Friday, March 24, 2017

Judge John Tunheim - CAPA Sunshine Week at NPC


Black Op Audio: Black Op Radio

Panel 1 - John Newman, Jeff Morley and Jim Lesar:

CAPA Legal Committee Co-chair Larry Schnapf of Panel II: 


Federal Judge John R. Tunheism – Former Chairman of the Assassination Records Review Board – CAPA Press Conference – National Press Club – March 16, 2017

Andrew Kreig: Please welcome our chairman Dr. Cyril Wecht.

Dr. Cyril Wecht: Thank you Andrew. I want to start by thanking Andrew Kreig for organizing this on behalf of CAPA, he has done this essentially as a one man show and we are most grateful to him. I want to welcome all of you here on behalf of CAPA and thank you for coming. This is an important year, as you will hear from all of our speakers, but I want to move along and introduce our guest of honor and principle speaker is Judge John Tunheim, who I have learned grew up a half an hour from the Canadian border, and he is subject to deportation at any time (laughter). After graduating from Concordia College, he attended the University of Minnesota School of Law, practiced privately and then became affiliated with the Minnesota court of law.

In 1994 Judge Tunheim was appointed chairman of the Assassination Records Review Board (ARRB), and continued in that capacity until they finished up in 1998.

The huge community of Warren Commission critic researchers, and the huge majority 65 to 80 percent of Americans who reject the Warren Commission conclusions, owe John Tunheim a gratitude of debt. My wife is from Norway and we were discussing the correct pronunciation of Tunheim. We all owe Judge Tunheim a tremendous debt, he as chairman of the ARRB led the way, opened the door and broadened the horizons that had been perhaps opened earlier by outstanding critics, some of whom are here today to speak, and others of our brethren are regrettably have departed.
The work he did and the way in which they dealt with this in an objective, firm and dynamic but extremely honorable fashion laid the groundwork that that we continue to follow on that track since, and we are delighted to have him here.

In 1995 he was appointed a federal judge by President Clinton, a kind of birthday gift, and the past several years since 2010 he has been the chief federal judge of the federal district court in Minneapolis, in Minnesota. We thank you very much for coming here, and is waiting on a jury in a trial at which he has just presided. 

So let us hear what the honorable Judge John Tunheim has to say, tell us some recollections about this role on the ARRB and possibly, I don’t know but maybe make some predictions about what will unfold this year. Judge Tunheim.

Judge Tunheim:

Thank you very much Cyril, it’s always great to be back with so many familiar faces. I’m glad to be here with you today to talk about the records that should be released this year according to the JFK Act.

As many of you probably know the story of the Assassinations Records Review Board – really put together by an Act of Congress – following up on Oliver Stone’s movie in 1991 and the public demand for Congress to release the files, overcoming some steadfast opposition to the law at the time by President Bush, eventual pass of the Records Collection Act of 1992 that set up a process of review of classified information. I have suggestions for improvements the next time this is done, but by and large it worked very well. There were some problems with it. I was looking back this morning on dealing with the identification documents being sent over at the time from the National Archives that I was recalling were sent to us on five and a half inch floppy discs, if you remember that, so it’s a look back in time to the technology we had then.

We ran the Review Board for I’d say about four years. When we were confirmed by the Senate after President Clinton nominated us in the fall of 1993, we had to go through the Senate confirmation process and were confirmed in the spring of 1994.

There were five of us who were part time, but we had no appropriation and no staff. And we had stacks of documents that were piling up from agencies who had been given deadlines much earlier preparing assassination records for us even before we even had the opportunity to tell them what an assassination was.

So fortunately I knew the White House chief of staff at the time and he came up with a half a million dollars from what we all commonly referred to as a slush fund for a rainy day or whatever came along.

We had three years to do the work with the possibility of one additional year, if Congress approved. It seemed like that was enough time. But we just did not anticipate just how many records on the Kennedy assassination that had not released.

We contributed a little bit to the problem by broadening the definition of an assassination record beyond the statuary record by rulemaking, because we wanted to gather any record that conceivably could be possibly related to the assassination in any way, rather than just what was strictly defined as an assassination record. So we contributed to the problem but we wanted to get our hands on everything.  

I took the position early on that if someone suggested to us that a particular group of records existed and may be relevant, we would not pass judgement on that, and get the records in and find what could be released.

The standards that was set up under the law was terrific, being a statute that looked at a lot of records.
There was a presumption of disclosure for every document that fit within the category of what an assassination record was, and if an agency wanted to protect information that was in a record or that record had to convince us by clear and convincing evidence, which is a relatively high standard and we applied that standard carefully.

It was a balancing of need for postponement of release of information verses the Public interest.
We took the position early on that that all records had a strong public interest, so the standard had to be really high for postponement.

The areas that we were supposed to look at for possibly postponing records were:

-          Intelligence gathering activities

-          Law enforcement documents,

-          also methods of protecting the president, but interesting not a single request came in on what would protect the president.

-          If it would affect the conduct of foreign relations – which turned out to be a much more major topic than I thought it would be. 
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             And also personal privacy which turned out to be a very small category that only a handful of records were in.

So when we started out it took a while to build a staff. In the fall of 1994 we were hiring a staff. We hired an executive director David Marwell and went to work building a staff, so it took most of that first year to gear up to get into the position to review records.

When we started the review process it was largely a word by word review, and with the possibility of hundreds of thousands of documents coming in, that just wasn’t feasible, and what was a thought to be a three year time period[WK1] , it just wasn’t going to get it done.

I do think that in the end, my fellow board members and I thought we could have gotten another year our appropriation was minimal each year – our appropriation was I think about 12 million dollars a year, so it was not a very expensive agency to run. I think in retrospect we could have used another two or three years because we had to take a lot of short cuts.

Let me tell you how we looked the review process, as it will give you some insight into the records that are coming up for review  - which is a statuary deadline in the JFK Records Collection Act of 1992 – it specified that any records that were not released by us or any information that was redacted from a document would have to be reviewed and released in 2017 and I understand the Archives is preparing that material now for decisions, and I hope the agencies who have equity in these documents – will be open to releasing these records.

We made one decision early on –we vowed that we would not protect anything that was centrally involved in the assassination story no matter who it implicated in the assassination - And I think that was a wise decision.

Ultimately the board made voting decisions on twenty-seven thousand documents  and many of those documents had issues of redacted information, so it was a fairly extensive effort to get through everything.

The core documents which occupied most of our time as a board - the documents that were more centrally related to the assassination - had some kind of a close nexus to the assassination in our view, we worked on those records word by word, we went through them very carefully, the vast majority of them were released, unless there was some reason not to release certain information. It really was a line by line review. The Oswald central file at the CIA for example, was reviewed word by word all the way through so we could release it– and we released almost all of that.  

We were prohibited by law from releasing Oswald’s tax records unfortunately, they were in those files, but by law we couldn’t release them, we needed Marina Oswald’s permission that she refused to give, so those records were not released.

But the other one I thought was interesting was the Lopez report, it had been released earlier in heavily redacted form, so we released that.

This centrally related nexus files  took most of our time.

It became obvious after a while that we needed another process –we expected in the four million records we expected to come to us.  Not that many came. Ultimately close to 3 million actually passed over our desks and went through that process.

It became obvious after a while that we needed to develop a faster process after we got past the records that were centrally related. So we started to develop a faster track process after records became less centrally related.

We eventually tried to convinced the agency to something was called “consent releases,” when they asked for specific records to be withheld - they saw the handwriting on the wall that we were going to release that information I think there were 35,000 consent releases where the agencies, for the lack of a better term, basically gave up and we weren’t going to agree with their position and going to release it anyway.

So we worked that process through and we tried to develop formats for the agencies to give us the information we needed to make a decision.

Rather than have a two-hour meeting with 15 guys from the CIA go over these records and have them making the arguments why we shouldn’t release it – we started to focus on a document so we didn’t have to meet ad nausea.  So we tried to move from meetings to a records based process.

There were a lot of files that were caught up in Segregated files particularly at the CIA. The earlier investigations– this includes the Church Committee records and WC – Warren Commission files where the Agency segregated files that might be relevant, and there were huge rooms of files, expecting them to be relevant, so we took control over them.

Once we realized that some of them were not actually related to the assassination – they might be interesting, but if it wasn’t related in any way to the assassination, we had no authority over it. Our authority was over records that had some conceivable tie to the assassination.  So if there was kind of overseas operation that was put in the segregated file, but had nothing to do with the assassination, we had no authority over it, so we developed this category of documents we called Not Believed Relevant, or NBRs.

That is the bulk of the information that are coming forward in 2017 for potential release. I think it may be somewhere around 40,000 – I haven’t talked to the National Archives people in a long time. That’s the big bulk of records they are Segregated – part of the record, but not released in whole – because we a made the determination that near the end of our time we believed they were NBR – Now there may be some interesting stuff in there. There may be stuff in there that in 2017 we realize that it is related to the assassination but we didn’t realize it at the time. This is the only group of records we agreed to postpone in full. The rest are redacted. There may be records in there that you find relevant in 2017, but we didn’t realize it in the 1990s.

Before you believe that this stuff isn’t relevant, It’s interesting stuff, we made a determination – that we didn’t have time to review them word by word – and go through that detailed process.
But I think, if I remember correctly this is the only group of records we agreed to postpone in whole, everything else were redactions of particular parts of records.

There is also a group of records, I don’t know if they are classified as NBR records – they were a segregated collection, part of earlier investigations – we reviewed them but required less evidence for protection of the records, so there is information protected in there.

Now I want to go through some of the examples of the redactions we did, as I think that will be an interesting part of the records to be released.

I also want to point out some of the obstacles we faced long the way.

The FBI appealed the first five hundred and seventy decisions – it was an appeal to the president. –this was not a process that was going to court – it was an appeal to the President, and they began to appeal everything. It was drowning us because we had to write a legal brief to the White House for every one of the appeals. It took a lot of time until they eventually stopped when they realized the president did not overturn us once, but it still took a lot of work.

We also looked for additional records in private hands or state or local governments. We held hearings around the country looking for additional records, and a lot of additional records that caught up in the sweep. Although there were some organizations that fought us for records, that contested us for records over whether they should get it or we should get

I always said – “In 200 years from now what agencies will still be around? I think probably the National Archives will be around rather than some local institution.” But it was sometimes difficult.
One example is The Sixth Floor in Dallas, which has a wonderful museum, but they were a tough competitor for documents. It’s a wonderful place and I like it, but they were tough competitors for documents.

I think there was some unlawful withholding of records by agencies. I don’t know that for a fact.
The agency people we worked with worked in good faith –

The CIA people were mainly retired CIA people, contractors. They realized that it was good to get some of these records released.

The CIA always has trouble releasing records because they might set a precedent for something they don’t want to release.

So since we were actually doing the declassification was actually a help to them.

They eventually realized –it was better for us to release them.

It was to their advantage to let us do the declassification. It was helpful to them.

I will say we found their filing system to be less than organized. The FBI was the opposite, they were very organized, they just never thought anyone would be looking around their card files in the basement, but they were very difficult to work with.

Actually the Secret Service was probably the most difficult agency – they were the only agency that tried to reclassify material after we took office in an effort to keep the information away from us. And it wasn’t information that was all that important.

They fought us on the Threat Sheets, and they would be important since the president was assassinated that fall, so the Threat Sheets would be relevant, but they fought us on that.  I’m not sure as to what actually happened there because it was after we left office.

There’s always the possibility and still the likelihood that records were destroyed – thirty years had passed since the assassination and when we were working. The 1960s was an era that was notorious for people bringing home government files after they left office.

When the son of the staff director to the Warren Commission called us and said that dad was dead and he had 18 boxes of WC documents in the basement, do we want them? Well, yes we do. They should have been government records but they weren’t because he took them home. They were all obstacles.                      
I want to run through the categories for redacting information. We did a lot of redactions, I don’t know how many in the end. There were a lot of redactions we put a release date on it.

We were engaged in the awkward task of trying to determine when a person would die.
Whether it was an intelligence document or law enforcement record, if we felt there was some possibility danger would come to them if their name was released.

This had to be proven us. If an FBI informant didn’t want his name released -

We needed to get in contact with these people and if the person was dead we released their name.
We decided that if the person was dead there was no reason to protect them, although we heard plenty of arguments. They said, if our little town knows that our dad was an FBI informant our reputation will be ruined forever. But too bad, if the person was dead they didn’t need to be protected, so we released it.

What day they would be released.

That part has gone by after all these years.

Some examples of the categories for redactions.

-          The names of intelligence agents that appear everywhere in these documents everywhere
-          The CIA asked us for a blanket removal of the names of agents that appear in these records. They asked us to redact all of the names of all the agents who appear in these documents, and we felt there is an interest in who worked on these documents. Unless there was a real danger of disclosure that was pointed out to us.
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-          We added some dates but by and large we released all of those names unless there was a danger and it was pointed out to us,…

-          There were a lot of names of NSA staff- we did not find any names in there that was particularly relevant so we postponed most of that.

-          Foreign government sources who could have been prosecuted for treason for having cooperated with the US government by providing information, those names will come up this year.

-          The pseudo names that the CIA uses – I think we released all of them, and they gave the argument that if you release it here they can track the name through all of the documents – and my response to that is, “well that’s the point isn’t it?” If you want to track the names of those people doing these things.

-          We had a big fight with the CIA over Crypts – a little device they use in their documents to protect names and places -

-          The location issue was particularly sensitive, we released the locations within a certain window of time, so that’s coming up.

-          Some of the locations diagraphs we postponed at their request – we did not postpone any headquarters or Mexico City location diagraphs for the crypts.

-          Surveillance methods, we agreed early on to postpone the method of identifying a manner of intelligence only if they could prove it was related to current operations -  and there were some of those and they will come up in the redactions this year.

-          Station Locations was a fight,…. it was the first time the CIA had stations released, even though everyone knows they have them all over the world.

-          I mentioned the Secret Service Threat Sheets – I don’t really know what happened to those, no one was able to tell me if that was still protected, if it was still protected, it will come out this year. If they were protected they will come up  this year.

-          Personal privacy issues remain so I don’t know what will happen there.

-          Two of the most cumbersome things was that many of the FBI and some CIA documents had foreign government cooperation – and the agencies insisted we had the approval of the foreign governments in order to release the information – and that took an enormous amount of time. There is probably more redactions in this part than there should be but it was hard to get the right official in the foreign government to give his approval.

-          An example is the J E Hover document on Lee Harvey Oswald– and the subject was Internal security, from early 1960 when they were following his trek to the Soviet Union. Part of it had been released in the past in a FOIA law suit, but still a lot of it was protected.

-          In the end we could not get the Swiss official to approve the report on Oswald’s college where he said he was at, but that’s an example of the kinds of things that was difficult for us. Some of it was because we just ran out of time.

-          So what’s out there besides all of these redactions? And I think the redactions will be interesting to people –you will be able to follow the course of these documents better without having the redactions in them, and I hope they are all released.

-          I don’t know if the agencies will start a campaign to not release information. It’s a little bit different now. We don’t have a board like us sitting there saying no, we are going to declassify it , and the Archives had decided they don’t have the authority we formally had.

-          There are some documents I want to see out -  the KGB file. I was there – I came very close to getting a copy of that file. It stands about five feet high when piled on top of each other – they are fascinating –and detail what Oswald did when he was in the Soviet Union. They are all in Russian but I had some read to me. Norman Mailer was there earlier than me and had some released to him, he bought some of them, and I offered to pay to make copies, but our relationship with Belarus got worse and worse and I couldn’t get them out of there. I would like to get them out. There is a full copy in the Kremlin as well. The original was sent to Belarus – when the Soviet Union broke up the KGB files were sent to the primary area of origin rather than kept in Moscow,

-          Speaking of KGB files, there is a huge cache of KFB records in Moscow dealing the assassination of President Kennedy. Back at the time the Russians were concerned,  everyone agrees there are a lot of files because there was strong suspicions that they were involved, so they had what everyone agrees was a pretty extensive investigation. I didn’t get any help from the State Department despite they were required to by law, they didn’t assist us.

-          We had some help from Vice Pesident Gore got some records from the Prime Minister.

-          My attempts over there didn’t work – I had the US Ambassador with me, but there was no indication that the government supported me, so I didn’t get the support I needed, and they knew my government didn’t support me so they weren’t going to give me anything.

-          I often got questions in return to my question - “What is your time frame on the records” and they would say, “What makes you think we have records in the files?” I’d got a question back from them.

-          I’d like to see that, that will probably come out, so researchers have access to that, we paid someone to keep negotiating that, but nothing really happened with that, though I thought they would be very helpful.

-          We have the Jack Ruby files from the HSCA, Warren Commission and FBI – but not much beyond that. The prosecution files were recently discovered in a closet in the last year or two, after they told us they had no files remaining down there whatsoever. So I mean, there are files in places that we just don’t know about because no one bothered to check.  Ruby’s lawyers files – I have never seen them but something I think is something interesting as well.

-          And there is this category of individuals who we just simply now know more about today – and George Joannedes, is a good example. Our staff was told that he was just a liaison with the HSCA, a kind of a flunky – so they tossed it in the Not Believed Relevant category, but today obviously we know different, so we messed up on that, but we were clearly misled on him, and I think there may be others as well.

-          We also worked with all the other agencies – that they had a continuing responsibility by contract moving forward – we were afraid the impetus would stop.

-          None of the agencies have really followed those requirements they agreed to after we finished our work, but I don’t think that’s much of a surprise.

-          So I – a lot of it depends on whether the people in charge of these agencies that are looking at these records are going to be cooperative in this or not.

-          This is all stuff from fifty years now folks, it’s not that important to keep protecting it, I think there will be stuff interesting to researchers., it may be like looking for a needle in a haystack, and interesting information once it gets out, and I hope we don’t follow the latest line – which is to protect everything these days.  

-          Our recommendations on secrecy have obviously not been followed.

-          We were lucky to operate in the 1990s which fell between the end of the Cold War and 9/11

After 9/11 that all changed. And if that kind of attitude doesn’t change it will be a shame since its time to release them after so many years.

-          One more example I thought of is there’s a bunch of stuff related to Mexico City, largely related to our relationship with the Mexican government, and we received a full court press – not only from the State Department but the CIA and other agencies as well, not to release because it was thought be detrimental to our relationship with the Mexican government at the time. I guess we don’t have much of relationship with the Mexican government today (laugh) – It doesn’t matter anymore – but the political party in charge then  is no longer the controlling  party in Mexico today.
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-          So our Cooperation with Mexican Government during that time, and intelligence activities in the 1960s – there’s no real reason to protect that anymore, so that is a good example of a larger group of material that should come out.

Questions:

Dr. Wecht: Please keep your questions as succinct and focused as possible and I’d like to give the news media people here and give them first crack. Yes, Mam?

Question – from women – from WWW –I just wanted to ask the judge if there’s been any discussion directly with the White House – or if you have any idea what Mr. Trump or senior officials thought about this release date or whether they want to block it or not?

Tunheim: To my knowledge there has been no communication what so ever. And I’m not sure if they are even aware. Maybe they are aware by now, The White House Counsel should be aware that this date is upon us, but I’ve heard nothing and I’m not aware of anything that’s been said yet from the White House.

Alan Dale: The ARRB did a good job. Thank you for your service. What was your personal reaction when a federal agent said: “I’m sorry I’m not at liberty to discuss that.”

Tunheim: Yes we had that situation, perhaps not precisely those words, but similar at the beginning when we had meetings with the operations people and some of the declassifiers, especially at the CIA  – we said we wanted specific facts that support the idea as to why information should be postponed – and they would say “we can’t tell you that,” and my reaction to that was, “Well okay, ten days from now this will be released." and I could see him looking at the lawyer asking if we could do that. Our reaction to any stonewalling,told the that it’s your obligation to provide specific evidence and facts that would warrant postponement. And We did. If we didn't get specific facts that the document was released. 

We asked for specific facts that warranted postponement, and when they did, when they presented specific information that warranted postponement, we did.

Russian – White House Correspondent and editor of RT – (Russia Today) – I have a simple question – you said ‘needle in a haystack’ - what does that mean? What are you looking for?
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      Tunheim: It’s something that’s hard to find. When you have 40,000 documents for the lack of time we felt weren’t relevant to the assassination – there might be something in there that might be relevant, something that we missed, –so I think it close look at the records we didn’t think relevant – remember the time pressures we had – to review what in the end is a collection of well over 5 million pages right not at the National Archives. We made 20,000 plus decisions, we were working part time with a full time staff, but it was a temporary agency – in the last year we began losing the staff – and I don’t blame them. We should have said keep going until the job is done, 
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-          I don’t know if there is anything particular but if you look closely at that haystack you might find that needle you are looking for.
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Karl Gloven – Did the ARRB see the Operational Files – for instance of Harvey, Rosselli, E. Howard Hunt, etc.  Did you look at the operational files?

Tunheim : “We had access to a lot of operational files –There were operational files and we had staff member dedicate parts of those files – as related – if the agency agreed they were released – if not it was decided by the board – some operational details were released. There were some parts of operational files that were released.

-          Paul Kuntsler: Robert Groden’s latest book – has a 3page letter from John McCone – that  discussed Oswald’s work for CIA….– Have you seen it?
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Tunheim: No I have not seen it so I can’t comment on it.
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Dr. Wecht: Thank you for your time and dedication and your comments that lay a foundation for what we in CAPA are seeking as an organization – that is full disclosure.






3 comments:

Dennis Bartholomew said...


I noted the following in Tunheim's remarks:

We were prohibited by law from releasing Oswald’s tax records unfortunately, they were in those files, but by law would not allow us to do that, we needed Marina Oswald’s permission that she refused to give, so those records were not released.

Marina still withholding permission after all these years? To what extent do researchers believe Marina to be part of the JFK cover-up, and did she play a role for Soviet intelligence?

Kubark12 said...

Marina Prusakova Oswald Porter's stepfather's name was Aleksandr Medvedev, Vladimir Putin's crony and PM is Dmitry Medvedev. Wonder if their related?

JimGlover1 said...

There might be FBI/NASA records of information orally or otherwise on the Day of the assassination or the next few days as I was told by two NASA agents the Day after that they talked to Hoover about what happened and Hoover told them it was "a test that went bad and it wasn't the Cubans". Also in Hoovers memo about George Bush of the CIA and the Captain at DIA… It seems all DIA records of that time period are missing. Hoover's memo also said there was no plan for another attack on Cuba but Felix Rodriguez said in his book, "Shadow Warrior" that at that time he was on his way to Central America to prepare for another attack on Cuba.