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Jerry, a somewhat older woman who works for the Board was handing out papers from the last open meeting. She acted as head of staff, as Dr. Gunn was not yet present. I have sometimes seen her act as the Board's secretary. She's very nice and I hope I haven't upset her describing her as "somewhat older".
Judge Tunheim - "Okay, are we ready to go? Jerry, are you ready?
Jerry - "I'm ready."
Judge Tunheim - "Okay, I call to order this open meeting of the Assassination Records Review Board. We have four members of the Board present, so that we do have a quorum. Dr. Graff had to return to New York today for a, a conflict, that he couldn't make it here. So, he is excused.
"The first item on our agenda for today is consideration of the minutes of the June 4th, 1998 Open Board meeting. We have a draft of those minutes that has provided by Ms. Olsen. Are there any suggestions for changes, or alterations to those minutes or is there a motion to approve?
Dr. Anna Nelson - "I vote to approve."
Dr. William Joyce - "Seconded.'
Judge Tunheim - "Any discussion? All those in favor of approving the June 4, 1998 open Board meeting minutes please say aye.
All - "Aye"
Judge Tunheim - "Opposed say no."
(no response)
"Carried on a four to zero vote. Okay, we are going to continue our discussion today on the final report and what should be included in the final report. It has been the subject of a number of open board meetings now as we move towards the conclusion of our efforts. And Bill, perhaps you would like to make a few comments on some of the work that you have been doing to put together ideas for recommendations that the board is going to make. We also can, if the board members are interested, discuss some of the suggestions that we have received from the public.
"Go ahead Dr. Joyce."
Dr. William Joyce - "At the last meeting I had volunteered to try to organize some preliminary thoughts that might get us started on the Chapter 7 of the final report which will be, essentially, the board's recommendations. And I reviewed the chapter drafts that were available to me as well as some of the comments from the general public, the information I organized for the expert's conference that were available to the board up to that point, and I tried to codify them to provide some initial points that may constitute recommendations that we might wish to adopt. One strategic decision that I made, at least preliminarily, and I certainly think that all of this is subject to wherever it goes and is meant only for a starting point, I thought especially in light of the experiences of the Moynihan Commission that it would be a good thing for us not to try to hitch our wagon to a particular legislative proposal but rather to address general points that might then be further discussed, and framed in the wider context of that which the board specifically proposed. We may wish to decide that we do want to propose specific legislation, and, of course, in that event it would be fine, but as an initial point I thought it might also facilitate discussion if we didn't get too bogged down in the whys and wherefores of legislation but rather try to keep it at a rather general level of discussion.
"So, having said that, the only thing I might add to that is that there are a number of points that I thought, after, might have been included here, one of them is the problem of third party equities that I think really does need to be addressed in some careful way by us because it is an enormous problem in terms of the work of document review and decisions regarding the declassification, and so we should have something to say about that here.
"So, I'll think I'll just stop there for the time being and listen to points my colleagues may wish to address."
Judge Tunheim - "Thank you very much for taking upon yourself to do an initial run through of some of these points that we have been discussing at our prior open meetings. I appreciate that very much. And that's a very good effort to start with. Ms. Nelson?"
Dr. Anna Nelson - "I just think that, I'm glad you are able to, actually I think you're right about the legislation Bill, I think the point that only legislation...and we've seen this, only enforceable sanctions, and independence...
"We have several comments that we have gotten since our last meeting that suggest an independent board be established on a permanent basis, and that is something that we mentioned last time, and probably something that we should consider, whatever we decide, because we did get several people who suggested that in the comments that came in. Many of those comments suggested things that we decided and will be very much a part of our report anyway. So that was gratifying to see that everybody was sort of on the same wavelength.
"Well, I have no problem, I think that this is a good starting point Bill, we may not agree on every aspect of it at this moment but I think every one of these is something we must talk about, and challenge us, and we will have to make a decision about.
"I would say that the part about asking that FOIA be amended now, given what people have told us, I think that FOIA should be amended in the long run, which bring us to the question of whether or not we have a set of recommendations that...perhaps in two parts, but that is something that...even if we did that we would have to start...(can't make it out)
Judge Tunheim - "Any other thoughts?"
Dr. Kermit Hall - "Oh, I have many thoughts. I again commend my colleague for setting up the principles and I feel very strongly that it would not be to our advantage to try to craft a model piece of legislation and recommend it to Congress, I don't think it's within our, actually within our competence and certainly not within our protocol reach to do so. I think this notion of a [set of] propositions or principles is a good way to proceed. One of the things that I guess I would like to do since Bill is amenable is actually work our way through each one of them, and maybe wrestle with some of the other options that are there and see where we go. And maybe take on or take out some of the extra comments that are there."
Judge Tunheim - "Well, do you want to take the comments, the external comments on first? Perhaps? Some I received just yesterday, and I haven't had a chance to review them thoroughly yet. Anything notable from the comments that anyone thinks we should specifically consider? I know I will read them all, and consider them all, and I think we all will in the long haul, but I think some of them have just arrived."
Dr. Kermit Hall -"Well, one thing I'm struck by is how genuinely supportive they are. (several "umm-hmms".) As I think those individuals who took the opportunity and time to write have, I think, been supportive of the efforts that we have made. And some of these are really quite far ranging and suggesting and endorsement, for example a similar apparatus with regards to Dr. Martin Luther King records, again, I'm really not sure that is within our competence to urge that."
Dr. Anna Nelson - "Well, one of the interesting things is of course from David [?] mostly he is saying pretty much the same thing, however, what has interested me is much of what he is saying now we are actually doing, we have actually worked on.
"And then we got one from the former Archivist of the FBI, who recognizes a lot of the review issues, and in fact confirms pretty much what we said at our last meeting on the statutory basis, and things about the statute. It is interesting because he is no longer in the Washington area and he is only talking about it in a peripheral way."
Dr. William Joyce - "That's Sue Faller? (sp?)"
Dr. Anna Nelson - "Sue Feller (sp?), uh-huh."
Dr. Wiliam Joyce - "Yes. I was struck also by one comment that talked about trying to get us to think of the things we have not accomplished. Which, I think that was John Judge, I find it, it's hard to address negatives sometimes, but I felt in terms of reminding us that our effort may have been wider than our results and it's important for us to make sure that we covered the full range of aspirations and that gets back to something that I remember Kermit said at the outset that we should be remembered for what we attempted, not necessarily for what we accomplished. And I think that's very important way for us to look at this, that we made our best effort to acquire as many records as we possibly could. There are some things that we endeavored to do that we didn't, for a variety of reasons. I think it would be useful for us to address that. So, a faithful record of all that we did should be part of the report. And I know that the staff, you've organized the report, essentially, you should be able to touch upon those things.
Dr. Anna Nelson - "It will be very complete one, everything we are doing, that's for sure."
Dr. Kermit Hall - "You know, how do we, one of the assertions that's made in Lesar's letter to us and it is one that's appeared elsewhere, and it's actually of some interest to me as a matter of..."proof", (sort of laughs) I can't think of a better word for it, on page four of his letter,
unknown (Dr. Nelson?) - "Page four of the letter, or?
Dr. Kermit Hall - "Page four of his letter to us,
unknown (Dr. Nelson?) - "Oh, okay."
Dr. Kermit Hall - "one of the assertions that is made here, and it has been made by others, including colleagues in the historical profession, is in the second full paragraph, "The Review Board model is an expensive means of compelling disclosure, to be at all cost effective it must release a large volume of records......expensive"
"And one of the things it sure would be interesting to get at, although it may or may not be.....is really what is the cost / benefit analysis of this kind of effort. It would be, you know you can look at this one way and say well in the end every document is worth the same value as every other document. But, I would submit that actually some documents are much more valuable for their content base than are others and therefore should be worthy of greater expenditure, of effort. And if it is the case that we have a million records then the method will get you or assure you that you are more likely to get at the 10 that are more important than on a cost effective basis even though the total cost of getting each record might be greater than the value of getting at what you most needed.
"And I think these are very easy statements to make but I am not sure they are really, necessarily supportive. And when we come to recommendations we should be careful not fall into the easy assumption that this is the most expensive way to do things. A lot of the cost is driven by the original decisions, not by the actions that we take. We area trying to unravel-"
(Dr. Anna Nelson tries to say something)
Dr. William Joyce - "One of the, excuse me Anna, but one of the things, one of my discussion points is to say that the most effective means of declassification identified to date is systematic declassification.
"So, I think you're right, that if we could find a way to, why would this, I would put it maybe a little differently and say well, why would this model be useful? Under what conditions would we want to undertake what I think is extraordinary
expense? And one of them would be to address problems. The Kennedy assassination is a problem. There are others problems we could point to, the King assassination most currently, but, historically, Pearl Harbor, you know, the subject of many investigations, the blowing up of the battleship Maine, [etc.]. There may be ways under which this kind of mechanism would be especially effective because of decisions that were taken that were either controversial or had enormous impact and could provide us with a way of dealing with those things."
Dr. Anna Nelson - "To simplify that, probably systematic declassification is always going to be cheaper. But the thing is, we are not doing systematic declassification. So, that it, in our problem there are different issues. So therefore, was it more-"
Dr. William Joyce - "or the resources."
Dr. Anna Nelson - "was it more, from a different point of view, was it more expensive for us to get it all out, and it turned out to be four years, or for the CIA to take 30 years to dribble it out, using page by page review, that must have been fairly expensive. They had to keep the records closed, and I don't just mean the CIA, or the FBI, but all the federal government [agencies], keeping those records that long, and doing it in that way, not systematically, but by FOIA requests, I'm not sure that was cheap. -"
Dr. Kermit Hall - "Yeah, I think that's a good question. One of the things, I guess, that I would like to see in this report, and I would ask maybe the staff to take a stab at doing it, is doing a little cost accounting on a per record basis, but then do a little cost accounting on the several thousand documents that have really preoccupied us, or taken up our time, and see what it looks like. I'm very sympathetic though because I think, one of the, to what you are saying Bill, because the, and Anna as well, is because I don't think we should be captured by the tyranny of the "or". It isn't do it this way or do it another way. I think you are really looking at kind of a portfolio of means to get at different kinds of problems. And that's why this, I think that Jim's letter generally takes, he has these several other ways [to] look at, one paragraph struck me, as being, it needs to be challenged."
["it" meaning the Review Board is an expensive means of getting records declassified.]
Dr. Anna Nelson - "Well, we've heard it over and over. And I'm not convinced of it."
Dr. William Joyce - "Well, that's true. The other side of it though is that you think about the legislation and the peroration that accompanied it, about confidence in government and accountability, you know, and those kinds of things, Congress undertook this means as a way of accomplishing something that in my view is essentially unmeasurable. If we are to do a cost benefit analysis, I'm concerned that we may get tripped up in our own logic and wind up trying to attach values to things that may or may not have that kind of attachability."
Dr. Kermit Hall - "Well, I guess we would differ, actually I think all things can be measured, I think that all things are susceptible to having costs put on them. And I don't want to fall into what I think is the present redux regarding the Zapruder film, "it's value is immeasurable", I think its value is measurable. And I think, I think,
...listen, there's by my measure, very little money has been spent on this effort and it puzzles me that colleagues, especially those who serve or carry the sword of openness, would argue that `My God, that's too expensive an effort!'.
Dr. William Joyce - "Well, that's true, that's true."
Dr. Kermit Hall - "The other part of Lesar's letter that I think is very helpful are some of the examples that he offers with regard to what current practices are in the FBI in response to requests that are being made. I don't know whether the assertions that are being made here are in fact correct, but if it is a fact that the FBI is going after documents that it should release and it is using a non-JFK standard emphasizing the traditional FOIA approach to things, then I am not sure the learning curve has been applied here and in that context it seems to me that-"
Dr. William Joyce - "That's a real concern. I think is that [people will believe] this is an isolated instance that we stand the danger of going out of business and it becomes the status quo. A lot of our work is dissolved because we haven't claimed attention, sufficiently, to get people to reform their behavior and that is the hard part. That's the challenge."
Dr. Anna Nelson - "That's something that I think we really aught to consider in our recommendations, think about in writing these recommendations, that this is the way in which records aught to be released,... quite apart from our own statute, that we have released all of these records to no apparent...and that seems to me to be a valuable and valid..."
Dr. Kermit Hall - "Jeremy, is there any way of following up on this assertion that-
Judge John Tunheim - " (unintelligible)
Dr. Kermit Hall - "No, no. Is the argument that is being made here by Lesar-"
Dr. Anna Nelson - "And others."
Dr. Kermit Hall - "And others, his page three, third or fourth paragraph, `and is it possible to-'
Jeremy Gunn - "Let me tell you what I think the problems would be with that, of course you can attempt to estimate a cost by taking certain factors in it so you can come up with a number, the difficulties in this will be, just take three different agencies, the Review Board itself, CIA and the FBI and you figure out what's the cost that those three agencies spent in declassifying records from those three agencies. You start out with the entire budget of the Review Board, and you count the entire budget of the Review Board as one of the costs, which certainly would be fair, or do you count the amount of time that staff members spent working on the issues which would be another number [in] which you would have to use an estimate. Similarly, if you go to CIA when they have a lot of people who are involved in the effort, including somebody from DO (Director of Operations) who is called to be asked a question about a record, and that person writes a memo and doesn't keep a record of the fact that he wrote a memo on a JFK related issue so that hour that that person spent writing the memo is a cost for the process but not easily capturable. You can ask for us, but the estimates will be a lot of assumptions."
Dr. Kermit Hall - "Right, and I probably don't want to get that sophisticated, or that detailed. I'm thinking, but...actually I have two separate questions here, the one question is an assertion about the FBI's central records system and how it's responding, which is on page three, and not really so much the cost question, but there is, you know, what percentage of the total budget spent on declassification has been expended in the past four years, has been expended in pursuit of the JFK materials? If you ask the federal government how much money you are declassifying, what percentage of this effort is reflected on JFK? I'm willing to bet it's real small."
Dr. Anna Nelson - "I think they have trouble, this is an issue that the Congressional research service tried to cope with. Harold (Riley?) tried some years ago to cope with this, and they did come up with some figures, and he may have some figures now on the four years, the last four years, but the problem is the same one as Jeremy said, what do you count as a cost for declassification, and the budgets even are often, really the line item, and there may not be a line item, it may be in whatever the administration, whatever, offers them. I don't know whether it's stated in the budget, it's something to look into.
Jeremy Gunn - "You could ask the question to the FBI, how many people, full-time people do you have working on FOIA, and how many full time people do you have working on JFK on a quarterly basis, four, the last four years, or five years, and I don't know how they would keep their records on such issues but I would assume you could get a reasonably good estimate if you ask the question like that."
Dr. William Joyce - "And isn't it true that the FBI has substantially gutted it's FOIA staff by transferring them to JFK?"
Dr. Anna Nelson - "Or at least they say so."
Jeremy Gunn - "I don't know. I can't believe that's true. I'm basing this, not good evidence, on one walk through that I took through the FOIA staff which is pretty big. So, I don't think that's right. I think it's disproportionally higher at the CIA but this is without looking at any figures at all, just by seeing who's working on what."
Dr. William Joyce - "Right."
Jeremy Gunn - "I assume that for JFK at the FBI it is a big chunk but whether it is 25%, which is a huge chunk, or 15 or 13% I don't know. It is a big chunk but I don't know."
Dr. William Joyce - "But if you are going to do a cost benefit, you know the benefit side would want to take those kinds of things into account."
Dr. Kermit Hall - "Right, absolutely, start steering away from..."
Dr. Anna Nelson - "But also-"
Dr. William Joyce - "Excuse me, but the other part of that is what is it costing them to maintain these files, the act of classification in the first place, I mean maintaining that, in terms of all of the restrictions."
Judge Tunheim - "And all of the FOIA, fighting the FOIA requests for a generation."
Dr. William Joyce - "And the legal costs-"
Judge Tunheim - "There is enormous costs."
Dr. Kermit Hall - "And in many cases nothing is being produced at the end of the fight."
Dr. William Joyce - "That's right."
Dr. Ann Nelson - "Well, that was going to be my point. One of the reasons why it seems expensive is we have a deadline, and you say, you have to do it by now, whereas the FOIA staff can go on forever. And you can wait 10 years-"
Dr. Kermit Hall - "Sign of the virus (?)"
Dr. Anna Nelson - "-and some people have, and so, certainly most people wait four years for FOIA requests from the FBI, so that's another unaccountable cost.
"We do probably know the cost per page of systematic versus page by page. I don't know if we know anymore past that."
Jeremy Gunn - "Again, one of the difficulties in the cost benefit is let's suppose that you take an FBI file that has, is three volumes long, one that goes into the JFK Act and one that goes under FOIA, it could be that the one going under the JFK Act costs four times as much to process but also you get ten times as much information out of it."
Dr. Kermit Hall - "Absolutely right."
Jeremy Gunn - "And so if you were to do the comparison you are dealing with apples and oranges."
Dr. Kermit Hall - "Another part of this, not to drive this into pieces too much, but there have been a tremendous number of records released by the agencies under the purview of the statute, actually far more than the board has ever released directly-
Jeremy Gunn - "Right, yes."
Dr. Kermit Hall - "it would be interesting what the cost ratio is between those releases that require no oversight by us and releases that require our intervention in some way to deal with proposed postponements because to some extent then you really get much closer to the question what is the cost of postponement which means then what is the cost of fighting for secrecy?"
Dr. William Joyce - "Can I just take that one step further? I assume that by that, the assumption that lay behind that is that it's cheaper to persuade the agencies to undertake consent releases and that gets to the importance of the chapter that I think Laura has been working on and I don't know if it's her phrase but I like it a lot, `Board common law', you know the decisions that have been taken that provide precedence and guidance, and if there is some way we can take that and try to codify that, and expand that, and aggressively market that, or present that to the agencies for their adoption I think that would be fabulous, the benefit that that would have an ongoing..."
Dr. Anna Nelson - "I have seen some figures, Kermit.....but it's really, it's almost crystal ball, kind of speculation, for us to admit, the budgets are so peculiar to those agencies. Costs are so hard to figure."
Jeremy Gunn - "One other example to show, certainly the cheapest way for the agency is when they do a consent release. It could be that there is a document that has a particular CIA operation in it, the board takes a long time with it, the CIA provides a lot of evidence, the board ends up releasing it, CIA then comes up with another document with a similar kind of operation but not the same and they say it's not worth the fight and they just release it, now it's hard to know where you put the costs in that, and if somebody makes the decision these are the same and so we'll let it go, or another person might make the decision they are not so we are going to fight it, all of those things are intangibles that, it would be really nice to have a complete breakdown of it, but they are intangibles, estimates, guesses."
Dr. Kermit Hall - "In my, my, my wish is not to create any kind of metric model of what's involved (laughs) but rather to at least challenge the assertion that this is unduly expensive."
Dr. Anna Nelson - "Yes."
Dr. Kermit Hall - "Or that this an expensive operation."
Dr. Anna Nelson - "You could probably do that without-"
Dr. Kermit Hall - "Because that has some bearing it seems to me on what your recommendation is, if this is a good model to follow, but then someone comes along and says yes but very expensive and the government can't, should the tax payers really pay for it? Well, wait a minute let's think of this in terms of true costs."
Dr. William Joyce - "I think that, if I may say Kermit, to my way of thinking, that would be a much more productive way to address this, would be to try to have some kind of narrative discussion of what in fact the trade offs would be, and to talk about some of the kind of complexity here that Jeremy has addressed. Because you do have, and we know from our experience that, you know, it might be expensive initially but then we are [creating] benefits that hopefully...
Judge Tunheim - "...it may not be as precise as we all would like it to be. There are figures that are widely circulated that are worried about the costs of declassification system, what percentage of dollars go to classification versus declassification, there may be enough figures there for us to get a grip on."
Dr. Anna Nelson - "to refute, anyway, the idea that we were `unduly expensive'."
Dr. Kermit Hall - "Now one of the other pieces of this, thinking about recommendations, just to peel off in a little different direction, and I think one of the conditions that has most effectiveness is the sunset provision, that is knowing that you are going out of business at a certain time creates an interesting set of issues with regard to staff, and management, and persistence of a staff, and therefore persistence of expertise, but it also creates kind of an interesting political mix in the people you are trying to persuade to act knowing that you will eventually dissolve-
Dr. Anna Nelson - "go away and leave them alone." [I don't quite get why Dr. Nelson said this as I listen to the tape weeks afterwards trying to transcribe it. I think she meant that some federal agencies that will not sunset can take the attitude that we can wait them out, and they, meaning in this case the Review Board will go away. Certainly, this was true of the HSCA's experience with the same federal agencies in the 1970's.]
Dr. Kermit Hall - "Would we recommend that there be a date certain for any subsequent boards that will be created?"
Dr. Anna Nelson - "As long as you have a, the kind of power that we had, that is to say, to compel them, as long as you can write that letter that says that if you don't finish your work the board will, without that you've got problems, but with that we've seen action."
Dr. William Joyce - "Well, one of the problems with that though Anna, is that we are still finding stuff (laughs)."
Dr. Anna Nelson - "Well, I know, I know, but, I mean, that's part of the government's record keeping, but I mean that it seems to me that it's been a great disadvantage to have a time certain, and the only way in which we managed to get out what we have gotten out is has been that we have the power that Congress gave us."
Dr. Kermit Hall - "It would have been interesting if Congress had asked us, instead of saying we are going out of business in three years, if Congress would have said to us you are going out of business when you can show us 95% compliance, and now Congress has applied to us the same condition that we are applying to the agencies and the result is that we are now in the position of running against a government and we are not in the position of running against a poll, and I mean we have essentially created, to fulfill a task, which was to find all records, but we are set up against a deadline."
Dr. William Joyce - "That's a good point, but-
Dr. Kermit Hall - "You get sunsetted but-"
Dr. Anna Nelson - "Well, certainly for the-"
Dr. William Joyce - "There's no, but there's no-"
Dr. Kermit Hall - "It would alter the dynamics with the agencies."
Dr. William Joyce - "Well, it sure would, but the countervailing proposition to that it seems to me is, that, you know, it sort of a steady state, open ended, I don't think that that would be a satisfactory resolution."
Dr. Anna Nelson - "I think that-"
Judge Tunheim - "Suggesting that it would be difficult to get things done without that deadline?"
Dr. William Joyce - "Yeah, yeah, that there's a certain kind of deadline edge that we have, that is a kind of motivation."
Judge Tunheim - "The concept of this being a temporary effort, and not a permanent on-going effort, I think is a good one, it does lend urgency and a sense of, kind of moving forward and getting the job done. But, to specify ahead of time exactly how long it is going to last without any idea as to the scope of the records that are out there, the suggestion of being more goal oriented as opposed to being time oriented is perhaps-"
Dr. William Joyce - "Well, maybe-"
Judge Tunheim - "Congress can do this, you know each year."
Dr. Anna Nelson - "I was going to say-
[It's almost comical how Dr. Nelson can't seem to get a word in edgewise.]
Judge Tunheim - "Is it going to be, now we see that there is an end so we sunset, but not from the beginning."
Dr. William Joyce - "Or maybe to take a page from Kermit's quantification book, we know, we will know how much material we will have reviewed, how many people we used to review it, what kind of productivity rates we accomplished, and maybe on the basis of that, you know, we could at least offer some broad guidelines that would say if you have these quantity of records and you are dealing with this type of material, then you know, this was our experience and this may be helpful in terms of trying to gage if this were to happen in the future every time you do it you might accomplish a little bit more specificity and precision so that, you know, you [might] have a better idea about these things as you go along."
Dr. Anna Nelson - "One of the, one of the things that Congress could have given us to do is to give us more time, and they say come back to us, I mean the legislation itself could have had a provision saying, in legal language, the language of the law, come back to us and we will see you in a year and you can describe the records to us and we will know how large, they are not likely to do that at any time but that is what they should have done in the beginning because nobody knew what was out there, least of all us."
Dr. Kermit Hall - "I think if you take this, you know you take something like Martin Luther King, that might be much more inclined-
Dr. Anna Nelson - "(unintelligible)
Dr. William Joyce - "Plus on the other hand if you think back to our first meeting we spent two hours on four records."
Dr. Anna Nelson - "Well, that was establishing what Laura termed our common law."
Dr. William Joyce - "I know, I know."
Dr. Kermit Hall - "Well, I think one of the challenges for us is to see that we do not lose this "law", because it's not so much a law as it's just a set of working principles."
Dr. Anna Nelson - "Well, it is working principles, but I see it as policy principles."
Dr. William Joyce - "Well, I remember David, [Marwell], there were a few meetings where David was despairing our accomplishing anything, and I used to say to him this is like a seminar, this is a dialogue. We are just starting out, it is going to take time, then we will get moving, then we will get better."
Dr. Kermit Hall - "Would you recommend that people who would [be] appointed to similar such boards have the same set of qualifications that we brought, not the least of which was no prior experience with the investigation of, or significant research about, if I remember the statute correctly, one of the arguments that Oliver Stone made is that we are all pretty much incompetent to the task. I think he was dead wrong, in fact, profoundly wrong, but it does raise I think an interesting issue, if you had the King assassination commission set up would you recommend that?"
Dr. William Joyce - "Well, personally, I think that Congress was wiser than we knew when they did that, I do think that that is one of the successful aspects of it. I think its created a new aspect that is very important to the process. The problem that I see was the security clearance process that delayed the work, not only for us as a board but of the staff. It took us a very long time to get geared up because of that process, and I think if there could have been a way to counterveil those two things I think that would be helpful."
Dr. Anna Nelson - "I think actually Kermit that not knowing in spite of the people who spent so many years researching the subject we've worked...and I think lends credibility to that, because there is a certain amount of credibility to a group that doesn't come in with a certain point of view, and if you are going to set up a King committee for example, to come across someone like David,... I've lost the name, who wrote the book on King?
Judge Tunheim - "David Garrow?"
Dr. Anna Nelson - "Garrow, then you've got a problem, which is not to say that he should not be used as a resource, but I think that he has a point of view, a point of view that he loses credibility, but I think that you do need people who are geared to understanding what finding records is all about. I actually think that to reach out to professional groups that...I've been pointed out the new bill that's come out of Senator Moynihan's commission, I don't know if you've seen that in the-
Dr. William Joyce - "I did."
Dr. Anna Nelson - "that there is nothing in it that says that the members of the group have to be suggested by professional organizations which would leave some leeway to ask for corporate executives, people who never had anything to do with any kind of research, or just research basically, that's probably what we can recommend. That in fact, people can be nominated from a list who are best fitted for this kind of work."
Dr. Kermit Hall - "I think the model does pose interesting requirements with regard to the staff and I think you were fortunate, especially with Jeremy, to pick someone with a broad understanding of the literature and some of the issues involved in the-"
Dr. Anna Nelson - "And the fact that we could not, at any time, choose someone
with even the lowest level of government work meant that we were lost...and that we had to go to security, get security clearances for all."
Judge Tunheim - "I think this question is best posed in the following way: Do you want to have advocates on the Board or do you want neutrals? And I think while there may be some advantages in advocates, the dangers you have for an effort like this far outweigh those advantages. I don't think a group of Board members who are advocates in a certain sense for a particular position or viewpoints would have gotten nearly the cooperation from the agencies that we have been able to get. I think our relative neutrality coming in is viewed as less of a threat to the system. You can accomplish much more with that kind of a framework than you can with an advocacy framework and that is probably an important reason for doing it. Plus, I mean if you know the answers to the questions you don't look for other answers to those questions and that is a big issue as well. I think the dangers of putting experts on boards like this are extreme."
Dr. William Joyce - "Well, I think, those are two very good points, Jeremy, and I think about what Anna touched upon is also important. I think that we do ourselves a disservice to minimize what we do bring to the table which is professional training and a certain ability to have an overview about the period of relevance and the activity of the federal government. So, I think we have to be careful, I think that there are ways where we have contributed something to the process."
Dr. Anna Nelson - "And the fact that there were, in this instance Congressional staff could probably figure it out, they were highly intelligent, in that they recognized that we would need, that it would be good to have, the need for a lawyer, the need for a certain kind of, in other words, a legal side and a research side, that was very important, and a good mix for this kind of an effort. And leaving it open ended.
"I also think we might recommend a small group because we had 10, 12, 15 people on the [Moynihan?] Commission and we got none of what Bill was referring to earlier...we just got a lot of people, half of whom don't come...
(Pause. Dr. Hall changes the subject)
Dr. Kermit Hall - "Miss Avis (spelling?) She sent us a number of recommendations."
Judge Tunheim - "from Australia?"
Dr. Kermit Hall - "from Australia."
Dr. William Joyce - (amazed) "from Sidney, Australia."
Dr. Kermit hall - "Sidney, Australia, Seven Hills, but a couple of them I think are really, I think all are certainly welcome, but a couple of them struck me particularly. One is, `What kind of recommendations are we going to have, if you like, with regard to the treatment of the records that have been postponed? Whose responsibility is it going to be?', to make sure, I mean do we need to say anything?"
Jerry - "We discussed this early on, didn't we?"
Judge Tunheim - "Well, in my view there has been this system at the National Archives needs to be set up and I guess it should be a recommendation, presumably it will be set up so that when the dates arrive it is automatically declassified. I have an index of the dates."
Dr. Kermit Hall - "So our final report then should contain, should have a list of all the documents that are postponed?"
Dr. Anna Nelson - "Well, I don't think that's feasible because what you have is an enormous number of documents, because you've got just those three little numbers, and most are CIA, FBI redactions-"
Jeremy Gunn - "What I am imagining is that, two things in response to this, one is that there will be a supplement to the final report, that will have all the of documents listed with postponements, they will be in columns. It is the kind of thing that is not useful for anyone to have on their bookshelves, cause it's not going to do any good, but is is something where a hard copy should be available to Steve [Tilley]. In addition, you will have data in the format that he can do different kinds of search capacities, and he can line them up in the order of the different dates."
Dr. Anna Nelson - "And actually, there are only about three sets of dates."
Jeremy Gunn - "There are three big ones, there are others, though the time changes as the board-
Dr. Anna Nelson - "Well, some are, some are-"
Jeremy Gunn - "They are staggered, but you can-"
Dr. Kermit Hall - "Should we send a letter of the Archivist of the United States and a copy of this, and then send a copy onto Steve [Tilley] and essentially put them on notice and say, `Here are the opening dates, the ball is in your court?' And Steve might not be there in 2017. I don't know about the archival memory "
Dr. William Joyce - "And I'm a little concerned about how, what the relationship of legislation will be to what otherwise governs classification."
Jerry - "Should it be the archives? I'm sorry."
Dr. William Joyce - "Well, maybe it should be, you know, I think that might bear some looking into..."
Dr. Anna Nelson - "I do too, I do too."
Jeremy Gunn - "From a legal point of view, one of the things that I'm concerned about is in a sense on September 30, 1998, the JFK Act becomes a puff of smoke, I mean it doesn't exist anymore. There are things within the JFK Act pursuant to actions taken after the JFK Act is no longer in existence. What is the legal authority for an act that has in a sense expired?"
Judge Tunheim - "Well is it the Act itself that will expire or is it just the Board?
Jeremy Gunn - "The Board expires. The existence of the Act is not clear because there is nobody necessarily to enforce it. The statute itself is a note within the National Archives legislation, and I raise this not...I presume that the records will be open as stated by the Board, I assume that as a practical matter will happen, I am not certain that as a legal matter that is necessarily going to happen and I think it would be very appropriate for the board-
END SIDE A
START SIDE B
Dr. Kermit Hall - "...not only a copy of the report but also list the documents and also give them the ammunition to go forth and make sure that they-"
Dr. Anna Nelson - "(unintelligible)"
Dr. Kermit Hall - "Well, I understand that the archivist might not be there, I mean (?) might not be there in 2026, but it has to be of some historical measure, I think it is really one of the weaknesses of the legislation is that it doesn't specify responsibility beyond the life of the board about who is to execute-"
Dr. William Joyce - "Right."
Dr. Kermit Hall - "-who is to execute the dispositions of our actions?"
Judge Tunheim - "We could state this is how we expect it is going to occur and then recommend to the Congress that it provide by legislation to make sure."
Dr. Anna Nelson - "Actually, there could be a provision in the National Archives budget, in other words it's a part of the National Archives...."
Dr. Kermit Hall - "I think in the end that's a far more significant action on our part than trying to craft any kind of legislation-"
Dr. Anna Nelson - "Oh, I think so too, I think so too."
Dr. Kermit Hall - "because that's our legacy."
Dr. William Joyce - "Or, what a number of my Princeton colleagues call `disconnects that relate to this', and another one is that the Archives is really not set up to deal with individual postponements. Could we do that electronically? You know, we have a whole system here that excels [sic, "exceeds"] their capacity to deal with records."
Jeremy Gunn - "There are actually two different questions there, one is they will have the same electronic capacity we have because we are giving them our electronic capacity."
Dr. William Joyce - "Oh, okay."
Jeremy Gunn - "So, our physical capacity, our server, Lotus notes, will be given to the Archives, and will be physically taken there, so they will have all of that. There is still going to be a complicated process for records that, where they may have different release dates with a particular record, that is something that you wouldn't be able by a computer system anyway for where we are, so it's still going to be document by document, eyeball, by eyeball, looking at them."
Dr. Kermit Hall - "But that would certainly be a task that appropriately would fall within the JFK records piece of the Archives, that is, if there is anybody over there who aught to be looking after them it would be Tilley and or his successors."
Jeremy Gunn - "If you are asking me, what we can certainly do is to give to him,
well, I should never speak about computer things I don't know about, I don't see any reason why we could not give to him a list of documents in date order of when they are supposed to be opened up so that you can check them off as the date comes along."
Dr. Anna Nelson - "You know, the National Archives does not do that kind of thing, the National Archives can have a record that was closed in 1976 that which long since [has] been opened but until a researcher asks for it they do not have a capacity for that. My guess for what will happen is a researcher will ask for one of these documents, they will go back and see if the year [or date] has passed, and then they will open it."
Dr. Kermit hall - "Do we then, or will we be well advised in making a recommendation that in as much as this imposes an additional burden on Tilley and his operation, or upon the Archives generally, that Congress should appropriate specifically funds to take care of implementation of our legacy?"
Dr. Anna Nelson - "Well, this ought to be a line in the Archives' budget-"
Dr. Kermit Hall - "We aught to get Steve on board to help us."
Dr. Ann Nelson - "-because basically they have never had that capacity. You can't blame them for that."
Dr. Kermit Hall - "Well, they aught to have people working on it now."
Dr. William Joyce - "I think a recommendation like that may put them in a very awkward position, okay? Of having to represent to Congress, you know, I mean if you say, if our board puts them in that position."
Dr. Kermit Hall - "Somebody has go to take care of this stuff afterward."
Dr. William Joyce - "Yeah, I would suggest that our recommendations might go to the Archives oversight committee to say, `Look, we have a legacy here.' I'm sure they are not going to oppose it, all I'm saying is it may put them in an awkward position."
Dr. Anna Nelson - "Leaving, for the Archives to support it,-"
Dr. William Joyce - "Yeah. That they would support it, yeah"
Dr. Anna Nelson - "because it is a particular set of records that they were being asked to support. Yes, we should take it to the staff of the committee rather than asking the Archives to more than quietly support it."
Dr. William Joyce - "Yeah, right, tell them what we are doing so they know. I'm sure they are not going to oppose it-"
Dr. Anna Nelson - "No, I-"
Dr. William Joyce - "but the idea would be for them to go to the oversight committee."
Dr. Kermit Hall - "...budget, sorry."
Judge Tunheim - "I think I'm underestimating the difficulty of all of that. It just strikes me that once a year two or three staffers take out the list and the following 120 records have postponement dates in over the past year that have expired, we just go find each one of those and lift the postponement."
[Judge Tunheim seems to be saying, "Why can't it be that simple?"]
Dr. Anna Nelson - "No, no, that's not the way they do it."
Jeremy Gunn - "That's not the way they usually do it"
Judge Tunheim - "Right."
Jeremy Gunn - "But this is the type, this is the situation where they have all of the information for them so it's practical to do it."
Dr. Anna Nelson - "And they still have a withdrawal card."
Judge Tunheim - "[but] they have it all on a list of paper."
Dr. Anna Nelson - "and they still have a withdrawal card, I'm not saying this is right Jack, I'm just telling you-
Judge Tunheim - "Well, I know but-"
Dr. Anna Nelson - "they have a withdrawal card in there and they have to take that out, and then they have to, you know, go and get the record, and then they have to go and put a note in their computer. And it shouldn't take them long and they aught to do it. But, in doing that you are servicing all the reference people, when the problem is when the great number of people calm down over JFK they are going to start assigning those people to other jobs. I think we have to really assure, Jack, that they've got, that this happens every year."
Dr. William Joyce - "Well, I guess the research community is going to keep the Archives pretty busy."
Dr. Kermit Hall - "Well, there is another piece of this issue, and that again, legacy kind of goes to what Jack was talking about, and that is that as much as we may wish to think that we've got everything we've have, and that there are going to be other pieces that will bubble up, and other opportunities to pursue leads as a result of those that bubble up, and the question is, `Who is going to be responsible?' and that burden it seems to me can't fall on the research community."
Dr. Anna Nelson - "Instead it can fall on the Archives?"
Dr. Kermit hall - "Well, it seems to me it can."
Dr. Anna Nelson - "Oh."
Dr. Kermit Hall - "Another reason to ask for some resources is to put the Archives in the position of not saying, `Well, listen you gave us the god damn task to do and you didn't give us any money.' "
Dr. Ann Nelson - "Well, what we really need Kermit, I agree with you we do need to work on some specific legislation here and there, but what we need from Congress it seems to me is a provision saying, `This Act, in order to be completed, we must keep the guidelines that were established under the Act. And the Archives, (correction) and the agencies will abide by those when they are interpreted by the Archives.' In other words, we need specificity on who is going to decide what's open under what guidelines. And things will come up. And who will open them up? We need to say it has to be opened up under specific guidelines."
Dr. Kermit Hall - "Well, let me be clear about what was said, about what I said earlier, I don't think you need to have-"
Dr. Anna Nelson - "No, I agree."
Dr. Kermit Hall - "broad, sweeping legislation dealing with, you know, let's create a new system, but no one is going to pay attention to this anyway, but I do think that on the specific point of trying to invoke some Congressional support and offering up
some model statute-"
Dr. Anna Nelson - "No, I just-
Dr. Kermit Hall - "But you need someone who is going to pick up, because I can really see both of these opening up documents that are supposed to be open and done with some authority and certainty but also, how do you handle the other piece of, look, gee, we just found something, what do we do with it?"
Dr. Anna Nelson - "And under what guidelines are we going to examine it?"
Dr. Kermit Hall - "Yeah, and that's the question, cause once you're, (to Jeremy Gunn) I know you want to say something but if I could just pursue this for a moment, if in fact the legislation goes up in smoke does that mean that the standards that have been set as they apply to "assassination records" yet to be discovered also goes up in smoke?"
Jeremy Gunn - "They are different questions here. One of them, I mean the Board certainly goes out of existence with the statute. The D.C. Circuit has now established there is no private right of action under the statute so this can not be enforced by the general public, the JFK Act. So, Jim Lesar can say, `Archives has not opened this up and by what the D.C. Circuit has said thus far he has no standing to make that claim, meaning there is no enforcement body so it is up to the good wishes of the agencies and the National Archives to continue it with no one being able to tell them. So, that is one of the issues. A second issue is what about records found after the Board goes out of existence? Now, in the compliance letters we are sending to agencies we say in them any records found after we go out of business should continue to be forwarded to the archives. The legal authority for that is none, moral authority, [perhaps] but nothing further than that. The third thing, now those are both real issues, the third one that I see in terms of a practical issue, in terms of where there is likely to be a glitch, in terms of opening up records that the board has voted on and postponed, is under the statute an agency can still go to the President and appeal that the records are not to be opened. So, what happens in January 1st, 1999 comes along and Steve Tilley sees a record that he is supposed to open, what does Steve Tilley do? Does he go to the agency and say, `Okay, I'm ready to open this record. Are you going to the President?' or does he just open it up?, and the agency has to come and take an affirmative step? That's not laid out. Steve Tilley could have the interpretation I think, completely, legitimately, that it's up to the agency to get an order from the President prior to the time he opens it. I also know that the archives play such things extremely conservatively and is likely to say-"
Dr. Kermit Hall - "to an agency-"
Jeremy Gunn - "-to an agency what do you want to do?"
Dr. Anna Nelson - "They always have done."
Jeremy Gunn - "Okay, now the statute is not absolutely clear on this point, right? I think the Board could say, `It's very clear to the Board that this record should be opened up unless there is an order from the President not to open it up on such and such a date.' Now, the Board can say that, but it is not around to enforce it. Putting the burden on the agencies to stop the opening rather than putting the burden on Steve to get the agencies to agree to it."
Dr. Kermit Hall - "Well, if we don't say it then the record could be read another way."
Jeremy Gunn - "Yes."
Dr. Kermit Hall - "So, as a matter of recommendations I think it's important that we do."
Dr. Anna Nelson - "In many ways there is an obligation on the part of the [Archives] oversight committee to finish this task that they [the Congress] began with a piece of legislation. And finishing it is a very minor kind of statute that delineates some of the things that we are talking about. I think it is time for us to recommend that kind of legislation. Now, this is the kind of thing that doesn't really cost money so, you get through it, send it out to the floor, the House and the Senate, and it goes. As long as you have the staff and the committee people going so that it strikes me that that would take care of some of the legal problem. It's not a finished task unless we decide-"
Jeremy Gunn - "One thing that the Board could do is use it's either moral authority or good offices to have a meeting with the two obvious candidates, the FBI and the CIA, and the Archives, to have a memorandum of understanding with those three entities and other entities, Secret Service people, I guess there aren't that many Secret Service records that are postponed, but, certainly FBI and CIA, a memorandum of understanding that when the date comes that the record will be opened unless there is a prior existing order from the President.
"Now, I expect a lot of resistance from the FBI and CIA, not because they care about any particular record but just because they don't like a procedure like that, which if I were working for them I wouldn't like it either, but, a way the board can still do something about that is to convene such a meeting now and make such an arrangement, and then say in the report we tried to do this-"
Dr. Kermit Hall - "I like that idea very much."
Dr. William Joyce - "I do too."
Dr. Anna Nelson - "Yes, I do too. A very good idea, a very good idea, Jeremy."
Jeremy Gunn - "Should we set one up?"
Dr. Anna Nelson - "Yeah. And I think Steve would like that too. I think he has always been uncertain about his own; and given the fact that the Archives makes it's own decisions so quickly and with such determination..."
Judge Tunheim - "Okay, any other items we want to discuss today?
(no response)
"A good start and we will continue this discussion. Any other business to come before the Board today?"
Jeremy Gunn - "I assume we did minutes before I came in?"
Dr. Ann Nelson - "Yes."
Judge Tunheim - "Is there a motion to adjourn?"
Dr. Anna Nelson - "So, moved."
Judge Tunheim - "Second?"
Dr. William Joyce - "Seconded."
Judge Tunheim - "Discussion?"
( no response)
"All in favor say `Aye."
All - "Aye."
Judge Tunheim - "Opposed?
(no response.)
"Meeting is adjourned, thank you."
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