Monday, July 27, 2020

The Supreme Court Takes on a JFK Case


Five Supreme Court Rulings of Global Import | Voice of America ...Liberals See US Supreme Court's Future an Election Issue


[ BK NOTES: I will be writing a much more in depth article on the Hitler Plot case and how it relates to the assassination of President Kennedy but I thought I would try to write a summary of the case as it now stands in less legal terms. More to come. Stay Tuned.]

While most of the government and society grounded to a virtual halt during the pandemic of 2020, the Supreme Court of the United States kept chugging along, ruling on a number of cases that will have a major impact on laws, elections, the president’s finances and how government works. The gears of justice grind slow however.

Eight years ago, on August 25, 2012, lawyers for the Assassination Archives and Research Center (AARC) filed a Freedom of Information Act request (FOIA) for some specific records that are mentioned in another document that was previously released under the JFK Act of 1992.

The Assassination Archives and Research Center, is a privately funded, Maryland-based organization founded by Bud Fensterwald in 1984 “to provide a permanent organization which would acquire, preserve, and disseminate information on political assassinations.”  The attorney’s for AARC in this case are Dan Alcorn, the Counsel of Record, and AARC director and co-counsel Jim Lesar. [  ]

Government agencies usualy drag their feet in response to all FOIA requests, and those filed by individuals often drag on until the requester loses interest or dies, but those filed by permanent organizations are not going to go away. So they get more attention.

The case stems from a document dated September 25, 1963 detailing a meeting of the Joint Chiefs of Staff who were briefed by CIA official Desmond FitzGerald on covert operations against Cuba.

Daniel Alcorn, the AARC attorney, said the document contained an intriguing reference to the CIA basing a plot to kill Fidel Castro in 1963 on an earlier plot to kill Adolph Hitler during World War II.

Thanks to Rex Bradford at for posting these records and providing the links. 

[The Original Document: Sept. 23 memo re: Special Group Security:

Known as the Higgins memo for its author, Colonel Walter Higgins. Higgins was adjunct to General Victor “Brute” Krulak, USMC, the officer responsible for the military’s assistance to the CIA’s covert operations, especially against Cuba.

I listed the Higgins Memo - as the Number One Smoking Document released under the JFK Act for a number of reasons.

The meeting was chaired by Air Force Chief of Staff Gen. Curtis LeMay because General Maxwell Taylor was in Vietnam on a special mission for the president. The purpose of the meeting was for the Joint Chiefs of Staff to be briefed on CIA Covert Operations against Cuba by Desmond FitzGerald, who had replaced William Harvey as head of the CIA Cuban desk -Task Force W. Renamed by FitzGerald as the Special Group of the National Security Council that was responsible for approving or disapproving covert operations.

The key paragraph is bullet point # (13):

 "He (Desmond FitzGerald) commented that there was nothing new in the propaganda field. However, he felt that there had been great success in getting closer to the military personnel who might break with Castro, and stated that 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.”

“This was new information to us when we saw it,” Alcorn said, so the AARC filed an official Freedom of Information Act (FOIA) request for any documents or records of this detailed study of the German military plot to kill Hitler.

Over the course of a few years the CIA responded by saying that it could not find any reference to the “detailed study” that the CIA had conducted in 1963 of the July 20, 1944 German military plot to kill Hitler that was being adapted “to develop an approach” for use against Castro.

Then the CIA reversed itself and acknowledged that they found one reference to the plot to kill Hitler in a 1964 propaganda pamphlet that blamed the failure of the 1944 plot on communists.

The CIA’s chief historian David Robarge was consulted, and he recommended that the Office of Strategic Services (OSS) records be checked at the National Archives and Records Administration (NARA).
Frustrated, the center sued the agency in federal court in Washington, D.C. on January 25, 2017.

When a three judge appeals court reviewed the case, one of the judges asked the CIA some important questions, wondering if the CIA kept copies of OSS records, a question that went unanswered.

The case appeared to be dead in the water until June 8, 2020, when the Solicitor General of the United States, Noel J. Francisco, filed a waiver of response in AARC’s petition to the United States Supreme Court seeking documents related to new information related to the assassination of President Kennedy.  

“AARC seeks documents related to a briefing of the Joint Chiefs of Staff on September 25, 1963 by CIA Cuban operations head Desmond Fitzgerald.  Fitzgerald informed the Joint Chiefs that CIA was studying in detail a parallel in history to develop an approach to dealing with Fidel Castro- the July 20, 1944 plot by German military officers to assassinate Adolf Hitler. “

As the AARC notes, one-time CIA Director Allen Dulles, and Warren Commissioner, was in close contact in 1944 with the German plotters from his position as head of European operations for OSS in Bern Switzerland. 

The CIA denied finding any such records and instead pointed to the National Archives as a possible source for information.  Alcorn responded, “Clear Supreme Court case law holds that federal agencies cannot shirk their duties under the Freedom of Information Act by pointing requesters to another agency of the government, as CIA has done…. Solicitor General Francisco’s waiver of a response is another instance of CIA failing to address troubling facts related to the assassination of President Kennedy.”

A copy of the waiver is attached.  The Supreme Court is likely to take up AARC’s petition in late September and rule in October during its fall session.

AARC v. CIA12 CIA Waiver Letter 19-1273 AARC v. CIA12 CIA W

The Supreme Court had previously granted  a writ of certiorari on February 28, 2020 in case # 19-547, Fish and Wildlife Serv., et al. v. Sierra Club, Inc. According to the AARC, “That case presents an issue closely similar to one in Petitioner’s case involving the deliberate process privilege under Exemption 5 of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(5). The results of the two cases arising from different circuits are in conflict.”

“The Fish and Wildlife Service case presents an issue of compelled release under the FOIA of draft documents for which the government asserts a deliberative process privilege under FOIA Exemption 5….Petitioner AARC’s case involves the Central Intelligence Agency’s successful assertion of the Exemption 5 deliberative process privilege for information reflecting CIA’s search activities in responding to Petitioner’s FOIA request. Petitioner’s FOIA request relates to a matter of public importance- new information about the circumstances of the assassination of President Kennedy.”

The appeal to the Supreme Court centers on the “deliberative” process and exemption, which is being used in this case to withhold the inter-office memos, emails and phone calls that detail the extent to which the CIA searched for the relevant records.

According to the AARC attorneys, “The United States Supreme Court has officially requested that the Department of Justice file a response to the AARC’s ‘Hitler plot’ lawsuit. The Central Intelligence Agency (CIA) has waived its right to file a brief opposing the AARC’s petition. Now at least one member of the Supreme Court has requested that the Solicitor General, acting on behalf of the Department of Justice, explain why the CIA has not set forth its position on the facts and legal issues raised by the AARC’s petition.”

“The ultimate goal in a petition for a writ of certiorari is to get the United States Supreme Court to issue the writ. The issuance of this week’s (16 July, 2020) request by the Supreme Court places the AARC just one step away from achieving this goal.”

“ The challenge of this effort remains a daunting and problematic process, but at least the AARC has reached the very threshold of success.  The AARC is encouraged by this development and remains optimistic about reaching the top of this nation’s judicial pyramid.”

The AARC will have the right to reply to the Solicitor General’s contentions.

View the Supreme Court’s request to the Office of the Acting Solicitor General by clicking HERE: 19-1273 Response Request.

The Acting Solicitor Genera must respond to the Supreme Court by September 16, and the Supreme Court will begin review of the records on September 29, nearly fifty seven years to the day the Higgins Memo was written. They should have a ruling sometime in October.

Alan Dale has posted a new page at the AARC web site that is devoted to current FOIA litigation:

Join and Support AARC:
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