Monday, 08 November 2021 01:12

Biden Failed to Release a Single JFK Record – What Next?

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Mark Adamczyk analyzes President Joe Biden’s action, or lack thereof, on authorizing the release of the remaining classified JFK assassinations records per the John F. Kennedy Assassination Records Collection Act of 1992, which had been unlawfully delayed by President Donald Trump in 2017 and 2018, and calls for Congressional oversight to finally enforce the 1992 law.

On October 26, 2021, President Biden was supposed to authorize the release of the remaining classified JFK assassination records. The classified “JFK Collection” still includes over 15,000 records. Hundreds have never been seen by the American public, while the rest remain in redacted form. Fifty-eight—58—years after the JFK assassination, when the government still relies on its lone gunman narrative, this is what we are facing. The obvious question is: If Lee Harvey Oswald killed President Kennedy, without any confederates, who were part of the U.S. intelligence apparatus, why keep over 15,000 records classified in 2021?

However, this article is not about a conspiracy. It is about a continuing and flagrant violation of a federal statute that was intended to guarantee transparency regarding the assassination of our 35th president. First, October 26, 2021 was an artificial deadline. The actual deadline for the final release of JFK records was October 26, 2017, as mandated by the John F. Kennedy Assassination Records Collection Act of 1992 (the “JFK Act”). In October of 2017, precisely 25 years after the passage of the JFK Act, President Trump was obligated to release the remaining classified records. Trump said he was going to do it.

However, at the eleventh hour, Trump capitulated to the agencies’ demands for continued postponement—namely, the CIA and FBI. There was no legal authority to do this. By October 26, 2017, President Trump had two options under the JFK Act: 1) Release the remaining classified records in full; or 2) Issue a written certification explaining the reasons for continued postponement, for each record that the agencies wished to withhold. Trump did not exercise either option. Instead, he authorized a 6-month delay for agencies to continue review of the records and report to the National Archivist (NARA). Incredibly, in April of 2018, Trump authorized an additional 3-year period for agencies to do the same job. This was on the heels of a twenty-five (25) year period—1992-2017—for agencies to report to the President on which records should remain classified due to an identifiable harm.

It makes one wonder: who is really running this country? The President has exclusive authority under the JFK Act to authorize the release of classified JFK Records. In doing so, the President is obligated to explain to the American public, in unclassified form, the specific reasons for a decision on each record. Did either Trump or Biden do that? Not even close. We keep seeing meaningless press releases on why continued postponement is necessary for “national security.” Has Congress done anything? Congress did pass the JFK Act in 1992, almost unanimously. It is a strong law for the American people, and unlike the Freedom of Information Act (FOIA), it is aimed at transparency and putting the burden on the government agencies to prove a case for classification. However, since 1992, Congress has done essentially nothing in the way of oversight, something that Congress has a clear right to do under the JFK Act. What about the courts? That will be the next step, which unfortunately is now necessary. I am working on a lawsuit with a group of lawyers and researchers who are dedicated to compliance with the JFK Act. Our elected officials should be protecting the public interest, but since they are not, the courts will have to get involved.

So, what did the President do a week ago? It is arguably worse than Trump’s illegal postponement decisions. On October 22, 2021, Biden issued a Memorandum on the “Temporary Certification” regarding disclosure of the JFK Assassination records. Incredibly, Biden has given the agencies even more time. In doing so, President Biden still “assures” the American people that transparency is the goal. We will see. In his memorandum, Biden states: “It is therefore critical to ensure that the United States Government maximizes transparency, disclosing all information in records concerning the assassination, except when the strongest possible reasons counsel otherwise.” Were those reasons disclosed on October 26, 2021, to the American public as required by the JFK Act? No.

Biden’s memorandum also tells us that the work is being done. Biden states: “since 2018, executive departments and agencies have been reviewing under this statutory standard each redaction they have proposed that would result in the continued postponement in full public disclosure.” Really? For those who are paying attention, after three years, the agencies still have not apprised the President of the reasons for continued postponement. If they have, the reasons for postponement have not been presented to the American public, as required by the JFK Act. The agencies had 25 years following the passage of the JFK Act to get this done. By October 26, 2017, President Trump should have been in a position to either release all records or authorize postponement of a handful of records that arguably could be sensitive to military defense, intelligence operations, law enforcement, or conduct of foreign relations. In 2021, if the final review process really started in 2018, Biden definitely should have been in a position to do the job required by the JFK Act. However, there was no progress. There was no release of a single new document. There was no release of previously withheld documents in unredacted form.

President Biden then played the COVID-19 card. According to Biden, NARA claimed that it requires “additional time to engage with the agencies and to conduct research within the larger (JFK) collection to maximize the amount of information released.” According to Biden’s memorandum, the Archivist claims that “making these decisions is a matter that requires a professional, scholarly, and orderly process; not decisions or releases made in haste.” Made in haste? The agencies had 25 years to work with NARA on full declassification. Trump then issued an illegal order granting them three more years. And now, almost 30 years after the clear mandate of Congress in the JFK Act, we now need a “scholarly and orderly process” to get the job done, and not to make decisions “in haste”? This is what your government is telling you.

Biden then goes on to say that he agrees with the Archivist’s recommendations and that “temporary postponement is necessary to protect against identifiable harm to the military defense, intelligence operations, law enforcement, or the conduct of foreign relations that is of such gravity that it outweighs the public interest in immediate disclosure.” That’s nice language, and it comes directly from the JFK Act. The problem is that Biden, like Trump before him, is required under the law to disclose what the identifiable harm is. That identifiable harm is, under the law, supposed to be in a document that is available to the American people and filed in the Federal Register. Instead, the available certifications on particular documents state: “Approved for postponement by the CIA.” Anyone who reads the JFK Act can easily conclude that the CIA does not have this authority. But this is what we face.

President Biden has approved a “new” release by December 15, 2021, “out of respect for the anniversary of President Kennedy’s assassination” on November 22. What is that release? The approval is for any information currently withheld from public disclosure that agencies have not proposed for continued postponement. Let that sink in. Biden is “instructing” the agencies that they now have to comply with the law, if they feel like it, but not until after November 22.

In his October 22, 2021 memorandum, President Biden also addresses the records that the agencies still want to withhold. This is where it gets really good. Biden “ordered” an “intensive 1-year review” where agencies “proposing continued postponement and NARA shall conduct an intensive review of each remaining redaction to ensure that the United States Government maximizes transparency, disclosing all information in records concerning the assassination, except when the strongest possible reasons counsel otherwise.” Bear in mind, “strongest possible reasons” is not a legal standard under the JFK Act. Congress in 1992 declared that all assassination records carried a presumption of immediate disclosure. Just like Trump did, Biden is re-writing the law.

In his memorandum, President Biden does attempt to employ the statutory standards in the JFK Act. Over the 1-year “intensive review” period, agencies are required (by December 15, 2021) to provide an unclassified letter, to be signed by the head of the agency, providing a written description of the reasons for which the agency is proposing continued classification. That’s a start. But that’s what the law has required for 30 years. The problem is that Biden also gave the agencies an option for specifying the release date. Biden’s memorandum allows the agencies to specify a:

…proposed date identifying for each record when the agency reasonably anticipates that continued postponement of information in such record no longer would be necessary or, if that is not possible, a specific proposed date for each record identifying when the agency would propose to next review again after December 15, 2022…

After 2022? How many more years will the agencies have to maintain secrecy? Congress already declared in 1992 that all assassination records were to be unclassified except “in the rarest of cases.”

In a nutshell, Biden’s memorandum simply prolongs a violation of a federal statute that has been treated like an afterthought for well over 20 years. NARA wants these records released, but it does not have any authority under the JFK Act. The President is putting a band aid on the problem by asking NARA to “work” with the agencies. However, the agencies that still seek secrecy are clearly running the show. The Assassination Records Review Board (ARRB), an independent body, had authority in the 1990’s. However, its life span and funding was limited. The solution is simple. Congress needs to act, conduct oversight hearings, and order the formation of a new ARRB that has legal authority to compel the release of records. Your government has told you for nearly 60 years that a lone gunmen killed the President. Yet in 2021 we are still fighting through the declassification process. What does that tell you? One conclusion is that the government obviously had significant ties to Lee Harvey Oswald before the assassination and doesn’t want you to know about it. The other logical conclusion is that the government engaged in a massive cover-up after the assassination and doesn’t want you to know that. By continuing this illegal classification “process”, the government is tacitly admitting to a conspiracy in the murder of President Kennedy and a cover-up after the fact. If that’s not the case, release the records and prove otherwise.

Please take action and contact your Congressperson to demand oversight. Demand the formation of a new independent body that has authority to make real decisions on the release of assassination records. The President and NARA obviously cannot fix this.

Last modified on Monday, 08 November 2021 06:14
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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