By Shane O’Sullivan

As I noted at the end of yesterday’s piece, media interviews with inmates are banned in California, so the only time the public gets to see Sirhan Sirhan is in televised coverage of his parole hearings.

A few weeks ago, I was shocked to discover that, for the first time ever, no video or audio recording will be allowed at Sirhan’s parole hearing in San Diego. In 2011, I participated in CNN pool coverage of Sirhan’s previous hearing but according to CDCR spokesman Luis Patino, no recordings have been allowed for the last five years, by order of Jennifer Shaffer, the Executive Officer of the Board of Parole Hearings (BPH).

CCR Title 15 § 2032 (b) states the regulations:

Television and radio coverage of Board of Prison Terms’ parole hearings will be authorized, unless such coverage would create a risk to the security of an institution, obstruct the hearing process, pose a risk to the personal safety of any person, or have the potential for prejudicing judicial proceedings…

From 1982 to 2011, Sirhan’s parole hearings were televised without a problem, so I failed to see what credible justification there was revoking audiovisual access to the media and the wider public in a case of such historical importance.

READ MORE AT WHOWHATWHY.ORG

[Read more…]

Although Shot by Sirhan, Paul Schrade Calls for His Release

February 9, 2016 | Shane OSullivan

On Wednesday morning in San Diego, Sirhan Sirhan, the convicted assassin of Bobby Kennedy, will once again be considered for parole. Sirhan was originally scheduled for release in 1984 but after intense political pressure, his parole date was rescinded and he has since been denied 13 times.

At the hearing, Sirhan will come face-to-face with Paul Schrade for the first time — a close friend of the Kennedy family who, on June 5, 1968, was walking behind the senator when the shooting started. Schrade was shot in the head by Sirhan.

For over 40 years, Schrade, now 91, has been campaigning to reopen the case, based on eyewitness evidence that Sirhan could not have fired the fatal shot described in Kennedy’s autopsy and an analysis of the only known audio recording of the shooting which indicates that 13 shots — and two guns — were fired.

Schrade plans to tell the parole board that new evidence shows Sirhan shot him and several others — but did not shoot Kennedy. In a short statement released in advance of the hearing, he says:

The LAPD and LA DA knew two hours after the fatal shooting of Robert Kennedy that he was shot by a second gunman and they had conclusive evidence that Sirhan Bishara Sirhan could not and did not do it. The official record shows that [the prosecution at Sirhan’s trial] never had one witness – and had no physical nor ballistic evidence – to prove Sirhan shot Robert Kennedy. Evidence locked up for 20 years shows that the LAPD destroyed physical evidence and hid ballistic evidence exonerating Sirhan, and covered up conclusive evidence that a second gunman fatally wounded Robert Kennedy.

 Schrade argues that a closer look at the bullet that hit him proves a second gun was fired and Sirhan could not have killed Robert Kennedy.

[Read more…]

The National Archives, for the first time ever, released a list of documents related to the assassination that are still shielded from public view.

Jacqueline Kennedy

At least five communications are contained in the files from the former first lady to President Lyndon B. Johnson in the days immediately following the assassination.

James Jesus Angleton

Still classified is the top-secret testimony from the chief of the CIA’s counterintelligence branch from 1954 to 1975 before the so-called Church Committee, convened by the U.S. Senate in 1975 to investigate abuses by the spy agency. It was the Church Committee that revealed for the first time that the CIA had hired figures in organized crime with deep ties to Havana to help overthrow the communist government of Fidel Castro, including through assassination attempts.

 

by Lisa Pease

From the Archive: In reopening the investigation into the mysterious plane crash that killed UN Secretary General Dag Hammarskjold in 1961, the United Nations is appealing to member states to release long-secret files related to this cold case from a tense moment in the Cold War in Africa, which Lisa Pease examined in 2013.

By Lisa Pease, March 17, 2015 (Originally published on Sept. 16. 2013, https://consortiumnews.com/2015/03/17/the-mysterious-death-of-a-un-hero-2/ )

More than a half century ago, just after midnight on Sept. 18, 1961, the plane carrying UN Secretary-General Dag Hammarskjöld and 15 others went down in a plane crash over Northern Rhodesia (now Zambia). All 16 died, but the facts of the crash were provocatively mysterious.

There have been three investigations into the crash: an initial civil aviation Board of Inquiry, a Rhodesian Commission of Inquiry, and a UN Commission in 1962. Not one of them could definitively answer why the plane crashed or whether a deliberate act had been responsible.

While a few authors have looked into and written about the strange facts of the crash in the years since the last official inquiry in 1962, none did a more thorough reinvestigation than Dr. Susan Williams, a Senior Fellow at the Institute of Commonwealth Studies at the University of London, whose book Who Killed Hammarskjöld? was released in 2011, 50 years after the crash.

Her presentation of the evidence was so powerful it launched a new UN commission to determine whether the UN should reopen its initial investigation. “It is a fact,” the current Commission wrote in its report, “that none of these inquiries was conducted to the standard to which a modern inquiry into a fatal event would be conducted….”

The Commission was formed by Lord Lea of Crondall, who assembled a group of volunteer jurists, solicitors and others from the Netherlands, South Africa, Sweden and elsewhere to tabulate and review the evidence the Commission collected from past investigations, Williams’s book, and independent witnesses, such as myself.

I was one of the 28 witnesses (and one of only three Americans) who provided testimony to the Commission, based on information gathered in the course of my research into the assassinations of the Sixties.

“It is legitimate to ask whether an inquiry such as this, a full half-century after the events with which it is concerned, can achieve anything except possibly to feed speculation and conspiracy theories surrounding the crash,” the most recent Commission wrote in its report.

“Our answer, and the reason why we have been willing to give our time and effort to the task, is first that knowledge is always better than ignorance, and secondly that the passage of time, far from obscuring facts, can sometimes bring them to light.”

The Congo Crisis

The report summarized the historical situation Hammarskjöld was faced with in 1961. In June of 1960, under pressure from forces in the Congo as well as from the United Nations, Belgium had relinquished its claim to the Congo, a move which brought Patrice Lumumba to power.

Lumumba faced a near civil war in his country immediately. The military mutinied, the Belgians stepped back in to protect Belgian settlers, and local leader Moise Tshombe declared Katanga, a mineral-rich province, an independent state.

As the Commission’s report noted, “Katanga contained the majority of the Congo’s known mineral resources. These included the world’s richest uranium and four fifths of the West’s cobalt supply. Katanga’s minerals were mined principally by a Belgian company, the Union Minière du Haut Katanga, which immediately recognised and began paying royalties to the secessionist government in Elisabethville. One result of this was that Moise Tshombe’s regime was well funded. Another was that, so long as Katanga remained independent of the Congo, there was no risk that the assets of Union Minière would be expropriated.”

The U.S. government feared that Katanga’s rich uranium reserves would fall under Soviet control if the nationalist movement that brought Lumumba to power succeeded in unifying the country. Indeed, rebuffed by Western interests, Lumumba did reach out to the Soviets for help, a move that caused CIA Director Allen Dulles to initiate CIA plans for Lumumba’s assassination. Lumumba was ultimately captured and killed by forces of Joseph Mobutu, whom Andrew Tully called “the CIA’s man” in the Congo just days before President Kennedy’s inauguration.

On the southern border of Katanga lay Northern Rhodesia, where Hammarskjöld’s plane would eventually go down, Sir Roy Welensky, a British politician, ruled as prime minister. Welensky, too, pushed for an independent Katanga. Along with the resources, there was also the fear that an integrated Congo and Katanga could lead to the end of apartheid in Rhodesia which might spread to its larger and more prosperous neighbor South Africa.

The British situation was divided, with the Under-Secretary of State for Foreign Affairs, Lord Landsdowne, backing the UN’s efforts at preserving a unified Congo, while the British High Commissioner to the Rhodesian Foundation, Lord Alport, was upset with the UN’s meddling, saying African issues were “better left to Europeans with experience in that part of the world.”

Similarly, U.S. policy appeared split in 1961. Allen Dulles and possibly President Dwight D. Eisenhower had worked to kill Lumumba just before President John F. Kennedy took office. But President Kennedy had been a supporter of Lumumba and fully backed the UN’s efforts in the Congo.

As the report notes, “There is evidence … of a cleft in policy between the US Administration and the US Central Intelligence Agency. While the policy of the Administration was to support the UN, the CIA may have been providing materiel to Katanga.”

So British, Belgian and American interests that weren’t always representative of their official heads of state had designs on Katanga, its politics and its resources. What stood in their way? The UN, under the firm leadership of Dag Hammarskjöld.

The UN forces had been unsuccessful in unifying the Congo, so Hammarskjöld and his team flew to Leopoldville on Sept. 13, 1961. Hammarskjöld planned to meet Tshombe to discuss aid, contingent on a ceasefire, and the two decided to meet on Sept. 18 in Ndola in Northern Rhodesia (now Zambia).

On Sept. 17, the last day of Hammarskjöld’s life, Neil Ritchie, an MI6 officer, went to pick up Tshombe and the British consul in Katanga, Denzil Dunnett. He found them in the company of a high-level Union Minière employee.

That night, Hammarskjöld embarked on the Albertina, a DC6 plane, and flew from Leopoldville to Ndola, where he was to arrive shortly after midnight. Lord Landsdowne, the British leader opposing a unified Congo, flew separately, although the report goes out of its way to say there was nothing sinister in them flying in separate planes and that this was “diplomatically and politically appropriate.”

A large group of diplomats, Africans, journalists and at least three mercenaries waited for Hammarskjöld’s plane at the Ndola airport. The Commission found the presence of mercenaries there strange as a police inspector was on duty specifically “to ensure nobody was at the airport who had no good reason to be there.”

The Crash

Hammarskjöld’s plane deliberately circumvented Katanga, fearing interception. The pilot radioed Ndola 25 minutes before midnight with an estimate that they plane was about 45 minutes from landing. At 12:10 a.m., the pilot notified the Ndola airport “Your lights in sight” and requested confirmation of the air pressure reading (QNH). “Roger QNH 1021mb, report reaching 6000 feet,” the airport replied. “Roger 1021,” the Albertina responded. That was the last communication received from Hammarskjöld’s plane. It crashed within minutes.

The Commission found the airport gave the plane correct information, that there was no indication the plane’s altimeter had been tampered with, that the landing gear had been lowered into the proper position and locked, and that the wing flaps had been correctly set. In other words, pilot error — the verdict of the initial Rhodesian inquiry into Dag Hammarskjöld’s death in 1962 — did not seem to be the likely cause.

At the crash site, several of the crash victims had bullets in their bodies. In addition, the Commission found “evidence from more than one source…that holes resembling bullet-holes were observed in the burnt-out fuselage.”

The Commission’s two aviation experts concluded the most likely cause of the crash seemed to be a “controlled flight into terrain,” meaning, no in-air explosion. This suggests someone deliberately or mistakenly drove the plane right into the ground. However, the report notes, this does not rule out some form of sabotage that could have distracted or injured the pilots, preventing a successful landing.

And the Commission noted contradictory evidence from a few eyewitnesses who claimed they saw the plane explode in mid-air. Another eyewitness, a member of the flight crew, found alive but badly burned, told a police inspector that the plane “blew up” and that “There was a lot of small explosions all around.”

The Commission interviewed African eyewitnesses who had feared coming forward years ago. One of them described seeing the plane on fire before it hit the ground. Another described seeing a “ball of fire coming on top of the plane.” Still another described a “flame … on top of the plane … like a ball of fire.”

Several witnesses saw a second plane near the one that crashed. One witness saw a second, smaller plane following a larger one, and told the Commission, “I saw that the fire came from the small plane…” And another witness also recalled seeing two planes in the sky with the larger one on fire. A third witness noted that he saw a flash of flame from one plane strike another. Several witnesses reported two smaller planes following a larger one just before the larger one caught fire.

A Swedish flight instructor described in 1994 how he had heard dialog via a short-wave radio the night of the crash. He recalled hearing the following from an airport control tower at the time of the crash: “He’s approaching the airport. He’s turning. He’s leveling. Another plane is approaching from behind — what is that?”

In one of the more bizarre elements of the case, Hammarskjöld’s body was not burnt, yet the other victims of the crash were severely burnt. The Commission concluded the most likely explanation, though not the sole one, was that Hammarskjöld’s body had been thrown from the plane before it caught fire.

And even more strangely, the commission found the evidence “strongly suggests” that someone moved Hammarskjöld’s body after the crash and stuck a playing card in his collar before the photographs of his body were taken. (The card “or something like it” was plainly visible “in the photographs taken of the body on a stretcher at the site.”)

Given the proximity of the plane to the airport, the Commission had a hard time explaining the nine-hour delay between the time of the crash and the Rhodesian authorities’ acknowledgement of its discovery of the wreckage.

While the Commission found a “substantial amount of evidence” that Hammarskjöld’s body had been “found and tampered with well before the afternoon of 18 September and possibly very shortly after the crash,” they also stated the evidence was “no more consistent with hostile persons assuring themselves that he was dead than with bystanders, or possibly looters, examining his body.” But the Commission also noted that “The failure to summon or send help, however, remains an issue.”

The Commission tried very hard to find the autopsy X-rays, as there were reports that a bullet hole had been found in Hammarskjöld’s head. But the X-rays appear lost forever.

Was Hammarskjöld deliberately assassinated?

Former President Harry S. Truman was convinced Hammarskjöld had been murdered. A Sept. 20, 1961 New York Times article quoted Truman as having told reporters, “Dag Hammarskjöld was on the point of getting something done when they killed him. Notice that I said ‘When they killed him.’”

Years later, when the CIA was revealed to have been engaged in assassination plots, reporter Daniel Schorr speculated that the CIA may have been involved in Hammarskjöld’s death.

The report references the report of David Doyle, the chief of the CIA’s  Elizabethville base in Katanga who wrote in a memoir how three armed Fouga planes were being delivered to Katanga “in direct violation” of U.S. policy. Doyle doubted this was an official CIA operation, since he had not been notified of the delivery.

Bronson Tweedy, the head of the CIA’s Africa division, questioned Doyle about the possibility of a CIA operation to interfere with Hammarskjöld’s plane. The report notes that this could indicate a lack of CIA involvement in Hammarskjöld’s death, “unless, conceivably, Tweedy was simply trying to find out how much Doyle knew.”

It is the essence of CIA operations that they are highly compartmentalized and often kept secret between people even within the Agency itself. Meaning, Allen Dulles or someone high up the chain could easily have ordered a single operator to take out Hammarskjöld’s plane without using any official CIA channels. Indeed, that is what one would expect were so sensitive an operation as the assassination of a UN head contemplated.

After Lumumba’s death, in early 1961, the UN passed resolution 161, which urged the immediate removal of Belgian forces and “other foreign military and paramilitary personnel and political advisors not under the United Nations Command, and mercenaries” from the Congo.

Confession from a CIA operative

When I heard such a commission was forming, I reached out to Lord Lea of Crondall to offer some evidence of my own. John Armstrong, a fellow researcher into the JFK assassination, had forwarded me a series of Church Committee files and correspondence to and from a CIA operative named Roland “Bud” Culligan.

Culligan claimed the CIA had set him up on a phony bank fraud charge, and his way out of jail appears to have been to offer the Church Committee information on CIA assassinations (which he called “executive actions” or “E.A.’s”). Culligan was asked to list some “E.A.’s” that he had been involved in. Culligan mentioned, among high-profile others, Dag Hammarskjöld.

“Damn it, I did not want the job,” Culligan wrote to his legal adviser at Yale Law School. Culligan described the plane and the route, he named his CIA handler and his contact on the ground in Libya, and he described how he shot Hammarskjöld’s plane, which subsequently crashed.

As I testified, and as the Commission quoted in its report: “You will see from the correspondence that Culligan’s material was referred to an Attorney General, a Senator, and ultimately, the Senate investigation of the CIA’s activities at home and abroad that became known as the Church Committee after its leader, Senator Frank Church. Clearly, others in high places had reasons to believe Culligan’s assertions were worthy of further investigation.”

Culligan’s claims fit neatly with a broadcast allegedly heard by Navy Cmdr. Charles Southall, another Commission witness. The morning before the crash, Charles Southall, a naval pilot and intelligence officer, was stationed at the NSA’s facility in Cyprus.

At about 9 p.m. that night, Southall reported he was called at home by the communications watch officer and told to get down to the listening post because “something interesting” was going to happen that night. Southall described hearing a recording shortly after midnight in which a cool pilot’s voice said, “I see a transport plane coming low. All the lights are on. I’m going to make a run on it. Yes, it’s the Transair DC6. It’s the plane.”

Southall heard what sounded like cannon fire, then: “I’ve hit it. There are flames. It’s going down. It’s crashing.” Given that Cyprus was in the same time zone as Ndola, the Commission concluded it was possible that Southall had indeed heard a recording from Ndola. Southall was certain that what he heard indicated a deliberate act.

Bullets

Several witnesses described seeing bullet holes in the plane before it burnt. The report described one witness’s account that the fuselage was “’riddled with bullet-holes’ which appeared to have been made by a machine-gun.”

This account was disputed by AP journalist Errol Friedmann, however, who claimed no bullet holes were present. However, bullets were definitely found embedded in the bodies of several of the plane crash victims, which tends to give the former claim more credence.

The same journalist Friedmann also noted to a fellow journalist that the day after the crash, in a hotel, he had heard a couple of Belgian pilots who had perhaps had too much to drink discussing the crash. One of the pilots claimed he had been in contact with Hammarskjöld’s plane and had “buzzed” it, forcing the pilot of the Albertina to take evasive action. When the pilot buzzed the plane a second time, he forced it towards the ground.

A third-party account allegedly from a Belgian pilot named Beukels was investigated with some skepticism by the Commission. Beukels allegedly gave an account to a French Diplomat named Claude de Kemoularia, who evidently first relayed Beukels’s account to UN diplomat George Ivan Smith in 1980 (not long after Culligan’s 1975 account, I would note).

Smith’s source, however, appeared to be a transcript, about which the Commission noted “the literary quality of the narrative suggests an editorial hand, probably that of one or both of the two intermediaries.” Allegedly, Beukels fired what he meant to be warning shots which then hit the tail of the plane.

While Beukels’s alleged narrative matched several known facts, the Commission wisely noted, “there was little in Beukels’s narrative, as reported, that could not have been ascertained from press coverage and the three inquiries, elaborated by his experience as a pilot.” The Commission wrote of other elements which invited skepticism of this account, but did concede it’s possible this account was self-serving, designed to excuse a deliberate shooting down by Beukels.

The Commission’s recommendation

While the Commission had no desire to place blame for the crash, the report states: “There is persuasive evidence that the aircraft was subjected to some form of attack or threat as it circled to land at Ndola, which was by then widely known to be its destination,” adding “we … consider that the possibility that the plane was in fact forced into its descent by some form of hostile action is supported by sufficient evidence to merit further inquiry.”

The key evidence that the Commission thinks could prove or disprove a deliberate act would be the Ndola airport’s radio traffic that night. The Commission reported “it is highly likely that the entirety of the local and regional Ndola radio traffic on the night of 17-18 September 1961 was tracked and recorded by the NSA, and possibly also by the CIA.”

The Commission filed a Freedom of Information request for any such evidence with the National Archives but did not appear hopeful that such records would be released unless pressure was brought to bear.

In its discussion of Culligan, the Commission felt there were no leads there that could be pursued. But if any of Culligan’s many conversations with his legal adviser was captured on tape, and if tapes of the radio traffic cited above could be obtained, a voice match could be sought.

Based on its year-long investigation, the Commission stated that the UN “would be justified” in reopening its initial 1962 inquiry in light of the new evidence “about an event of global significance with deserves the attention both of history and of justice.”

[Regarding President Eisenhower’s possibly role in ordering the assassination of Lumumba, Robert Johnson, a National Security Council staff member, told the Church Committee he heard Eisenhower give an order that Lumumba be killed. He remembered being shocked to hear this. Under questioning, however, Johnson allowed that may have been a mistaken impression, that perhaps Eisenhower was referring to Lumumba’s political, not physical, removal.]

Lisa Pease is a writer who has examined issues ranging from the Kennedy assassination to voting irregularities in recent U.S. elections.

UN TESTIMONY AND EXHIBITS

Read The Hammarskjöld Commission – Witness Statement of Lisa Pease

 PDF Downloads:

Exhibit A – Part 1

Exhibit A – Part 2

Exhibit B

Exhibit C

PART I—AN IMPORTANT DECISION ON FOIA ATTORNEY FEES

Once again Jefferson Morley has won a significant victory in his 12-year-old Freedom of Information Act (FOIA) lawsuit for records on CIA case officer George Joannides. For the second time, the Court of Appeals reversed United States District Judge Richard C. Leon for denying an award of attorney fees and costs to Morley. The Court of Appeals ruling clarifies previous standard for evaluating the “public benefit” element in a way which may make it far easier to qualify for attorney fee awards in the future. A copy of the slip opinion in the case, Morley v. C.I.A. (“Morley 2016”), D.C. Cir. No. 14-5230, issued January 21, 2016, is Attachment 1 hereto.

The lawsuit was filed December 16, 2003, after the CIA failed to respond to Morley’s July 4, 2003 request for records on George Efythron Joannides. Joannides, identitied as CIA case officer for the DRE (Directorio Revolucionario Estudantil or Cuban Student Directorate), had remained hidden until Morley’s research efforts got the Assassination Records Review Board (ARRB) to identify him. This happened despite the CIA’s representations that it did not know who had been the case officer for the DRE. The result was that at the end of its existence, the ARRB identified a number of records pertaining to Joannides as JFK assassination-related records.

The fight over attorney fees began nearly six years ago after Morley had twice prevailed on the merits of the case by compelling release of new information regarding Joannides. The first of the two decisions on the merits, Morley v. U.S.C.I.A. (“Morley”), 508 F.3d 1108 (D.C.Cir. 2007), set an important precedent requiring the CIA to search its operational files for responsive records on Joannides. See Attachment 2.

However, the fight over attorney fees, which began after Morley’s second trip to the Court of Appeals on the merits, had a complicated antecedent in the Davy case, whose history is helpful to understanding the Morley attorney fee saga.

In Davy, researcher William A. Davy, Jr. sought records pertaining to Projects QKENCHANT and ZRCLIFF which related to his study of New Orleans District Attorney Jim Garrison’s trial of Clay Shaw for conspiracy to assassinate President Kennedy. Several new records were released and Davy moved for an award of attorney fees. Judge Richard C. Leon initially denied attorney fees on the ground that Davy wasn’t even eligible for fees because he hadn’t substantially prevailed. That decision was reversed by the Court of Appeals in Davy v. C.I.A., 456 F.3d 162 (D.C. Cir. 2006)(“Davy 2006”). See Attachment 3.

On remand, Judge Leon again denied attorney fees, this time on the ground that Davy had not shown that he was entitled to fees. See Davy v. C.I.A. 496 F.Supp.2d 36 (D.D.C. 007)(“Davy 2007”). See Attachment 4. The Court of Appeals then reversed Judge Leon’s ruling on attorney fees a second time in Davy v. C.I.A., 550 F.3d 1155 (D.C.Cir. 2008) (“Davy 2008”). See Attachment 5. This time the Court of Appeals ruled that evaluation of the “public benefit” factor “requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought. . . .” Id. at 1159 (emphasis added) (citations omitted). This was an extremely important precedent which set the Law of the Circuit which governs all future cases involving this issue absent an en banc decision by the full Court of Appeals or a decision by the Supreme Court overturning it.

Davy set the stage for the Morley case decisions on attorney fees.

In Morley v. C.I.A., 719 F.3d 689 (D.C. Cir. 2013)(“Morley 2013”), the Court of Appeals vacated Judge Leon’s initial decision and remanded the case to him. The Court’s Mandate, issued August 20, 2013, directed the District Court “to apply the four-factor standard [governing entitlement to an award of fees] in a manner consistent with Davy, in accordance with the opinion of the court filed herein this date [June 18, 2013].” In its opinion, the Court noted that it had “recently elaborated on one of those four factors, the public-benefit factor, which looks to the public benefit derived from the plaintiffs’ FOIA suit.” Id. at 689. After noting that Davy, “like this case, concerned a request for records on President Kennedy’s assassination,” the Court observed that Davy found that records “‘about individuals allegedly involved in President Kennedy’s assassination []serve[] a public benefit.”’ Id., quoting Davy at 1159. The Court then asserted, “[w]e also noted that the standard for entitlement to attorney’s fees does not ‘disqualify plaintiffs who obtain information that, while arguably not of immediate public interest, nevertheless enables further research ultimately of great value and interest, such as here the public understanding of a Presidential assassination.’” Id. at 690, quoting Davy at 1162, n.3.

The latest Morley decision greatly simplifies the test for determining whether a FOIA plaintiff is entitled to receive attorney fees. It requires that in weighing the public benefit factor, the court must assess the potential public value of the information sought. As the Court of Appeals put it:

. . . the public-benefit factor requires an
ex ante assessment of the potential public
value of the information requested, with little
or no regard to whether any documents supplied
prove to advance the public interest. We can
imagine a rare case where the research harvest
seemed to vindicate an otherwise quite implausible
request. But if it’s plausible ex ante that a
request has a decent chance of yielding a public
benefit, the public-benefit analysis ends there.

Morley 2016, slip op. at 5.

Throughout the attorney fee litigation, the CIA and the District Court repeatedly sought to discredit and belittle any public benefit conferred by release of the records Morley obtained. The CIA and the District Court contended that there was little or no public benefit derived from the release of certain newly released records or information obtained as a result of Morley’s lawsuit. The new records and information included:

–a record that may indicate that Joannides travelled to New Orleans at a time when a Warren Commission investigator was there to interview Carlos Bringuier, the Cuban exile leader who represented DRE in New Orleans and who was involved in confrontations with Oswald there;

–a travel record indicating that Joannides had a “Home Leave Residence” in New Orleans at a time when Oswald was involved in DRE activities there;

–a photograph of Joannides;

–a Career Intelligence Medal extolling Joannides achievements which was awarded after he had retired (for a second time) after his services in 1978 as liaison to the House Select Committee on Assassinations (HSCA);

–disclosure that the CIA was withholding in their entirety 295 operational records related to Joannides; and

–the disclosure that Joannides had worked “under cover” while serving as liaison to the HSCA, in which capacity, Morley argued, he had obstructed the Committee’s work in trying to investigate the DRE-Oswald relationship, failing to disclose to HSCA that he had served as DRE’s case officer during the period Oswald was involved with DRE.

The Court of Appeals agreed with Judge Leon that “the released documents appear to reveal little, if anything, about President Kennedy’s assassination.” It found that the “plausibility and value of [Morley’s] inferences are at best questionable, but are ultimately of little relevance. . . .” Slip Op. at 4 (emphasis added). But despite this, the Court reversed Judge Leon “[b]ecause the district court improperly analyzed the public-benefit factor by assessing the public value of the information received rather than “the potential public value of the information sought,” Morley 2016, Slip Op. at 4 (emphasis in original). Thus, although the Court of Appeals joined in the District Court’s minimization of the public benefit obtained by the release of the records, it found that this didn’t matter.

Another aspect of showing “public benefit” is “the effect of the litigation” inquiry. The Court of Appeals held that this “is properly understood as asking simply whether the litigation has caused the release of requested documents, without which the requester cannot be said to have substantially prevailed.” Id. at 5, noting that that Davy had suggested that assessing “‘the value of the litigation’ ‘presents a variation on’ the question whether the plaintiff has ‘”substantially prevail[ed]’”. Id. quoting Davy at 1159.

In summary, if a FOIA requester submits a request on a topic of potential benefit to the public, and if the lawsuit causes the release of new records or information, a FOIA plaintiff may be entitled to an award of attorney fees.

PART II—WHAT HAPPENS NEXT IN THE MORLEY CASE?

In theory, the Morley case is now over except for the actual awarding of attorney fees. Sadly, this is not the case. For all its succinct brilliance, the Morley 2016 decision has left Morley and his ageing counsel, after more than 12 years of litigation, twisting slowly in the wind. In part this is due to the way in which the Court decided to handle future proceedings, in part it is due to the nature of actors who will play a role in the implementation of the Court’s decision.

The decision here is unlike the decision in Davy in a couple of very important respects. In Davy, the Court reversed Judge Leon’s second decision denying an award of attorney fees, saying that “because no factor weighs in the agency’s favor, a balancing of the factors can only support the conclusion that Davy is entitled to an award of attorney fees.” Davy at 1163. The Court then followed this emphatic statement of Davy’s entitlement with an unusual direct command to the District Court which tied his hands: “Accordingly, we reverse and remand the case only for the district court to enter an appropriate award of fees and costs as to all matters on which Davy Prevailed.” Id. (emphasis added).

Here, by contrast, the Court did not reverse Judge Leon’s decision, it merely vacated it. It then remanded the case to Judge Leon for a balancing of the four factors. In so doing, it noted that “[f]ollowing the prior remand on the fees issue, the district court declined to reevaluate any factors other than public benefit, or to rebalance the factors, despite this court’s suggestion in Davy that the first three factors are all addressed to the distinction ‘between requesters who seek documents for public informational purposes and those who seek documents for private advantage.’” Morley 2016, slip op. at 7 (emphasis added), quoting Davy,
3d at 1160. The Court then instructed that “[o]n remand, the district court should consider the remaining factors and the overall balance afresh.”

This raises a number of questions about how to proceed. Either the CIA or Morley may move for a rehearing within 45 days of the date the case was decided (January 21, 2016). Because the core holding is diametrically opposite what agencies have argued in countless cases—that potential public benefit is to be ex ante rather than post facto—the Government could seek a rehearing or rehearing en banc. The chances of this may be diminished if the Government takes a message from the fact that of the nine different Court of Appeals judges who have considered attorney fee issues in Davy and Morley, only one has taken the position espoused by the CIA.

Morley, too, may wish to consider filing a petition for rehearing. The Supreme Court has admonished that a contest over an award of attorney fees “should not become a second major litigation,” and all courts routinely repeat this stricture. But as it actually works, the judicial system actually encourages prolonged litigation over attorney fee issues and acts a disincentive to encourage attorneys in private practice to take on FOIA cases. The attorney fee issue has now been litigated in this case for nearly six years and is likely to go on for at least another one to years. The litigation over attorney fees in Davy lasted nearly five years and was concluded because (1) the Court of Appeals made it clear that the amount of fees was the only remaining issue, and (2) Davy’s counsel elected to settle for considerably less than he thought should have been paid. Each of the cases involved not just a second litigation over attorney fees but four or five major litigations over attorney fees.

If a rehearing is not sought, then the remand to District Court raises practical problems. Notwithstanding the Court’s strong indication that the “re-balancing afresh” will be in Morley’s favor, the CIA can probably be counted on to continue its opposition to any significant payment of fees. The District Court will not be happy to have been reversed yet again. In Davy 2013, the Court of Appeals remanded for the District Court to apply Davy in a manner which seemed to guarantee it would rule in Morley’s favor. Instead, the District Court creatively used Davy to undercut entitlement to fees. Even if the District Court balances the factors afresh and rules that Morley is entitled to fees, it is unlikely that it or the CIA will agree to a reasonable award of attorney fees. Here the bad news is that Morley 2016 may make it possibly to substantially undermine the award of fees because it has instructed the District Court to determine the extent to which the litigation was devoted to securing records available under the JFK Records Act. The Court of Appeals, without any briefing on this issue, in dicta already has taken the position that time spent getting the JFK Records Act documents is non-compensable, a position that I think is untenable but which will not be amenable to challenge on remand without further clarification from the Court of Appeals on a petition for rehearing. Here, the Court of Appeals has given the CIA and the District Court an issue they can run with.

Thus, even if Morley elects to immediately proceed with the remand, the prospects are that there will be another year or two of litigation before issues are resolved and a realistic award of fees can be considered, and then probably only after another trip to the Court of Appeals.

Thus, a major court battle looms over whether a FOIA litigant who sues to get free copies of JFK Act records can be awarded attorney fees for such work. Members of the assassination research community may be able to assist in this effort by detailing problems they have encountered in gaining unfettered access to JFK Records Act documents. If researchers who have encountered significant problems in gaining access to JFK assassination-related records would communicate their experiences to the AARC’s Executive Director, Alan Dale, this would be much appreciated. He can be reached at editor.aarclibrary@gmail.com.

PART III—THE LARGER PICTURE

There are a couple of larger lessons to be learned from the Morley case. First, it is possible to compel agencies, including the CIA to conduct searches of its operational files on subjects relating to the assassination of President John F. Kennedy, whether officially designated JFK assassination-related records or not. This is a huge, as yet virtually untapped source of information of interest to assassination researchers.

Second, the Morley 2016 decision may make it much easier for FOIA lawyers to obtain attorney fees for public interest cases in which their clients prevail. Lawyers interested in the Kennedy assassination and related subjects need to be encouraged to take advantage of this development.

Third, a recent decision of the Court of Appeals in another case has added to the incentive for FOIA lawyers to sue recalcitrant agencies by endorsing the Salazar Laffey matrix rates for attorneys’ services. Previously, nearly all cases had been governed by the much lower United States Attorneys’ Laffy matrix.

James H. Lesar, attorney for Jefferson Morley