The Friday Night News Dump
In the waning hours of the evening of Friday, June 30, 2023, long after the filing deadlines of the media elite in Washington D.C. and even longer after the most dedicated talking head had left to celebrate their July 4th independence from tyranny in the Hamptons, the Biden Administration issued an Executive Memorandum that is a flagrant and illegitimate attempt to terminate an Act of Congress and usurp congressional authority over its own processes and records. A copy of President Biden’s Executive Memorandum is here.
It is unclear what truly prompted President Biden to take a flamethrower to an Act of Congress that he himself voted for in 1992 as a member of the Senate, due to bipartisan public pressure to release records related to the 1963 assassination of President John F. Kennedy. It is further perplexing that Biden has chosen to continue to deny the American public transparency into the death of a much admired predecessor since he has chosen to surround himself in the White House with artwork memorializing the Kennedys e.g. the bust of Robert F. Kennedy in the Oval Office and the famous portrait of JFK by Jamie Wyeth that President Biden specifically requested to be borrowed from the Museum of Fine Arts in Boston to hang in his private White House study.
(Stefani Reynolds for The New York Times)
(Museum of Fine Arts, Boston)
JFK Records Act Backgrounder
What exactly is in Biden’s Executive Memorandum that is so egregious? Well, it would help to briefly go back to the 1990s, when Joe Biden was a U.S. Senator from Delaware and the Chair of the Senate Judiciary Committee.
As a result of decades of significant controversy caused by the government withholding millions of pages of records related to the 1963 assassination of President Kennedy from the American public, Congress enacted the John F. Kennedy Assassination Records Collection Act of 1992 (JFK Records Act”). Congress was put under substantial public pressure to do something about the continuing secrecy around records related to Kennedy’s assassination, because 30 years after his murder, executive agencies were holding hundreds of thousands of assassination related files secret, based on unsubstantiated claims of “national security”. Freedom of Information Act requests were ineffective at penetrating a completely unaccountable lock that the U.S. security state had on these then 30-year-old records. Public outcry after Oliver Stone’s Oscar winning film JFK tipped the balance. So Congress passed the JFK Records Act in a rare, unanimous bi-partisan vote. The act was signed into law by the then President George H.W. Bush, and after numerous delays finally went into effect in 1994.
The full John F. Kennedy Assassination Records Collection Act of 1992 can be found here. It is worth reading.
The law mandates, among other things, that by no later than October 26, 2017, all records related to the 1963 assassination of President John F. Kennedy had to be publicly disclosed in full, unless for each record, the President certified that extremely stringent criteria for postponement were met. If such postponement criteria were satisfied based on the legal standard of clear and convincing evidence, the President’s unclassified reasons for postponing each individual record had to be published in the Federal Register. This way the public could at least understand exactly which specific records were being postponed and what the legal basis was for the postponement of each individual assassination record.
It needs to be noted that in accordance with the provisions of both the JFK Records Act (particularly section 9(d)(1)) and the Constitution’s separation of powers, that the President’s authority to postpone the public disclosure of assassination records only applies to Executive Branch records (which are records created by agencies and offices controlled by the President e.g. CIA, FBI, Secret Service, DEA, NSA, DOD, etc…). The President does not have legal authority over “non-executive branch records”, which include records created by Congress and other sources not controlled by the executive branch. Congress was very careful when drafting the JFK Records Act to ensure that they did not grant the President authority to control their legislative branch records.
Congress also required that for each assassination record, that all “Government Offices” (the JFK Records Act specifically includes the Executive Office of the President in the definition of “Government Office”) had to issue what is called an “Identification Aid” when any action was taken or decision made in respect to any record. These Identification Aids were tracking forms that attached to all assassination records and recorded a brief description of the record, including the date of the document, the originating agency or entity, the disposition of the record and any action taken with respect to the record, such as the particular section 6 criteria for postponement that provided the legal justification for continuing to hold the assassination record in secret from the public.
Further, Congress specifically mandated the Archivist of the United States to ensure that all Identification Aids for every postponed record form part of the Assassination Records Collection. Also, that a publicly accessible Directory of Identification Aids be created and maintained, so that there was full transparency for the public to understand exactly which assassination records were continuing to be held in secret in the Protected Collection and what the legal basis for postponement was under section 6 of the JFK Records Act for each record.
Most importantly, Congress made it clear in the JFK Records Act that there was a “presumption of disclosure” and the legal burden was on an agency to prove that a specific assassination record met the legal standard for postponement required by the Act and that clear and convincing demonstrable evidence was required in order to deprive the public access to a record.
In order to ensure that government agencies and offices complied with the JFK Records Act, Congress created the Assassination Records Review Board (“ARRB”). This 5 person citizens’ panel was tasked with collecting, cataloging and reviewing all assassination records, with the mandate to release all assassination records, unless a record met the exacting criteria set out in section 6 of the Act.
The ARRB’s limited tenure ran fromOctober 1, 1994 to September 30, 1998.During the ARRB’s time in operation, the Board and staff reviewed and made “final determinations” about every single assassination record that was identified and submitted by government agencies and offices. In the mid-1990s when the ARRB was doing its work, the JFK Records Act mandated that only in the most rare and exceptional circumstances were assassination records to be postponed from public disclosure.
The law also legally mandated that, based on “final determinations” and recommendations for release made by the ARRB, all postponed records had to be periodically reviewed under the same stringent and exacting standards of section 6 of the Act. The purpose of the Periodic Review process was to “downgrade and declassify” all of the records held secret in the Protected Collection. By legally mandating this downgrading and declassification periodic review process, the JFK Records Act makes it clear that as time passes it should become more difficult, not easier for executive agencies to keep assassination records secret and to deny the American people access all the facts about the circumstances surrounding President Kennedy’s murder.
ARRB “Final Determinations” and the Periodic Review Process
Every assassination record currently held in the secret Protected Collection is held as a result of an ARRB “final determination”.As the ARRB went about its business between October 1994 and September 1998, it created a form called the “ARRB Final Determination Form”. These forms are not widely published and not a lot of attention has been placed on them by anyone in the research community.
In every case where the ARRB made a Final Determination to postpone the release of an assassination record, they filled out one of these Final Determination Forms. These included the specific section 6 criteria which formed the legal basis on which a record was legally permitted to continue to be held in secret. The Final Determination Form also provided unclassified written reasons for each postponed record, along with the ARRB’s recommendation for releasing the record (i.e. a covert agent’s death, or a source or method no longer requiring protection).
“Final Determination Forms” are critically important.
Judge John Tunheim, the Chair of the ARRB has confirmed that all postponement decisions made by the ARRB are “Final Determinations” under the Act.
The work with respect to all of the records currently held in the Protected Collection at NARA has been completed for over 25 years. The ARRB did its job. The result is a catalog of Final Determination Forms that state the section 6 criteria for postponement and the ARRB’s recommended release date for each assassination record, based on the section 6 criteria.
A serious problem that occurred from September 1998 until October 26, 2017, is that virtually no Periodic Review took place in accordance with sections 5 and 9 of the JFK Records Act. The Periodic Review was supposed to happen based on the information and recommendations that the ARRB recorded on their ARRB Final Determination Forms for each postponed record.
The mandated purposes of Periodic Review were to provide a rolling review of the postponed assassination records in accordance with the criteria and recommendations issued by the ARRB in their ARRB Final Determination Forms. If this had occurred as Congress mandated in the JFK Act, by October 26, 2017, there should have been only a very small number of records still held in the Protected Collection when the October 26, 2017 deadline came up.
Again, according to the Law, it’s legislative history, and legal commentary, by the time the October 26, 2017 statutory deadline rolled around, based on the statute’s mandated program of Periodic Review, there should have been virtually no records left in the “Protected Collection” held at the National Archives. Because the clear purposes of the Act were to create an accountable, transparent and enforceable process to downgrade, declassify and ultimately fully disclose every single assassination record to the public, so that the public itself could decide for itself what the facts were about what happened in Dallas on November 22, 1963.
In reality, despite the law’s clear mandate, when October 26, 2017 did come and go, there were still an undetermined number of assassination records being either fully or partially withheld. By some estimates, the number of withheld records totalled was quite voluminous. But an accurate number was impossible to calculate because of the broken down and functionally inoperable Identification Aid Program that NARA and the agencies have failed to adequately maintain pursuant to their legal mandate.
President Biden’s Friday Night Memorandum
Now back to President Biden’s June 30, 2023 Executive Memorandum that postponed an undetermined number of unidentified assassination records. Let that sink in for a moment…
“Maximum Transparency”
Despite the clear mandates imposed by the JFK Records Act to establish an “accountable” and “enforceable” process for the full disclosure of all assassination records; and the explicit requirement that each record be accounted for with an identification aid, the President’s June 30, 2023 Memorandum does not identify or account for a single assassination record.
President Biden stated in the opening paragraph of his memorandum that, “As I have reiterated throughout my Presidency, I fully support the Act’s aim to maximize transparency by disclosing all information in records concerning the assassination, except when the strongest possible reasons counsel otherwise.” There is an unavoidable divergence from reality in the President’s statement, that is Orwellian in magnitude. For the simple reason that without being able to track which assassination records were postponed from disclosure through the mandated identification aid program, and without providing the legally required reasons for each postponement, on a record-by-record basis (“as required by the Act”), where is the “transparency” and “accountability”?
When the ARRB issued final determinations on a record-by-record basis in the mid-1990s, only the President could override such final determinations pursuant to his authority under section 9(d)(1) of the Act. In respect to any Presidential determination to postpone or release a record under his 9(d)(1) authority, the President was mandated by law to:
- apply the standard of proof and postponement criteria required by section 6 of the Act;
- Provide unclassified reasons for the postponement based on the section 6 standard of proof and postponement criteria;
- Have the reasons for the postponement published in the Federal Register; and
- Issue an identification aid for each postponed assassination record.
The above duties, mandated to the President are what are called statutory or “ministerial duties”. The President does not have any wiggle room or discretion with respect to these mandated ministerial duties. If a President does not comply with ministerial duties, the resulting decisions may be reviewed by the courts on an application for judicial review or mandamus. While suing the President is not made easy, there are very narrow pathways that can be found to ensure that a President complies with the law. In the case of the JFK Records Act, these pathways require a refined parsing of the language of the Act to determine what specifically Congress required for a President or other specifically named officials to do.
Neither President Trump nor President Biden complied with any of the above ministerial duties imposed on them by section 9(d)(1) of the JFK Records Act. They did not apply the standard of proof in section 6 to any postponement. They did not apply the postponement criteria; they did not provide any unclassified reasons for postponement for each record, so that the public could understand the rationale for any of the postponements. They did not issue any identification aids for each postponed record. And there is no way for the public to understand which records the postponements apply to, because there was not even a list of the postponed records published in the Federal Register as is required under the Act.
All of these violations of the JFK Records Act, make it difficult or impossible for the public to seek any accountability or transparency in respect to the President’s decision-making. Further any attempt to seek judicial review of any specific postponed record will be extremely difficult, because no reasons were given for the postponement of any particular record. One of the requisite elements of any final decision or order under the principles of administrative law is that adequate or sufficient reasons be provided to justify a decision, so that any impacted party would understand the basis for the decision, and so that aggrieved parties would be able to fairly appeal such decisions. These basic legal principles form part of the foundations of our system of law and prevent “Star Chamber” justice and abuses of authority.
The Clear and Convincing Standard of Proof
Another serious legal problem arising from President Biden’s opening platitudes is his attempt to modify by edict the legal standards for postponement that are the basis of the JFK Records Act. Nowhere in the JFK Records Act do the words “except when the strongest possible reasons counsel otherwise.”
The standards and criteria for postponement are only found in section 6 of the JFK Act.
In legal processes there are several different standards of proof. In most criminal proceedings, the standard of proof is the well-known “beyond a reasonable doubt”. Civil standards of proof may vary depending on the seriousness of the process and the range of potential consequences of a ruling. Common civil standards of proof include “balance of probabilities”, “preponderance of evidence”, and “clear and convincing evidence”. When a statute imposes a standard of proof, that is the standard that parties must meet in order to successfully make their case.
Parties cannot simply ignore or change a statutory standard of proof in order to better suit their case.
Congress decided when they enacted the JFK Records Act that the law would impose the relatively high civil standard of proof of “clear and convincing evidence”. There is no other standard of proof when it comes to assessing the grounds for postponing assassination records. All government offices, agencies and the President of the United States must follow the law and comply with the clear and convincing standard of proof mandated by sections 6 and 9(d)(1) of the JFK Records Act.
To be certain, “Except when the strongest possible reasons counsel otherwise.” is not the standard of proof imposed by the JFK Records Act. In fact…“Except when the strongest possible reasons counsel otherwise.” is not a standard of proof anywhere in the world.
Final Certification???
The opening paragraph of President Biden’s Memorandum presents another perplexing statement and completely non-compliant decision by the President. “With my final certification made in this memorandum -– the last required under the Act -– and definitive plans for future disclosures, my Administration is fulfilling the promise of transparency to the American people.” [Emphasis added.] From this statement, one can be left with no other understanding: that with his June 30, 2023 Executive Memorandum, the government and the President’s legal obligations under the JFK Records Act have been fulfilled and that the June 30, 2023 Memorandum will be the final and last word on the undetermined number of unidentified assassination records being held in secret by the government.
The problem with this statement is that it runs smack into section 12(b) of the Act. That section of the JFK Act is titled, “Termination of Effect of Act”. Part (a) of the section deals with the termination of sections of the Act pertaining to appointments to the ARRB and the operation of the Board. Pursuant to section 12(a), all of the sections of the Act that cover matters dealing with appointments to and operations of the ARRB shall terminate when the ARRB’s mandate ended on September 30, 1998.
In respect to the sections of the Act that do not deal with appointments to or the operations of the ARRB, all those sections remain in full force and effect until every last assassination record is fully publicly disclosed to the public and the National Archivist certifies that all assassination records are publicly available. Section 12(b) is set out immediately below.
Section 6 of the Act does not pertain to appointments to the ARRB and it does not deal with any ARRB operations. In fact, section 6 of the Act does not even mention the ARRB at all. Section 6 is a part of the Act that is mandated to form the basis of any and all decisions to postpone the disclosure of an assassination record by any and all government offices (including the Executive Office of the President of the United States). Section 12(b) legally mandates that section 6 remains in full force and effect as operational law and is applicable to the President’s authority to postpone disclosure of records, “as required by this Act” pursuant to sections 5(g)(2)(D) and 9(d)(1).
The JFK Records Act makes no mention or suggestion that the President’s legal duties under the Act come to an end prior to the full public release of every single assassination record. To the contrary, both sections 12(b) and 9(d) make it clear that the President’s duties continue until there are no more secret assassination records held in the Protected Collection at NARA.
Further, pursuant to sections 5 and 9 of the Act, the President has an ongoing statutory role in the periodic review process. Section 5(g)(2)(D) of the Act, is the provision that contains the purported authority pursuant to which both Presidents Trump and Biden have postponed the release of the remaining secret assassination records. It cannot be ignored that the title of section 5(g) of the Act is, “PERIODIC REVIEW OF POSTPONED ASSASSINATION RECORDS”.
Section 9(d)(1) of the Act also specifically weighs in on the President’s ongoing ministerial duties with respect to postponement of assassination records. That section mandates that, after the ARRB has made a “final determination”, regarding the release or postponement of an assassination record, only the President has the sole and non-delegable authority to release or postpone the release of assassination records under the standards of section 6 of the Act. There will be more about section 9(d)(1) later in this article.
It is therefore unclear what the legal basis is for President Biden’s dismissive assertion that the June 30, 2023 Memorandum is the “final certification” required by the Act. This makes no sense given the clear duties imposed by sections 5, 6, 9 and 12, as discussed above.
“Each Assassination Record…As Required By This Act”
In section 2 of the June 30, 2023 Executive Memorandum, President Biden states that, “The Act permits the continued postponement of public disclosure of information in records concerning President Kennedy’s assassination only when postponement remains necessary to protect against an identifiable harm to the military defense, intelligence operations, law enforcement, or the conduct of foreign relations that is of such gravity that it outweighs the public interest in disclosure.”
It would appear that the process suggested above in the President’s Memorandum directly conflicts with the President’s claims that he supports the transparency and accountability provisions of the Act. Does the JFK Records Act actually authorize the President to certify the postponement of thousands of unidentified assassination records en masse and without providing any reasons for each record that he certifies for postponement?
The President’s Memorandum seems to cherry-pick words and phrases out of section 5(g)(2)(D), and omits some critically important language from the section. The omissions drastically change the meaning and purposes of this section as purported by the President in his Memorandum. Let’s look at exactly what section 5(g)(2)(D) states.
5(g)(2)(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—
- continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and
- the identifiable harm is of such gravity that it outweighs the public interest in disclosure.
The words “Each” and “as required by this Act”, seem to be omitted from any reference to section 5(g)(2)(D) of the JFK Records Act made by the government. Including in all of the Presidential Memoranda of both President’s Trump and Biden. It seems that the government is afraid to fully quote section 5(g)(2)(D) in its complete entirety. And the government is particularly frightened by the words “each” and “as required by this Act”,
The rules of statutory interpretation impress on lawyers and judges that words printed into laws must be given meaning; and that legislators do not insert meaningless or superfluous words into statutes.
So what do the words “each” and “as required by this Act” mean in relation to the President’s authority to postpone the public disclosure of assassination records? The answer to this question could consume the better part of a chapter in a book or an entire lawsuit. I will try to provide a brief explanation of the proper interpretation of these words in the context of section 5(g)(2)(D) and in relation to the JFK Records Act as a whole.
When the word “each” is used at the beginning of section 5(g)(2)(D), the rules of statutory interpretation would strongly imply that the word modifies the following parts of the whole section. It follows that a proper reading of this section would reasonably determine that the word “each” acts to modify both the requirement for public disclosure of each assassination record by no later than the statutory deadline of October 26, 2017; and “each” modifies the alternative requirement for the certification for postponement of each assassination record, as required by this Act. This interpretation would militate against a holus bolus en masse certification of an undetermined number of unidentified assassination records. This interpretation is further supported by the purposes of the Act, as well as all of the other sections dealing with periodic review and Presidential authority to postpone records. It would create an absurdity of law to interpret section 5(g)(2)(D) to mean that prior to October 26, 2017, there were more stringent postponement criteria and public transparency requirements under the Act than after October 26, 2017.
The words “as required by this Act” must also be given meaning in the context of the President’s authority to certify the postponement of assassination records. If Congress intended that section 5(g)(2)(D) be an isolated, stand-alone provision and the only provision dealing with Presidential postponements, Congress would not have included the additional words, “as required by this Act” in Section 5(g)(2)(D). The inclusion of the words “as required by this Act” must therefore be read consistently and in line with the other sections of the JFK Records Act that pertain to the postponement of assassination records. Namely section 6 (which mandates the standard of proof and the exclusive postponement criteria) and with section 9(d)(1). That is the authorizing provision that grants the President his sole and non-delegable authority under the law to postpone the release of Executive Branch assassination records after the ARRB has rendered a final determination about an assassination record.
Instead of addressing the words “each” and “as required by this Act”, President Biden’s Memorandum summarily omits these words and ignores the statutory/ministerial duties that the words legally impose on the President in respect to decisions to continue the postponement of public disclosure of the secret assassination records held in the Protected Collection.
“Transparency Plans”
Let’s be blunt. The President’s “Transparency Plans”—originated by the CIA-- are the opposite of transparent. They might as well be called “Opacity Plans” if the truth is being told. The JFK Records Act is one big statutory transparency plan that mandates tracking forms (identification aids) and a directory of these aids to provide transparency for each and every document in the Records Collection, including those documents that are continuing to be held in the secret Protected Collection. President Biden’s Transparency Plan seeks to do away with the Identification Aid Program and the publicly accessible Directory of Identification Aids.
Section 6 of the Act mandates that all government offices apply the clear and convincing standard of proof and the five exclusive criteria pursuant to which postponements are permitted by law. Section 12(b) states that section 6 of the Act remains in full force and effect until the Archivist certifies that every single last assassination record is fully publicly disclosed. The President’s Memorandum seeks to do away with all of these truly transparency driven standards, and replace them by edict with new, less onerous, less stringent, less accountable, and totally unenforceable standards.
What happened to the mandate to downgrade and declassify all of the records? How and why did it suddenly become easier for the government to keep these assassination records secret…. not more difficult?
President Biden’s Attempt to Seize Authority Over Congressional Records
One aspect of both President Trump and President Biden’s multiple memoranda that ought to have received far more resistance from both the public and Congress, is the Presidents’ assertions of authority over what are termed “non-executive branch records”. These records include House and Senate records, largely originating from the House Select Committee on Assassinations and the senate’s Church Committee. As briefly discussed above, Congress was very careful in drafting the JFK Records Act not to cede any authority over non-executive branch records to the President. Section 9(d)(1) takes particular aim at this issue by explicitly limiting the President’s authority over only executive branch records.
What impact does this have on the current state of the records held secret in the Protected Collection? It means that any Presidential postponement of a non-executive branch record is unlawful and that by law, every single record that originated from the HSCA and the Church Committee should have been fully publicly disclosed on October 26, 2017. This did not happen because both President Trump and President Biden broke the law when they authorized those records to remain held in secret. Congress should have stepped in to protect their authority over their own records and processes, but to date, Congress has failed to schedule any oversight hearing or call any official to account for the undeniable non-compliance under the Act by NARA, the agencies and the Executive Office of the President. It seems that no branch of the government is interested in complying with the JFK Records Act on any level, in any meaningful way. Senate Majority Leader Chuck Schumer did however mention the JFK Assassination Records Act last week when he suggested that Congress ought to use the that act as a model for new legislation to provide public transparency on the urgent and pressing issue of UFO sightings!! Is our government trolling us?
As this article goes to print, Judge Seeborg has just issued a decision in the case brought by the Mary Ferrell Organization in San Francisco court. An update on this important decision will be forthcoming next week.
