Valkyrie Back In Court - w/ Transcript

Valkyrie FOIA Back In Court

On September 25, 1963 CIA Officer Desmond FitzGerald briefed the Joint Chiefs of Staff on CIA covert intelligence operations against Cuba, as military assistance could be required.

Marine Corps General Victor “Brute” Krulak was then responsible for such assistance, so his adjunct Colonel Walter Higgins was in attendance and kept notes, and among the bullet points in his minutes memo is FitzGerald’s statement that: “there had been great success in getting closer to the military personnel who might break with Castro,...there were at least ten high-level military personnel who are talking with CIA but as yet are not talking to each other, since that degree of confidence has not yet developed. He considers it as a parallel in history; i.e., the plot to kill Hitler; and this plot is being studied in detail to develop an approach.”

“He considers it as a parallel in history; i.e., the plot to kill Hitler; and this plot is being studied in detail to develop an approach.” An approach to be used against Castro.

When FOIA attorney Jim Lesar, director of the Assassination Archives and Research Center (AARC) in Washington D.C. read that – “this plot is being studied in detail,” he filed a Freedom of Information Act (FOIA) request for that study.

In response, the CIA replied that they have no records of such a “detailed study” among their files, and in fact they had no records what so ever of any mention of the failed July 20, 1944 German military plot to kill Hitler – code named Valkyrie, among their files. 

Incredulous, Lesar appealed, and in a belated response, the CIA found one document and turned over a 1954 CIA propaganda pamphlet that falsely blamed the failure of the Valkyrie plot on communists.

A cursory review of open source records quickly comes up with numerous articles on the plot that mention direct participants - OSS officer Allen Dulles, his assistant Mary Bancroft and Gestapo officer Hans Bernd Gisivious. A July 21, 1954 Washington D.C. newspaper article reports that on the tenth anniversary of the Valkyrie affair the previous day, Gisivious had a public dinner with Dulles, then director of the CIA. 

How could that clip not be among the CIA files?

To me this case is a verification of Peter Dale Scott’s “Negative Template” thesis that the most significant records no longer exist or are being withheld, and deserve more attention, so more attention it will get. 

Unsatisfied with the negative response from the CIA, Lesar appealed, and in their response the CIA redacted extensive amounts of internal CIA correspondence that reflects the extent of their search for relevant records.

Lesar and his AARC co-counsel Dan Alcorn requested those documents that reflect the extent of the CIA’s search for their “detailed study” of the Valkyrie plot to kill Hitler, but the CIA contends that those documents and their redacted excerpts are exempted from release under B5 of the FOIA law.

I’ve seen Dan Alcorn present oral arguments before the appeals court many years ago – when he filed suit against the Department of Defense for the U.S. Army After Action Reports from Memphis in the days before and after Martin Luther King was assassinated. Alcorn made a passionate plea, but lost, however the Army must have been so embarrassed that they released an After Action Summary report, leaking it to a friendly (to them) Memphis reporter. And that report clearly indicated the U.S. Army had King under constant surveillance, had infiltrated his organization, and watched him being shot and killed.

The stakes are not as high here, other than the fact that the JFK Act of 1992 is being completely ignored.

It was supposed to be fully adhered to by 2017, but after repeated promises to release the JFK assassination records in full as the law required, President Trump kowtowed to the CIA and his chief of staff General Kelly, and postponed their full release for years, possibly forever.

Since the JFK Act officially remains in effect until the Archivist of the United States (AOTUS) reports to the President, Congress and the American people that the last remaining government record on the assassination of President Kennedy has been released, the law remains in effect and every government record that refers to the assassination should fall under it, even records that are yet to be created.

So when the CIA officials put out marching orders to their file clerks to “Please conduct a search for records on or pertaining to communications by Allen Dulles regarding plot to kill Adolph Hitler,” – that should fall under the JFK Act (44 USC 2107) and not just be answerable under the FOIA.

And that the CIA could not find their “detailed study” or any records whatsoever on the July 20, 1944 plot to kill Hitler, when their former director was directly involved, it is certainly incredulous – something a rational person is unable to believe.

The CIA is attempting to continually withhold their internal memos and reports – tasks and directives and their response, under Section B5 of the FOIA law – “The Deliberative Privilege – One of the basic principles of the FOIA is that an exemption in the Act is merely an option to deny access, not a prohibition against release. FOIA Exemption Five covers internal communications in the Executive Branch that are legally ‘privileged.’”

This same “Deliberative Privilege” is the excuse being used to keep the AOTUS David Ferraro’s letter of recommendations to the President in the days before Trump extended the JFK Act beyond its 2017 sunset deadline. Ferraro is a blogger and advocate of open records, so what did he recommend? I asked the NARA for a copy of the letter of recommendations but they refused to reveal it to the public - under section B5, because it was deliberative. 

How can they continue to withhold records of their “deliberations” concerning a law – unanimously passed by Congress - that requires complete release of all records regarding the murder of a president?

“Exemption 5 of the FOIA protects ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.’”

As Dan Alcorn argued before the court, the extent of the search gets to the very heart of the FOIA law, and since they are in litigation with the agency, these records should be available as part of the discovery process.

To listen in to the Oral Arguments to release or continue to withhold the details of the CIA’s search for records of their “detailed study” of the July 20, 1944 plot to kill Hitler go:

https://www.cadc.uscourts.gov/recordings/recordings2019.nsf/9F14891F58758FCA852584730055BA08/$file/18-5280.mp3

CIA Loses Detailed Study of Hitler Plot:
JFKcountercoup: CIA Loses Detailed Study of Hitler Plot

Kelly Declaration in Support of AARC FOIA Civil Case:
JFKcountercoup: Kelly Declaration AARC v. CIA Re: Detailed Study of Hitler Plot

BK NOTES: I am currently transcribing the audio tape of these oral arguments – and will post in full ASAP.

Here's the first part of my transcript of the audio recording of the Oral Arguments presented last week. I am still working on this....

Note: This is a three judge appeals court, with an unlimited time for them to deliberate and come to a decision. It could be a week or months, but I will post the court's determination when they rule on it. 

AARC v. CIA 

United States Court of Appeals for the District of Columbia

Oral Arguments

Thursday, September 12, 2019

Judge: Assassination Archives vs. CIA.

Okay, whenever you are ready

Dan Alcorn (for AARC): Good Morning. May it please the court, my name is Daniel Alcorn, I am here for the appellate – the Assassination Archives and Research Center (AARC). I am joined at counsel table by James H. Lesar, my co-counsel. Mr. Lesar is under doctor’s orders to limit his activities, so we are particularly pleased he is able to attend and join us today.

The issue before the court are plain(?) by the CIA to exempt records under the B-5 exemption – there are five records in particular they are exempting – and these five records relate to the search activities when the CIA received and began their search for our request.

We contend these are factual materials and in fact are at the heart of any FOIA (Freedom of Information Act) - the adaqacy of the search issue – and by the nature of the fact of what the request was shows they are related to the search activities that the CIA conducted.

I think the best way to see our concern is to look at one of the documents which is page 300 of the joint appendix. By looking at it we can see what was released and what was not released. Page 300 joint appendix. At the top….

Judge 1 (female): A big empty box! (laugh)

Alcorn: Yes. And I would point out that the size of the type is actually very small compared to the rest of the document so assuming the type is the same that is a considerable amount of information that could fit in that block with that small type size. 

Judge #2 (male) – Is exception five dependent upon the quantity of the material that gets exempted?

Alcorn: No, it is the nature of the material. And of course exemptions must be narrowly construed, that’s part of the case law as the Supreme Court has stated that again in the Milner case. So these exceptions are not to get broad applications. And the concern originally with the B5 exemption is that it not be used to withhold factual type information.

If you look at this document, it’s a“task information” – which I think is a task order – something to be done. The instructions are “Please conduct a search for records on or pertaining to communications by Allen Dulles regarding plot to assassinate Adolph Hitler.”

Well that caused quite a reply assuming we are right about the size of the type and the whiteout.

There’s more to that we don’t have any records, which is the ultimate response that we were given…..

MORE TO COME. 

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