as a U.S. senator in 1992.

 

 

Section 5(g)(2)(D) of the JFK Records Act of 1992, which features the two-part test for withholding assassination records from public disclosure

NARA is withholding documents based on exceptions created by the CIA, even though these exceptions ignore the JFK Act’s definition of “public interest.” Encouraged by the CIA, NARA is substituting the 2022 Biden Memorandum’s usage of the term.

According to President Biden, agencies can apply the “statutory standard” by giving “substantial weight to the public interest in transparency and full disclosure.” Whatever “substantial weight” means, it has nothing to do with the statutory standard.

 

 

Section 3(10) of the JFK Records Act of 1992, which describes the public interest in disclosure as “compelling”

The plaintiffs argue that President Biden has no right to “water down the ‘public interest’ aspect of the JFK Act,” contravening Congress’ intent. Likewise, NARA shouldn’t be allowed to say it’s “just following orders.” Its duties under the law are clear.

Killing the Process

 

The “Transparency Plans” that Biden refers to in his 2022 memorandum are a less strict system than the process mandated by the JFK Act. They identify events or circumstances that “trigger” review by relevant agencies and the National Declassification Center (NDC). But these events only trigger a review of records, not disclosure, and any review would be opaque. In fact, the CIA’s scheme features no mechanism for automatic disclosure at all.

Section 9(d)(2) of the Act specifies:

Any executive branch assassination record postponed by the President shall be subject to the requirements of periodic review, downgrading and declassification of classified information, and public disclosure…

The CIA’s “Transparency Plan” envisions no periodic review. In fact, it was precisely the nuisance or irritation involved in such reviews that prompted the agencies to advance the new scheme. Pentagon intelligence official John Dixson summed up the agencies’ beef succinctly in a letter to the National Security Council dated Sept. 29, 2022.

Rather than conducting arbitrary date reviews, DoD proposes the remaining redacted information released be “event-triggered” as it pertains to partnerships, equities, and sources and methods identified.

 

 

John Dixson, Director of Defense Intelligence, Counterintelligence, Law Enforcement, and Security (DoD Cyber Crime Center (DC3)/LinkedIn)

Worse, with his 2022 memorandum, President Biden removed his office from the process altogether. The first paragraph of his 2023 edict proclaims his “final certification” under the Act. In practice, this means the President no longer has any meaningful role in the process of review and informed decision-making concerning assassination records. 

Congress didn’t envision the President washing his hands of the certification process 30 years after it enacted the law — with bipartisan support — when thousands of assassination related files remained withheld. It required him to be a part of the process until all records were released. As such, Biden is thumbing his nose at Congress’ intent.

 

 

Interior areas of the Ninth Circuit Courthouse (Credit: Curbed SF)

 

‘Arbitrary and Capricious’

 

The plaintiffs argue that the court should halt NARA’s implementation of the CIA’s “Transparency Plan” because it is “arbitrary and capricious” under the Administrative Procedure Act (APA), enacted by Congress in 1946 to regulate federal and independent agencies. NARA’s changing attitude to the scheme exemplifies its chaotic approach.

 

 

Excerpt from plaintiffs’ interlocutory appeal of May 28, 2024

In August 2017, the Archivist informed the CIA and the other agencies that their requests to postpone release of files did not comply with the JFK Act.

Then in September 2017, the Archives suddenly issued “Procedures for Processing Remaining Postponed Records in the President John F. Kennedy Assassination Records Collection.” This flawed “guidance” was to be followed by all affected agencies and required them to identify the “impact of disclosure on current agency/department operations.” This is a departure from the requirements of the JFK Act.

The guidance also required agencies to specify a rationale for continued postponement, keeping in mind that any “identifiable harm” to national security from disclosure must outweigh the public interest, pursuant to Section 5(g)(2)(D). But it didn’t require the agencies to show how the public interest was outweighed. They could just say it was.

The guidance imposed no burden on the agencies to provide any evidence — never mind clear and convincing. It just skated over the JFK Act’s two-part test for continuing to withhold documents. Presumably an agency nod and wink would suffice.

NARA has dithered between rejection of agency requests and accepting them under a new scheme with no basis in prevailing law. As the plaintiffs point out, NARA’s inconsistent behavior is “the very essence of arbitrary and capricious action.”

Restoring the Rule of Law

 

As the plaintiffs explain on page 7 of their appeal, President Donald Trump delayed release of the JFK assassination files as the Oct. 26, 2017, deadline under the JFK Act approached. President Joe Biden then approved the CIA’s “Transparency Plan” a few years later, modifying the procedure for release of documents, with standards weaker than the JFK Act’s. The result is that documents can be withheld for generations to come.

As the clock ticks and material witnesses die, JFK researchers and the general public should demand justice in the form of broad, inclusive enforcement of a law passed over 30 years ago by their elected representatives. The JFK Act is a remedial law with a very extensive mandate. The plaintiffs in MFF v Biden want the judiciary to instruct the defendants to enforce this historic statute the way Congress wanted it enforced.

If you would like to support the Mary Ferrell Foundation’s lawsuit, please go here.

 

 

A ceiling in the Ninth Circuit Courthouse (Credit: Curbed SF)

Edited Monday at 11:41 PM by Bill Simpich

[Bill Simpich]

Quote

If you want to know what the MFF case is about, Chad Nagle does a good job explaining it above.

 

Edited Monday at 11:52 PM by Bill Simpich

[Benjamin Cole]

9 hours ago, Roger Odisio said:

Chad Nagel has posted an excellent summary of the MFF's appeal of Judge Seeborg's horrendous decision about enforcement of the JFK Act, filed last month at the US Court of Appeals for the NInth Circuit.  https://jfkfacts.substack.com/ 

At the heart of the matter is Seeborg's claim that when the ARRB closed its doors in 1998, the Act did not mandate anyone, including NARA, as the "successor in function" to finish the job.  He could only do that by, among other things, ignoring Section 12 (b) of the Act which requires NARA's Archivist to certify to the President and Congress when all JFK records had been released for public view. When Bill and Larry pointed this out, he acknowledged the point, did not admit his omission, and simply waved his arms and repeated his false interpretation. 

Bill and Larry's appeal is loaded with good points.  One can only hope it gets a fair hearing on appeal.

Thanks for posting. 

Certainly, EF-JFKA members can agree on nothing, except that the JFK Records should be released immediately and unconditionally. 

[Paul Brancato]

1 hour ago, Bill Simpich said:

 

Bill - one of our members - Matt Allison - says the Joannides files are not among the unreleased documents that the suit pertains to. Is that true?  

[Bill Simpich]

The Joannides documents were never sought by the ARRB, so our lawsuit seeks their release pursuant to a different theory.  They are buried in another corner of NARA’s holdings - 44 documents withheld by CIA pursuant to FOIA.  The problem is that the JFK Act specifically states that it was enacted to address the problems that occurred when FOIA was used to obtain JFK documents.

Our reading is that the purpose of the JFK Act is to ensure the release of the Joannides documents (and others like it) currently trapped in FOIA limbo.

 

 

Edited Tuesday at 06:35 AM by Bill Simpich

[Benjamin Cole]

1 hour ago, Bill Simpich said:

The Joannides documents were never sought by the ARRB, so our lawsuit seeks their release pursuant to a different theory.  They are buried in another corner of NARA’s holdings - 44 documents withheld by CIA pursuant to FOIA.  The problem is that the JFK Act specifically states that it was enacted to address the problems that occurred when FOIA was used to obtain JFK documents.

Our reading is that the purpose of the JFK Act is to ensure the release of the Joannides documents (and others like it) currently trapped in FOIA limbo.

 

 

Bill Simpich:

Out of left field question: For a while I reported on large law firms, working the Wall Street scene. Usually, in their literature, they would mention some "pro bono" efforts of the firm. 

Have any large law firms indicated any interest in assisting you, on a pro bono basis? They are loaded to the gills with money. 

 

[Bill Simpich]

Ben Cole,

No offers from big firms, but we don’t need them.  We are more nimble in a small group that understands the issues.

[Paul Cummings]

Thank you Bill. I owe you brew or two.