Dennis Bartholomew recently wrote a thought-provoking article in Probe, calling for discussions at the COPA and Lancer conferences in Dallas of what the research community and other Americans interested in the truth about President Kennedy's assassination should do now that the sun has set on the Assassination Records Review Board (ARRB). I presented a version of the following paper at the Lancer Conference to address the issue. Bartholomew's piece and a sidebar by the Probe editors mention a number of options, including new investigations by a Texas-based grand jury or federal Special Prosecutor and a South African-style Truth Commission with an amnesty component. (Bartholomew's personal conclusion was that a new Congressional investigation focusing solely on the evidence tampering aspects of the case would be the best recommendation.)

In the spirit of Bartholomew's call to action, I believe that ARRB "follow-up" legislation represents an essential minimum interim step that EVERYONE in the research community should be able to embrace to assure that we do not lose ground in our ability to pry assassination records from the hands of reluctant federal agencies. While this proposal is by no means as dramatic as some of the other ideas Bartholomew has advocated that we consider, I believe that it is imperative that we fight to protect the clear and convincing legislative intent of the 1992 Congress regarding public access to assassination-related records.

1. The ARRB notes in its Final Report that Former FBI Director J. Edgar Hoover apparently maintained various "subject" files on the assassination APART from his "Official and Confidential" files many of which have been released and APART from his "Personal and Confidential" files many of which were shredded by Helen Gandy. The ARRB asked the FBI to locate these subject files, "but the FBI has not been able to locate the materials." Assuming these files should surface and FBI personnel wish to have certain portions redacted or certain documents totally withheld pursuant to exemptions within the JFK Act, what entity is to make the determination in the post-ARRB era?

2. The ARRB Final Report also indicates that the Mexican government may well have additional assassination records which it has yet to produce, pursuant to an ARRB request relayed through the U.S. State Department. Assume that these records, which contain some potentially sensitive information, are located by the Mexican government. In scenario #1, the Mexican government realizes that the ARRB no longer exists and releases the records directly to the NARA. Upon release of these records by NARA, the State Department is appalled to discover that they contain information about the conduct of foreign relations which, in State's judgment, could "demonstrably impair" the national security of the United States. What entity should have served as an intermediary now that the ARRB is gone and offered State the opportunity to review the records and claim the exemption? In scenario #2, the Mexican government hands the records over to the State Department. State wants to comply with the JFK Act and turn the documents over to NARA, but believes that certain portions need to be redacted to protect national security. What entity is to make that determination in the post-ARRB era?

3. Many documents ordered to be declassified by the ARRB during its final days in existence have yet to be released to the National Archives. Assume that one of these documents is a report of an eyewitness account of an alleged Oswald meeting with "Charlie Lunchbucket," an FBI informant, at a restaurant in Mexico City on September 30, 1963. Many government documents relating to Lunchbucket now fall under the definition of "assassination-related" record pursuant to the JFK Act. What entity is to contact the FBI, the CIA and other government agencies and order them to begin processing Lunchbucket records for ultimate release to the National Archives? Moreover, suppose the FBI wants to argue that identification of Lunchbucket as an FBI informant or release of his informant number would "identifiably harm" intelligence operations. What entity would determine the validity of such an exemption claim?

4. Assume that a (previously unknown) James Files- or Claude Capehart-type character named "Dallas Gun Runner" comes forward and confesses some kind of role in the goings on in November, 1963. Similar to the situation with our hypothetical Lunchbucket, many government documents relating to D. G. Runner now would be assassination related records. Same questions as #3 above.

The Final Report notes that, "The Board has remained concerned that critical records may have been withheld from the Board's scrutiny and that the Board did not secure all that was out there.' It is all too easy to imagine that agencies and agency personnel not inclined to cooperate might simply have waited, using the JFK Act's sunset provision by waiting for it to take effect and ending the need to cooperate . . . The Review Board's recommendations are designed to help ensure that the comprehensive documentary record of the Kennedy assassination is . . . actively developed after the Board terminates..."

"Despite the sound public policy goals encompassed in both the FOIA and Executive Order 12958, both of these measures fall short of their goal of access, as evidenced by the inability of researchers to use these measures to obtain access to assassination records. The categories of exclusion are far too broad in the FOIA to constitute a meaningful program of opening restricted federal records, and the succession of executive orders issued since the FOIA was enacted reflects the same problem. The most recent, Executive Order 12958, also fails by not creating for federal agencies an "oversight" procedure to ensure that the decisions concerning access to agency records made by that agency's head will be independently reviewed. The mandate to release should be internalized in the agencies and penalties for secrecy must rival in consequence those for unauthorized release.

"The mandate of the Review Board, underscored by powers conferred in the JFK Act and further aided by an adequate appropriation, far exceeds what the FOIA and executive orders can accomplish because the Review Board has the authority and resources to both review and release. Proponents of the FOIA and executive order declassification would benefit from consulting the JFK Act to identify how best to augment the resources and authority of those measures."

The ARRB Final Report points out prior to enactment of the JFK Act, some agencies were taking as long as five years to respond to FOIA requests, "and members of the public often waited for long periods of time to receive information that might be heavily redacted." Significantly, the ARRB took great pains to specifically identify the broader array of exemptions in the FOIA relative to the JFK Act, including provisions in the former law which exempt CIA operational files and which allow the CIA and FBI great discretion in blocking access.

EO 12958, which requires (only Executive Branch) agencies to engage in a systematic declassification of all records more than 25 years old, also fails to be as effective as the JFK Act in providing access to various documents. The ARRB says that the EO allows "agency heads" to determine which records should be withheld because of any of the nine enumerated areas of harm. The ARRB writes that it found "agency heads" to be quite reluctant to release their agencies' secrets and identifies as a major shortcoming the EO's failure to hold agency heads accountable for their decision-making or to provide any independent review of their decisions.

It is not surprising then that among the ARRB recommendations are that the FOIA and EO 12958 be strengthened, "the former to narrow the categories of information automatically excluded from disclosure, the latter to add independent oversight' to the process of review' when agency heads decide that records in their units should be excluded from release."

(A) A mandate that federal agencies continue the "compliance program" by maintaining designated liaisons to pursue requests for information pursuant to the JFK Act. The ARRB report indicated that these liaisons were crucial communication links between agencies and the Board, and they should continue to serve in that role regarding on-going communications between NARA and the agencies.

(B) That NARA has the authority to implement the "remaining" provisions of the JFK Act which would include outstanding requests for information at the time of the ARRB sunset.

(C) That NARA has the authority to implement ONGOING provisions of the JFK Act, in that researchers and agencies themselves will no doubt continue to uncover many thousands of pages of documents which fit the broad definition of "assassination record" provided by the 1992 law (and which therefore need to be declassified and released to NARA). The ARRB indicated that NARA should be specifically empowered to develop an appeals process which places the burden for preventing access on the agencies. Language also should be provided in this section of the legislation, pursuant to the ARRB recommendation, to codify the role of the Oversight Task Force (composed of representatives of American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Bar Association) in helping NARA assure continued execution of the access provisions of the JFK Act. The ARRB writes that a group composed of individuals from these professional organizations "would ensure the continuing representation of the public interest by those trained to understand continuing historical, archival, and legal issues."

(D) That NARA have the "means" to implement the remaining and ongoing provisions of the JFK Act and have "additional resources necessary" to continue to manage the JFK Collection responsibly. These recommendations obviously contemplate specific appropriations request(s) and language for the legislation which the NARA staff need to prepare. Additional appropriations may be necessary regarding the establishment of the Oversight Task Force.

(E) A mandate that the FBI and CIA negotiate with NARA and sign a "memorandum of understanding" (as advocated by the ARRB).

In my letter to the Archivist, I also ask him to "make every effort to contact the White House and encourage President Clinton's support for this legislation, particularly with regard to factoring any necessary additional appropriations into his various budget recommendations or amendments. I am sending copies of this letter to all members of the Kansas Congressional delegation (as well as the White House), and I will be asking them to support the proposal and make any and all resources at their disposal available to assist you and NARA staff in the preparation, introduction, and enactment of this legislation."

But I also believe that evidence of grass-roots support from individuals will be an important factor in convincing Congress to take this proposal seriously, and I strongly encourage people to contact their members of Congress about the need for this legislation.

This initiative should be sold to Congress by pointing out that it does NOT represent an effort to make the ARRB permanent by repealing the sunset clause, but rather it envisions a far less visible and presumably less costly mechanism which would continue to implement the ongoing provisions of the JFK Act under the auspices of NARA and the Oversight Task Force.

In other words, NARA -- unlike the ARRB -- presumably would not be traveling around the United States holding public hearings or putting people on airplanes to Moscow or Mexico City as part of overtly aggressive effort to continue to identify additional assassination-related records. But if the NARA entity is codified statutorily without a sunset provision hanging over its head like the sword of Damocles, we could certainly approach FUTURE sessions of Congress about the possibility of an expanded role for the new (JFK Act) body as well as all necessary amendments to the FOIA.

Original Paper Presented to the JFK Lancer 1998 November in Dallas Conference

Return to Conferences Page

Return to Main Page

* * *