If you are interested in the public release of the JFK assassination records, this is a critical point in time. If you have paid a little attention to this subject, the logical questions are: “Weren’t all the JFK records released in 2017 as required by the JFK Records Collection Act?” And, “Why is this a critical point in time?”
The answer to the first question is that over 15,000 assassination records are still withheld partially or in full by the National Archives. The answer to the second question is that the President, the National Archives, and agencies still withholding these records are facing critical deadlines in 2021.
You may be asking: “Why is the government facing critical deadlines in 2021, when all records were supposed to be released by 2017?” Here is what happened and I will also explain why the American public should be angry and demand action.
As I’ve written about previously, the JFK Records Collection Act of 1992 (the “JFK Act”) required the full public disclosure of all assassination records by October 26, 2017. This was not a random deadline. The deadline was precisely twenty-five (25) years following the creation of the JFK Act, which required each assassination record to be publicly disclosed in full by October 26, 2017.
The only way President Trump could sidestep this complete declassification was through written certification stating that:
continued postponement was necessary because of an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and
the identifiable harm was of such gravity that it outweighed the public interest in full disclosure.
As investigative journalist Jefferson Morley wrote about last month, some 15,834 assassination-related records are still withheld in full or in part by the Executive Branch and agencies who created these records. You can read Mr. Morley’s excellent article on this subject at the following link: Federal Agencies Face April Deadline on Secret JFK Files (justsecurity.org).
So, what actually happened in October of 2017? A week before the October 26, 2017 deadline, President Trump tweeted that he was looking forward to the full release of the JFK assassination records and that all records would be released by the deadline. Well, that did not happen. Even worse, Trump and the Executive Branch blatantly violated the JFK Act. On the eve of the deadline, presumably after meeting with CIA Director Mike Pompeo, Trump issued an executive “memorandum” giving the federal agencies another six (6) months to comply with their obligations under the JFK Act. There was no mechanism or authority in the JFK Act for President Trump to do this. To justify postponement past October 26, 2017, Trump was required to issue a written certification explaining, for each and every record, why postponement was proper under the clear standards of the JFK Act. I have written in the past in detail about those clear standards. Essentially, Trump was supposed to explain in writing, for each record, why 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) why such identifiable harm is of such gravity that it outweighs the public interest in disclosure.
Instead, on October 26, 2017, President Trump issued an executive memorandum stating that he had “no choice” but to continue postponement for an additional 180 days because of concerns over “national security, law enforcement and foreign affairs.” Trump, in regards to an assassination that occurred 54 years in the past, asserted that full public disclosure of the JFK Records would allow potentially “irreversible harm” to the Nation’s security. Trump then ordered all agencies to re-review each and every withheld record over that 180-day period and failing a demonstration from the agencies that a record met the standard for proper postponement under the JFK Act, public disclosure would be required for all JFK Records by April 26, 2018.
A six (6) month delay was frustrating, but seemed reasonable given that the Executive Branch and agencies in charge of these records seemingly did nothing since the winding-up of the Assassination Records Review Board (ARRB) in the 1990’s. So, what happened? On April 26, 2018, based on a recommendation from the (National) Archivist, President Trump issued a second executive memorandum giving agencies an additional three (3) years to review withheld records and make recommendations to the Archivist regarding its intent to postpone disclosure past October 26, 2021. Yes, you read that correctly. October of 2021.
In that memorandum of April 26, 2018, Trump claimed that all executive departments and agencies had complied with his prior order to review all information within postponed records and inform the Archivist of the specific reason(s) for continued postponement under section 5(g)(2)(D) of the JFK Act. He cites the “identifiable harm” standard from the JFK Act discussed above and then broadly states that he “agreed with the Archivist’s recommendation” that continued postponement is necessary under the standards of the JFK Act. He then ordered agencies again to “re-review” any redactions (in the records) or decisions on complete withholding over the next 3 years. While Trump’s April 26, 2018, statement contained the key “buzz words” in the JFK Act for decisions on postponement, this action again did not come close to meeting the standards of the JFK Act for postponement. By October 26, 2017, at the very latest, all government agencies were required to provide to the Archivist an unclassified “identification aid” stating the specific facts, based on clear and convincing evidence, warranting a legitimate postponement decision. Those facts must deal with a threat to current military or intelligence operations, a current living person or agent who would be at risk from disclosure of records, or other current sources and methods that required legitimate protection in 2018. President Trump essentially let the executive branch and other agencies skip over this critical identification step in the JFK Act, meaning that continued postponement past October 26, 2021 is almost a certainty due to a lack of accountability. Was skipping this step just lethargy, or is it a continued attempt to withhold assassination history from the public? The only way we will know is seeing the records.
There has been no media attention on the most recent deadline, which was April 26, 2021. In Trump’s April 26, 2018 memorandum, he required each agency (that seeks postponement past October 26, 2021) to identify (to the Archivist) the specific basis for continued postponement under the JFK Act. The Archivist is supposed to make recommendations on continued postponement to President Biden no later than September 26, 2021. Then, President Biden will have 30 days to make final decisions on disclosure by October 26, 2021. This is very interesting because, according to Trump’s memorandum, all agencies had purportedly done their jobs by April 26, 2018, satisfied the Archivist, and then Trump supposedly had agreed with the Archivist’s recommendations on over 15,000 records. If this was the case, why did the agencies get another 3 years to do the same job? And how is the Archivist supposed to do the job by September 26, 2021 without the identification aids from agencies? And how in the world is President Biden supposed to finish the job in 30 days when September 26, 2021 arrives? The simple answer is that the President and the Archivist cannot do their jobs, because the executive branch and other agencies have seemingly ignored the JFK Act and Trump’s executive orders. If they are paying attention to the act and presidential orders, and not ignoring them, the clear reason for inaction is that the agencies don’t want the President, the Archivist, and the American public to know what is in the JFK records.
If the status quo continues, it is easy to see how the President, the Archivist, and various agencies can keep using their “discretion” to continue these unjustified and illegal delays. They will continue postponement by making it appear that they are complying with the JFK Act, but they are really not. The public is entitled to unclassified and specified written reasons for postponement under specific criteria in the JFK Act. If there are legitimate reasons for postponement under the JFK Act, so be it. The law is the law and it is a very good law in terms of public interest and transparency when it comes to the JFK assassination. This article is not aimed at proving a conspiracy in the assassination. It is simply about compliance with the JFK Act and our government offices and agencies following the law.
Fortunately, experienced researchers and attorneys are paying attention. Attorney Larry Schnapf has sent a letter and legal memorandum to Rep. Carolyn Maloney, chair of the House Oversight Committee, calling for oversight hearings and enforcement of the JFK Act. That letter can be viewed here: (jfkfacts.org)). I strongly encourage readers of this article to contact these Congressional committees in support of Mr. Schnapf’s excellent and thorough letter. Congressional oversight committees clearly have authority and a duty under the JFK Act to require action from the Executive Branch and government agencies that are withholding these records from the American public. The Public Interest Declassification Board (PIDB), which advises the President on declassification issues, intends to address the status of JFK Act compliance on May 18, 2021. That is a very good development. Hopefully the PIDB will properly advise President Biden on the clear standards of the JFK Act and the need for compliance.
If Congress and the PIDB do not collectively act on this important issue, there are also legal remedies. I am working with Larry Schnapf and a group of attorneys to develop a plan for private legal action, should that become necessary. Our hope is that there is enough information before Congressional oversight committees and the PIDB, but considering the unjustified and illegal delays we have seen since 2017, there will be a plan in place to get the federal courts involved.
The one thing I do agree with in Trump’s April 26, 2018, memorandum is the following statement:
Any agency that seeks further postponement beyond this certification shall take note of the findings of the Act, which state, among other things, that only in the rarest cases is there any legitimate need for continued protection of such records. The need for continued protection can only grow weaker with the passage of time from this congressional finding.
The President said this in 2018, when Congress had already declared in 1992 that postponement of records should be rare and that clear and convincing evidence was needed to withhold a record from the public.
We have to remember that two government bodies concluded that Lee Harvey Oswald killed President Kennedy. In 1964, the Warren Commission (WC) concluded that Oswald killed Kennedy on his own and that there was no evidence of a conspiracy. The WC also concluded that there was no connection to the murder of Oswald by Jack Ruby. The House Select Committee on Assassinations (HSCA) also concluded in 1978 that Oswald killed Kennedy, but that there was a probable conspiracy involving two gunmen. The HSCA concluded in its final report that anti-Castro Cuban groups and organized crime, as a group, did not assassinate Kennedy. But the HSCA also concluded that “the available evidence does not preclude” those possibilities. If one or both of these government bodies’ conclusions are correct regarding the JFK assassination, there should have been no legitimate reason for postponing release of records in 1978. In 1992, Congress then declared that protection of JFK Records was legitimate only in the rarest of cases. In 2017 and 2018, it would seem ludicrous for the President and the Archivist to continue to find proper reasons for postponement, especially when you consider the conclusions of the WC and HSCA. Yet, the Executive Branch and agencies got 3 more years to “re-review” the JFK Records. April 26, 2021, has come and gone with no announcement from President Biden or the Archivist confirming that the work has been done by the agencies. Congress has yet to hold any oversight hearings to ensure compliance. Enough is enough, especially after 58 years.
