THE
SUPREME COURT TAKES ON A JFK CASE
EXECUTIVE
SUMMARY
[ 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. [https://aarclibrary.org/
]
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 MaryFerrel.org 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):
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.
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:
https://aarclibrary.org/current-foia-litigation/
18 July, 2020 Update on AARC’s Petition for Certiorari to the United States Supreme Court
18 July, 2020 Update on AARC’s Petition for Certiorari to the United States Supreme Court
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and Support AARC: https://aarclibrary.org/aarc-membership/
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