IMPLIMENTING THE ARRB RECOMMENDATIONS -

The JFK Assassination and the Cold War - Releasing the Remaining Classified Records

IMPLIMENTING THE ARRB RECOMMENDATIONS - 

“The Republic has not collapsed under the weight of threats to national security.”

                - The Final Report of the Assassinations Records Review Board (ARRB)

By William E. Kelly, Jr.

The release of the records under the JFK Act has not only given us a better understanding of what happened at Dealey Plaza but they also help paint a more accurate portrait of the bigger Cold War picture in which it occurred.

If the assassin really was a deranged lone nut, then his purely psychological motives would be studied by psychiatrists in detail for decades, but the accused assassin Lee Harvey Oswald was designated the patsy, was not crazy in either case, and was a major player though a minor pawn in the great game of espionage.

As Jesse Ventura and others have asked, if the President was killed by a lone-nut then why are so many records still being withheld for reasons of national security?

That’s because the total truth as to what really happened at Dealey Plaza is still today – 50 years later, a matter of national security, and when fully known, will shake the very foundations of the government.

So there’s a political and not psychological cause and effect mechanism going on – and rather than a big disconnect - as a real psycho-killer would create, there’s an historical symbiosis between the people and events on the ground in 1963 and the larger Cold War, as well as a connection with us today. And what happened at Dealey Plaza, exposed as a covert operation, fits like a glove into the overall historical scheme of things.

The Final Report of the ARRB reads: “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?”

Well, it’s now been twenty years since the Review Board dissolved, so we should be able to judge the JFK Collection at NARA properly, survey the results of the research and historical works that developed from it, and more importantly, determine what remaining questions can be answered.

We can also begin to answer some of the outstanding questions, some the ARRB Final Report asks:

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

BK: Yes, they most certainly do, including many records within the agencies and departments of government as well as in the private sector, including the Clifton Air Force One tapes, the Blaine Secret Service reports and the Sprague papers that have yet to be included in the JFK Collection. But there is no requirement, except that written into the words of the law, for individuals in possession of such records to turn them over to the NARA for inclusion in the JFK Collection.

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

BK: Yes, but not all of the answers until all of the records are released.

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

BK: No, it certainly doesn’t, mainly because even though the Board required an agency officer sign off under penalty of perjury that all of the records in his department have been turned over, no one has ever been prosecuted under this compliance program because the JFK Act law has not been enforced since the demise of the Review Board.

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

BK: The records tell us that what happened at Dealey Plaza was not the random act of a madman but a well planned and executed covert intelligence operation and coup, and those who killed the president took over the reigns of government power and covered up the true facts of the assassination, a cover up that continues today.

As the Final Report of the ARRB notes: “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.”

          ASSASSINATION RECORDS REVIEW BOARD RECOMMENDATIONS

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.

BK: There are now a number of such records review boards, esoecially - ISOO, CUI, PIDB & ISCAP.

ISOO - The Information Security Oversight Office (ISOO) is responsible to the President for policy and oversight of the Government-wide security classification system and the National Industrial Security Program. ISOO receives authority from: "Classified National Security Information," Executive Order 13526 was released by the White House on December 29, 2009

CUI - Controlled Unclassified Informatin Office (CUI) of ISOO Develops standardized CUI policies and procedures that appropriately protect sensitive information through effective data access and control measures,

PIDB - Public Interest Declassification Board (PIDB) The Public Interest Declassification Board (PIDB) is an advisory committee established by Congress in order to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities. &

ISCAP - Interagency Security Classification Appeals Panel The Interagency Security Classification Appeals Panel (ISCAP) provides the public and users of the classification system with a forum for further review of classification decisions.

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. 

Congress provided the legislation for the JFK Act, but has failed to do the same with the MLK assassination records (of the HSCA) and other records, and especially failed to provide an “enforceable review and appeals process” for JFK Assassination records. Congress has not held an JFK Act oversight hearing in over 15 years.

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.

While the Review Board was strict in promoting its “common Law” of decisions and “Presumption of disclosure,” once it retired and went out of business, there was no more “clear and convincing evidence of harm” criteria needed, the law was just ignored.

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.

While unreasonable time limits and employee restrictions certainly hampered the Review Board staff, there appears to have been no attention paid to the problems inherent with rapid sunset provisions and application of the law after the Board terminates. Once agencies realized that their appeals to the board would go unheeded and the president uphold the board’s decisions, they began to play a waiting game and knew that there would be no reprisals after the board dissolved, and there hasn’t been.

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.

It seems that this is one ARRB recommendation that has been actively adopted, as the National Declassification Center at NARA reported (at their third annual public hearing) that they have obtained the cooperation of all “third party equities” by bringing them together in the same room to review and declassify records together, rather than passing them around from one to the other and back again. Thus speeding up the process.

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.

The compliance program adopted of having individual agency officers sign off under penalty of perjury, has not worked because, despite examples of deliberately destroyed documents and blatant withholding of specifically requested records, many relevant records are still not included in the JFK Collection. A much more enforceable law must be developed and enforced by NARA and Congress.

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.

NARA might have the authority and means to implement Board decisions but it doesn’t exercise either, appeals procedures are not efficient and a “joint oversight group composed of representatives of the four organizations that originally nominated individuals to serve on the Review Board” has not been created, so there is no group, other than the Assassinations Archives and Research Center (AARC), the Committee for an Open Archives (COA) and the Coalition on Political Assassination (COPA) actively facilitating “the continuing execution of the access provisions of the JFK Act.”

ARRB Final Report reads: SEC. 12. TERMINATION OF EFFECT OF ACT.

(a) PROVISIONS PERTAINING TO THE REVIEW BOARD- The provisions of this Act that pertain to the appointment and operation of the Review Board shall cease to be effective when the Review Board and the terms of its members have terminated pursuant to section 7(o). (b) OTHER PROVISIONS- The remaining provisions of this Act shall continue in effect until such time as the Archivist certifies to the President and the Congress that all assassination records have been made available to the public in accordance with this Act.

While it doesn’t appear that a Joint Oversight Group was formed by the four organizations as recommended, one of those groups and their nominee – Mr. Kermit Hall, did take their roles seriously. In the Organization of American Historians (OAH) newsletter [See: “The Kennedy Assassination in the Age of Open Secrets” OAH #26] Hall wrote: (The board’s job) “…is not running an investigation; it is, instead, seeking to disclose documents in an age of open secrets, an age in which we have come to embrace the idea that openness is to be preferred and that accountability is the touchstone for public confidence in government. Full disclosure is more desirable than partial, and the more we know about what government has done, is doing, and plans to do, the more secure we will be in our liberties.

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.

Besides the four records review boards mentioned above, other similar acts have been introduced into Congress, specifically to release the MLK assassination records of the House Select Committee on Assassinations (HSCA), but it has never gotten out of committee.

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. 

While I am not up to the latest legal manifestations of the FOIA, I don’t believe that Congress has strengthened the FOIA or EO 12958, and should do both as well as hold JFK Act oversight hearings.

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 use 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

Certainly the increased public interest in the classified records and the emphasis placed on them by the Obama administration should result in the proper financing of a larger declassification effort and a decrease in the number of classified records, as well as the number of records being classified today.

The ARRB Final Report: “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 change was long overdue twenty years ago – and the change has yet to happen.  

ARRB Final Report: “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.”

The future is here and we need to address these issues now to ensure that these recommendations are enacted, strengthen the laws with legislation in Congress and enforce the laws as they stand.