Morley v.
Re: CIA Records of George
Joannides
Here is a description of the case from the Assassination
Archives and
Research Center
This is the second trip to the United States Court of Appeals for the
District of Columbia
Morley's effort to obtain records pertaining to George Joannides, theCIA
case officer for theDRE (Directorio
Revoluciionario Estudantil), the Cuban
exile organization which had contacts with Lee Harvey Oswald in the months
prior to President Kennedy's assassination. The prior appeal was a landmark
decision which ruled that theCIA had to
search its normally exempt
operational files for responsive records. As a result of this victory, it
was revealed that Joannides was working undercover when he was made the
CIA 's liaison to the House Select Committee
on assassinations. In that
capacity, Joannides never revealed to the HSCA that he had beenDRE 's
case
officer when Oswald was in contact with it. Instead, he deflected the HSCA's
requests both for documents aboutDRE and
for the identity of DRE 's case
officer.
On remand to the District Court, operational files were searched and
additional information released. However, theCIA
still withholds 295
documents in their entireties and has not located the monthly progress
reports detailing the funding of theDRE
during the 17-month period when
Joannides was its case officer.
Here is the Appellant Brief:
http://tinyurl.com/6lpsgm4
Here is theCIA Brief:
http://tinyurl.com/7f289ls
Here is the Reply Brief for the Appellant:
http://tinyurl.com/6pubt7e
This is the second trip to the United States Court of Appeals for the
Morley's effort to obtain records pertaining to George Joannides, the
case officer for the
exile organization which had contacts with Lee Harvey Oswald in the months
prior to President Kennedy's assassination. The prior appeal was a landmark
decision which ruled that the
operational files for responsive records. As a result of this victory, it
was revealed that Joannides was working undercover when he was made the
capacity, Joannides never revealed to the HSCA that he had been
officer when Oswald was in contact with it. Instead, he deflected the HSCA's
requests both for documents about
officer.
On remand to the District Court, operational files were searched and
additional information released. However, the
documents in their entireties and has not located the monthly progress
reports detailing the funding of the
Joannides was its case officer.
Here is the Appellant Brief:
http://tinyurl.com/6lpsgm4
Here is the
http://tinyurl.com/7f289ls
Here is the Reply Brief for the Appellant:
http://tinyurl.com/6pubt7e
[BK Notes: This is an excerpt of Jim Lesar's Appellant Briefs, sans the legal aspects. For notes and sources see the original briefs.]
Brief for Appellant – U.S. Court of Appeals – D.C. cir. No.
10-5161
Jefferson Morley, Appellant, v. Central Intelligence Agency,
Appellee
Oral Arguments were held on April 16, 2012
By James H. Lesar
GLOSSARY
AMBARB DRE
psywar propaganda project in Latin America
AMHINT Project for support of DRE
leaders in Latin America
AMHINT-2 DRE
co-founder Juan Manuel Salvat
AMHINT-53 DRE
Secretary General Luis Fernandez Rocha
AMSPELL Project in support of DRE
headquarters in Miami
ARRB Assassination Records Review Board
Crozier, Ross DRE
Chief os Station before Joannides;
Pseudonym: Harold W. Noemayr
HSCA
House Select Committee on Assassinations
JM/WAVE CIA
Headquarters in Miami WAVE ”
KUBARK
Central Intelligence Agency
MOB
Military Operations Branch of DRE
Newby, Walter Pseudonym for George Joannides, aka “Howard”
or “Mr. -
Howard”
Noemayr, Harold Pseudonym
for Ross Crozier
ODYOKE Code name for U.S.
PBRUMEN Code
name for Cuba
SAS
Special Affairs Staff
Shackley, Ted Andrew
R. Reuiteman
STATEMENT OF THE CASE
A. Procedural History
On July 4, 2003, appellant Jefferson Morley (“Morley”)
submitted a Freedom of Information Act (“FOIA”) request for records pertaining
to George Joannides (“Joannides”), a CIA
officer who in 1962-1964 served as case officer for the Directorio
Revolcionario Estudantil (“DRE ”), a CIA -financed
anti-Castro Cuban exile organization whose members were in contact with alleged
assassin Lee Harvey Oswald (“Oswald”) prior to the assassination of President
Kennedy, and who immediately after the assassination used information obtained
from their contacts with Oswald to propagate worldwide the first JFK
assassination theory – that Cuban Prime Minister Fidel Castro was behind the
crime.
Later, as a result of disclosures made under the President
John F. Kennedy Assassinations Records Collection Act of 1992 (“JFK Act”), it
was learned that in 1978 Joannides had been called out of retirement to act as
liaison between the CIA and the House Select
Committee on Assassinations (“HSCA”), which at that time was investigating the
JFK assassination. In that role, he hid from Congress that he was the CIA
case officer the committee wanted to question about the DRE ’s
pre-assassination contacts with Oswald, and he failed to turn over records on
that association it had requested.
The CIA initially failed
to respond to Morley’s FOIA request at all.
After four months of delay, it then claimed that the records
he requested had been transferred to the National Archives and Records
Administration (“NARA ”) to be part of the
JFK Records Act Collection….After Morley filed suit, the CIA
invoked its “Glomar” defense, refusing to confirm or deny the existence of
records pertaining to any “covert program, operation or assignment” regarding
Joannides that was not previously acknowledged.
On cross-motions for summary judgment, the Court ruled in
favor of the CIA . Morley appealed. This
Court ruled that the CIA had to search the CIA ’s
operational files. It also ordered the CIA
to provide Morley with responsive records that had been transferred to NARA CIA
conducted further searches, including a search of some operational files on
Joannides.
In August 2008, it released 293 operational records from its
Directorate of Support and National Clandestine Services files. In doing so,
the CIA , employing a new affiant, now
acknowledged Joannides’ “participation in two specific covert projects, operations,
or assignments: JM/WAVE …from 1962 through
1964 and Joannides’ service as a CIA
representative to the [HSCA] from 1978 to 1979.”
It also withheld 295 operational records in their entirety.
It also advised that Joannides’ assignment as liaison to the HSCA was
undertaken in a covert capacity.
After making disclosures, the CIA
again moved for summary judgment. Morely cross-moved, and the District Court
award judgment to the CIA . This appeal
followed.
B. Critical Nature of the Issues Raised
The issues raised in this case were before the Court in
Morley v. C.I.A., but they now come into focus in a context which has greatly
increased the tension between the secrecy for reasons of national security and
the people’s right to have access to information which enables public
accountability of government agencies.
In its prior decision, this Court instructed the CIA
to search its operational files for records on George Joannides, the CIA
case officer whose activities are the subject of Morley’s FOIA request. As a
result, the CIA acknowledged Joannides’
“participation in two specific covert projects, operations, or assignments. The
revelation that Joannides was working in a covert capacity when he was the CIA ’s
liaison to the HSCA raises disturbing questions about the CIA ’s
use of a covert operative to subvert the integrity of a congressional
committee’s investigation of the assassination of a president, since
congressional committees are a hallmark of democratic accountability.
Professor G. Robert Blakey, who served as Chief Counsel and
Staff Director of the HSCA, states that the CIA ’s
conduct in inserting Joannides “undercover” into the HSCA’s investigation
“constituted not only a breach of the written memorandum of understanding the
HSCA in good faith entered into with the Agency,…but a manifest, and hardly
minor matter, a criminal violation of 18 U.S.C. & 1505”, which proscribes
conduct that “’impedes….the due and proper exercise of the power of inquiry….of
any committee of either House’)….”
Equally troubling, is the iron curtain which the CIA
has erected around the 295 responsive operational records whose existence it
has belatedly acknowledged. Thus, in reviewing its operational records on
remand, the CIA has withheld 295 documents
in their entirety, even though these records are nearly a half century old – or
older – and are in form and substance and purpose intimately related to
thousands of documents of the same nature which have been publicly disclosed
and placed in the President John F. Kennedy Assassination Records Collection
(“JFK Act Collection”) at the National Archives and Records Administration (“NARA ”).
Secrecy on a scale this vast, concerning records so old, on a subject of
extreme public interest, represents a formidable assault on the FOIA.
In order to understand the context in which this frontal
attack on the right of the public to obtain information about the JFK
assassination occurs, it is necessary to sketch the relevant facts in some
detail.
C. Factual Background
Morley’s FOIA inquiry concerns the relationship between Lee
Harvey Oswald (“Oswald”) and the Directorate Revolucionario Estudantil (“DRE ”),
a CIA sponsored, CIA
funded Cuban exile organization engaged in psychological warfare operations.
There was considerable tension in the DRE ’s
relationship with the Kennedy administration, particularly with its Military
Operations Branch (“MOB”), a component which favored military action against Cuba DRE representatives on several
occasions. On November 19, 1963 ,
the growing tension with DRE led the CIA
to sever relations. Three days later, Kennedy was shot, allegedly by Oswald.
The complete story, as it is now known, is complex, but important
to understand.
In April 1962, Joannides was transferred from Athens CIA station in Miami WAVE .” He was a New
York CIA
since 1950 and served as an active duty officer in the Directorate of Operations
(“DO”) since 1958. In Miami
On August 24, 1962 ,
members of DRE took credit for a cannon
attack on a seaside hotel in Havana
At the time, the DRE was
entirely dependent on CIA support, according
to CIA contract officer Ross Crozier
(“Crozier”), who handled the group. “In addition to direct financial support,”
Crozier told the HSCA in 1978, “all of the DRE ’s
weapons and armaments were supplied through the CIA .”
On September 14,
1962 , Ted Shackley (“Shackley”), the chief of the CIA
station in Miami CIA headquarters
about the activities, budget and intentions of the DRE
in August 1962. It was based on reports filed with Shackley by case officers
working with the group. In this and other agency records, the DRE
is referred to by the cryptonym AMSPELL. Shackley is identified as “Andrew K.
Reuteman.”
The August 1962 monthly report described the organization of
the CIA ’s relationship with the DRE ,
stating AMSPELL is “comprised of AMBARB and AMHINT activities.” Thus, AMSPELL
encompassed two other CIA endeavors, AMBARB
and AMHINT.
AMBARB was the CIA ’s name
for the DRE delegations that were organizing
against Castroite communism on campuses throughout Latin America .
“AMBARB serves only to promote propaganda activity in the Latin American
countries where AMBARB delegates were assigned.”
AMHINT was the Agency’s cryptonym for a program of support
for certain leaders of the DRE , a group that
had first formed at the University of
Havana DRE
leaders were identified in CIA
communications with the AMHINT designation followed by a number. For example,
AMHINT-53 was DRE Secretary General Luis
Fernandez Rocha (“Rocha”); AMHINT-2 was DRE
co-founder Juan Manuel Salvat (“Salvat”)
AMSPELL also served as the cryptonym of a specific program
of support for the DRE headquarters in
Maimi.
The August 1962 monthly report noted that the AMBARB section
received $22,053 for salaries, operations and processing. The AMHINT station
received $3,000 for support. AMSPELL received $25,000 for salaries, overhead
and operations. Thus the three AMSPELL components received a total of $50,053.
The report also described how the agency handled its
relationship with the Cuban students. According to Shackley’s report, there was
a case officer assigned to each AMSPELL component. These officers had regular
contacts with members from all the sections. Thus, the AMHINT officer, known as
STNALEY ZAMKA (identity unknown), met with a Cuban exile known as AMHINT-2
(Salvat) for regular PM [paramilitary] operational purposes…. The AMBARB
officer, Robert Q. Nelander (identity unknown), met with a source known as
AMBARB-84 (identity unknown) as “regular operational contact,” with AMHINT-2 as
“emergency AMBARB contact.” … The AMSPELL officer, Harold W. Noemayr (Ross
Crozier), met with AMHINT-2 (Salvat) as “Regular overall AMSPELL control” and
with AMBARB-54 (identity unknown) for “occasional legal/international” matters.
The DRE /AMSPELL attack on
Havana August 24, 1962 raised the question of whether
the Miami WAVE control because of the
conflict between AMSPELL objectives [for] PBRUMEN (Cuba USA
On October 9, 1962 ,
Shakley sent a 73-page monthly progress repot on DRE
activities and intentions in September 1962. He reported continuing disputes
between DRE leaders and CIA
officers over questions of control. DRE
leaders wanted to pursue military actions that were not consistent with
President Kennedy’s policy. The support for the AMBARB section ($20,960), the
AMHIT section ($5,000) and the AMSPELL section ($25,000) amounted to $50,960.
Shackley continued to express concern about CIA
control of the group. “All planning phases of AMSPELL activities supported by
JMWAVE at the present time are subject to the results of meeting with AMSPELL
concerning increasing control.”
From October 16 to October
30, 1962 , the leaders of the United
States Soviet Union
and Cuba U.S. Soviet Union
was installing ballistic nuclear missiles in Cuba Soviet Union remove the
missiles or face war. On October 29, the Soviet leadership relented, and announced
the withdrawal of the missiles. In his telegram to Kennedy, Soviet Premier
Nikita Khrushchev explained the Soviet Union was only
seeking to defend Cuba Havana Havana
On November 6, 1962 ,
Jerry O’Leary, Jr., staff writer for the Washington Star newspaper, reported
that according to the DRE , the Soviet
missiles had not been removed from Cuba Havana CIA
director John McCone about it. Kennedy suggested “an effort to persuade
responsible editors to check such stories with the government before they
printed them.”
On November 8, 1962 ,
Shackley sent a 4-page monthly report on DRE
activities and intentions in October. “Problems in the JMWAVE [deleted]
relationship, as cited in last progress report, continued unresolved during
October,” he wrote. The three AMSPELL components AMSPELL received $49,383 for
the month….On November 12, Rocha (AMHINT-53), the Secretary General of DRE ,
repeated the “missiles in caves” story on NBC’s nationally televised “Today
Show.”….
Later that day, Kennedy mentioned the Today show in a
meeting with his national security advisors. He asked that every Cuban refugee
making claims about arms going to Cuba
On November 13, (1962) CIA
Deputy Director Helms summoned DRE leaders
Rocha and Jose Maria Lasa to his office to discuss the CIA ’s
relationship with the group. Helms said that he was aware of the group’s
differences with U.S. Cuba DRE . To improve the
relationship, Helms said he was going to assign the group a new CIA
contact. “Regarding the new contact Mr. Helms stated he wanted … a man who
would and cold maintain collaboration he had outlined, and would be helpful and
of assistance to the DRE . He also stated
that this contact would be “personally responsible to him for the relationship.”
On December 5th, Joannides met with Rocha. As
Shackley reported, “Walter D. NEWBY [Joannides] was introduced to AMHINT-53 and
succeeded Harold R. Noemayr [Crozier] as the case officer for the project.”…. In
interviews, Rocha recalls that his new CIA
contact introduced himself as “Howard.” Other former DRE
leaders came to know of “Howard” (or “Mr. Howard”). The records of the DRE ,
donated by Salvat to the University
of Miami Library DRE ’s struggle
against communism in Cuba
On December 8th, Helms informed National Security
Advisor McGeorge Bundy that DRE was planning
to issue an open letter to Kennedy calling on him to “fulfill his promises to
liberate Cuba DRE goes through with
its plan to present this letter to its CIA
contact officer on 12 December, the office will make every attempt to dissuade
the DRE leadership from this attempting to
pressure the United States Government.”
On December 12th Rocha gave a copy of the DRE ’s
open letter to President Kennedy to his new contact, Joannides (a.k.a. Walter
K. Newby a.k.a. “Howard,” or “Mr. Howard.”). He asked that the letter “be reported
to [Helms] immediately.”… On December 27th, JMWAVE Chief Shackley
sent a monthly progress report on the DRE ’s
activities and intentions in November. “Problems in the JMWAVE/AMSPELL control
relationship as cited in the last Progress Report, continued unresolved during
November,” he wrote. The agency’s financial support for the month came
$36,968.90. The AMBARB section received $22, 134.90. For the first time in
three months, the AMHINTs received no money. AMSPELL received $14, 834.
On January 11, 1963 ,
the State Department responded to the DRE ’s
open letter by sending Rocha a copy of Kennedy’s recent speech on Cuba
On January 14th, “Newby reprimanded AMHINT-53 for
failure [to] report unusual substance” of coded broadcast over WMIE, a Miami
On January 16, 1963, a CIA
polygraph specialist wrote that just before the polygraph interviews of
AMHINT-53 and AMBARB 65 the previous day AMHINT/53 brought up two points which
he said he was thinking of mentioning to Newby sometime soon and which the
examiner would like to make sure are brought to the attention of his case
officer and the Chief of Station: (1) that AMHINT-53 “was thinking seriously of
setting up a systematic program for the [polygraphing] of all members of
AMSPELL”; and (2) that AMHINT-53 was “checking out some indications” that a
Cuban national in the U.S. army was a “communist.”
On January 19th, Joannides received his fitness
report for his work in 1962. His duties included serving as the deputy chief of
the psychological warfare branch of the Miami DRE .
Joannides also had responsibility for a “teacher’s organization,” a “project
producing news letter aimed at press outlets in Latin America ”;
and maintaining contacts with a “veteran’s type organization.” He received the
highest possible rating for his performance on all of these assignments.
On February 21,
1963 , Rocha told Joannides that the “present AMSPELL mood favors
action ops of Havana U.S.
On March 31, the Kennedy administration announced a
crack-down on anti-Castro groups seeking to use U.S. Cuba CCC ”),
which oversaw cover operations against the Castro government, met with Helms
and representatives of the State and Defense Departments to discuss six
proposed covert operations, including the “sabotage of Cuban shipping.” The CCC
“gave the CIA the option of
using either its own Cubans or…. The DRE
as a cut out.”
On April 4, the New York Times quoted DRE ’s
Secretary General Rocha’s response to the crackdown. He said, “the United
States
On April 4, Shackley reported that AMSPELL had called a
special meeting of its military section. “Speaker was AMHINT-5 [Isidro Borja,…
who had served as the chief of the DRE ’s
military section]. He told Military section relations with KUBARK have come to
impasse and no alternative for AMSPELL but break relations and continue without
aid. Citing one reason, AMHINT-5 said KUBARK wanted military section
dismantled, a condition AMSPELL could not accept.”
Seymour Bolton, a senior Special Affairs Staff (“SAS”)
official with responsible for Special Operations (“SO”), responded on behalf of
Desmond Fitzgerald (“Fitzgerald”), the SAS Chief in Washington
As of April 1963, the DRE
was receiving $51,000 a month, according to a CIA
memo to the CCC . The memo listed “average
monthly payments” made to groups “guided and monitored” by the Agency. It
stated that payments to the DRE subsidized
“the headquarters of the organization in Miami CIA field stations
are in direct contact with the fund representatives of the DRE
in most Latin American countries.”
On April 29th, SAS chief Fitzgerald again ordered
JMWAVE not to cut off funding for AMSPELL without approval from headquarters ...
On June 24th, the DRE propaganda
section addresses a memo to “Howard.” … On June 28th, DRE
member AMBARB-84 gave Joannides a memo about Soviet activity in Cuba DRE memos, in July 1963, Joannides gave
the group money for a military operation and brought the group an air condition
for their headquarters.
On July 31st, Joannides received a fitness
evaluation for his work since March 27th. His boss stated that he had
done an “excellent job in the handling of a significant student exile group
which hitherto had successfully resisted any important degree of control.”
Joannides’ handling of the DRE contrasted
with his work on an “unproductive” group whose funding was cut off. Joannides
was promoted to the chief of the Psy War branch of the JMWAVE station.
On August 5th, Oswald visited a store owned by
Carlos Bringuier (“Bringuier”) on Decatur Street New Orleans DRE
in New Orleans DRE members for military
operations in Cuba
On August 8th, Joannides visited the DRE ’s
headquarters in Miami DRE ’s delegation
in Costa Rica
On August 9th, Oswald handed out pamphlets for a
pro-Castro group called the Fair Play for Cuba Committee (“FPCC”), on a street
corner not far from Bringuier’s store. When Bringuier rounded up three other DRE
members DRE – Celso Hernandez, Miguel Cruz,
and Carlos Quiroga – the Cubans challenged Oswald for his apparent
double-dealing and his support of Castro and got into a fight with him. Police
arrested the four Cubans and Oswald.
On August 12, Oswald and the DRE
Cubans appeared in court. A TV news crew filmed the men coming and going and
the local newspaper noted the incident and its resolution… August 21st
Bringuier, Oswald and two local journalists appeared on Latin Listening Post, a
local radio program. Bringuier was identified as representative of the DRE .
The four men debated the Cuban issue for 30 minutes, with Oswald defending
Castro and Bringuier asking if his organization should be called the Fair Play
for Russia Committee.
Afterwards, Bringuier issued a press release in the name of
the DRE calling for a congressional
investigation of Oswald. “Write to your congressman asking for a full
investigation on Mr. Lee H. Oswald a confessed ‘Marxist.’”
Oswald’s contacts with the DRE
in New Orleans DRE
headquarters in Miami CIA contact, according to Isidro
Borja, chief of the DRE ’s military section
at the time. “I know that Bringuier gave us information that that had happened
and that we made a report to the CIA about
I,’” Borja told the HSCA in 1978.
On August 26th Richard Cain, a Chicago Police
Officer, reported to the CIA that a Cuban
source told him that he had been recruited by the DRE
to fight Castro in Cuba. The source said he would not join any effort not
backed by the U.S. government “at which point the [DRE ]
representative placed a phone call to Miami and with the contact listening,
spoke with a Senor Salvand (or Salvat), and asked if the group was sponsored by
the CIA .” Salvat replied it was sponsored by
“the Pentagon, which is in competition with the CIA ,
and therefore all activities of the [DRE ]
must be kept secret.” On September 4,
1963 , the Domestic Contacts Division of the CIA
circulated Cain’s report on the DRE to the
SAS in Washington
On September 6th, the Chief of the Military
Operations Branch (“MOB”) of the SAS, sent a cable, drafted by John Tilton of
the MOB, saying “HQ concurs with REF per
conversation with Newby.” The SAS commented that the issue was “AMSPELL-AMBARB
relations.”
On September 12th, Miami DRE was mentioned
prominently in a men’s magazine cover story calling for Castro’s assassination.
The article stated the DRE was offering a
$10 million reward for Castro’s death…. The Article appeared under the headline
“We are going to kill Castro.” The story described how the DRE
was offering a $10 million cash reward “for the death of the Cuban Tyrant Fidel
Castro.” Rocha, DRE ’s Secretary General,
made the offer.
On September 13th, Joannides gave five DRE
leaders in Miami New
York Washington DRE members in New
York Times
Square resulted in a near riot that paralyzed midtown Manhattan DRE students, was Rocha, DRE ’s
Secretary General… Returning to Miami DRE leaders stopped in Washington DRE co-founder Salvat met with
HUAC’s staff. HUAC picked up some of his expenses.
On September 23rd, Fernando Garcia Chacon of the DRE
responded to a JMWAVE inquiry about the See magazine article. He addressed a
note to “Howard.” “Certainly what [is]
stated in this article is false,” he said.
On October 16th, JMWAVE informed Headquarters
that AMHINT-53 ([Rocha] said that DRE ’s
military plan would be delivered to Newby [Joannides] on October 18, 1963 .
‘
On October 22nd, the Caracas Miami CIA headquarters saying “HQS concern as
to how TUTOR 1 [identity unknown] involvement with AMSPELLS may affect
utilization TUTO group in other station activities. Will discuss with Newby
after his arrival HQS and advise.” A comment from WH [the chief of the Western
Hemisphere desk at CIA
headquarters] suggests that “Newby come to HQS to discuss AMHINT-5 activities
in Venezuela
On October 22nd, the DRE
submitted to “Howard” a proposed military operation against Cuba Cuba WAVE
followed by Conferences with AMHINT-2 [Salvat] and AMHINT-53 [Rocha], Newby
will proceed to HQs for discussion.”
On November 6th, Shackley weighed in with a
detailed cable about the DRE ’s plan. He said
that the CIA had told the group if they had
plans for military action, they should submit them for consideration. He noted
that the group had been threatened with a cutoff of funding in March 1963, and
this was their response. Shackely criticized the DRE
leaders, saying they had had overblown view of their effectiveness. They
regarded themselves as “the equals of generals and ambassadors,” he said; they
also had a “penchant for insecure behavior.” He recommended cutting the group
off financially.
On November 13th, DRE
submits expenses to “Howard” for “Operation Macao IV.”….
On November 15th, SAS Chief Fitzgerald cabled Miami DRE military
section, per Shackley’s recommendation. Funding for the DRE ’s
nonmilitary efforts was not effected.
On November 19th, Joannides told Rocha that the CIA
would not support the DRE military plan. As
recounted in a CIA cable, “Newby told
AMHINT-532 that he regretted to inform him that KUBARK was not inclined [to]
support any part [of] AMSPELL military plan, although support to AMSPELL for
prop[agenda] and education of certain members would continue. NEWBY stated he
was instructed [to] encourage AMSPELL to seek support of organization with which
AMSPELL ideologically and military compatible…Parting was most amicable.”
At 12:30 p.m. on
November 22nd, President Kennedy was shot and killed as his
motorcade passed through downtown Dallas 3:00 p.m. Central Time the
wire services reported that a suspect had been arrested. His name was Lee
Harvey Oswald.
At 6:10 p.m. a CIA
cable from Miami New Orleans Moscow
Lanuza and Bringuier spoke to reporters extensively that
night, recounting Oswald’s pro-Castro activities in New
Orleans
On Nov. 23rd, the DRE
distributed a special edition of its newspaper Trinchera. The accompanying
article described the DRE ’s encounters with
Bringuier in New Orleans
On November 27th, the New York Times reported, “A
Cuban exile leader said tonight that Lee H. Oswald had boasted that if the United
States Cuba
That same day in Washington DRE ]” at a hearing scheduled for December 10, 1963 . On December 4,
HUAC chief of staff Francis McNamara informed Committee members that the DRE
leaders could not give testimony until mid-January and that the hearing on
Oswald and his Cuban activities had been postponed indefinitely.
On December 13th, Shackley forwarded a tape
recording of the DRE radio debate with
Oswald in New Orleans
On April 1, 1964 ,
the Warren Commission sent a letter to Bringuier saying a Commission attorney
would like to interview him in the coming weeks ….. That same day, according to
a leave of absence form he signed, Joannides traveled to New
Orleans April
7-8, 1964 , Bringuier testified under oath to the Warren Commission
lawyers in New Orleans
On May 15th, Joannides
signed his fitness report for his job performance since April 1, 1963 . His specific duty Number 1 was to
supervise and manage the Station’s covert action branch; Duty Number 2 was to
serve as “senior case officer for a student project which involves the
distribution of printed propaganda, production of radio programs and the
development of political action programs.” He received the highest possible
rating for his performance of these duties. Station chief Ted Shckely stated
that Joannides “managed a branch that had a yearly budget of two million four
hundred thousand dollars. These funds were judiciously spent on printed
propaganda, white and black radio program and on political action operations
which were implemented via labor, student and professional groups.”
On June 8, 1964 , the new officer handling the DRE ,
known by cryptonym “Keith T. Bongirono,” filed a monthly progress report on
their activities.
From 1964 to 1976, Joannides served
as an operations officer. In April 1978 he was assigned to serve as “Principal
Coordinator for the [HSCA].”….In July 1981, he received the Career Intelligence
Medal.
SUMMARY OF ARGUMENT
Plaintiff Jefferson Morley
(“Morley”) seeks records on CIA case officer
George Joannides (“Joannides”) who handled a Cuban exile organization, the
Directorio Revolucionaire Estadantil (“DRE ”)
which was involved in activities with Lee Harvey Oswald in the three and a half
month period preceding the assassination of President John F. Kennedy. On a remand
which included instructions to search its operational files, the CIA
revealed that Joannides had worked in a covert capacity while acting as its
liaison with the House Select Committee on Assassinations (“HSCA”). In that
capacity the CIA concealed facts from
Congress, including the fact that Joannides had been the DRE ’s
case officer when he was liaison to the Congressional committee. In the view of
the HSCA’s former Chief Counsel, Prof. G. Robert Blakey, it violated both its
Memorandum of Understanding with the HSCA and criminal law.
Although the CIA
searched some pertinent operational files on remand, it did not search all of
them. It did not, for example, search the records of the AMHIN, AMBARB, and MOB
projects, which were components of the DRE
project. It claimed, first, that these terms were not within the scope of
Morley’s request, even though his request specifically sought any materials on
Joannides pertaining to any project in which he had participated. Second, it
refused to concede that these projects had been officially acknowledged,
despite the fact that it approved the release of scores of documents detailing
them in disclosures made under the President John F. Kennedy Assassination
Records Collection Act of 1991 (“JFK Act”). Neither of the CIA ’s
positions passes legal muster and District Court erred in sustaining them.
The adequacy of the CIA ’s
search is called into question by the failure to search these (and other)
terms. With respect to the 17 missing monthly reports, the CIA
also claims that they never exist. It rests this claim on speculation which is
based on error-laden memoranda written by a CIA
employee who was unable to identify Joannides as the DRE ’s
case officer even though there was abundant evidence from this in the CIA
files. Morley showed that the monthly progress existed before and after the
17-month period when Joannides was in charge. The CIA
produced no evidence that they had been destroyed. The existence of such
records is basic to democratic accountability and requires a thorough search if
the Agency’s operations are not to be run on an off-the-books basis. The facts
put forward by Morely raised, contrary to the District Court’s finding, a
disputed issue of material fact precluding summary judgment.
The CIA
has employed Exemptions 1 and 3 to erect and maintain an iron curtain of
secrecy against the disclosure of 295 documents withheld in their entirety
despite their age – three decades to half a century – and the vast public
disclosure of JFK assassination records. The withholding of 295 documents in
their entirety undermines the credibility of the CIA ’s
claims that they must be withheld in the interest of national security. Morley
places in the record a very detailed account of the DRE ’s
activities based on officially disclosed records which have been released
despite formerly having been classified. This creates a disputed issue of
material fact with respect to whether or not release of such information can
reasonably be expected to damage national security.
The credibility of the CIA ’s
national security claims is further undercut by the bad faith conduct which the
CIA has engaged in with respect to obtaining
information on the DRE from congressional
committees and the Assassination Records Review Board. Section 1.8 of Executive
Order 12958 provides that information may not be classified in order to prevent
embarrassment, but the circumstances here suggest that that has occurred in
this case.
Section 3.2(b) of E.O. 12958
provides that “the need to protect such information may be outweighed by the
public interest in the disclosure of the information, and in this instance the
information should be classified.”
Section 3.2(b) also provides that
when such questions arise, “they shall be referred to the agency head or the
agency official “who will determine….Whether the public interest in disclosure
outweighs the damage to national security that might reasonably be expected
from disclosure.” Neither the CIA nor the
District Court addressed that issue.
The public interest in disclosure
of these records on the assassination of President Kennedy is at its zenith.
The 50th anniversary of President Kennedy’s assassination is rapidly
approaching with major movies and plethora of new books on the way. A revived
national debate on the assassination is beginning to heat up, yet the CIA
is resisting disclosure of the records which remain withheld to the hilt and
has avoided making the public interest determination required by the Executive
order.
REPLY BRIEF FOR APPELLANT
PRELIMINARY STATEMENT
Executive Order 12958, as amended, was in effect when the
Central Intelligence Agency (“CIA ”) reviewed
the records responsive to the Freedom of Information Act (“FOIA”) request of
appellant Jefferson Morley (“Morley”) for records on CIA
case officer George Joannides (“Joannides”).
That order provides that the need to protect classified information
“may be outweighed by the public interest in disclosure.”….The CIA
protests that “[t]his is not an exceptional case under this provision or under
Agency regulations.” This is in line with the persistent efforts of the CIA
throughout its brief to downplay the public interest in the information sought
and belittle it as not pertinent to the assassination of President John F.
Kennedy.
While they may not be “exceptional” in the CIA ’s
view, the underlying circumstances are far from ordinary. They concern George
Joannides, Chief of the CIA ’s Psywar Branch
of its JMWAVE station in Miami, who was case officer for the DRE
(“Directorio Revolucionario Estudantil”), a CIA -funded
Cuban exile organization, when, in the months before Kennedy’s murder, alleged
assassin, Lee Harvey Oswald, was engaged in activities involving the DRE .
Immediately after the assassination, the DRE
provided to the press a radio tape of a debate between Oswald and a DRE
member in which Oswald was portrayed as a defector to the Soviet
Union who was a pro-Castro Marxist. This became the basis for
worldwide dissemination of the first or “Castro did it” conspiracy theory.
These facts raised questions which demanded answers from the
Government. Yet until the Assassinations Records Review Board (“ARRB”) learned
of Joannides in the waning days of its existence, “the CIA
had never taken the positive step…of identifying to any government agency the
role that Mr. Joannides held with regard to his activities in 1962-64, that
pertain (directly or indirectly) to Lee Harvey Oswald, nor did the CIA
proactively inform the [ARRB] that he was one and the same person who was a CIA
liaison to the [HSCA].” Declaration of T. Jeremy Gunn (“Gunn Decl..”),.. Gunn,
who served as the ARRB’s Executive Director, notes that the “CIA
did not disclose this critical information about Mr. Joannides to the Warren
Commission, the HSCA [House Select Committee on Assassinations], or the Review
Board…” He adds, “this information is without any question an extremely
important part of the larger story of the assassination. Records related to Mr.
Joannides activities in 1962-1964 and 1978, unquestionably fall within the
scope of the JFK Act as was consistently held by the Review Board that had
statutory responsibility for interpreting the scope of the JFK Act.”
Morley, in his quest for data on Joannides and the DRE ,
discovered that that Joannides had been pulled out of retirement to become the CIA ’s
liaison with the HSCA in 1978. In that capacity he did not disclose to the HSCA
that he had been the DRE ’s case officer in
1962-64, and he rebuffed congressional efforts to obtain information about the
Oswald/DRE relationship. And, as a result of
this Court’s remand requiring the CIA to
search its operational files, Morley learned that Joannides was working in an
undercover capacity when he was the CIA ’s
liaison to the HSCA.
This led Prof. G. Robert Blakey, who served as Chief Counsel
of the HSCA, to charge that the CIA ’s
conduct in inserting Joannides “undercover” into the HSCA’s investigation
“constituted not only a breach of the written memorandum of understanding the
HSCA in good faith entered into with the Agency…., but a manifest, and hardly
minor matter, a criminal violation of 18 U.S.C. &1505”, which proscribes
conduct that “impedes…the due and proper exercise of the power of inquiry…of
any committee of either House’)…”
While the CIA may not
consider these circumstances “exceptional,” its response to Morley’s lawsuit
clearly is. It has withheld at least 295 documents in their entireties, citing
multiple overlapping exemption claims to conceal information that pertains to
bygone days and is the subject of deep public interest. The CIA
mindset displayed by these facts must be kept centrally in mind in evaluating
the credibility of its claims.
SUMMARY OF ARGUMENT
The records on former CIA
case officer George Joannides are of substantial public interest and are
relevant to Jefferson Morley’s study of the assassination of President Kennedy,
and, in particular, questions concerning alleged assassin Lee Harvey Oswald’s
relationship with a CIA -funded Cuban exile
group in the months before the assassination. Records on this topic have been
officially disclosed by the CIA under the
JFK Act. Despite this authorized official release of this information, the CIA
is withholding 295 records in their entirety.
…The CIA ’s brief does
assert that, “[t]The CIA employees who
worked with and supervised Joannides also have a significant privacy interest,”
….The CIA says that disclosing this
information, including affiliation with Joannides or the CIA
“would undoubtedly subject them to intensive questioning from a variety of
sources, that is, the media, family, friends, neighbors, etc.”….The CIA
is, of course, principally concerned with the media. It does not however, cite
any authority showing that they are required to answer such inquiries, nor does
it provide any plausible explanation showing that as a class they are too
weak-willed to resist unwanted press inquires. Nor does it explain how resisting
Morley’s right to obtain such information is consistent either with the First
Amendment or the right of democratic accountability embodied in the FOIA.
The CIA also asserts that
“[s]imilarly, the disclosure of this information could also place the CIA
employees and their families in danger from individuals seeking retribution
against Joannides directly and the CIA
generally.” But this speculation is unsupported by any evidence of its
likelihood. Under the President John F. Kennedy Assassination Records Collection
Act of 1992 (“JFK Act”), the CIA has
released at least 300,000 pages of records pertaining to the JFK assassination
which contain this type of information, but the CIA
fails to point to any instances where that massive disclosure has produced this
kind of retribution it speculates might occur.
As to the names of Joannides’ supervisors and co-workers,
the CIA has not even claimed that they are
still living. In the absence of such a claim, alleged possible retribution is
totally speculative and lacks any factual predicate. Given the passage of more than
three decades since these officials and employees last worked for or with
Joannides, it is likely they, like Joannides, are deceased.
The CIA tries to minimize
the public interest in disclosure by arguing that Morley has mischaracterized
the documents at issue in this case as “’pertaining to the assassination’ and
‘Cuban operations.’”….This, the CIA says,
“is neither correct nor sufficient.” It follows this by asserting that “there
was no overriding public interest that requires the disclosure of, or
identifying information about the third parties at issue….”
The public interest in the records at issue had repeatedly
been called to the CIA ’s attention.
Referring to the records on Joannides which are the subject of Morley’s
request, Prof. Anna Nelson, who served as a member of the Assassination Records
Review Board (“ARRB”), stated:
“It is imperative that all additional information which
bears upon the CIA ’s conduct regarding both
the congressional investigation and the Kennedy assassination itself be made
public as soon as possible so that Mr. Morely and others may continue to
research these matters.”
Similarly, Jeremy Gunn, who served at overlapping times as
General Counsel, Director of Research, and Executive Director of the ARRB,
stated: “Prior to the time I received Ms. Combe’s [March 3, 1998 ] memorandum, CIA
had never taken the positive step, as far as I am aware, of identifying to any
government agency the role that Mr. Joannides held with regard to his
activities in 1962-64, that pertained (directly or indirectly) to Lee Harvey
Oswald, nor did CIA proactively inform the
Review Board that he was one and the same person who was a CIA
liaison to the House Select Committee on Assassination (HSCA).”
Gunn continued: “Although I have no information….why CIA
did not disclose this critical information about Mr. Joannides to the Warren
Commission, the HSCA, or the Review Board, this information is without any
question an extremely important part of the larger story of the assassination.
Records related to Mr. Joannides’ activities in 1962-64 and 1978,
unquestionably fall within the scope of the JFK Act as was consistently held by
the Review Board that had statutory responsibility for interpreting the scope
of the JFK Act.”
John R. Tunheim, the Chairman of the ARRB stressed the
important public interest in the subject of Morley’s request: “It is imperative
that all additional information which bears upon the CIA ’s
conduct regarding both the congressional investigation and the Kennedy
assassination itself be made public as soon as possible so that Mr. Morely and
others may continue to research these matters.”
The CIA disregards all of
this and says that “Morely has not demonstrated any public interest in this
type of information or explain (sic) in any way how disclosure would shed light
on government operations.”
The public interest in the names of Joannides’ supervisors
is self-evident. It identifies who is responsible for overseeing Joannides’ work
and holding him responsible for his actions. Identification of co-workers is
particularly important for scholars, permitting evaluation of their competence,
cohesion, experience and influence on activities, etc.
All of this information enables the public to evaluate who
was doing what and what roles they played in government operations.
Attorney James H. Lesar has filed nearly 1,000 Freedom of Information Act requests and has obtained the release of 1 million pages of documents, primarily from the FBI and the CIA.
or any American, it is vital to keep abreast of the workings of government. The Freedom of Information Act is an important tool to empower citizens in this regard.
For 25 years, James H. Lesar has worked to increase individual access to government information under the Freedom of Information Act. A graduate of the University of Illinois and the University of Wisconsin School of Law, Lesar is widely recognized as one of the nation’s preeminent attorneys in the Freedom of Information arena.
Lesar has filed nearly 1,000 FOIA requests himself and has obtained the release of approximately 1 million pages of documents, primarily from the FBI and the CIA.
He serves as president of the Assassination Archives and Research Center, a public service organization which he co-founded with the late Bernard (“Bud”) Fensterwald Jr. The group is dedicated to “collecting, preserving and disseminating information concerning political assassinations” and has focused primarily on the killings of John F. Kennedy and Dr. Martin Luther King Jr.
Lesar’s contributions to freedom of information and to history have been substantial.
Many of his FOIA cases have set landmark precedents, such asAllen v. U.S. Department of Defense, which established the right of a substantially prevailing FOIA requester to seek an interim award of attorney’s fees, and Summers v. U.S. Department of Justice, which held that a FOIA requester could submit an unsworn declaration to establish his identity, rather than a notarized statement.
Harold Weisberg, the U.S. Senate investigator who in 1965 wrote Whitewash: The Report on the Warren Report, told Freedom, “Without Jim, we wouldn’t know FOIA as we now know it. He fought some of the toughest cases, some of the longest. The country owes him a great debt.”
Weisberg described how Lesar represented him in efforts to obtain classified documents from the government. Lesar litigated the case, even though Weisberg was “broke and in debt,” and took it to the U.S. Supreme Court. Although they lost the case, Weisberg viewed it as a great victory because Congress cited the decision as reason to amend the Freedom of Information Act’s clause on investigatory files exemption. As a result, many FBI and CIA records became accessible.
Lesar believes that one of his greatest achievements was the release of a January 1964 Warren Commission executive session transcript that showed the commission suspected the FBI was not conducting a proper investigation into the assassination of John F. Kennedy.
Lesar also played a crucial role in the passage of the JFK Records Act, a measure spurred by the groundswell of public opinion in the wake of the popular film, “JFK” against the lack of information forthcoming from government agencies regarding the Kennedy assassination. Lesar assisted those drafting the act in Congress to formulate language which ensures greater access and liberal disclosure provisions, and also testified on behalf of the act before Congress.
According to Lesar, legislation similar to the JFK Records Act is needed to complement the Freedom of Information Act, particularly in regard to historical documents.
Lesar has been at the center of virtually every major effort to uncover documents regarding the Kennedy and King assassinations. Professor David Wrone of the University of Wisconsin Department of History described his work as “invaluable to history and to the American people.” Wrone said that Lesar has frequently labored against heavy odds, and has often stood alone, with the Freedom of Information Act as his only weapon.
Such is Lesar’s dedication to freedom of information that for years he has spent nearly half his time doing voluntary legal work for the AARC. And throughout his career, he has provided free legal assistance to many private individuals utilizing the Freedom of Information Act.
James Lesar’s efforts have helped to preserve and enhance the rights of all Americans to seek and obtain access to government files.
(From Freedom Magazine)
