Sunday, 08 November 2020 20:14

Trump, Biden and the JFK Act: Something Can and Should be Done

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In light of the recent presidential election and the upcoming inauguration of a new president, Mark Adamczyk revisits his earlier work on the mandated final release of JFK assassination records under the JFK Records Collections Act of 1992 and proposes a path forward to enforcing the dictates of this law.

About a year ago, as an attorney, I wrote about the delayed release of the JFK assassination records. More specifically the government’s blatant disregard for the full disclosure required by the JFK Records Collections Act of 1992 (The JFK Act). (That article can be found here.)

As explained in my previous article, under the aegis of that 1992 Act, the US government was required to release all records pertaining to the JFK assassination, in full, by October 26, 2017.

On the eve of the 10/26/17 release date, we saw tweets from President Trump stating that he was looking forward to having ALL the records on the JFK case released. Then, the intelligence agencies must have intervened and convinced him otherwise. The president then announced a six-month delay and in April of 2018 more records were released. That should have been a good sign. The JFK Records Collections Act had essentially been ignored since the mid-nineties, when the Assassination Records Review Board—the ARRB—worked tirelessly to declassify thousands of assassination records. A six-month delay seemed reasonable, given the clear requirement in the JFK Act to explain to the American public why certain records must still be withheld.

But as I discussed in my last article, the records that were released still have significant redactions. Many have the same redactions that were approved by the ARRB in the mid-nineties. And there are still thousands of documents that have not been released at all. According to journalist Jefferson Morley, a grand total of over 15,000 records are still being withheld in whole or in part.

Why? What “national security” concerns remain in 2020, in connection with an assassination in 1963 that was reportedly carried out by a lone gunman? Or, if the Chief Counsel of the House Select Committee on Assassinations (HSCA), Robert Blakey, was correct in 1979 in concluding that there was a “probable conspiracy” involving organized crime and anti-Castro Cubans—how does the full release of assassination records harm the United States in 2020? By law, the JFK Act requires an explanation, a detailed explanation for each and every record still withheld.

Fast forward to 2020, what progress has been made? None that I can see. Our government continues to treat the JFK Act as a mere suggestion. Well, it isn’t. It’s a law and every law can and should be enforced.

The goal of this article is to explain how the JFK Records Collections Act can be enforced, based on the plain language in the statute itself.

First, let’s get back to what was supposed to happen by October 26, 2017. The JFK Records Act required that each assassination record be publicly disclosed, in full, no later than 25 years from the date the law was created (again, that would be October 26, 2017). The only mechanism in the statute for postponing a full release of records was a certification from President Trump stating that:

  1. continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and
  2. the identifiable harm is of such gravity that it outweighs the public interest in disclosure.

Critically, the certification from the President was supposed to specify, in writing, the specific reason(s) for postponement of each and every record. A certification that postponement was necessary for reasons of “national security” is not enough under the JFK Act. Rather, the President was required to provide the ARRB with an unclassified written certification specifying the reasons for his decision to deny public disclosure of a record. That written certification must state the justification of the President’s decision and state the applicable grounds for postponement under the JFK Act. This record for postponement, as directed by the President, is to be published in the Federal Register, unclassified, and be made available to the public.

What do we have instead?

  1. A random selection of records newly released, with information redacted;
  2. The same records released that were released in the 1990’s, with the same redactions;
  3. A thousand assassination records still withheld in full;
  4. And no certification from the President regarding the reasons for redactions or for continued postponement, at least, not that we know of.

In other words, after all the media hoopla that attended that October 2017 date of final release—nightly cable segments, magazine and newspaper stories—no one mentioned that President Trump was in violation of the law in his choice to delay release of so many documents without the required explanation.

So, what can we do about it? Section 11 of the JFK Act provides for judicial review. Specially, that provision states: “Nothing in this Act shall be construed to preclude judicial review, under chapter 7 of title 5, United States Code, of final actions taken or required to be taken under this Act.”

5 U.S. Code, Chapter 7 is intended to assist persons suffering a legal wrong because of “agency action.” A claim can be brought stating that an agency of the United States, or an officer or employee thereof, acted or failed to act in an official capacity or under “color” of legal authority. The United States government may be named as a defendant in a legal action and a judgment or decree may be entered against the United States.  The caveat is that the court order or decree shall specify the Federal officer personally responsible for compliance.

We know what the JFK Act says and we know who was is responsible for full compliance as of October 26, 2017, the executive branch and the President. At this point, more than 3 years after the mandated deadline for full public disclosure, the President should be held accountable under 5 U.S. Code, Chapter 7. Of course, the simplest and least divisive alternative is for the President—whether that is Trump in his last 74 days, or Biden—to work together with Congress on a brief amendment to the JFK Act which operates to reconvene the ARRB. The ARRB did a lot of hard work in the mid-nineties to start the process of public disclosure; but it did not have nearly enough time or resources to complete the job.

The original JFK Act required the termination and winding up of the ARRB after only three years. Literally thousands, perhaps tens of thousands, of assassination records must still be reviewed for their unexplained and repetitive redactions. And many, many hundreds, if not thousands, of documents are still withheld in full, without any explanation whatsoever. Who is going to do the remaining work required by the JFK Act? Clearly, not the president or congress. It should not require a lawsuit initiated by taxpayers—who already paid for the creation of the JFK Act and the ARRB’s initial work—to finally get compliance and full disclosure of assassination records. But if that is what it takes, there is the outlined mechanism to resort to. Either way, the American public is entitled to a full release of unredacted records, or a certified explanation as to why assassination records are still being withheld.

The last question in this article for the reader to ponder is: Why, 57 years after the JFK assassination, are there so many records still being withheld IN FULL? We know that the CIA was working with organized crime in the early sixties to eliminate Fidel Castro. That has been public knowledge since the seventies. We know that the FBI and CIA withheld critical information from the Warren Commission and the House Select Committee on Assassinations, the two major federal inquiries into John Kennedy’s murder. We even know that the CIA’s liaison charged with “assisting” the HSCA in 1978, George Joannides, is the same CIA officer who supervised the anti-Castro organization which was connected to Lee Harvey Oswald in New Orleans in 1963. It is quite probable at this point that the remaining records will explain what the CIA knew regarding Oswald and why one of the CIA’s chief supervisors of Cuban exile forces in 1963 was appointed to control the flow of information and records to the HSCA in 1978.

If that information and those records indicate that Oswald was an intelligence asset set up to take the fall in the assassination—probably in a designed intelligence scheme to lay the blame on Cuba and/or the USSR—then so be it. There are certainly strong signs that indicate that conclusion. Release the records and prove there is a less sinister explanation for the assassination of President Kennedy.

Last modified on Sunday, 08 November 2020 20:49
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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