Like many Americans dedicated to learning the truth of the political assassinations of the 1960’s, I was eager to see in October of 2017 what our government had been withholding for decades. The President John F. Kennedy Assassination Records Collection Act of 1992 (referred to throughout as the Act or JFK Act), passed into law by President Clinton, ensured the American public complete access to the government’s records concerning the assassination of President John F. Kennedy subject to very specific exceptions.[i] Needless to say, after spending many hours reviewing the “newly released” JFK assassination records, I have been frustrated and outraged by the government’s efforts to comply with the JFK Act.
JFK Records Collection Act: Brief Overview
If one reads the actual text of the JFK Act, something jumps off the page at the very beginning. In its “Findings, Declarations and Purposes” behind the legislation, the U.S. Congress states: “most of the records related to the assassination of John F. Kennedy are almost 30 years old, and only in the rarest of cases is there any legitimate need for continued protection of such records.”[ii] This declaration of Congress was made in 1992!
Now, almost 27 years after the creation of the JFK Act, and almost 56 years after the John F. Kennedy assassination, we should be, according to the JFK Act, fully informed on the history surrounding the assassination of our 35th president, subject only to the rarest of exceptions and with specific disclosures to the American public regarding the continued postponement of any record. That is what the JFK Act says in the clearest of language. Well, we are not even close to what the Act required and one could argue that the recent “records release” has put the American public in an even worse position. The reader may be asking how we can be in a worse position in light of the recent records “release”. As explained in this article, the records we have access to are still in redacted form. A “protected collection” is still withheld in full. Unfortunately, the American public must now take legal action and that should be extremely troubling to our citizens considering the clear requirements of the JFK Act.
Where Are the “New” Records?
The JFK Act authorized the creation of the Assassination Records Review Board (ARRB), an independent body of individuals who were given authority to collect and review assassination records and make determinations regarding disclosure to the public. Many people do not realize, however, that most of the government’s assassination records were already released by the ARRB in the 1990’s. Oliver Stone’s 1991 film “JFK” sparked a major public interest in the assassination, compelling a response from Congress. As discussed above, that response was the JFK Records Collection Act and the creation of the ARRB. A significant portion of the records released in the 1990’s were archived on a fantastic website operated by the Mary Ferrell Foundation.[iii] That website now has a searchable database for assassination records known as the “JFK Database Explorer”.[iv] The problem we face is that the records release of the 1990’s was a collective maze of redacted records. The redactions resulted in an unexplained and unclassified removal of names (i.e. intelligence code names, in particular), locations and addresses. The redactions make it difficult if not impossible for a researcher to make any determination of what the records actually say. The mandated 2017 release was supposed to reveal new records and previously-released records without redactions. As explained below, the Act requires a certification from the President for any portion of a record that is not released in full (i.e. un-redacted) by now. Not only has this not happened to date, but what have seen since October 2017 is a blatant and continuing disregard of the JFK Act.
What Did I Find?
Assassination records can be searched and viewed through the “JFK Assassination Collection Reference System” maintained by the National Archives.[v] In the past 24 months, the national media has covered the various batches of new records released or “re-released” in 2017 and 2018. I say “re-released” because a significant portion of the “new” records released in 2017-2018 were again released, but with the same redactions. Did the people in charge of these records do any actual work, or were they directed to do a superfluous job? More troubling is that the same records with the same redactions were released without any kind of explanation or certification from the President or any other government official as required by the JFK Act.
Another group of records have been released with some redactions removed. The problem is that the vast majority of “new” information I have seen involves only the names of cities and countries, again with no explanation from a government agency regarding the purpose or rationale for now providing “new information” but withholding other information within the records. When read in context, it appears that these cities and countries identify foreign CIA stations that were exchanging information on various subjects of interest. However, the author or recipient of the record remains redacted in almost every case, so it is difficult to learn any new information from the record. At the end of this sentence, we have provided a hyperlink to some select samples of these so-called “new” records, which allow the reader to see how unhelpful the “new” records are in terms of receiving the actual history and circumstances surrounding the assassination.
How Bad is it, and What Can We Do About it?
The violation of the JFK Act is obvious. We are left with a collection of incomplete records that the government is apparently comfortable in releasing. Is it laziness, or something worse? The good news is that the violation of any law or statute has a remedy for the wronged party. This is no different. There is a troubling atmosphere regarding the public disclosure of the JFK records, as if it’s acceptable to continue violating the Act due to the “sensitivity” of the JFK assassination. Is it the assassination itself that is still sensitive, or is it the information in these “protected” records that is too embarrassing to those individuals or agencies that were involved? As we approach 2020, 56 years after the JFK assassination, we should have extreme discomfort about the operations of our government that apparently are still in use today. Can we assume otherwise? We have not received an explanation for continued postponement on one single assassination record.
Those interested in the truth of our nation’s actual history must remember that the JFK Act is a federal law. Why should it be treated as a mere “suggestion” or a casual attempt to provide Americans with a hint of what may have occurred in 1963? The Act has a clear and defined process for continued postponement of assassination records. Specifically, the Act requires that each assassination record be publicly disclosed in full by October 26, 2017 unless the President certifies based on clear and convincing evidence that: (1) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and (2) the identifiable harm is of such gravity that it outweighs the public interest in disclosure.[vi] For continued postponement, the Act requires an unclassified written explanation specifying the decision for postponement on very specific grounds.
What are the grounds for continued postponement of the JFK assassination records? The specifics may surprise you and will probably upset you given that the assassination occurred 56 years ago. Postponement, in whole or in part, is only authorized by the Act if there is clear and convincing evidence that:
(1) the threat to the military defense, intelligence operations, or conduct of foreign relations of the United States posed by the public disclosure of the JFK assassination (record) is of such gravity that it outweighs the public interest, and such public disclosure would reveal:
(a) an intelligence agent whose identity currently requires protection;
(b) an intelligence source or method which is currently utilized, or reasonably expected to be utilized, by the U.S. government and which has not been officially disclosed, the disclosure of which would interfere with the conduct of intelligence activities; or
(c) any other matter currently relating to the military defense, intelligence operations or conduct of foreign relations of the U.S., the disclosure of which would demonstrably impair the national security of the United States;
(2) the public disclosure of the assassination record would reveal the name or the identity of a living person who provided confidential information to the U.S. and would pose a substantial risk of harm to that person;
(3) the public disclosure of the assassination record could reasonably be expected to constitute an unwarranted invasion of personal privacy, and that invasion of privacy is so substantial that it outweighs the public interest;
(4) the public disclosure of the assassination record would compromise the existence of an understanding of confidentiality currently requiring protection between a government agent and a cooperating individual or foreign government, and public disclosure would be so harmful that it outweighs the public interest; or
(5) the public disclosure of the assassination record would reveal a security or protective procedure currently utilized, or reasonably expected to be utilized, by the Secret Service or another government agency responsible for protecting government officials, and public disclosure would be so harmful that it outweighs the public interest.[vii]
Those were the criteria for postponement in 1992, and they are still the criteria today. If there are in fact records in existence that would harm the United States and its national security operations for a reason stated above, we are still entitled under the JFK Act to an unclassified written document explaining for the specific reason for postponement, and this applies to each and every record.[viii]
To me, there is a logical remedy for this continuing struggle, which is contained in the JFK act itself. As explained above, the ARRB was appointed to ensure an independent review of assassination records for disclosure to the public. While the ARRB did a lot of great work, resulting in the transfer of thousands of assassination records to the National Archives for disclosure to the public, we are still left with the redacted records and no legitimate certification from the President regarding the continued postponement.
I think the ARRB is still relevant, and there is no reason that it could not reconvene and finish the work required by the Act. In fact, the President with support from Congress has the authority to do it.[ix] The Act has certain provisions for the winding down and dissolution of the ARRB, but that assumes that the ARRB was allowed to complete its work. Given the secrecy and inaction we still face to this day, it is certainly appropriate and warranted under the JFK Act to reconvene the ARRB or some independent body that has authority to complete the review of the “protected collection” and make the appropriate disclosures to the public.
What is the “protected collection”? If approved for postponement by the ARRB in the 1990’s, under the specific standards of the Act and based on clear and convincing evidence, the ARRB was required to transmit these records to the National Archives as part of a “protected collection”.[x] The National Archives was then required to consult with a Congressional committee regarding the treatment of this “protected collection”. This committee is a joinder of a) the Committee on Government Operations of the House; and b) the Committee of Government Affairs of the Senate.[xi] What have these committees done, if anything? What we do know is that these committees continue to have jurisdiction over the disposition of postponed records following the termination of the ARRB.[xii]
One would think, based on the lack of continued progress from 1992 until 2017, that there was a 25-year delay authorized by the JFK Act. Again, that is wrong. After the creation of this “protected collection” as approved by the ARRB, the government agencies that created the assassination records were required to continue a “periodic review” of the protected records in order to ensure compliance with the Act.[xiii] This was the mechanism installed into the Act to ensure that disclosure of the assassination records would continue after the dissolution of the ARRB. Notably, the postponement of release of any assassination record required an unclassified written description of the reason for the continued postponement, to be provided to the National Archives and published in the Federal Register.[xiv] What happened instead? The ARRB was permitted to wind down, and to our knowledge all government agencies ignored their continuing “periodic review” obligation.
Moving forward to 2017, there should have been little drama concerning the mandated final release after 25 years. After all, if the government agencies responsible for the “periodic review” had done their jobs, the 2017 deadline should have been a non-event. What happened instead? On the eve of the final deadline, we saw tweets from the President about a full release as if that was a gift to the American public. However, at the eleventh hour, for reasons not disclosed to the American public, President Trump backed down and authorized another 6-month delay. Did we get an explanation under the criteria required by the Act? No. This was on the heels of a 25-year period in which those agencies and security committees in charge of the “protected collection” were obligated to perform a periodic review for public disclosure and provide the National Archives with an unclassified written descriptions of the reason for any continued postponement. Clearly this critical part of the JFK Act was intentionally ignored or at best carelessly neglected by those in charge.
Giving the government the benefit of the doubt, let’s assume that there were in fact a handful of records that legitimately qualified for continued postponement after 25 years. Remember, Congress declared in the Act that this could happen in the rarest of cases. What was the President supposed to do in October of 2017 regarding these records? The President was required to issue a written certification stating 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 public interest in disclosure.
The reader may be asking if certain assassination records may be exempt or subject to special treatment. The answer is no. The disclosure requirements of the Act apply to executive branch records, Warren Commission records, and records of all intelligence and assassination Congressional committees including the House Select Committee on Assassinations (HSCA). The HSCA determined in 1978 that JFK was probably assassinated in a conspiracy, perhaps involving elements of organized crime and Miami-based anti-Castro Cubans. We have known for years that the CIA, before JFK took office, had been involved in creating and training an assassination team involving organized crime and anti-Castro Cubans. Researchers have found evidence that this assassination program is linked to the JFK assassination. Is this what the government is trying to “conceal” by continuing to postpone the release of records? Or is there something deeper? We may not know the answer by having access to all records in unredacted form. However, the JFK Act is a federal law still in effect, and what we do know without question is that the government to date has been allowed to treat the JFK Act as a weak “suggestion” of how to treat these important records.
So what actually happened at the statutory 25-year “deadline”? We have already discussed President Trump’s last minute delay and the fact that we received no certification from the President as required by the JFK Act. However, what’s equally alarming is that the records were released to the National Archives in 2017 and 2018 in redacted form and without the unclassified written explanation on the specific reasons for continued postponement. It’s certainly worth noting that the JFK Act has a specific and separate provision governing executive branch assassination records.[xv] Presidents Nixon and Bush (George H.W.) were involved in operations linked to the assassination, including the aforementioned assassination team and the Bay of Pigs operation. President Nixon was in charge of anti-Castro operations as Vice President and was doing so when the deal between organized crime, the CIA and anti-Castro Cubans to form and train a political assassination team was enacted. President Bush was CIA Director when the HSCA encountered significant obstacles in obtaining CIA assassination records. We now know that the CIA assigned a “liaison”, George Joannides, to the HSCA during its investigation, without disclosing to the HSCA that Mr. Joannides was managing the anti-Castro group that had a staged public altercation with Lee Harvey Oswald in New Orleans before the assassination. We now know that this altercation and other intelligence operations were designed to portray Oswald as a pro-Castro communist when in fact that was untrue. Former ARRB chairman John R. Tunheim commented to the Boston Globe in 2013: “There is a body of documents that the CIA is still protecting, which should be released. Relying on inaccurate representations made by the CIA in the mid-1990s, the Review Board decided that records related to a deceased CIA agent named George Joannides were not relevant to the assassination. Subsequent work by researchers, using other records that were released by the board, demonstrates that these records should be made public." Mr. Tunheim said in a separate interview “It really was an example of treachery…If (the CIA) fooled us on that, they have fooled us on other things.”[xvi]
We also now know that President Bush was affiliated with the CIA at the time of the assassination. Bush’s oil company “Zapata Oil” supported the Bay of Pigs operation (named “Operation Zapata” by the CIA). Bush was also specifically referenced in a memo issued by J. Edgar Hoover immediately after the assassination as the CIA contact for suspected Miami-based anti-Castro Cubans.
This again comes back to our current President. The JFK Act states that the President has the “sole and non-delegable” duty to disclose the executive branch records to the National Archives, and he is only allowed to continue postponement with an unclassified written explanation stating the applicable grounds under the JFK Act.[xvii] Given the extreme power given to the President under the Act, one is left to wonder whether the executive branch is continuing a cover up of assassination operations going back 60 years now. If that is not the case, then it should be relatively easy for the President to state the reason(s) for continued postponement as required by the JFK Act.
Again, one obvious remedy is for Congress to authorize the reconvening of the ARRB. An independent body with proper experience and a proper budget could finish the work that was intended by the JFK Act. If appropriate pressure was put on the President and the aforementioned House and Senate security committees, they should be compelled to respond. However, the concern is that a second ARRB would encounter the same inaction from the executive branch and other agencies that continue to violate the Act. However, it is a start. The JFK Act authorizes the ARRB to seek assistance from the Attorney General regarding any records that may be held under court seal or injunctive order. The Act also requires all executive agencies to cooperate in full with the ARRB to seek the “disclosure of all information relevant to the assassination of President John F. Kennedy consistent with the public interest.”[xviii]
Some closing provisions of the JFK Act may answer our frustration, and they are somewhat troubling. Section 11(a) of the JFK Act states that the Act has precedence over any other law of the United States other than a) tax laws that prohibit the disclosure of an individual’s tax return; and b) deeds of gifts or donation of assassination records to the U.S. government. The JFK Act was Congress’s attempt to set the one and only legal standard for release of assassination records, so are we to assume that the only records in the “protected collection” are tax returns and records donated by the Kennedy family? Not likely. We know the reasons (if any) given to us for postponement, namely that protection of the records was and is still necessary for reasons of “national security”. However, that is not a legal standard or authority, and the JFK Act clearly mandates the authority for release of assassination records.
The good news is that the JFK Act is still a valid law that can be enforced. Specifically, section 12 of the Act states that it will remain in effect until the National Archives has certified that all assassination records have been disclosed in full to the American public, and it authorizes judicial review of any final action taken by a government agency with respect to the records.
As we approach 2020, it is time to recognize that the President and the other committees and agencies in charge of these records have taken “final action”. That action is an unexplained refusal to provide unredacted assassination records to the public in blatant violation of the JFK Act. We are either entitled to a complete release of records, or an explanation on why disclosure would compromise the national security operations of the United States. In 1964, our government concluded that the assassination was committed by a single man who had no accomplices. In 1978, our government concluded that the assassination was the result of a probable conspiracy perhaps involving organized crime and anti-Castro Cubans. If one or both were true (i.e. that Lee Harvey Oswald acted alone or was involved but assisted by organized crime and anti-Castro Cubans), there would seem to be zero correlation with the continuing security of our nation at this time. The only explanation is that we are continuing to use organized crime and/or Cuban agents to protect our nation, or the full disclosure of records would compromise certain other individuals or operations that still need protection for reasons of “national security”.
Almost 60 years later, and almost 28 years after the ARRB was formed, it is difficult to imagine that there is a legitimate harm in releasing the records. Perhaps certain agencies or individuals would be embarrassed, but it’s time to get over that. At a minimum, we are entitled to a detailed certification, or judicial review if necessary, on each and every record still withheld. Fortunately, the JFK Act is still in effect and there are multiple alternatives within the Act itself to finally ensure compliance.
[i] President John F. Kennedy Assassination Records Collections Act of 1992, 44 U. S. C. §2107, Public Law 102-526 (October 26, 1992), referred to in citations as the “JFK Act”.
[ii] JFK Act, §2(a)(7).
[iii] Mary Ferrell Foundation, maryferrell.org/pages/Documents.
[iv] Mary Ferrell Foundation, maryferrell.org/jfkdb.php.
[v] National Archives, archives.gov/research/jfk/search.
[vi] JFK Act, §5(g)(d)
[vii] JFK Act, §6
[viii] JFK Act, §5(g)(2)(b)
[ix] JFK Act, §7(b)
[x] JFK Act, §5(e)(2)
[xi] JFK Act, §4(d)
[xii] JFK Act, §7(k)(1)
[xiii] JFK Act, §5(g)
[xiv] JFK Act, §5(g)
[xv] JFK Act, §9(d)
[xvi] Wikipedia, en.wikipedia.org/wiki/President_John_F._Kennedy_Assassination_Records_Collection_Act_of_1992
[xvii] JFK Act, §9(d)
[xviii] JFK Act, §10
