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Bill Simpich is a civil rights attorney in the San Francisco Bay Area. He is on the board of directors of the Mary Ferrell Foundation, an organization focused on the study of documents related to the 1960s assassinations, Watergate, and Iran-Contra.
In the following essay, he offers a look at some of the gems found in the new JFK document releases and how to speed up the discovery of future finds.
More than 50 years after the assassination of President John F. Kennedy, thousands of government documents related to his death are still under classified lock and key.
By law, all of the remaining secret documents were supposed to have been released last year. President Donald Trump approved the release of approximately 35,000 files in 2017. But he delayed the publication of many other documents in full or in part until 2021 — when the winner of the 2020 presidential election will have another chance to review them for possible declassification.
Researchers have been digging through the released documents in search of a “smoking gun” file which neatly explains to skeptics what really happened that dark day in Dallas. While it’s possible such a document exists, it’s unlikely.
The difficult job of understanding why a president was murdered, and unpacking the Cold War path that America was treading, involves working through the minutiae — the “boring” material — so that the little puzzle pieces can fit together to form a coherent bigger picture.
One year ago this week, the National Archives and Records Administration released the first of what were to be seven batches of newly declassified documents. Some of those documents had actually been released in past decades, albeit with extensive redactions. Others had never been seen before.
Analysis of the newly available documents, including those released in the 1990s — most of which still remain undigitized — are already shedding light on the murky background of President Kennedy’s murder.
Among other things, the findings offer a golden opportunity to unpack more of the hidden history of the Cold War, revise our assumptions about that fraught era, and — finally — get the story right.
There will be no new document releases until 2021. That gives us three years to digest what we already have, and to create some stronger tools for analysis.
But the work of researchers and interested citizens is already paying off.
Take the ongoing research on cryptonyms, or crypts — government codewords for people, places, and things that the intelligence community meant to keep hidden.
As someone who has spent a lot of time solving CIA cryptonyms for the Mary Ferrell Foundation (MFF) website, one of the premier online digital archives of JFK documents, let me say a brief word on why decoding the cryptonyms is important. When you know the names of the CIA programs, officers, and agents whose names are hidden, a whole new way of seeing the world opens up to you.
Cryptonyms usually begin with a two-letter prefix that identifies the country of origin (e.g., “AM” for Cuba or “LI” for Mexico), and then the remainder of the word reveals the program (e.g., AMCANOE refers to a project to unify exiles, many of whom had traveled by water from Cuba into the US).
It becomes particularly important when you see memos like this, saying that “we cannot give wholesale approval for their release [cryptonyms], but if the crypts have been previously blown or exposed they can be released.”
Many new crypts have been revealed in the new release. Just two of the recent examples:
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July 17 2018, 6:30 a.m.
That evening, President Donald Trump announced to the world that Kavanaugh was his choice to fill the Supreme Court seat of retiring Justice Anthony Kennedy. In his remarks at the White House event, Kavanaugh touted his “Female Relationship Resume” and declared, “My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law.”
In her tart dissent issued that morning, Henderson, the senior judge in the D.C. Court of Appeals, called that claim into question. She took Kavanaugh to task precisely for a lack of independence and for making law, rather than interpreting it. On the issue of compensation for successful FOIA litigants, Henderson said the prospective Supreme Court justice ignored the letter of the law while siding with a “recalcitrant” CIA over a working journalist — i.e., me — who had uncovered information of genuine public benefit.
Kavanaugh’s ruling in Morley v. CIA was of a piece with his record as an advocate of unbridled executive branch power. His view that at a sitting president cannot be indicted, or even subpoenaed, is well known. Less known is his permissive treatment of the CIA. In my case, as in another key FOIA case from 2014, Kavanaugh ruled that the agency could not be held publicly accountable for its actions — even ones that occurred more than 50 years ago.
Henderson not only dismantled Kavanaugh’s arguments, but her dissent also identified some recurring flaws in his jurisprudence. The source was almost as notable as the document itself.
Henderson is no liberal. She was working as lawyer in private practice in Charleston, South Carolina, when President Ronald Reagan appointed her to the federal bench in 1986. In 1990, President George H.W. Bush elevated her to the D.C. Court of Appeals. She is a conservative who chafes at concepts like abortion rights and immigrant rights. Last October, she joined Kavanaugh in ruling that a pregnant, unaccompanied 17-year-old migrant did not have the right to obtain an abortion while in custody of the Department of Homeland Security.
Henderson faulted her colleague Kavanaugh on impeccably conservative grounds. “
In other instances, Henderson has given the benefit of the doubt to U.S. national security agencies. In 2008, she ruled against four Guantánamo detainees seeking to sue Defense Secretary Donald Rumsfeld for the torture they endured. She dismissed their case with the rather blithe observation that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”
Henderson, however, didn’t give Kavanaugh the benefit of the doubt in Morley v. CIA. Rather, she faulted her colleague on impeccably conservative grounds: his excessive deference to government arguments, which she found unwarranted by facts; his willingness to overlook relevant law, which she found inexplicable; and his willingness to substitute his own opinions for the law, which she found unacceptable. She wrote, “The majority, it appears to me, overlooks the district court’s latest errors in order to ‘bring the case to an end.’”
Henderson’s dissent illuminates Kavanaugh in action: a creative and cavalier judge who is willing to make law — not interpret it —when it comes to ruling in favor of the government.
I had glimpsed Kavanaugh up close several times in the course of my lawsuit, which was filed in 2003. He heard oral arguments from my pro bono attorney Jim Lesar three times, in 2011, 2014, and 2018. In these hearings, he struck me as an engaged jurist with an agile mind. He asked incisive questions. In his subsequent written decisions, I could discern his judgment on how FOIA law applies to issues of journalism, transparency, and national security. He was conservative, but smart and seemingly open to opposing arguments. I had harbored hopes that he might rule in my favor, but his agility was more opportunistic than independent.
A review of the “protracted history” — Henderson’s phrase — of the case shows why. In Morley v. CIA, I sought the records of a deceased undercover CIA officer, George Joannides. Based on extensive interviews with his former Cuban-American associates, I knew Joannides was working undercover out of Miami in 1963 and had some knowledge about events leading up to the assassination of John F. Kennedy. Joannides had also served as the agency’s liaison to congressional investigators who re-opened the JFK investigation in 1978.
In 2004, the CIA responded by giving me a small batch of documents from Joannides’s personnel file. Beyond that, the agency asked for summary judgment to block any further releases, which was promptly granted by District Court Judge Richard Leon, a George W. Bush appointee. Lesar filed an appeal on my behalf, contending that the CIA had not conducted the searches required by law.In December 2007, a three-judge panel — including Henderson — upheld most of Lesar’s arguments. The judges unanimously agreed that the agency’s actions had failed to follow the Freedom of Information Act on no less than seven different points of law. The court ordered the CIA to reconsider its response and conduct additional file searches. Nine months later, the CIA gave me an additional 500 pages of documents, including photographs of Joannides receiving a Career Intelligence Medal, one of the agency’s highest honors.
I appealed, seeking still more documents. In April 2012, another three-judge panel — this time including Kavanaugh — ruled my arguments were without merit and the case was closed, at least on the issue of what documents would be released.
Yet I had one more argument. The case law around the FOIA holds that when a plaintiff “substantially prevails” over the government, they are entitled to have their court costs paid by the defendant. So I filed a motion for the government to pay my court costs, namely compensation for Lesar.
A veteran FOIA litigator, Lesar often takes difficult cases on a contingency basis for working journalists or public interest causes, gambling that if he wins, the government will pay his fee. His clients have included well-known authors and veteran Washington journalists. In Morley v. CIA, he had merely bested a squadron of CIA and Justice Department lawyers with three-piece suits and six-figure salaries. I thought he should get compensated, and the law indicated the same.
The CIA refused, claiming there was little “public benefit” to the new information generated by the lawsuit. Leon, the district court judge, agreed. I appealed again, thinking my case was strong. By then, the lawsuit had been covered by the New York Times and Fox News. The Associated Press New York office had compiled a long report on still-secret JFK records, including the Joannides files, which ran in 30 news outlets across the country, including the San Diego Union, St. Paul Pioneer Press, and CBS News in Dallas. The Times and at least six other news sites published the photo of Joannides receiving his medal, which the CIA had only coughed up under judicial order. In short, many news editors thought the information I had found would benefit their readers. I expected that would count for something.
Kavanaugh served on the three-judge panel that heard oral arguments on the issue in 2014. He and two other judges agreed that Leon had failed to apply a four-factor test of “public benefit,” established in previous FOIA cases. The test balances the value of the information sought or obtained for an informed citizenry, the plaintiff’s commercial interests, and the government’s actions. Leon, they found, had improperly relied on only one factor: His belief that the release of Joannides files had added nothing of substance to the JFK assassination story. The appellate court sent the case back.In March 2017, Leon shuffled his thoughts and once again ruled that there was no “public benefit” from my case. I again appealed, and, a year later, I finally had my day in court. On March 19, 2018, a new three-judge panel consisting of Kavanaugh, Henderson, and the newcomer Katsas heard the latest round of arguments in the federal courthouse in Washington. By that time, Kavanaugh knew that his name was on Trump’s November 2017 short list of candidates to fill the next Supreme Court vacancy.
Kavanaugh was his usual brisk self in the hearing. He gaveled from the center seat while Henderson listened remotely by telephone, and the forlorn Katsas looked on, perhaps bewildered by the complexity of a case infused with the conspiratorial overtones that inevitably shroud any public discussion of the JFK story. Kavanaugh closely questioned Lesar, while Henderson corrected the government attorney Benton Peterson on a point of fact. After 30 minutes of questions, the hearing was over.
Kavanaugh’s decision could not be considered a surprise. He had sided with the CIA before.
The three judges deliberated for three and a half months. They filed a split decision on July 9 that was delivered per curiam — “by the court” in Latin — denoting an unsigned opinion usually reserved for unanimous or collective decisions. It was an odd designation for a decision contested by the senior judge on the Court of Appeals, but the label spared Kavanaugh from having his name on a pro-CIA decision on the same day as a big announcement. Five hours after the opinion was filed, Kavanaugh stood beaming with his wife and daughters in front of the TV cameras as Trump announced his nomination for the Supreme Court.
Kavanaugh’s decision could not be considered a surprise. He had sided with the CIA before. In 2014, he ruled against the nonprofit National Security Archive in a prolonged FOIA lawsuit over an internal history of the failed 1961 CIA operation at the Bay of Pigs. Kavanaugh, in a 2-1 ruling, agreed with CIA and Justice Department lawyers that the document was a “draft,” and its release would “expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”
Kavanaugh was referring to a study that was 50 years old. Congress quickly overturned his decision with legislation mandating that such histories be released after 25 years.
In my case, Kavanaugh ruled for the CIA again.
“This FOIA case has dragged on for a staggering 15 years,” the majority opinion began, a line that seems likely to have been written by Kavanaugh, given Katsas’s recent arrival on the bench. “The litigation over attorney’s fees alone has taken eight years. It is time to bring the case to an end.”
The CIA had acted “reasonably,” he said. The word recurred 15 times in the opinion. The words “reasonable” and “unreasonable” showed up 24 times. The CIA had been reasonable, Kavanaugh wrote, while depicting me as a modestly paid scrounger who was wasting the court’s time over claims of “minimal” interest about the JFK assassination. He said nothing about the JFK Records Act as a unanimous expression of Congress in support of full disclosure or about the mainstream media coverage of the lawsuit as a possible public benefit.
In her tightly argued dissent, Henderson wasted no time in blasting Kavanaugh’s insinuations.
“Over the past 15 years, we have remanded this case four times,” she declared. “During the same period, we have reversed the same district court twice in a nearly identical Freedom of Information Act (FOIA) cases. That makes six opinions from this court. I share the majority’s displeasure at the resulting waste of judicial resources, especially because ‘fee litigation [is] one of the last thing lawyers and judges should be spending their time on,’” she wrote, citing one of her old decisions in a separate case. Henderson added, “Jefferson Morley, however, is not to blame for this ‘staggering’ saga.”
Henderson pointed out that the court’s 2013 remand order found that I had already met the standard of “public benefit” established in case law. She quoted that decision at length and went on to briefly outline some key points in my case, namely, the connections between Joannides, an anti-Batista-turned-anti-Castro Cuban exile group called Directorio Revolucionario Estudiantil, and accused JFK assassin Lee Harvey Oswald:
Morley’s request had potential public value. He has proffered — and the CIA has not disputed — that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. “
She noted that the court had also “previously determined that Morley’s request sought information ‘central’ to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. “
“In other words,” the exasperated Henderson wrote, “we held that Morley satisfied the public-benefit factor in this case.”
“To me, the CIA’s multiple flawed legal positions suggests that it was ‘recalcitrant’ in declining to produce any documents before being sued.”
By ignoring this finding, Henderson went on, Kavanaugh ultimately depended on repeated assertions that the CIA responded “reasonably” to my inquiries. Yet, Henderson noted the appellate court’s 2007 decision found the agency’s initial response to my FOIA request was deficient on seven different legal points. Kavanagh had decided in favor of an agency that had flouted the law, she concluded.
“To me, the CIA’s multiple flawed legal positions suggests that it was ‘recalcitrant’ in declining to produce any documents before being sued,” Henderson wrote.
While Kavanaugh had shot me down, I could take Henderson’s closing words as a moral victory. She wrote:
This case does not call for “[d]eference piled on deference.” … It calls for an adherence to … our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled. “
Henderson’s dissent stands as a warning from a civil and conservative colleague about Supreme Court nominee Brett Kavanaugh. She has identified a strain of recklessness in Kavanaugh’s cynical jurisprudence. She wrote that, in his opinion with Katsas, Kavanaugh had “ignored our mandate and misapplied our precedent.”
Courtesy of Jefferson Morley and JFKFACTS.ORG
10 July, 2018.
The DC Court of Appeals ruled 2-1 on Monday that the CIA does not have to pay my court costs incurred in the long-running FOIA lawsuit Morley v. CIA. The split decision was joined by Judge Brett Kavanaugh, who was nominated by President Trump later that day to serve on the the Supreme Court.
About the information I obtained via litigation, the unsigned opinion said, “the public benefit was small.” The decision made no reference to extensive coverage of Morley v . CIA in the New York Times, Fox News, San Diego Union, St. Paul Pioneer Press, CBS News in Dallas, and the New Yorker, among many other news organizations.
The Times and the U.K. Daily Mail, even published a photo, obtained by the lawsuit, of CIA officer George Joannides receiving a medal after he stonewalled JFK investigators. In the majority view, public interest in Morley v CIA is not a measure of its public benefit.
A strong dissent by Judge Karen Henderson takes a much more balanced and independent view of the case, in my view. Appointed by President George H.W. Bush in 1990, Henderson points out that the court had previously found that I had met the standard of “public benefit” established in case law.
In a 2013 decision the court stated.
Morley’s request had potential public value. He has proffered—and the CIA has not disputed— that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. Travel records showing a very close match between Joannides’s and Oswald’s times in New Orleans might, for example, have (marginally) supported one of the hypotheses swirling around the assassination. In addition, this court has previously determined that Morley’s request sought information “central” to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. Under these circumstances, there was at least a modest probability that Morley’s request would generate information relevant to the assassination or later investigations.
“In other words,” Henderson writes, “we held that Morley satisfied the public-benefit factor in this case,”
By ignoring this finding, Henderson argues, the majority opinion ultimately depends on the assertion that the CIA responded “reasonably” to my request. Yet, Henderson notes, the ruling also ignores the fact that the DC Court of Appeals had ruled the agency’s initial response to my FOIA request was deficient on seven different legal points.
The majority discusses five in its opinion. It acknowledges that the CIA: (1) missed the 20-day statutory deadline to respond, Maj. Op. 7; (2) incorrectly referred Morley to NARA rather than responding to his FOIA request itself, Maj. Op. 7-11; (3) failed to search its operational files, Maj. Op. 11; (4) submitted an incomplete Glomar response, Maj. Op. 11-12; and (5) relied on an interpretation of Exemption 2 that was later overruled, Maj. Op. 12. It addresses these errors of law seriatim and labels them “incorrect legally,” Maj. Op. 9, but not “unreasonable.” To me, the CIA’s multiple flawed legal positions suggests that it was “recalcitrant” in declining to produce any documents before being sued. Davy IV, 550 F.3d at 1162. At the least, the errors collectively undermine the district court’s conclusion that the fourth factor “weighs heavily against Morley.” Morley X, 245 F. Supp. 3d at 78 (emphasis added).
In sum, I believe the district court erred on two levels: it erred in evaluating each of the four factors individually and abused its discretion in weighing them against one another. Accordingly, this case does not call for “[d]eference piled on deference.” Maj. Op. 11. It calls for an adherence to Davy IV and our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.
Unfortunately, the majority, meaning Kavanaugh and Trump appointee Judge Gregory Katsas, disagreed. I have 45 days to appeal.
Rex Bradford, President, Mary Ferrell Foundation June 18, 2018
Under the President John F. Kennedy Records Collection Act of 1992 (“JFK Records Act”), the Assassination Records Review Board (“ARRB”) oversaw the declassification of millions of pages of formerly classified records. But a significant number of documents were withheld in full, and many more were withheld with “redactions” (portions withheld from view).
As noted in the ARRB’s Final Report, the JFK Records Act included a provision for full release 25 years after its passage. Specifically, it “mandated that all postponed assassination records be opened to the public no later than the year 2017” unless the President certifies 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.” (https://www.maryferrell.org/showDoc.html?docId=3611#relPageId=33).
Instead of full disclosure, what occurred was a rolling set of partial releases, 7 so far, along with continued withholding. On the positive side, for the first time the National Archives and Records Administration (NARA) published the newly released documents online in PDF format, a huge boon to researchers. But this process has been marred by errors and confusion, as documented herein.
Currently according to NARA, 15,834 documents remain withheld in part, along with a smaller set still withheld in full. Both the current state of affairs, and the process by which releases have occurred, are less than satisfactory.
This paper documents the recent history of releases and the numerous problems with the process and the current state of affairs. It does not discuss the question of “what’s in the new records?” – suffice to say that there are important documents being uncovered, related to the assassination investigations and also the context of Kennedy Cold War policies, and that the full “digestion” process will take time.
After an early release of records in July of 2017, the 25-year anniversary arrived on October 26. Against a backdrop of lobbying by federal agencies, President Trump
signed an authorization for continued withholding of most of the remaining records, release of some, and an accompanying review process with a 6-month deadline.
In November and December of 2017, 4 additional releases happened. When the 6month review deadline came on April 26, 2018, a seventh release occurred, along with continued withholding and a new review deadline set for 2020.
In all, tens of thousands of documents were released or re-released, though over 15,000 documents remain withheld at least in part.
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