Monday, February 25, 2013

Morley v. CIA in Court

Jeff wrote on Facebook:
The hearing at the DC Court of Appeals went very well this morning. Judge Harry Edwards, a liberal, was clearly sympathetic to my case. Judge Stephen Williams, a conservative, was skeptical, though less vocally. Judge Brett Kavanagh, also conservative, didn't say much. I'll have a more detailed take on JFK Facts later today but for now I'm relieved its over. And I likes my chances!

Anonymous report from someone who was there:
     I attended oral argument this morning in the US Court of Appeals, D.C. Circuit on the Morley v. CIA case where the issue was whether the district judge abused his discretion in denying attorneys fees.  During the government's argument Judge Edwards gave a strong defense of FOIA researchers and awarding attorneys fees.  He said it is not for the government alone to determine whether a researcher should be interested in a topic or whether the topic is in the public interest.  He said the test under court precedent is a topic/subject test rather than a content of documents test.  It is irrelevant for the government to argue the documents released did not contain important information if the topic or subject was one of public interest- it is not possible for a researcher to know where the research will ultimately lead when beginning a project.  Judge Edwards stated the district judge did not following circuit precedent in the case by not following Davy.  Judges Kavanaugh and Williams remained silent and did not defend the government on this.  Judge Williams had some negative-sounding questions for Jim Lesar during plaintiff's argument.  J. Edwards was so strong on his points that it gave some hope he might carry the day with his colleagues, or if not it would be a split decision. 

Federal judges hear arguments about CIA JFK assassination records

A three-judge federal appellate court in Washington DC heard oral arguments Monday about the significance of certain CIA records related to the assassination of President John F. Kennedy, a rare event in the long-running controversy over the murder of the popular chief executive almost 50 years ago.

While JFK’s assassination in Dallas on November 22, 1963, has been the subject of six governmental investigations, and will be the focus of a dozen new books and at least three major motion movies in 2013, the federal courts have rarely sat in judgment on issues related to the crime. That changed Monday morning when the U.S. Court of Appeals heard two lawyers clash over the public benefits of JFK documents released as a result of Morley v. CIA, a Freedom of Information Act lawsuit that I filed in 2003.

The senior jurist on the panel, Judge Harry Edwards, challenged the government’s contention that the records are not related to JFK’s assassination, while Judge Stephen Williams expressed skepticism about my argument that the litigation has been beneficial because it made JFK records more readily available to the public.

At issue in the hearing was a narrow legal question: whether lower court Judge Richard Leon had abused his discretion in a Sept. 2012 ruling supporting the CIA’s refusal to pay my court costs incurred in the course of a decade of litigation. Under FOIA, successful plaintiffs are entitled to have the government pay their court costs. After a three-judge panel from the Court of Appeals unanimously ruled in my favor in December 2007, my attorney Jim Lesar requested the government pay his legal fees, now estimated to be $150,000.

But the broader issue of the significance of the released CIA documents took up much of the hour-long hearing in the E. Barrett Prettyman Courthouse, located a few blocks from the U.S. Capitol.

“The lower courts erred in three ways. The new documents contain new information. They contain important information, and that information is related to the JFK assassination,” said Lesar in his opening remarks, citing the agency’s 2008 disclosure that undercover CIA officer George Joannides had received a Career Intelligence Medal in 1981, three years after serving as the agency’s liaison to congressional JFK investigators. Lesar argued that Joannides was honored for his JFK-related duties

“Was the information weighty enough to rule in favor of [legal fees for] the plaintiff?” replied Assistant U.S. Attorney Benton Peterson on behalf of the CIA. “The answer is no.” Peterson argued that a civilian review panel, the Assassination Records Review Board, had seen the Joannides records in the 1990s and concluded they were not related to JFK’s assassination.
Judge Williams, a conservative appointed by President Ronald Reagan, opened the questioning by challenging Lesar’s contention that the lawsuit had benefited the public by bringing together all the Joannides records in one place. “Aren’t all these records now available at NARA [National Archives]?” he asked.

Lesar said the documents were not available online as the government contended and were not easily searchable. He added that the document disclosing Joannides’ Career Intelligence Medal was not available before the lawsuit.

“You’re pinning a lot on that one document, aren’t you?” asked Judge Brett Kavanagh, a conservative appointed by President George W. Bush.

“The lawsuit produced other important documents,” Lesar replied, such as a travel expense form showing Joannides’ duties included travel to New Orleans, where accused assassin Lee Oswald lived for much of 1963. Lesar also said that the lawsuit had forced the CIA to acknowledge that it retains 295 documents about Joannides’ career that have not been released in any form.

“That’s an important piece of information we did not have before,” he said.

The sharpest questioning came from Judge Edwards and was directed at Peterson’s argument that the litigation had produced no information of public benefit.

“The law of the circuit is that the test for public benefit is the topic and the purpose of the search, which is appropriate because we don’t have the expertise to assess the significance of the research,” said Edwards, a liberal appointed by President Jimmy Carter. “You’re talking a lot about what’s in the records but that’s not the test. The lower court applied the wrong test.”

“There wasn’t any information requested and received that was weighty enough to benefit the public,” Peterson replied.

“If you use the topic test,” Edwards said, referring to JFK’s assassination, “it is weighty. I think they [the plaintiffs] met their burden in topic and purpose.”

Edwards also questioned Peterson’s claim that the ARRB review of the records settled the question of their relevance.

“A smart researcher might come in and see some connections that the government doesn’t,” he said.

The issue will be decided by a vote of the three judges. A decision is expected in four to eight week.

No comments: