Thursday, 01 December 2022 19:22

JFK Assassination Records – A Watershed Moment?

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A new lawsuit aimed at forcing the President and the National Archives to finally release JFK assassination records, as required by law, is before the courts. Mark E. Adamczyk, Esq., explains the issues involved.

On October 19, 2022, a lawsuit was filed by the Mary Ferrell Foundation against President Joseph R. Biden and the National Archives and Records Administration (“NARA”) to enforce the John F. Kennedy Assassination Records Collection Act of 1992. The lawsuit seeks to compel the President and NARA to finally perform their duties under the federal law that governs the final declassification of JFK assassination records.

Some historical context is important. The John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Records Act”) was unanimously passed by Congress in 1992. President Biden, a Senator at the time, voted in favor of the JFK Records Act. The JFK Records Act was unanimously approved by Congress and signed into law by President George H.W. Bush. One can read the JFK Records Act in its entirety by searching “Public Law 102-526, 102d Congress, President John F. Kennedy Assassination Records Collection Act of 1992.”

The JFK Records Act is extremely favorable to the American public in terms of transparency and declassification of assassination records. On reading the JFK Records Act one does not have to go past the first page of the statute to see what Congress intended and how strong of an impact it was meant to have. For example:

Section 2(a)(2), JFK Records Act: “all Government records concerning the assassination of President John F. Kennedy should carry a presumption of immediate disclosure, and all records should be eventually disclosed to enable the public to become fully informed about the history surrounding the assassination.”   

Section 2(a)(3), JFK Records Act: “legislation is necessary to create an enforceable, independent, and accountable process for the public disclosure of such records.”

Section 2(a)(4), JFK Records Act: “legislation is necessary because congressional records related to the assassination of President John F. Kennedy would not otherwise be subject to public disclosure until at least the year 2029.”

Section 2(a)(7): “most of the records related to the assassination of President John F. Kennedy are almost 30 years old, and only in the rarest cases is there any legitimate need for continued protection of such records.”

This is what your Congress declared in 1992, 30 years ago, and with the strongest of language. Congress declared that records pertaining to the JFK assassination had already been unreasonably withheld from the public for 30 years. Even the CIA felt the JFK Records Act was a different breed of declassification law, that had the teeth to go much further than FOIA (Freedom of Information Act) or any previous effort to shed light on deep government secrets. In a 1998 internal CIA Memorandum titled JFK Records Review – Lessons Learned, the CIA stated that, “The level of evidence required by the Board [the Assassination Records Review Board or ARRB] to postpone what was generally considered protectable information was extremely high and usually required documentation of ‘current harm’. Defenses based on general principles such as official cover or sources and methods were not acceptable.”

The Board closed down in 1998. In 2022, after another 30 years, and in spite of the strongest possible legislation, the President and responsible agencies are still withholding almost 15,000 records that are relevant to the JFK Assassination. Many records are still withheld in full. Others have been “released” with significant redactions. The point of this article is not to analyze which specific records have been withheld in full, which records still have significant redactions, or which records have not been turned over to NARA for inspection and preservation. The point of this article is to explain why legal action was necessary and also unfortunately for the American public, the last and only choice.

The JFK Records Act established and created the Assassination Records Review Board (ARRB). Upon creation of the JFK Records Act, agencies and government offices were ordered to deliver all assassination records to NARA. An assassination record is defined as any record related to the assassination of President Kennedy that was “created or made available for use by, obtained by, otherwise came into the possession of” (i) the Warren Commission; (ii) the Rockefeller Commission; (iii) the Church Committee; (iv) the Pike Committee; (v) the House Select Committee on Assassinations (HSCA); (vi) any executive agency; and (vii) and other office of the Federal Government, or any state or local law enforcement office that performed work in connection with the federal inquiry in the Kennedy assassination. For anyone looking to understand the full scope of the JFK Records Act and the work of the ARRB, the ARRB’s Final Report is essential reading.

The above-defined assassination records became known as the JFK Records Collection, or the “Collection”. It was then the job of the ARRB, an independent body, to review the Collection and make legal determinations on which records might still qualify for classification under the standards of the JFK Records Act. What are those standards? For an agency or government office to request continued classification, section 6 of the JFK Records Act put the burden of proof on the objecting agencies. The burden of proof is not on researchers and the American public to demonstrate why an assassination record(s) should be released. For agencies and government offices to make a proper legal case for continued classification and secrecy, they were required to provide the ARRB with clear and convincing evidence that:

  1. the threat to the military defense, intelligence operations, or conduct of foreign relations posed by the public disclosure of the assassination (record) is of such gravity that it outweighs the public interest, and such public disclosure would reveal (i) an intelligence agent whose identify currently requires protection; (ii) an intelligence source or method; or (iii) any other matter currently relating to the military defense or intelligence operations, the disclosure of which would demonstrably impair national security.
  2. the disclosure of the record would reveal the identity of a living person who provided confidential information to the United States;
  3. the disclosure of the record could constitute an unwarranted invasion of privacy;
  4. the disclosure of the record would compromise the existence of a confidentiality agreement between a U.S. government agent and a cooperating individual or foreign government; or
  5. the disclosure would reveal a security or protective procedure currently utilized by the Secret Service or other agency responsible for protecting government officials.[1]

In other words, an agency still seeking classification (the CIA, FBI or Secret Service, to name a few) were required to provide the ARRB with demonstrably clear and convincing evidence based on the above standards from the JFK Records Act. If they did not, the ARRB had the legal authority to order the declassification of the assassination record. If there was some evidence warranting continued classification, the ARRB issued a final order recommending a date for final declassification. These Final Orders from the ARRB were contained in a form document called a “Final Determination Notification, under its statutory authority. These documents provided the unclassified reasons for postponement for each assassination record that disclosure was postponed in whole or in part, along with the ARRB’s recommended date or triggering event for the release of said record.

To its credit, the ARRB did a tremendous amount of work from 1994 to 1998, releasing more than 2 million pages of assassination records. In 1998, however, the ARRB’s authority had run its course according to its Congressional mandate and the ARRB was dissolved in late September of that year. NARA, and the American public, were then left with a Collection that still contained tens of thousands of classified records, totaling hundreds of thousands of pages. Agencies were required under the JFK Records Act to perform periodic review pursuant to the recommendations and Final Determinations of the ARRB in order to ensure timely declassification and release of the assassination records.

What happened after 1998? Virtually nothing. Without the independent ARRB to ensure that agencies and government offices continued their periodic review obligation, it was up to NARA to hope that agencies and government offices would finish the work on declassification. The intent of Congress is that maybe 1% (or less) of the Collection could plausibly still require classification as of 2017. Refer again to the declaration of Congress in the JFK Records Act: “most of the records related to the assassination of President John F. Kennedy are almost 30 years old, and only in the rarest cases is there any legitimate need for continued protection of such records.” That declaration was made in 1992! Reflect on that for a moment.

October 26, 2017 was in fact the deadline for final declassification. Section 5(g)(2)(d) of the JFK Records Act required the President (Trump at the time) to take specific action to ensure that Congress’s mandate to release all assassination records by the deadline was completed. We are all aware of Trump’s tweets in which he committed to the final release of all assassination records on the eve of this deadline in 2017.

The President only has power to authorize continued classification of an assassination record if he certifies that “each” specific record continues to pose an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations, as required by the Act; and that such identifiable harm is of such gravity that it outweighs the public interest in disclosure. In other words, the President is required to make decisions with regard to each assassination record under the same constraints and authority as the ARRB. The President was therefore required to finish the ARRB’s job by October 26, 2017, or provide published unclassified reasons, based on clear and convincing evidence for each assassination record withheld under the criteria set out in section 6 of the JFK Records Act, as outlined in detail above.

What happened instead? President Trump initially issued an order Executive Memorandum on October 26, 2017 delaying the release of assassination records. Plain and simple: This order was illegal and did not comply with the clear standards of the JFK Records Act. Trump’s first order in October 2017 authorized a 6-month delay for agencies and governments to continue their review of assassination records and make recommendations to Trump by April, 2018. Then it got worse. On April 26, 2018, President Trump issued another order Executive Memorandum authorizing another delay of over three (3) years.

In October of 2021, President Biden declassified about ten per cent of the outstanding documents. He then continued the trend of his predecessor, which is extremely troubling. President Biden issued another order Executive Memorandum giving agencies and government offices until December 15, 2022 to make final decisions on the release of assassination records. Let me say that again. President Biden has now empowered agencies and government offices to make their own decisions on declassification. This is exactly the opposite of how the JFK Records Act was intended to work. Like both of President Trump’s Memoranda, President Biden’s Executive Memorandum is simply unlawful.

Congress was abundantly clear that the purpose of the JFK Records Act was to publicly disclose all records related to the assassination of President Kennedy through an enforceable process of downgrading and declassification. In all but the “rarest of cases” was any assassination record to be kept secret beyond the final deadline for release on October 26, 2017. It therefore defies both reason and Congress that two Presidents, the Archivist, NARA, and a number of executive agencies have determined that the standards for continuing postponement of the withheld assassination records have somehow become less onerous now after that deadline for release and after 60 years have passed.

There is no reasonable expectation that President Biden will take appropriate action by December 15, 2022. If anything, he has empowered agencies and government offices to act with more secrecy in regard to the withheld assassination records. Thus the necessity of the legal action.

The government continues to operate under the findings of the Warren Commission, which is that Lee Harvey Oswald acted alone in the assassination and with no confederates. That Commission also concluded that Jack Ruby assassinated Oswald on his own and with no associates. The House Select Committee on Assassinations (“HSCA”) concluded in 1978 that there was a probable conspiracy in the Kennedy assassination and referred the matter to the U.S. Justice Department for further investigation. However, the Justice Department has done nothing to further investigate the murder of the 35th President of the United States. If Oswald did act alone, or even if he acted with other alleged “pro-Castro sympathizers”, why the continued secrecy? One can only assume that the thousands of withheld records will show a U.S. Intelligence connection to Oswald, which was covered up immediately after the assassination and is still being covered up. That is an article for another day, but it is the only logical conclusion at this time.

Only time will tell, and hopefully a Court will finally declare that there is no reasonable or legal reason to continue the sixty years of government secrecy.


[1] The term “current” is a prevailing theme in section 6 of the JFK Records Act. It is absurd to think that, after what happened to President Kennedy in Dallas, that a current security or protective procedure utilized by the Secret Service in 1963 could be compromised by the release of assassination records. Anyone who has studied this subject is aware that the Secret Service actively destroyed its records pertaining to presidential security in 1963, despite the mandate of the ARRB.

Last modified on Thursday, 01 December 2022 21:59
Mark Adamczyk

Mark E. Adamczyk is an attorney from Naples, Florida.  Mark is a graduate of Tulane University and Florida State University College of Law.  For the past 20 years, Mark has been studying the JFK assassination and related United States history.  Mark's recent focus has been the JFK Records Collection Act, the federal law that guarantees the public disclosure of the history surrounding the JFK assassination.  Mark is dedicated to ensuring that the U.S. Government complies with its remaining obligations under the JFK Records Collections Act.

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