I have written a series of articles for Kennedys and King regarding the John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Act”). The main focus of the previous articles has been the failure of agencies and the Executive Branch to timely release all assassination records by October 26, 2017. That was the mandated date under the JFK Act for final declassification of all assassination records. This article will focus on the actual steps taken by agencies and the Executive Branch to delay the process of declassification since 2017. We will also examine what can be done to ensure compliance with the JFK Act at this point in time.
In recent months, I have been working with a group of skilled lawyers in an effort to determine why, in 2021, the American public still does not have access to tens of thousands assassination records. Let me say that again. In 2021, agencies and the Executive Branch are still classifying tens of thousands assassination records: almost 58 years after the Kennedy Assassination. Even worse, we do not have a valid explanation from the Executive Branch as required by the JFK Act. We will get back to that point later in the article.
Brief Early History of the JFK Act and Declassification Efforts
Congress overwhelmingly passed the JFK Act in October of 1992. Only one member of Congress did not vote in favor. The JFK Act required the formation of the Assassination Records Review Board (ARRB): an independent panel of academics, archivists and/or attorneys to begin the declassification process. In the opening declarations of the JFK Act, Congress made its intent very clear. Congress stated that all assassination records carried an immediate presumption of disclosure, and that only in the rarest of cases would continued postponement be possibly warranted. Remember, Congress declared that in 1992, almost 30 years ago.
The ARRB did a tremendous amount of work between 1994 and 1998. The result was declassification of thousands of assassination records, which was a significant step for American citizens and researchers who seek to understand the history of the Kennedy Assassination. It is worth noting that the “Public Interest” was a compelling reason for the creation of the JFK Act. The JFK Act itself states that the “Public Interest” means the “compelling interest in the prompt public disclosure of assassination records for historical and governmental purposes and for the purpose of fully informing the American people about the history surrounding the assassination of President John F. Kennedy.”
The ARRB, by Congressional mandate, completed its term by 1998. Congress then left further declassification efforts in the hands of agencies and the Executive Branch. That is where we start to see the problem.
The JFK Act required agencies to engage in a process of “periodic review” after the winding down of the ARRB. Even if the ARRB had initially determined that an assassination record warranted postponement under the evidentiary standards of the JFK Act, agencies were still required to review those determinations from the 1990’s and “address the public disclosure of additional assassination records.” The purpose of the “periodic review” by agencies was to continue the downgrade and the declassification of protected assassination records. Further, for any records initially approved for postponement by the ARRB, agencies were required to deliver to the Archivist (and publish in the Federal Register) an unclassified written description of the reason for continued postponement.
Brief Explanation of the Mandated Deadline—October 26, 2017
Agencies and the Executive Branch were given 25 years to complete the declassification process for JFK Records. As discussed above, this started with disclosures to the ARRB and requests for continued classification. Then, the agencies had between 1998 and 2017 to complete the declassification process through periodic review and additional disclosures to the Archivist. As of October 26, 2017, precisely 25 years after the passage of the JFK Act, only the President had authority to postpone the release of certain individual records, based on specific standards in the JFK Act. Specifically, President Trump was required to certify that 1) continued postponement was made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and 2) the identifiable harm was of such gravity that it outweighs the public interest in disclosure.
What happened instead? On October 26, 2017, President Trump authorized a six (6) month “temporary” postponement for government offices and agencies to comply with final disclosure under the JFK Act. We do not know exactly what President Trump reviewed, or did not review, in terms of actual assassination records that posed an apparent “concern” for agencies. We do know that President Trump did not issue a record-specific certification for each record that agencies and/or the Executive Branch sought to postpone, as required by the JFK Act.
We also now know that a legal rationalization for “temporary postponement” was provided to President Trump on October 26, 2017. That rationalization was in the form of a legal opinion from Curtis E. Gannon, who was then an Acting Assistant Attorney General in the Office of Legal Counsel. The rationalization proposed, in contravention of the Act, a delay of only “a few months.” In apparent reliance on the Gannon Memo, President Trump issued an order authorizing a 6-month delay for agencies to complete their review and disclosure obligations and comply with the JFK Act. As explained in this article, the Gannon Memo does not correctly interpret the JFK Act as written and was, from the outset, clearly designed to justify a certain outcome desired by agencies who wish to continue withholding assassination records from the American public.
Brief Review of the “Temporary Postponement” Period
Following the 6-month postponement discussed above, the President should have been in a position to authorize the release of all assassination records. At the very least, the President should have been in a legal position under the JFK Act to certify postponement of a handful of records and with record-specific explanations. That is not what happened. In fact, matters became far worse. On April 26, 2018, President Trump then authorized an additional three year period for agencies to “re-review” withheld assassination records and report to the Archivist on their continued requests for postponement. In that same executive memorandum of April 2018, President Trump established a new deadline of October 26, 2021 for the Archivist and the President (now President Biden) to make final decisions on the release of assassination records. Yes, you read that correctly - October 26, 2021. The 6-month delay, and the multi-year delay, were completely unwarranted under the JFK Act, and mark a clear departure from law.
It is now clear that President Trump’s decisions in October 2017 and April 2018 were based on the October 26, 2017 Gannon Memo. The Gannon Memo concluded that a delay of a “few months” was warranted based on purported concerns of the Archivist in terms of agencies not following the procedural and evidentiary requirements of the JFK Act. The Gannon Memo did not, however, discuss the Archivist’s concerns in any detail, nor did the Gannon Memo provide the complete written report or findings of the Archivist. Regardless, even if the 6-month delay in October 2017 was arguably warranted based on legitimate concerns of the Archivist, there is no legal justification for the President’s decision in April of 2018 for a multi-year postponement of legal obligations under the JFK Act.
The Gannon Memo Explored
Gannon’s analysis is contrary to the provisions of the Act. There is no authority in Section 5 of the JFK Act for a “temporary certification” authorizing postponement. Section 5(g)(2)(D) of the JFK Act clearly states that all assassination records were to be disclosed in full by October 26, 2017. The President only had authority to postpone release of records past this date with a written certification “as required by this Act.”
The words “as required by this Act,” as cited in Section 5(g)(2)(D) of the Act, are critical to a proper legal interpretation of the JFK Act and explicitly require that Section 5(g)(2)(D) be read in context with the JFK Act as a whole. Starkly absent from the Gannon Memo is any reference to the applicable provisions in Sections 5, 6, and 9 of the Act, which set forth the specific requirements and standards under which the President may authorize postponement. Specifically, when the JFK Act was enacted in 1992, each Government office was promptly required to: 1) determine whether its assassination records, and particular information therein, were covered by the standards for postponement of public disclosure; and 2) specify with particularity, in an identification aid, the applicable postponement provision contained in Section 6 of the Act. An identification aid is a standard form for identifications or findings for use with each assassination record subject to review under the JFK Act.
In addition to the process referenced in the preceding paragraph, Section 5 of the Act then required a specific reporting action from affected agencies for any continued postponement. Again, this was required in the early 1990’s. In 2017 and 2018, agencies had no basis to request continued postponement without providing written and unclassified reasons for postponement under the Act. Specifically, under the agencies’ periodic review obligations, Section 5 of the JFK Act required:
[A]n unclassified written description of the reason for such continued postponement. Such description shall be provided to the Archivist and published in the Federal Register upon determination.”
In other words, without the unclassified reporting from agencies for each record sought to be postponed, the President was required to release the remainder of the protected JFK collection on October 26, 2017. The “temporary certification” of an unspecified group of records, as recommended by the Gannon Memo, can only be viewed as the Executive Branch acquiescing to last-minute appeals from agencies that did not follow the standards of the JFK Act.
Gannon Memo Prevents a “Premature” Release Based on a
“Strong Likelihood of Sensitivities”
Notwithstanding the clear requirements and procedures set forth in Sections 5, 6 and 9 of the Act, the Gannon Memo, twenty-five (25) years after the creation of the JFK Act, speculated that President Trump was somehow authorized to order a “short-term” postponement necessary to avoid a “premature” release of records. It was further supposed that said “premature” release would constitute the “identifiable harm” which would satisfy President Trump’s decision under Section 5(g)(2)(D) of the Act—although there is no clear evidence that President Trump was even aware of what specific records were being withheld and what the identifiable harm was with regard to such withheld records. A vague presumption of a “premature” release is not a specified identifiable harm under the JFK Act. However, that appears to be the legal justification given to President Trump.
Further, the Gannon memo presupposed a “strong likelihood” that many of the records in question would implicate the kinds of sensitivity about national security, law enforcement, and foreign affairs contemplated by the JFK Act.
One searches in vain for any factual or legal basis in the Gannon Memo for such a sweeping presumption. Instead, the unsupported assertion of any such “strong likelihood” that the withheld records pose an identifiable threat stands contrary to both the spirit and letter of the JFK Act.
The Gannon Memo Creates an Escape
Finally, and most notably, the Gannon Memo hypothesized that President Trump could satisfy Section 5(g)(2)(D) of the Act by determining that a “group” of records somehow warranted postponement, but that the President was not required to articulate record-specific justifications for further postponement of each individual record. Again, a proper reading of Sections 5, 6 and 9 of the Act does not support the “temporary postponement” certification for an unspecified “group” of records.
The JFK Act is void of any authority for a “short-term postponement,” or any postponement at all without the evidentiary findings required by Sections 5, 6 and 9 of the JFK Act. Agencies had an obligation of periodic review starting with the enactment of the JFK Act in 1992, which “served to downgrade and declassify security classified information.” By 2017, according to a tacit admission in the Gannon Memo, each record already had gone through “an extensive and individualized multi-year review process to verify that public disclosure would have been harmful in the 1990’s and would continue to be harmful through October 26, 2017.” The Gannon Memo acknowledges that the ARRB and responsible agencies had already gone through the scrutinizing review process required by the Act, but at the same time the Gannon Memo recommended a “temporary postponement.” Even worse, President Trump in April of 2018 authorized an additional multi-year extension for final compliance with the Act, relying on the same Gannon Memo.
The bottom line is that, by October 26, 2017, the Executive Branch should have had at its disposal anything necessary to certify a record-specific postponement based on clear and convincing evidence and unclassified explanations filed in the Federal Register. Yet, as acknowledged and admitted in the Gannon Memo, there are still approximately 31,000 assassination records (an indeterminable number of pages) withheld in full or in part. The President has an obligation to either release the JFK assassination records or certify the specific reasons for continued postponement, even if agencies did not fully meet their declassification obligations under Sections 5, 6 and 9 of the JFK Act. The evidence for postponement is available to the President based on the findings of the ARRB and a 25-year obligation for periodic review by agencies, and the American public is entitled to an unclassified certification for any records that may warrant continued withholding under the standards of the JFK Act. President Trump, according to the Gannon Memo, had the data necessary in order to issue the proper record-specific certification under Section 5(g)(2)(D) of the JFK Act. President Biden presumably has access to the same data and the authority to ensure compliance with the Act.
As of the date of this article, we have not seen anything from the White House or Office of Legal Counsel in terms of resolving the purported “significant concerns” of the Archivist. Under President Trump’s executive order of April 26, 2018, all agencies were required to report back to the Archivist by April 26, 2021 on their efforts to properly continue declassification of withheld records. Any such reports’ existence should be a matter of public record. What is of public record, is a letter dated March 26, 2018, from the Archivist, David S. Ferriero, to then President Trump, wherein he clearly stated that, “I further recommend that you only certify further postponements through 26 October 2021, contingent upon any further recommendations for postponement being made in writing, on a document-by-document basis, by 26 April 2021 (to allow sufficient time for review by NARA and consideration by the President).” The Archivist recommended that a postponement certification by the President be contingent on a document-by-document review of a written request. The Archivist’s statement strongly suggests that he had an interpretation of the Act that departed from the conclusions in the Gannon Memo. The Archivist’s statement is the correct interpretation of the Act.
If the agencies did not fully or properly perform what was required under the Act, their neglect (whether intentional or not) should not be rewarded with unwarranted postponements. This in turn places President Biden in the position of having to issue yet another executive order that does not comply with the JFK Act.
Crucial Difference between FOIA and JFK Act
Unlike the Freedom of Information Act (FOIA)—and this is a key point—the burden under the JFK Act is on the government offices and agencies to meet their evidentiary burden on each assassination record before continued classification is legally warranted. Regardless of the Gannon Memo’s interpretation of the President’s certification authority under Section 5(g)(2)(D) of the Act, the American public is entitled to a record-specific and unclassified explanation of the reasons for postponement under the JFK Act. A broad and unsubstantiated assumption that the withheld records could contain sensitive information, is contrary to the historical and legal foundation of the JFK Act. The operative mandate of the JFK Act is that the relevant records are presumed to be declassifiable.
The Gannon Memo concludes, however, that President Trump was authorized, under Section 5(g)(2)(D) of the JFK Act, to issue a temporary postponement of a “group” of records without record-specific explanations. The rationale in the Gannon Memo is that Section 5(g)(2)(D) of the Act is “silent” as to whether the President must make a certification regarding each individual record, or whether he may make a certification applicable to a group of withheld records that raise an unspecified identifiable harm.
Again, the rationale in the Gannon Memo fails to account for the entirety of Sections 5, 6 and 9 of the JFK Act. The entire purpose of the Act is to require declassification and public disclosure of all related assassination records based on specific standards. Those standards are set forth in Section 6, and the specific statutory reason for postponement must be in unclassified form and available to the American public even if postponement is properly authorized. Section 5(g)(2)(D) of the Act cannot be interpreted in a vacuum, as was attempted in the Gannon Memo. Doing so would unjustifiably allow the President to authorize postponements in perpetuity based on vague and opaque requests from agencies that seek to maintain secrecy, contrary to the express purpose and provisions of the Act.
An example of the crucial difference from FOIA, and an abuse of the JFK Act by agencies, is found in an identification aid discovered by our group of lawyers. This particular record we found listed section 5(g)(2)(D) of the JFK Act as the grounds for postponement. The evidence apparently provided was “Approval by the CIA.” Let that sink in. This is one of the most egregious things I have seen in my research of the JFK Act. What this means is that records have been withheld upon “approval by the CIA.” That is not the legal standard under the JFK Act! Only the ARRB had the legal authority to approve postponements in the 1990’s, and only the President had the authority to approve postponement in October of 2017. And if the President did authorize postponement, such a decision required unclassified written descriptions from the agencies under the JFK Act.
Continuing Effect of the Gannon Memo
In the broader scheme of the JFK Act, it would be completely antithetical to the entire purpose of the JFK Act to simply abandon all of the required grounds for postponement under section 6, and the detailed procedural, reporting and transparency requirements under sections 5 and 9 of the Act. However, that is exactly what the Gannon Memo did. Such a scheme has encouraged the various agencies to wait out the clock on the release deadlines, and then seek to postpone the release of the records on an ongoing basis for perpetuity. This is what happened at the October 26, 2017 statutory deadline, and also the April 26, 2018 and April 26, 2021 “deadlines” authorized by President Trump. Such actions are in flagrant disregard of the general purposes and the specific procedural requirements of the JFK Act, and contrary to the will of the American people as expressed by Congress when the JFK Act was enacted.
Conclusions and Remedies
Congress made its intent very clear in the Declarations of the JFK Act. Specifically, Congress declared that the “legislation is necessary because Executive Order No. 12356, entitled National Security Information, has eliminated the declassification and downgrading schedules relating to classified information across government and has prevented the timely public disclosure of records relating to the assassination of President John F. Kennedy.”
Executive Order 12356 was issued by President Ronald Reagan in 1982, in the middle of the Cold War. Classification levels included “Top Secret” information, “Secret” information, and “Confidential” Information. Under this Order, the President and agency heads were given classification authority under one or more of these classification levels, all on the grounds of “national security.” A broad assertion of “national security” is not sufficient for classification under the JFK Act. In the JFK Act, Congress clearly declared that historical executive orders have prevented the timely disclosure and declassification of assassination records, and that legislative action was required to ensure proper and timely declassification.
Section 11 of the JFK Act is also crucial for a proper legal review of the President’s obligations under the JFK Act. Specifically, Section 11(a) of the JFK Act states:
When this Act requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government.
In other words, when evaluating the government’s obligations for accounting to the Archivist and disclosing assassination records to the American public, Congress declared that the JFK Act is the law of the United States with only very few and extraordinary circumstances.
The President can and should meet his legal duty to either 1) release the assassination records in full (now almost 60 years from the date of the assassination), or 2) order agencies to comply with the law and certify continued postponement only in the rarest of cases and based on record-specific findings and the “clear and convincing” evidentiary standard in the JFK Act. Failure to do so would be an abuse of power and contrary to the intent and clear language in the JFK Act.
I believe it is appropriate and legally warranted that President Biden rescind any prior executive orders or memoranda issued by President Trump, with respect to the JFK Act, since October 26, 2017. There is clearly a legal basis for rescission of those orders. Regardless, President Biden should take the appropriate measures to release all assassination records without further delay; or comply with the clear and express language of the JFK Act and issue record-specific and unclassified reasons for continued postponement, based on clear and convincing evidence, as required by the JFK Act.
