JFK ASSASSINATION RECORDS REVIEW BOARD RECOMMENDATIONS

JFK ASSASSINATION RECORDS REVIEW BOARD RECOMMENDATIONS

The Final Report of the Assassinations Records Review Board provides not only an opportunity to detail the extraordinary breadth and depth of the Board’s work to identify and release the records of the tragic death of President John F. Kennedy, but also to reflect on the Board’s shared experience in carrying out this mission and the meaning of its efforts for the much larger challenge of secrecy and accountability in the federal government. It is true that the Board’s role was to a large extent disciplined and tightly focused on the assassination, its aftermath and the broader Cold War context in which the events occurred.

Any evaluation, however, of the unique experience of the Review Board-five private citizens granted unprecedented powers to require public release of long-secret federal records – inevitably presents the larger question of how the Board’s work can be applied to federal records policy. There is no doubt that for decades the pendulum had swung sharply toward secrecy and away from openness. Changes wrought by the end of the Cold War and the public’s desire to know have begun to shift the balance. The Review Board’s mandate represented a new frontier in this changing balance – an entirely new declassification process applied to the most sought after government secrets.

In this chapter, the Board steps back and reflects on its experiences, raises issues that will help frame the declassification debate, and makes recommendations on the lessons to be learned from the path taken to release of the JFK assassination collection. The dialogue about how best to balance national security and privacy with openness and accountability will continue both within government and beyond. The Review Board will necessarily be part of that important debate.

The Review Board was created out of the broad public frustration that the federal government was hiding important information about the Kennedy assassination by placing its records beyond the reach of its citizens.

Broad disagreement with the Warren Commission findings, explosive claims in the popular movie JFK, and continued deterioration of public confidence in government led to consensus that it was time to open the files.

Thus the debate in Congress largely became a debate over what mechanisms could constitutionally compel the opening of the assassination files.

The Review Board’s mandate was not to investigate one again the assassination, but to release as many of these heavily restricted documents as possible. Lawmakers commented that the efforts of the Review Board “will stand as a symbol and barometer of public confidence in the review and release of the government records related to the assassination of President Kennedy….Several provisions of [the JFK Act] are intended to provide as much independence and accountability as possible within out Constitutional framework.”

Restoring public confidence in government is a difficult task under any circumstances. The Review Board took this responsibility seriously, however, and set out in April 1994 to create the most complete record possible of the documentary evidence of the assassination so that in the end the American people could draw its own conclusions as to what happened and why on that fateful day in Dallas in November 1963.

From the start, the Review Board did as much of its work in public as it could possibly do, given the classified material with which it worked. The Board’s major policy decisions were all made carefully consulting with the public through public hearings and Federal Register notices. Many of the Board’s requests to agencies for additional information were suggested by the Board’s continuing dialogue with researchers, authors, and experts. Frequent public hearings outside of Washington, experts conferences, ongoing public releases of the records, witness interviews, and media availability were among the many tools the Board used to reach out and communicate with a public strongly interested in the results of the Board’s work.

The result was that the Board was helped immeasurably not only by the advice and suggestions that resulted from the public dialogue, but by the records that were discovered and opened through the communications….

The precedents that developed from the Board’s early deliberations guided the staff in its review of the records and guided agency reviewers in the positions they took towards postponement requests. The development of this unique and valuable set of decisions, which came to be known as the Board’s “common law,” eventually resulted in thousands of “consensus releases,” in which documents moved directly from the agencies without redactions to NARA.

There were, of course, many substantive disagreements between the Board and the agencies, but the course of the relationships were characterized chiefly by growing mutual understanding and markedly improved communications. The Board was gratified to see agency reviewers and decisionmakers grow increasingly aware that he responsible release of information can provide an opportunity to create a more complete record of the extensive work that many agencies did on the issues raised by the assassination. Many appeared also to gain a greater appreciation of the tremendous costs of secrecy, both in terms of public confidence and maintenance of records.

There were critics of the Review Board, those who believed that the “targeted declassification” of assassination records not only interfered with the goal of systematic declassification directed by Executive Order 12958, but was also much too expensive. It is difficult, of course, to compare one method of declassification with another, harder still to place a price tag on the nature of the information that is now released and available to the American public.

It is worth noting that the Kennedy assassination records were largely segregated due to the use of the records during the many prior government investigations of the assassination. But, the Review Board does recognize that any meaningful approach to declassification will of necessity be multi-faceted, with different methods adopted for different circumstances. The particular circumstances of eh assassination of President Kennedy and the highly secretive government response  have had an enormous impact on public confidence and made the Review Board approach singularly appropriate, particularly when compared with the significant costs, both financial and otherwise, of keeping the record secret. The Board is confident that, in this setting, the approach chosen by the Congress to open the Kennedy assassination records was a highly effective one.

The Review Board is certainly aware that there are a great many unresolved issues relating to the assassination of President Kennedy that will be addressed in the years to come. The massive public collection of documents that awaits the researchers will undoubtedly shed light not only on the assassination, but on its broader context as an episode of the Cold War.

The community of professional historians, who initially exhibited comparatively slight interest in the Board’s work, has begun paying attention with the new accessibility of records that reflect the Cold War context in which the assassination is enmeshed. Ultimately, it will be years before the JFK Collection at NARA can be judged properly. The test will be in the scholarship that is generated by historians and other researchers who study the extensive documentation of the event and its aftermath. Does the historical record formed by the Board inspire confidence that the record is now reasonably complete?

Will the documents released under the JFK Act lead to still other materials?

Will the mass of documentary evidence answer the questions posed by historians and others?

Will the Board’s compliance program inspire confidence that the agencies have produced all the relevant documentation that exists today in agency files?

What do the records tell us about the 1960s and the Cold War context of the assassination?

The Review Board approach, the precedent created, the tools identified, and the lessons learned will assist future researchers immeasurably.

Agency reviewers will note that the Republic has not collapsed under the weight of threats to national security because of Review Board actions and, perhaps, they will also note that openness is itself a good thing and that careful scrutiny of government actions can strengthen agencies and the process of government, not weaken it.

There will likely be problems in the future that best lend themselves to the extraordinary attention that a similarly empowered Review Board can focus.

Formation of a historical record that can augment understanding of important events is central not only to openness and accountability, but to democracy itself.

At an early stage in the Review Board’s efforts, one of the Board members commented that the Board should strive to accomplish as much as it could, to be remembered for what it attempted. Or, to paraphrase Robert Kennedy, the Board should work hard to ensure that its reach continually exceeded its grasp. The Board did not always achieve that standard, but the sheer scope and accessibility of the JFK Collection speaks eloquently about the effort. The Board has left to posterity a historical bequest that is invaluable and unprecedented.

Recommendations

The Review Board presents recommendations that reflect the Board’s experience and provides guidance for those who wish to capitalize on that experience to further reform the process of classification and declassification of government documents. The Board recognizes that the JFK Act represents but one approach to declassification, one whose activity was designed to review sensitive records concerning a controversial event.

1. The Review Board recommends that future declassification boards be genuinely independent, both in the structure of the organization and in the qualifications of the appointments.
2. The Review Board recommends that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task. 
3. The Review Board recommends that its “common law” of decision, formed in the context of a “presumption of disclosure” and the “clear and convincing evidence of harm” criteria, be utilized for similar information in future declassification efforts as a way to simplify and speed up releases.
4. The Review Board recommends that future declassification efforts avoid the major shortcomings of the JFK Act:

       (a) unreasonable time limits,

 (b) employee restrictions,

(c) application of the law after the Board terminates, and 

(d) problems inherent with rapid sunset provisions.

5. The Review Board recommends that the cumbersome, time-consuming, and expensive problem of referrals for “third party equities” (classified information of one agency appearing in a document of another) be streamlined by
1.  requiring representatives of all agencies with interests in selected groups of records to meet for joint declassification sessions, or
2. devising uniform substitute language to deal with certain categories of recurring sensitive equities.
6. The Review Board recommends that a compliance program be used in future declassification efforts as an effective means of eliciting full cooperation in the search for records.
7. The Review Board recommends the following to ensure that NARA can exercise the provisions of the JFK Act after the Review Board terminates: a. that NARA has the authority and means to continue to implement Board decisions, b. that an appeals procedure be developed that places the burden for preventing access on the agencies, and c. that a joint oversight group composed of representatives of the four organizations that originally nominated individuals to serve on the Review Board be created to facilitate the continuing execution of the access provisions of the JFK Act.
8. The Review Board recommends that the Review Board model be adopted and applied whenever there are extraordinary circumstances in which continuing controversy concerning government actions has been most acute and where an aggressive effort to release all “reasonably related” federal records would serve usefully to enhance historically understanding of the event.
9. The Review Board recommends that both the Freedom of Information Act (FOIA) and Executive Order 12958 be strengthened, the former to narrow the categories of information automatically excluded from disclosure, the latter to add “independent oversight” to the process of  “review” when agency heads decide that records in their unites should be excluded from release. 
10. The Review Board recommends the adoption of a federal classification policy that substantially:

a. limits the number of those in government who can actually classify federal documents,

b. restricts the number of categories by which documents might be classified, c. reduces the time period for which the document(s) might be classified,

d. encourages the sue of substitute language to immediately open material which might otherwise be classified, and e. increases the resources available to the agencies and NARA for declassifying federal records.  

The Review Board’s experience leaves little doubt that the federal government needlessly and wastefully classified and then withheld from the public access countless important records that did not require such treatment. Consequently there is little doubt that an aggressive policy is necessary to address the significant problems of lack of accountability and an uniformed citizenry that are created by the current practice of excessive classification and obstacles to releasing such information. The need is not something recently identified, although the Moynihan Commission on Secrecy in Government is a recent expression of this longstanding concern. Change is long overdue and the Review Board’s experience amply demonstrates the value of sharing important information with the American public. It is a matter of trust.

The Review Board’s recommendations are designed to help ensure that the comprehensive documentary record of the Kennedy assassination is both actively developed after the board terminates, and that the experience of the Review Board be turned to the larger purpose of addressing the negative consequences of the excessive classification of federal records.

The Review Board’s efforts to accomplish the purposes of the JFK Act has been focused and aggressive. It will be for others, of course, to judged the Board’s success in achieving these goals, but there can be no doubt about the commitment to making the JFK Act and an independent Review Board a model for the future.