13-00000 . » APR @4 °97 14:42AM P.9744 ' PAGE 9 56 Md. L. Rev. 1, *7 © i n35. Question-and-Answer Session at the Annual Convention of the Associated Press Managing Editor's Association, Orlando, Fla.. 1973 Pub. Papers 946, 956 (Nev. 17, 1973). n36. Vice President Spiro T. Agnew resigned on October 10, 1973, after entering a plea of nolo contendre to a federal charge of tax evasion. See a Kutler, supra note 34, at 397-98. n37. See id. at 532, $40, $44-45, 547-50, 620. n36. See id. at 452. n39. See id. at 287, 314-15, 324-25, 368-69, 447-49. wee eee ee ee ee eee = «End Feotmotes- - - - = «= -©= = == -- - = = = = ; Under such circumstances, the Warren Commission's Report would have been: subjected to reevaluation even if it had been compiled perfectly. Furthermord, oan because the Warren. Commission labored at the height of the Cold War; n4o the Commissioners adopted a strategy that depended on implicit public trust. The Cold War environment combined with other circumstances to handicap the Warren Commission and eventually. to erede that public trust in five significant ways. n40. See Holland, supra note 18, at 52. i ‘2 = = = © = =EBnd Footmotes- - -----+---+- +2 © = + - First, the Commission had access to an enormous amount of information. not otherwise accessible to the American press and public. n41. This information was secret, top secret, and beyond, much of it compartmentalized cryptologic and signal intelligence material dealing with the Soviet Union, Cuba, and other foreign governments, such as Communist China. n42 Because of the enormous Cold War paranoia, as well as the requirement to maintain tight secrecy around the sources and methods used to collect this information, the Commission could not “argue its case fully to the American people. when the research community asserted that the government itself had been im- [*8] plicated in the aggagsination, n43 the evidence that the Commigsion had used to discount such a possibility was available only to the government charged with having abetted the erime. The cost of secrecy was uncertainty, an uncertainty that turned to , cynicism, much of it based on theories about the assassination that gained -legitimacy simply because they could not be tested against the appropriate evidence. , cc ee -- ee ee ee - *Footnotes- - - - - - - we eee eee -- né4i. See Hurt, supra note 6, at 432-33. n42. See Holland, supra note 18, at 64. n43. See, @.¢g., Harold Weisberg, Whitewash IT: The FBI-Secret Service Coverup 125 (1996) (concluding that “the FBI and the Secret Service are not innocent“ in the Warren Commission investigation) .
13-00000 , APR @4 ’°97 16:@2AM P.18744 PAGE 10 56 Md. L. Rev. 1, *8 Second, although the Commission had access to some high-quality intelligence information, it did not receive everything. The CIA, FBI, and Attorney General Robert F. Kennedy failed to reveal information that would have helped identify a motive for a conspiracy. n44 The failure to disclose all information to the Commission was particularly damaging because of the distinguished character of its seven members. n45 Its chairman was Chief Justice Earl Warren, a person noted for probity and fairness. n46 The Commission was really divided into two ‘gubgroups. Four of the members - Warren, Hale Boggs, Gerald Pord, and John . Sherman Cooper - had relatively little experience with intelligence matters; however, the other three - Richard Russell, Allen Dulles. and John J. McCloy - were fully conversant with national security issues and the sources and methods used by the intelligence services. n47 ’ n44. See Warren Hinckle & William W. Turrier, Deadly Secrets: The CIA-Mafia™ ~ War Against Castro and the Assassination of JFK 16-17, (264-71, 403 (1982) : _ (hereinafter Hinckle & Turner, Deadly Secrets]; Warren Hinckle & William W. Turner, The Fish Is Red: The Story of the Secret War Against Castro 228-31, 336 (1961) (hereinafter Hinckle & Turner, The Fish Is Red]; Newman, supra note 6; Prados, supra note 29, at 211-17; Holland, supra note 18, at 62. n4s. See supra note 16. na6. President Kennedy wrete that Warren had "borne fhis] duties and. responsibilities with unusual integrity, faixness, good humor and courage." Jim Marrs, Crossfire: The Plot That Killed Kennedy 463 (1989) (quoting letter from President John F. Kennedy’ to Chief Justice Earl Warren). n47. See Holland, eupra note 18, at 52. The Commission's success depended, im part, on the abllicy of the three intelligence-savvy members to raise the right questions. They seem not to have done so. For example, the Commission never discovered the existence of Operation MONGOOSE, n46 a covert scheme concocted by President Kennedy and his brother, Attorney General [*9] Robert PF. Kennedy, to assassinate Fidel Castro with - the help of organized crime. n49 When these plane reached the public several years later, critics of the Warren Commission had a field day. nS0 The Commission's conclusion that a foreign government lacked a sufficient motive to murder the President now crumbled. nSi. Indeed, the Commission looked silly and, even worse, to be a part of the plot because its. critics could plausibly assert » that. its distinguished members should have guessed at such a possibility. n48. See Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Alleged Assassination Plots Involving Foreign Leaders, S. Rep. No. 94-465, at 139-46 (1975) {hereinafter Church Committee]. Operation MONGOOSE was initiated by the United States government in 1962 as a covert action program to overthrow Castro, the Cuban leader. See id.
13-00000- . APR 4°97 18:83AM - . . P.div44 PAGE aL og 56 Md. L. Rev. 1, *9 % . n49. See Church Committee, supra note 48, at 139-46; Hinckle & Turner, The Fish Is Red, supra note 44, at 20, 111-26; Holland, supra note 18, at 62. n50. Even President Johnson expressed his belief that Castro could have planned Kennedy's assassination ‘in retaliation. See Hurt, supra-note 6, at 31 (citing interview with Lyndon B. Johnson; The CBS Evening News with Walter a Cronkite (CBS television broadcast, Apr. 25, 1975)). , nS1. See id. eS End Footnotes- - ----------2---- - Third, in appointing the Commission, President Lyndon Johnson had one goal: to check rumors that the assassination was a Communist plot. n52 Johnson ’ appropriately feared that Kennedy's murder could precipitate World War IIT. 153 Oawald's time in the Soviet Union and his trip to visit the Soviet Embasay.. in Mexico City just weeks before the murder pointed to Communist intrigue. n54 he concerns were amplified becausé Oswald had identified himself with: the Fair lay- for Cuba Committee, an organization openly supportive of Castro and “sharply critical of Kennedy's Cuba policy. n55 Thus, the Commission was under enormous pressure to produce an answer that discounted foreign influence. n56 a = - Footnotes - ee ee re eee eee eee nS52. See Holland, supra note 18, at 52. nS3. See id. at $6-57. n54. see id. at $7. mSS. See id. at 56; see also Warren Commission Report, supra note 15, at 290-92 (finding that Oswald purportedly distributed ‘pamphlets on behalf of the Faix Play for Cuba Committee, but also finding that Oswald exaggerated the extent of his involvement) . , nS6. See Holland, supra note 28, at $7. wee e ee 222 - ++ +--+ - + «End Pootnotes- - ------+-+----- Fourth, as the science of forensic analysis has progressed over the past three decades, questions have inevitably arisen about the Warren Commission's conclusions involving the President's body, n57 the alleged murder weapon, n5& the number and sequencing of the shots [*10] fired at the President, nS9 and the condition of the so-called "magic bullet," which passed through the — President and Governor John. Connally with a minimum amount of damage. n6é0 We now know that the autopsy performed on the President was problematic, both in technique and organization. nél Yet, the Commission relied on it. On. other matters, new forms of analysis have been generally supportive of the Commission's findings: although it now appears that the sequencing of the shots fixed in Dealey Plaza was somewhat different from that described by the Commission. né2 Ironically, even when the latest techniques cor- (*11] | roborate the Commission's findings. the result has not been greater confidence in those findings, but rather, a belief that the Commission got it wrong instead of almost getting it right. né3
13-00000 . . APR 84°97 18:93AM . P.12744 ‘ ; PAGE 12 S6 Mad. L. Rev. 1, “Lil : nS7. See Warren Commission Report, supra note 15, at 19 ("President Kennedy was first struck by a bullet which entered at the back of his neck and exited through the lower front portion of his neck, causing a wound which would not necessarily have been lethal. The President was struck a second time by a buliet _. which entered the right-rear portion of his head, causing a massive and fatal , wound. "). n58. See id. at 81 (stating that the rifle found on the sixth floor of the Texas School Book Depository "was identified by the FBI as a 6.5-millimeter model 91/38 Mannlicher-Carcano rifle"). nS9,. See id. at 111 (finding that “(a) one shot. passed through the President's neck and then most probably passed through the Governor's body, (b) a subsequent shot penetrated the President's head, (c) no other shot struck any part of the automobile, and (d) three shots were fired.... The evidence is +. inconclusive as to whether it was the first, second, or third shot, which a missed."). e _n60. See id. at 79 ("A nearly whole bullet was found on Governor Connally's stretcher at Parkland Hospital after the assassination.*"). nél. See Groden & Livingstone, supra note 6, at 3. “n62. See Charles J. Sanders & Mark S$. Zaid, The Declassification of Dealey Plaza: After Thirty. Years, a New Disclosure Law at Last May Help to Clarify the Facts of the Kennedy Assaseination, 34 S. Tex. L. Rev. 407 (1993). ' The so-called “magic bullet" or “single bullet" theory has been the -subject of intense debate. See, e.g., Edward Jay Epstein, Inquest: The Warren Commission and the Establishment of Truth 115-26 (1966) (criticizing the single bullet . theory as based on a "misinterpretation" of ballistics testimony. the “extremely tenuous findings of the wound ballistics test," and the omission of conflicting testimony) ; Marshall Houts, Where Death Delights: The Story of Dr. Milton Helpern and.Forensic Medicine 62-63 (1967) (concluding that a. single bullet _ could not have penetrated seven layers of "tough human skin*® in addition to soft tissue and bones); Hurt, supra note 6, at 61-936 (arguing that results of the spectrographic examination and neutron activity analysis did not support the single bullet theory); Michael Kurtz, Crime of the Century 175-76, 160-81 (1982) {criticizing the single bullet theory in light of the condition of the bullet and the deficiencies in the neutron activity analysia tests); Lane, supra note 6, at 69-80 (concluding that the angles of impact and the condition of the _ bullet found at Parkland Hospital invalidated the single bullet theory); Raymond Marcus, The Bastard Bullet: A Search for Legitimacy for Commission Exhibit 399, 1-77 (1966) (concluding that bullet 399 “was never fired at any human target* and that the bullet wae "planted" on the hospital stretcher); Marrs, supra note 46, at.366-71 (concluding that findings from Kennedy's autopsy conflicted with the single bullet theory); Sylvia Meagher. Accessories After the Fact: The Warren Commission, the Authorities, and the Report 27-35, 137, 167-70, 461 (1967) (concluding that the single bullet theory is weak because, of the three doctors whose testimony supports the theory, one retracted his original opinion, the second qualified his testimony, and the third was never shown the Zapruder film or the stretcher bullet); Bonar Menninger, Mortal Error: The Shot That Killed JPK 29-43. (1992) (arguing that the single bullet theory is inconsistent
13-00000 _ PPR G4 ’97 18:83AM P.13744 PAGE 13 ; 56 Md. L. Rev. 1, *11 ee d with eyewitness accounts and photographic evidence); F. Peter Model & Robert J. Groden, JFK: The Case for Conspiracy 61-77 (1977) (concluding that the angle of impact and the pristine condition of the bullet made the single bullet theory impossible); Posner, supra note 6, at 317, 326-35, 474, 477-79 (relying on "the latest computer and film-enhancement technology" to conclude that a single bullet could cause both Kennedy's and Connally's wounds, and that a single bullet could have been fired £rom the sixth floor of the Texas School Book Depository); Howard Ruffman, Presumed Guilty 53, 131-48, 226 (1975) (concluding that bullet 399 did not cause Kennedy's injuries); Summers, supra note 25, at 67-71 (concluding that the pristine condition of the bullet invalidated the. single bullet theory); Josiah Thompson, Six Seconds in Dallas: A Micro-Study of the Kennedy Assassination 9, 30, 38, 56, 589-71, 75, 77, 196, 201-09, 213-14 (1967) (concluding that the single bullet theory is wrong because none of the shots missed and because the bullet did not go all the way through Kennedy's neck); Luis Alvarez, A Physicist Examines the Kennedy Assassination Fllm, 44 Am. J. Physics 813-19 (1976) (using motions of Zapruder's camera to determine the number of shots fired); John Nichols, The Wounding of Governor John Connally-of Texas: November 22, 1963, Md. St. Med. J., 58, 76-77 (Oct. 1977) (goncluding ‘that there was no bullet fragment embedded in Connally's thigh and that,. . therefore, the single bullet theory is wrong); Nova: Who Shot President Kennedy? (PBS television broadcast, June 19, 1986); The Warren Report (CBS News television broadcast, Part I, June 25, 1967). Recent analysiea has discounted the acoustical evidence brought forward in the investigation of the House Select Committee on Assassinations. See infra note 63; Frontline: Who Was Lee Harvey Oswald? (PBS television broadcast, Nov. 16, 1993); Who Killed JFK: The Final Chapter (CBS television broadcast, Nov. 19, 1993) .. n63. See House Select Committee on Assassinations, Report of the Select : Committee on Assassinations, H.R. Rep. No. 95-1828 pt. 2 (19739). The House Select Committee on Assassinations concluded that the acoustical evidence established that a fourth shot was fired, and, therefore, there was a “high probabilicy" thar two gunmen fired at President Kennedy. Id. at 65-79. The Committee relied on analyses of a dictabelt recording of the Dallas police channels. See id. at 66-67. Bolt Beranek and Newman Inc. performed the first analysis and concluded - based on impulse patterns detected from the recording and an acoustical reconstruction of the assassination - that there was a 50% chance of a fourth shot from the Grassy Knoll. See id. at 66-72. Mark Weiss and Ernest. Aschkenasy performed a follow-up analysis for the Committee and concluded that there was a. 95% chance there was a shot fired from the Grassy Knoll. See id. at 72-75. But see Posner, supra note 6, at 240-42 (arguing that the House Select Committee misinterpreted the acoustical evidence, and, therefore, it "failed to eatablish the number of shote ... scientifically"). ee ee ee ee ere “End Footnotes- - - = = = - === == = 2 s “+ Fifth, the Warren Commission Report ~ all 688 pages of it ~ was the work of lawyers, who not only dominated the Commission, but also its staff, the true authors of the Report. n6é4 The final document. reads like a legal brief supporting the argument that Oswald committed the crime. The Report ought to have been a dispassionate analysia of all of the implications surrounding the murder, some of which the Commission itself had no knowledge. n6S Instead, the Report was a mound of facts that obscured the issue of Oswald's motivation and portrayed him as a sullen, dysfunctional, and troubled loner. né6é By
13-00000 _ APR G4 797 18:44AM P.14744 ; PAGE 14 86 Md. L. Rev. 1, *11 « L generating [#12] guch a report, the Commission left open the opportunity for critics to complain that Oswald was a patsy who did not act alone. n67 n64. See Holland, supra note 18, at 57-58. oe néS. See id. néé. For example, the Report made the following findings with regard to Oswald's character: Many factors were undoubtedly involved in Oswald's motivation for the assassination, and the Commission does not believe that it can ascribe to hin any one motive or group of motives. It is apparent. however, that Oswald was-, moved by an overriding hostility to his environment. He does not appear to hdve © been able to establish meaningful relationships with other people. He was perpetually discontented with the world around him. Warren Commission Report, supra note 15, at 423. né7. See, @.g., Marrs, supra note 46, at 91-112 (examining Oswald's life and concluding that he was a spy for the United States); Posner, supra note 6, at 410-19 (describing the rash of criticism following the publication of the. Warren Commission Report) . ~ = = = = = ee we eee - - - -End Feotnotes- - ---- + se +e -++---- The Report began to sink shortly after its release. n68 Researchers used ite massive details to challenge the Commission's. assumptions and findings. n69 However, the veil of secrecy thrown over the intelligence sources prevented the Commissioners and their defenders from rebutting their detractors. n70 The Commission's Cold War-induced commitment to secrecy inextricably linked its seven members to the intelligence commmity, and when that community subsequently came under attack, the Commission's reputation suffered as well. m7L né8. In 1966 a public opinion poll revealed that Americans doubted the findings of the Warren Commission by.a margin of three to five. The public's response is recounted in Meagher, supra note 62, at 463. né9. See, e.g., Lane, supra note 6 (criticizing the Warren Commission's interpretation of objective evidence in the Kennedy assassination); Lifton, supra note 6 (discussing alternative interpretations of the Kennedy assaasination evidence); Meagher, supra note 62 (comparing raw evidence of the Kennedy assassination with the presentation of that evidence in the Warren , Commission Report) .
APR G4 °S97 10:64AM P.15744 PAGE 15 h 56 Md. L. Rev. 1, *12 n70. See supra notes 41-43 and accompanying text. n71. See supra notes 40-47 and accompanying text. II. Other Investigations of the Assassination Between 1964 and 1979, the American intelligence services were subjected to unparalleled scrutiny, much of it fueled by the CIA's and FBI's ties to the. Watergate debacle and by revelations of domestic political surveillance by both agencies and the military intelligence services. n72 There were three other federal investigations that, in dealing with these issues, also addressed the Kennedy assassination: in the mid-1970s, the Rockefeller Commission, n73. the , Pike Committee, n74 and [*13] the Church Committee n75 probed matters that touched on matters relating to the assaggination and provided, most spectacularly, information about. Operation MONGOOSE. n76 Operation MONGOOSE BIZ involved CIA plans to destabilize the Cuban government, murder Castro and otHer ° leaders of hostile foreign nations, and relied on organized crime to assist with | * both. 176 n72. For an example of the increased scrutiny of the CIA, see Victor Marchetti & John D. Marks, The CIA and the Cult of Intelligence 4-12 (1974). See generally Johnson, supra note 29 (discussing the problems of strategic intelligence in a democratic society). n73. See Commission on CIA Activities Within the United States, Report to the President by the Commission on CIA Activities Within the United..States (1975) thereinafter Rockefeller Commission] . n74. The Pike Committee Report to the House ‘Select Committee on Intelligence was never officially released. However, the Village Voice reprinted a , substantial part of the Committee's findings. See The CIA Report the CIA Doesn't Want You to Read, Village voice, Feb. 16, 1976 (Supp.); The Select Committee's Investigation. Record, Village Voice, Feb. 16, 1976, at 72; The Select Committee's Gversight Experience, Village Volce, Feb. 23, 1976, at 60. n7S. See Church Committee, supra note 46. n76. According to Loch K. Johnson, a series of articles by New York Times reporter Seymour Hersh in December 1974 prompted the creation of all three committees. See Johnson, supra note 29, at 3-4, 207-08. Hersh revealed, among other abuses, that the CIA had compiled files on over 10,000 U.S. citizens as part of Operation CHAOS. See id. at 3. To investigate Hersh's claims, President Gerald R. Ford created the Rockefeller Commission, named after its chaixman, Nelson Rockefeller. See Rockefeller Commission, supra note 73, at ix; see aleo Bxec. Order No. 11,828, 3 C.F.R. 933-34 (1975). The Senate created a special committee chaired by Frank Church. See Church Committee, supra note 48, at 1-3 (stating the Church ~ ‘Committee's mandate and scope of investigation). Otis Pike, the chairman of the House's standing committee on intelligence, investigated for the House. See supra note 74. The Rockefeller Commission was to decide if the CIA had
13-00000 APR G4 797 10:04AM P.16744 . PAGE 16 56.-Md. L. Rev. 1, *13 s f violated §0 U.S.C. 403 (the statute creating the CIA), to determine whether there were adequate safeguards to prevent activities that violated the statute, and to make recommendations to the President and the director of the CIA. See id. at x. The Commission was to issue ite final report within three months and to terminate. one month after presenting ita report. See Exec. Order No. 11,828, 3 C.F.R. 933-34. The Commission found, inter alia, that (1) the CIA's surveillance of mail between the United States and the Soviet Union was illegal; .(2) the declared mission of Operation CHAOS to determine foreign influence on domestic dissidence was proper, but some activities exceeded the CIA's authority; (3) the infiltration of dissident groups exceeded its authority. . $ee Rockefeller Commission, supra note 73, at 20-27. ‘The Church Committee was created by Senate Resolution 21 with a broad mandate to determine if there were any "“*illegal, improper or unethical'" governmental intelligence activities. Church Committee, gupra note 48, at 1 (quoting 8. Res. 21, 94th Cong. (1975)). in his introduction to the Interim Report, Senator Church explained that - tie Committee took up the investigation of assassination plots to continue the task } of the Rockefeller Commission. See id. at 2. The Church Committee investigated murder plots against Lumumba, Castro, Trujillo, Diem, and Schneider. See id. at 4-5. With regard to Castro, it concluded that "United States Government personnel plotted to kill Castra from 1960 to 1965." Id. n77. See supra note 48. n78. See Church Committee, supra note 48, at 4-5. The Church Committee investigation revealed evidence that, from 1960 to.1965, the United States ' government used underworld figures and anti-Castro Cubans in a plot to kill Castro. See id... . The most powerful of the post-Warren Commission inquiries was that made by the House Select Committee on Assassinations (HSCA), which in 1976 reopened. the investigation that had been seemingly closed a dozen years earlier. n79 The Committee, chaired by Congressman Louis Stokes of Ohie, explored several ' ¢ontroversial areas of John F. Kennedy's assassination. along with those of his . brother, Rob- [#14]. ert, and Reverend King. n@0 The HSCA suffered from its own limitations, which are beyond the scope of this Article. n81 However, the HSCA's conclusions, which now seem to be in question, held that. the Committee could not rule out a conspiracy to kill the President. n82-This finding directly challenged the Warren Commission. n83 For example, the HSCA believed that advanced acoustical techniques demonstrated that there had been more than one shooter in Dealey Plaza. n84 That analysis was subsequently. repudiated, né5 but it was too late to counter the damage. done to the Warren Commission's credibility. S “eee ee we ee ee ee ee ee Footnotes= - - ------------ =. n79. See House Select Committee on Assassinations, Report of the Select Committee on Assassinations. H.R. Rep. No. 95-1828, pt. 2, at 9 (1979) (hereinafter House Select Committee) .
13-00000 . APR @4 °97 18:25AM ~ ; P.17744 PAGE 17 « 56 Md. L. Rev. 1, *14 n80. See id. at 10. n81. See Hinckle & Turner, Deadly Secrets, supra note 44, at 271 (concluding that the HSCA suffered from lack of. funding and that too much time had passed between the assassination and the Committee's investigation) . n&2. See House Select Committee. supra note 79, at. 95 (stating that the Committee believed “on the basis of the evidence available to it that President John F. Kennedy was probably assassinated as a result of a conspiracy") . n83. See id. at 104-09. “n84. See id. at 46-47, 65-79. néS. See supra note 63. rn End Footnotes- - - . “ee ee tort tt Bete The HSCA exhausted its funde before it could complete its tasks and left =~ ° mounds of records behind, including those dealing with organized crime, which: the HSCA had subpoenaed, but was unable to process. n86 Today these materials are one of the chief objects of the Assassination Records Review. Board. né6. See Hinckle & Turner, Deadly Secrets, supra note 44, at 271. wee ee ee ee ee ee 7 7” @Bnd Footnotes- - - ----+-+++---+-+-+-- III. The Assassination Records Review Board The findings of these investigations inspired Oliver Stone's 1991 movie. n87_ Without endorsing the. movie's sengational conclusions, many members of Congress decided that the government's refusal to release classified information about: the agsassination: promoted an unhealthy level of distrust of government. ngé As a result, Congress passed the John F. Kennedy Assassination Records Collection Act of 1992 n89 (the JFK Act or Act), which mandated the creation of a. ‘five-person Review Board. n90 The Act orders all federal agencies to assess whether they (*15] possess vecords relating to the assassination. n91 All records that an agency deems as not suitable for immediate release are subject to the Board's evaluation. n92 All records identified as relating to the assassination must be opened by October 26, 2017, with the. exception of records - that the President certifies for continued postponement. n93 . né7. ‘see. JFK, eupra note 9. This 1991 Warner Brothers: movie. “fictionally described the investigations into the ‘John F. Kennedy assassination. See id. “n886. See H.R. Rep. No. 102-625, pt. 1, at 10 (1992) (stating that unjustified secrecy surrounding the assassination increases doubts and speculation and "fuels a growing distrust in the inetitutions of government") . ne9. 44 U.S.C. 2107 (1994).
13-00000 . » APR G4 '°97 16:05AM P.18744 PAGE 18 b S6 Md. L. Rev. 1, *15 ca n90. The legislative history and congressional discussion of the need for the Board can be found in H.R. Rep. No. 102-625, pt. 1, at 6; H.R. Rep. No. 102-625, pt. 2, at 7 (1992); H.R. Rep. No. 103-587, at 2 (1994). The law establishing the Board is at 44 U.S.C. 2107(6) (1994). n9i. 44 U.S.C. 2107(5) . a n92. Id. 2107(7) (4). n93. See Sanders & Zaid, supra note 62, at 419; Harold C. Relyea & Suzanne Cavanaugh, President John F. Kennedy Asgagsination Records Disclosure: An Overview, Congressional Research Service Report for Congress 13-17 (1993) (discussing which particular records can be postponed from release) . we te ee ee ee - - - + «Bnd Footnotes- - - ------+-+e+---- The Act defines several categories of information for which disclosure ay be postponed, including national security, intelligence gathering, personal“ privacy, and presidential security. n94 However, because the Act de¢Clares a "presumption of immediate disclosure," the Board will not postpone the disclosure of material unless. it is persuaded that there is “clear and convincing evidence" of some harm that cutweighs the public's interest. n95 se mm = ss = © =FPootnotea- - - - = ss em tee mm wm wm n94.-44 U.S.C, 2107(6). mn95. Id. 2107(2) (a). ky = ee et ee ee ee - - « ~- =-End Footnotes- - - + © e+e = = = = = = = = o Congress intended for the Board to oversee the opening to the public of a substantial amount of material ~- perhaps in the millions of pages. n96 Congress, therefore, clothed the Board with broad subpoena and other powers. n97 The Board © is without precedent in American history. with powers that reach far beyond, for example, the Freedom of [#16] Information Act (FOIA). n98 The Board's only task is to make the public record of.one epic historical event as complete as possible. n99 n96. The congressional hearings surrounding the passage of the Act make clear that Congress expected the Review Board to exercise its powers in favor of opening materials. See Thé Assassination Materials Disclosure Act of 1992: Hearing Before the Senate Comm. on Gov'tal Affaire on S.J. Res. 282, 102d Cong. (2992) [hereinafter Assassination Materials Disclosure Act I]; Assassination Materials Disclosure Act of 1992: Hearings Before the Subcomm. on Econ. and Commercial Law of the House Comm. on the Judiciary on H.d. Res. 454, 102d Cong. (1992) (hereinafter Assassination Materials Disclosure Act. II]; Assassination Materials Disclosure Act of 1992: Hearings Before the Legislation and Nat'l Sec. - Subcomm. of the House Comm. on Gov't Operations on H.J. Res. 454, 102d Cong. (1992) (hereinafter Assassination Materials Disclosure Act III]; The Effectiveness of Public Law 102-526, the President John F. Kennedy Assassination Records Collection Act of 1992: Hearing Before the Legislation and Nat'l Sec. Subcomm. of the House Comm. on Gov't Operations, 103d Cong. (1993)
13-00000 . » APR B4 ’97 18:@6AM , *P.19744 ‘ . PAGE 19. ; 56 Md. L. Rev. 1, *16 be a {hereinafter Effectiveness of Public Law 102-526]. The presumption was alwaye to be in favor of opening a document rather than postponing it, thus making postponement the exception rather than the rule under the law. The Congress could only guess at the scope of materials to be opened. n97. 44 U.S.C. 2107(7) (j). aan n98. 5 U.S.C. 552 (1994). For a discussion of the history and operation of. the Freedom of Information Act (FOIA), see generally Patrick J. Carome & Thomas M: Sueman, American Bar Association Symposium on FOIA 25th Anniversary, 9 Gov't > Info. Q. 223 (1992). ‘n99. See Sanders & Zaid, supra note 62, at 417-18. oe ee ee ee ee ee En Footnoteg- = = = s = = = = = > 7 a ne Although the Board's mission is clear, in executing the law it continualay confronts the powerful tensions generated by the principled claims of opennegs wy and secrecy. To choose is to lead, and the Board, in attempting to break new ground in public disclosure, confronts some profound choices. Those choices have to be informed, moreover, by a shrewd assessment of the public's right to know, the public's need to have secrets vital to its national security protected, and the intelligence services’ duty to safequard those secrets and the sources and methods that produce them. n100 wer rte ee — cea - « + -Footnotes- - -- - - - me ee eee ee nlo0. See DuVal, supra note 14, at 580-91. The Board's most difficult choices involve the disposition cf classified intelligence documents. If a federal agency wants to open materials, it is not the Board's duty to prevent it. Rather, the Board's most important task is to decide what should not be opened immediately, in light of the Act's powerful admonition that there be "clear and convincing evidence*® in favor of postponement. ni01 In simplest terms, the Board has to decide whether materials, if opened, would reveal: (A) an intelligence agent whose identity currently requires protection; (B) an intelligence source or method which is currently utilized, or reasonably expected to be utilized, by the United States Government: and which has not been officially disclosed, the disclosure of which would interfere with the conduct of intelligence activities; or
13-00000 APR @4 ’97 18:26AM P.28744 PAGE 20 i S56 Md. lL. Rev. 1, *16 -(C) any other matter currently relating to the military defense, intelligence operations or the conduct of foreign relations of the United States, the disclosure of which would demonstrably impair the national security of the United States .... nl02 ni02. Id. 2107(6) (1) (A), (B), (C). The Act provides other grounds for postponement. These include exposure of an , informant to a “substantial risk of harm," n103 exposure of a person to an "unwarranted invasion of personal {*17] privacy," n104@ the possibility of ‘compromising a relationship between a United States government agent and a “=, confidential source, n105 and the revelation of a security procedure used to. oy protect the President. n106 Doon OS Pe ee meme Footnotes- - - = - = = = = - © = #= e® = s = = n103. Id. 2107(6) (2). n1l04. Id. 2107(6) (3). n105. Id. 2107(6) (4). n1o6. Id. 2107 (6) (5). i i End Footnmotes= - - - < i IV. Openness and Secrecy - Originalintentions History offers uncertain guidance about how the Board should weigh these grounds for postponement against the public's interest in knowing the facts about the assassination. The Pramers of the United States Constitution did harbor doubts about government, doubts precipitated by their experience in the English Empire. ni07 James Madison and Thomas Jefferson, among others, testified-eloquently to the proposition that public accountability was an appropriate measure of the success of a republic. nio8 Still, the Framers were also sophisticated statesmen who valued secrecy in fostering the public good. nl09 For example, the Philadelphia Convention of 1787 conducted its deliberations in secret without any complete record of its debates. n110 The Constitution provides for the maintenance of an executive journal for both Houses of Congress and permits government. to publish its accounts and revenues from "time to time,* rather than on demand. niili Even more fundamental was President George Washington's ~ aseertion of a broad degree of presidential discretion in dealing with foreign relations, war, and peace. nl12 In certain circumstances, secrecy could be justified to attain ends superior to a completely in- . (*18] formed public. Indeed, the Constitution's Preamble declares that insuring. “domestic Tranquility" and providing for the “common defence" are objectives equal to securing the "Blessings of Liberty." 113
13-00000 . | (FR ee sinned . . APR @4 ’°97 18:86AM P2144 PAGE 21 - i ‘56 Md. L. Rev. 1, *18 nl07. See generally 9 James Madison, The Writings of James Madison (Gaillard Hunt ed., 1910) (photo. reprint 1971) (discussing how the Framers of the Constitution were affected by their prior experiences with the English). nl08. Madison wrote, "A. popular Government, without popular information, or the meang of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge ~ gives." Id. at 103. Jefferson.stated: "No ground of support of. the Executive will ever be so'sure as a complete knowledge of their proceedings by the people; and it is only in cases where the public good would be injured, and because it would be injured, that proceedings should be secret." Thomas Jefferson: Word for - Word 409 (Maureen. Harrison & Steve Gilbert eds., 1993). nl0$9. See Madison, supra note 107, at 104.- ; mee nli0. See Thornton Anderson, Creating the Constitution 8-12 (1993); see also _ William Peters, A More Perfect Union 22-38 (1987) (quoting Thomas Jefferson: "I am sorry they begin their deliberations by so abominable a precedent as that of tying up the tongues of their members."). nlll. U.S. Const. art. I, S, «1. 3.. nll2. See Refusal by President George Washington to Submit Confidential . Correspondence with John Jay to the House of Representatives, March 30, 1796, in William M. Goldsmith, The Growth of Presidential Power 418-20 (1964). -° m123. U.S. Const. preamble. The Preamble to the Constitution states in full: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Id. coe ee ee <s * s = = « =~ ~ «End Footnotes- - - - -------7 7° === On the question of original intention, the evidence is mixed. Secrets were at once had and useful, openness wage an object to be pursued, but not at all costs. Since 1787, the government has. become more rather than leas accountable, ‘its secrets more rather than less readily accessible to its citizens. n114 nllé. See generally Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) (stating that judicial doctrines and legislative controls on political speech and publication have
13-00000 . . PPR 84 °97 1@:@6AM a P.22744 PAGE 22 w i 56 Md. L. Rev. 1, *18 toughened since 1787). Dee ee ee ee ee ee ee ee End Footnotes- - - - «== = = = «= = “= +e V. Openness and Secrecy - FOIA For more than 190 years, the American public did not have a legal right to gain access to information about its government. n115 All of that changed, hewever, in 1966 when President Lyndon Johnson signed FOIA nllé and thereby altered the historical relationship between the federal gevernment and the public. nil? FOIA presumes that government information is public information and is implemented by the judicially enforceable requirement that all federal agency records be made available promptly upon request, subject only to nine exemptions, which | are to be narrowly construed. n11lg - ; - nlisS. The issue of openness. in government has historically been framed in terms of the right of the government. to keep secrets, rather than tHe right of  -. ‘the public to have access to governmental records. See Seth F. Kreimer, Sunlight Secrets and Scarlet Lettera: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. Pa. L. Rev. 1 (1991). The movement towards greatex openness in the post-World War II period has been part of a- broader movement in the twentieth century to hold government accountable for its actions. See id. As a@ result, since the progressive era of the early twentieth century, we have seen the institution of public records, open meetings, and "sunshine laws." See id. nlié. 5 U.S.C. S52 (1994). nli?. The Act has come under criticiem from both advecates of openness and . _ proponents of secrecy. See, e.g., Carome & Susman, supra note 98, at 223 . (eriticizing the Act because the cost of implementation outweighs the benefits it is supposed to provide); Non-Denial: How Attitudes and Inertia Combine to ' Subvert the Preedom of Information Act, Kiplinger Program Rep. 1-32 (Summer 1994) (discussing the success of FOIA'in providing Americans with a means of acquiring information about their government) . nii8. 5 U.S.C. 552. Critics of FOIA seldom doubt its good intentions, but they do doubt its effectiveness, complaining that the cost of implementing it {*19] far outweighs its supposed benefits. n119 The argument: against FOIA was perhaps best - . gummed up by Justice Antonin Scalia, who described the statute as “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis ignored." n120 Critics like Justice Scalia charge that FOIA harms the-government's and the public's legitimate need for secrecy. ni21 nil9. See Carome & Susman, supra note 98, at 223; see also supra note 117. niz0. Antonin Scalia, The Freedom of Information Act Has No Clothes, 14 ABI J. on Govit & Soc'y 1026 (1982). '
13-00000 APR @4 °97 1@:078M P.23/44 . ‘ PAGE 23 i 56 Md. L. Rev. 1, *19 ; nli21. See id.. Many of the most important documents relating to President Kennedy's murder have been unobtainable through FOIA. ni22 Nevertheless, FOIA and the a Assassination Records Review Board. do share a common purpose: to break through government's historical habit of classifying information that otherwise could ~ and should - be open. ni23 “nl22. See Sandera & Zaid, supra note 62, at 408 &n.2 (stating that without the implementation of the President John F. Kennedy Assassination Records , * Collection Act of 1332, the records concerning the assassination would remain classified until the twenty-first century). nl23. See 44 U.S.C. 2107(b)'(2) (1994) (stating the purpose of the mroetacks oy John F. Kennedy Assassination Records Collection Act of 1992); Carotie & Susman, ~ supra note 98, at 223 (discussing FOIA and the presumption that government. ‘information is public information) . a eo - - - =~ «End Footnotes- © = = «= «= #8 = ee = = = = = @ VI. The Business of Secrecy Today, keeping information secret has become a massive industry in Washington. nl24 According to official estimates, the government took 6.3 million — Classification actions in 1994, creating an estimated 19 million pages of ‘information that only selected government officials can see. n125 More than 32,000 government workers are employed full-time to determine what should be secret, what level of secrecy the material should have, and whether the documents should be classified. 1126 The. government holds hundreds of millions of pages of secret documents; indeed, the precise number has gone beyond the. ..- -- -- government's ability to count. n127 , ni24. See Ann Devroy, Clinton Eases Government Secrecy Rules: Most Declassification to Become Automatic, Wash. Post, Apr. 48, 1995. at Al. available in LEXIS, News Library, WPost File. ni25. See id. mnizé. See id. nl27. See id. The problem of what to do with classified documents is strangling some government agencies. For example, consider the Department of Energy. n12@ _ American makers of nuclear weapons have been claseify- [*20] ing virtually. everything for so long that the Energy Department now has more secrets than it can handle. nl129 The Department has 100 million pages of documents that it
13-00000 , PPR G4 °97 10:87AM P.24/44 PAGE 24 F 56 Md. L. Rev. 1, #20 . "4 wants to review for possible release, but it does net. have the. resources to do so. nl30 For more than fifty years, the Department followed a scheme of classification that might best be called "classified at birth." nl131 Any document generated was presumed secret until proved otherwise. n132 The Department and its civilian contractors have literally lost track of what needs to be kept quiet. nl133 Even more fundamental, what is genuinely in need of oy protection - the design of weapons and such - is logt in-an ocean of documents no longer worthy of classified status (if they ever were). nl34 wee ee ee ee ee ee  - - Footnotes- - a eco comm n128. See Matthew L. Wald, Millions of Secrets Burden Snergy Agency, NN. Y. Times, Feb. 7, 1996, at A1l5, available in LEXIS, News Library, Nyt File. nl29. See id. nl30. See id. | oO . * ni31. Id. | . Ws ni32. See id. nl33. See id. nl3j4. See id. In April 1995, the Clinton administration attempted to break this classification logjam. n135 The President issued-an executive order aimed at - opening government's oldest secrets to public view, thereby reducing the number of documents made secret and shortening the number of years they remain classified. ni36 The primary. element of the order is the automatic declassification without review of most documents that are twenty-five years ‘old or older. nl37 Previously, documents had remained classified indefinitely. n138 Now, unless the documents fit into a group of narrow exceptions, they | will automatically be open .to the public. ni3$8 nl35. See Exec. Order No. 12,958, 3 C.F.R. 333 (1995), reprinted as amended in 50 U.S.C. 435 (1996). nl36. See id. nl37. See id. n136. See Devroy, supra note 124. nl39. See id.. ee “-End Footnotes- ee How well the new system will work remains to be seen. Presidents come and presidents go, but the security bureaucracy remains. Not only do the
1713-00000 . . APR 84°97 19:a7AM P.25/44 PAGE 2s @ L 56 Md. L. Rev. 1, *20 intelligence agencies grumble about having to make public that which is most precious to them, but they argue that such declassification iis costly and time consuming, especially in an era of diminished resources. n140 n1i40. See Tim Weiner, C.1.A. Is Slow to Tell Early Cold War Secrets, N.Y. Times, Apr. 8, 1996, at Aé, available in LEXIS, News Library, Nyt File. .VII. The Board and the Intelligence Services The JFK Act is an attempt not only. to deal with the issue of public confidence .. in government, n141 but also to forge a model of how we might keep: from sinking | i in our own secrets. Yet, the intelligence community resists thé opering of - classified materials, even those that are now a thixd-of-a-century old. This defiance is particularly ironic in the case of the Kenaedy assassination, in that the intelligence agencies most troubled by the disclosures are the same ones that most often figure in conspiracy theories. nl42 Disclosing materials that the CIA and FBI want postponed might actually affirm that neither a foreign “nor domestic conspiracy existed and demonstrate the vital role they played in eupporting American interests in the Cold War. nl41. See Assassination Materiale Disclosure Act I, supra note 96, at 1 (opening statement of Chairman John Glenn) (observing that "disclosure of information is the only reliable way to maintain the public trust and to dispel @igtruet"). nl42. See, e.g., Exhibit Nine infra p. 54. As early as 1976, the CIA itself acknowledged that "conspiracy theories have frequently thrown suspicion on our organization." Id. Congress never contemplated total disclosure, otherwise it would not have created the JFK Board. n143 Disclosure is an important public interest, but so too is protecting sensitive information. ni44 There are many occasions for secrecy, For example, most deliberative bodies make a virtue of secrecy, because it permits compromiee by allowing individuals to make concessions without losing face. nl4S5 The Supreme Court has observed: “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking precesea." n146 The Court knows whereof it speaks, as its decisionmaking process in conference remains entirely confidential. n147 Ci =~ «» s=FOOCMOCEB= -— - -— = = = m wm we we ee Bm mm nl43. Both the plain reading of the statute and an examination of the legislative history make clear that Congress expected the Board to protect
13-00000 _APR @4 ’°397 16: @8AM P.26/44 ‘ PAGE 26 w 56 Md. L. Rev. 1, *21 certain secrets from disclosure. See 44 U.S.C. 2107(6) (1994) (identifying the grounds on which the Review Board may postpone release of assassination materials); Sanders & Zaid, supra note 62, at 419 (explaining the Board's obligations when it decides to postpone release of a document). , nl44. See DuVal, supra note 14, at 668-71 (identifying 10 justifications for _: nondisclosure) . nl4S. See id. at 621-22 (observing that maintaining secrecy of advice, recommendations, and opinions allows officials to "propose, comment, and _ eriticize without concern that their comments may geem foolish or contrary to — popular sentiment" and to compromise ‘without loss of face"). ni4d6é. United States v. Nixon, 416 U.S. 683, 705 (1974) (footnote omitted). - n147. Secrecy in the High Court is a practice, a matter of the Court's... ‘culture and traditions, not of law. See Bob Woodward & Scott Armstrong, The: _ Brethren xi (1979) ("The Court has developed certain traditions and rules, oo largely unwritten, that are designed to preserve the secrecy of itg’ . OY deliberations."). The Justice who tells what took place in conference is indiscreet and is likely to forfeit the respect of other Justices, but he breaks no law and neither do his law clerks. See id. Indeed, one of the arguments vaised in the wake of opening the papers of Justice Thurgood Marshall was that his written commentary. on hia colleagues may have made it more difficult for them to deal with one another now knowing that the public.understood the reasons that they held certain positions. See id. at xii (observing that, hecause © Justices are not elected but are appointed for life, they are not disposed to allow their decisionmaking to become public). The matter is posed differently, however, in Great Britain. The Official Secrets Acts make it unlawful for a government employee to make an unauthorized disclosure of official information or for anyone who has received the information in violation of the Act to communicate it to anyone else. Official Secrets Act, 1911, 1 & 2 Geo. & ch. 28, The virtues of openness in govermment, therefore, can be and often are overstated, eapecially by a self-interested press and media. Openness does mean chat bad advice can be challenged, but the consequence may be that good ‘decisions are never reached. Open records and “sunshine laws" n146 may only drive people to less easily documented forms of communication, such as the telephone. ni49 Although the costs and benefits of secrecy and openness in government are not easily calculated, we do know that loose lips still sink. ships, even in our own thermonuclear. age. -- ee er ee ee - - - 7 - - - © «Foeotmotese - - - - -- - ee ee et rr ee n1l4s. See Kreimer, gupra note 115. nl49. See Patricia M. Wald, The Freedom of Information Act: A Short Case Study in the Perile and Paybacke of Legislating Democratic Values, 33 Emory L.d. 649, 664 (1984) (ebserving that "to gome degree creative government officials and bureaucrats will always be able to devise waye to abort FOIA's disclosure requirements").
13-00000 APR G4 °97 10:28AM . P.27744 PAGE 27 eo. b 56 Md. L. Rev. 1, *22 In the case of the Kennedy assassination, how far are we willing to countenance secrecy when a fully illuminated rendition of the events surrounding the President's murder could go a long way to restore trust in government? At what point do the costs of concealing materials become sufficiently high to our government's credibility that they are no longer worth paying? At what point do the costs of disclosure become eo great that we compromise our future security? Perhaps nowhere are these issues more acutely felt by the JFK Board than in those matters involving intelligence operations. , The assassination sparked a major intelligence effort. nis0 In the days following the murder of President Kennedy, i mom mm em Footnotes- - - - - = - = = = = 2 © # we = « niso. See Assasaination Materials Disclosure Act II, supra note 96, at 93. ey (statement of Floyd I. Clarke, Deputy Director, FBI) (noting that “immediately following the assassination, the FBI began a massive and intense investigative effort"); Epstein, Trilogy, supra note 6, at 29. (describing Congress's formation of the Warren Commission less than two weeks after the assassination and the Commission's interaction with the FBI's intelligence efforts) . cen wee wee ee ee ee eee End Footnoteg= <- - = - <= - a The entire intelligence community worked to learn everything it could about Oswald and his murky, superficially contradictory activities. New intelligence xeports from Mexico City suggested a link between Oswald and the Cuban. government. The eupersecret National Security Agency and allied eavesdropping agencies went into overdrive to decipher in- [*23] tercepted conversations, cable traffic, radio, and telephone communications at the highest levels of the Soviet and Cuban governments .... n151 The FBI literally asked all of ita informants whether they could shed light on the murder. In addition, there were efforts to tap the FBI's connection with erganized crime to make certain that its members, angry at the President and his brother, had not ordered the murder and that Ruby's killing of Oswald was not a Classic mob hit. n152 The resulting cables and other documents laid bare most of the Cold War intelligence capacity of the United States. nLs3 nl52. See Posner, supra note 6, at 463-64.
13-00000_ Fe BB ee a APR O4 ’97 10:08AM , . P.28744 ® ¢ . PAGE 28 ft 56 Md. L. Rev. 1, *23 a nlS3. See Holland, supra note 18, at 54, 56. Students of the assassination would benefit from opening the masa of “A information produced by the intelligence community's intense effort to get to _’ ' he bottom of the President's murder. Yet, protecting America's foreign and | domestic intelligence-gathering capabilities is easential to our national defense. n1$4 Thue, the intelligence agencies regularly assert that the identities of agents and informants must remain perpetually confidential; nis5 that nothing should be revealed about the methods and sources used to gather intelligence; nisé that direct reports from United States intelligence agents should not be disclosed; n157 and that intelligence information provided by other nations to the United States, and, indeed, the very existence of such + relationships, ‘should not be disclosed.. mmm mmm mm  BOTNOTEE = =< = © em mm mm mm me nl54. See Assassination Materials Disclosure Act III, supra note 96, at 381 * 8 (prepared statement of FBI Director William Sessions) (stating that among 250,000 pages requested by the House Assassinations Committee are a large number. of FBI documents that “implicate national security. interests") . -miSS. See Assassination Materials Disclosure Act I, supra note 96, at 7 (statement of CIA Birector Robert M. Gates) (asserting that "we have an obligation to protect. the confidentiality ef our sources, regardless of the amount of time that has passed"). ni5é. See Assassination Materials Dieclosure Act III, supra note 96, at 363, -373-74 (statement of CIA Director Robert M. Gates) (stating assumption "that =. = =--: there still will be information that cannot be released toe the public for a wariety of reasons, including ... the exposure. of intelligence sources and methods"); Assassination Materials Disclosure Act II, supra note 96, at 109 (statement of Admiral William 0. Studeman, Deputy Directer, CIA) (echoing Gates's statement) . nlS7. See supra note 154. VIII. Inftformants Informants play a critical role in the world of intelligence operations, ‘both domestic and foreign. For example, the FBI relied heavily on informants to infiltrate the Ku Kiux Klan in the 19606 and [#24] 1970s. niS8 Today. the FEI recruits informants to help thwart narcotics trafficking and international terrorism. niSS The internal security and general welfare of the United States depends heavily on the role of informants. ni60 nlS8. See Clifford s: Zimmerman, Toward a New Vision of Infermants: A History of Abuses and Suggestions for Reform, 22 Hastings Const. L.Q. 82, 91-92 (1994) (describing the FBI'a mishandling of KKK informants) .
13-00000 +. PR @4 °97 19:89 P.29/44 PAGE 29> wf 56 Md. L..Rev. 1, *24 ni59. See R. Jeffrey Smith, Critics “Wrong,' CIA Chief Says, Wash. Post, Sept. 6, 1996, at A2i, available in 1996 WL 12392255 (noting CIA Director John M. Deutch's assertion that critics who allege that the CIA has done a poor job recruiting informants knowledgeable about terrorist activities are wrong) . mnié0. See Ross Parker, Confidential Informants and the Truth Finding r Punction, 4 Cooley L. Rev. 565, 596 (1987) (citing an informal examination.of federal investigations in the Eastern District of Michigan finding that about S0% of drug cases and 40% of public corruption cases involved the use of informants); Timothy A. Raezer, Needed Weapons in the Army's War on Drugs: Electronic Surveillance and Informants, 116 Mil. L. Rev. 1, 39-64 (1987) — (extolling the benefits of informants to drug law enforcement); Zimmerman, supra note 158, at 178 (observing that law enforcement “has long reaped and. extolled the benefits of informants"). : , What duty does the government owe to persons who agree to serve . as “ oy a informants? There are many reasons why persons serve as informants .”’Money, . revenge, and the sheer thrill explain some of this behavior. Yet, above all else, informants expect that they will be clothed in confidentiality in return for their information. An informant who is identified immediately loses value. All informants in the service of the various. domestic and international | intel ligerice operations are recruited.with an understanding that they will be | granted confidentiality - that they. will never be "given-up* in the lingo of the intelligence community. n161 The very nature of what they are asked to do - . commit treason on their home government, report on the activities of groups like the American Communist Party, or shed light on the activities of organized crime and terrorist groups - exposes them to tremendous danger; if they are revealed, they ‘and their families may suffer serious personal injury, or even death. nl61. See Assassination Materials Disclosure Act III, supra-note 96; at 53° ~~~ (statement of CIA Director Robert M. Gatee) (observing that the CIA files . "contain the names of individuals who provided us information on a promise of confidentiality®) . The Kennedy assassination documenta contain thousands. of names of informants drawn from every walk of life. The FBI has taken the position that these names must be protected indefinitely and that any disclosure will impair the Bureau's ability to recruit new informants. Yet, all informants are not created equal. Some have greater value than others, both for the story of the Kennedy assassination and for providing information.about organized crime and other .activities. Moreover, the issue is net simply one of the quality of the information [*25] that is provided. As Exhibit One demonstrates, the vast majority of documents involving informants has been-opened in part; infrequently only the names of the informants and other key identifying language has been LS wedacted. nl6é2 These redactions breed a sanse of expectation among. researchers, because in the climate of conspiracy that surrounds the Kennedy assassination, — any material that is covered up is presumed to be an important missing link in the chain of explanation about the murder.
13-00000 APR 84 797 16:49AM , P.30/44 . PAGE 30 i 56 Md. Ll. Rev. 1, *25 Exhibit One is perhaps representative of the issues raised about the Review Board's disclosure of informants. The Exhibit contains a message. sent by the FBI . Special Agent in Charge (SAC) in Houston to the SAC in Dallas and to FBI Director J. Edgar Hoover on November 26. 1963, four days after the murder of President Kennedy. nl63 This document was originally reviewed by the FBI, and designated for release under the terms of the JFK Act with certain materials redacted. Those redactions appear in Exhibit One and indicate what material : the FBI wanted to keep from the public. n164 ’ ee Footnotes- = - = = = Oe ee ee ee ee ee ee nié3. See id. | a eS -nié4. See id. mt tt me Re -End Footnotes- - -- -- - 7 -- = 7 2 = = = As Exhibit Two reveals, the Board decided that much of the. redacted material could be released, most notably the name of Mary Ann McCall, a hostess at a Dallas night. spot. nl6é5 By the time the informant had interviewed McCall, Jack Ruby had already killed Oswald. The Board decided that the historical record was well served by opening McCall's name, especially given her purported relationship with the Dallas police and organized crime. The Board, however, also accepted the FBI's argument that the name of the person who provided the ~—— information abouc Mccall. should be proteated. Consequently, a document that had many redactions when it was sent from the FBI to the Board went into the public record with only one name redacted. The Board wags satisfied that revealing the informant's name would harm.the informant, thug outweighing the value of immediate disclosure. The Board used substitute language to make clear to students of the assassination that the redacted portion was the name of a "confidential informant" and ordered that the name be released in the year 2010. n1lé6é nléS. See Exhibit Two infra p. 41. n1é6é6é. See id. cee ee ee eee te ee eEnd Footnotes- - - - - sete er rt ee Should it matter to the Board that many of these informants, when interviewed after the assassination, did not provide. positive information abouc Oswald or Ruby? There are countless examples of [#26] individuals who, when contacted by intelligence services, indicated that they knew nothing about the assassination. The Board has taken the position that intelligence services must S/o demonstrate that harm would come to the individual if her name were released. Agencies must be able to identify the individual, indicate that she is still alive, and establish that some harm will befall her. nl6é7 The threshold issue,
13-00000 _ APR 84°97 10:48AM | | P.31/744 ‘ PAGE 31 ho S6 Md. L. Rev. 1, #26 therefore, is whether an agency that seeks to protect an individual, regardless of the quality of the information provided, can substantiate the claim that harm will come to that person as a result of revealing her name. When an agency has failed to do so, the Board has released the name. nié8 The record of events surrounding the assassination will never be complete until we know what blind alleys are not worth pursuing. As any good investigator knows, eliminating blind_- YW alleys ia critical, because the elimination provides additional certainty abouc who knew nothing, a fact that can be helpful in discerning who knew something. In this context, knowing that an informant knew nothing, at least by her statement, is valuable itself, given the complexity of the. conspiracy theories surrounding the assassination. nl67. See 44 U.S.C. 2107(6) (2) (1994) (permitting postponement of public disclosures when there is clear and convincing evidence that the "name or.. -identity of a living person who provided confidential information to the Unies States ... would pose a substantial risk of harm to that person"); see also” ca ; ve supra notes 102-106 and accompanying text. os 4 nl168. The McCall document cited above, and found at Exhibits One and Two, infra pp. 39-42, is an example of. the Board's release of an individual's name after determining that no harm was likely to come to the individual and that public interest in the disclosure would be high. See supra notes 165-166 and. accompanying text. , Spying is a feature of modern foreign affaires. and there can be no doubt uv that, as with informants, we owe some protection to those individuals employed in the clandestine service of the CIA. n169 Understanding how our clandestine services operate and what information they did or did not provide is critical te the assassination story. For example, the CIA sought to protect a considerable -. amount of information involving the use of double agents to infiltrate the Soviet Embassy in Mexico City. As Exhibit Three makes clear, the Agency ‘Originally wanted to protect. broad sections of a message sent on November 29, 1963, one week after the murder of the President. ni70 The CIA believed that releasing the information would compromise the (*27) double agents and reveal the scope of the Agency's efforts against the former Seviet government. Yet, in terms of the story of the assassination, knowing the quality of the effort directed against the Soviets in Mexico. City was considered crucial. As Exhibit Four reveals, only weeks before Lee Harvey Oswald was arrested fer killing President Kennedy, Oswald had visited the Seviet Bmbassy in Mexico seeking a visa that would allow him to return to the Soviet Union by way of Cuba. nl71 The Board opened most of the information that the Agency previously wanted to postpone, and where the Board determined that disclosure would be harmful, it relied on eubstitute language, which is handwritten in Exhibit Three. nl72 te ~ -Footnotes- - - - = ---+-+-+-*-7- 8 ee es = nié9. The JFK Act. acknowledges the obligation of protecting the identity of intelligence officers. See 44 U.S.C. 2107(6) (1) (A) (allowing postponement of the Yelease of JFK documents if they involve public disclosure of “an intelligence agent whose identity currently requires protection"); see also supra note 102
13-00000 . » APR @4 °97 18:10AM , P.32744 PAGE 32 . i 56 Md. L. Rev. 1, *27 and accompanying text. ni70. See Exhibit Three infra p. 43. The CIA originally sought to postpone the information that is in the brackets. See id. In some cases, information was postponed, but substitute language, as provided by the statute, was inserted in its place. See id. el nl71. See Exhibit Pour infra p. 45. ni72. See Exhibit Three infra p. 43. eee eee ee ee eee - ~ «Bnd Footnotes+ - - - + = = # ewe = - ee = The CIA also worries about the status of its former employees and expects ’ a that these employees will not reveal the nature of their activities without _ firet seeking the Agency's permission. ni73 If an individual retires fromthe ‘CIA undercover, does it follow that historical . researchers must forever be mae ne denied access to that person's true name, especially when she is alive and able’ ; co answer questions? Does an agent in the clandestine service of tHe country. have a right te be free from the prying questions of researchers and reporters? Does it make any difference, as in the case of informants, that an agent provided only negative information? Should we worry about whether an agent is alive or dead? Or does it follow that. significant harm might come to the agent's family and friends through the revelation of her name? Are we willing, in the interest of providing the fullest and richest historical record of the assassination, to subject ‘spouses, children, and parents to potential harassment ox worse? ; i » «Footnotes- = - - = = = - = = © © 2 ee ee = nl73. See Melvin L. Wulf, Introduction to Marchetti & Marke, supra note 72. In 1972, the CIA successfully sued former agent, Victor Marchetti, to require that his manuscript be submitted to the CIA for review ” priox to publication. See id. at xix. ky se ee ew = w= a wm - = ~ - -~End Footnoteg= = + - --- +--+ - sees 8 Weighing the potential harm to such persons against the public's right to know is challenging. We should recall that in 1975, Richard Welch, the CIA ’ station chief. in Athens, Greece, was murdered by unidentified gunmen as he returned to his home from a party at the ambassador's residence. ni74 Former CIA Director William Colby attributed the death to a magazine account that had named Welch only a (*28] month before. ni7S For those agents. who are still alive but in retirement, should we take their word that they are at grave risk? Does a lifetime of intrigue have as its cost a retirement filled with uncertainty? nl74. See Rhodri Jeffreys-Jones, The CIA and American Democracy 2ll-12 (1989) (observing that "pro-CIA partisans blamed Welch's death on Agency critics who had irresponsibly released too much information"): Jeremiah O'Leary, Cover Blown, CIA Agent in Athens Killed, Wash. Scar, Dec. 24, 1975, at Al (noting that a United States publication's naming of Welch as the CIA station chief who was slain in Athens will fuel controversy about tragic consequences of public disclosure of CIA personnel) .
13-00000 _ APR @4 97 (10:18AM . P.33/44 S56 Md. lL. Rev. 1, *28 ni7S. See O'Leary, supra mote 174, at Al. The value of confidential FBI and CIA sources to the Warren Commission's “work is underscored by the documents released thus far by the Board. For . re example, Exhibit Four is a letter dated June 17, 1964 from FBI Director J. Edgar Hoover to J. Lee Rankin, then General Counsel to the Warren Commission. n176 The letter details what the FBI knew about Fidel Castro's assessment of the — a assassination..n177 Originally classified as "Top Secret," this document _ indicates that the United States had a source sufficiently close to Castro to ‘gauge the Cuban leader's evaluation of Oswald and the circumstances surrounding his visit to the Cuban embassy in Mexico City. n178. The FBI wished to redact much of this material. The FBI was concerned that Castro's tests were at. ’ variance with the FBI's test results. The Board decided that the information contained in the letter was. critical to the assassination story; nl179 therefore, .the entire document was made available to the American public, illuminating-£ thinking of Castro and the credibility of the American intelligence community’. to a agsees the Cuban leader. ; ON a ~-- -Footnotes- a i nl?76. See Exhibit Four infra p. 45. ni77. See id. nl78. See id. nl79. Parts of the document had been declassified in 1976, but the FBI wanted to continue te pestpone release of the portions in brackets. See id. . ; Sanna In matters of informants and agents, the JFK statute directs the agencies to _ provide the Board with “clear and convincing evidence" that disclosure will result in harm, either to an individual or to current operations. nl8é0 If the FBI, for example, is unable to find a former informant, and thus does not know whether she is alive or dead, what ia the Board's duty?. The Board faces the dilemma of either erring on the side of protecting the individual's identity, even though there is no evidence that the person is alive and living. under a _, Gurrent threat, or enriching the historical record by revealing the individual's identity while cunning the risk of causing unnecessary harm. ee «e #FOQOtCNOtCEeS- - - -~ - - «= = a nl60. 44 U.S.C. 2107(6) (1994). There is also the related.question of how to treat the names of persons ‘described in the reporte of informants as being engaged in some illicit conduct ‘when there is no proof, other than the informant ‘s. word, to” support the accusation. Is that individual owed a right (*29}) to know that he or she was so identified, or is it. the Board's duty to redact the person's name? Would disclosing false information be more damaging than retaining it in government
13-00000 _ APR G4 797 183110M P. 34/44 PAGE 34 w i 56 Md. L. Rev. 1, *29 records where only government officials have access to such information? These questions indicate the range of issues associated with deciding whether to postpone releasing the names of informants and agents. Where does the requirement for a full historical record of the Kennedy assassination yield to ' the prudential uses of secrecy to preserve the nation's ability to gather a intelligence? Ix. Sources and Methods The JFK Act requires the Board to balance the need to protect sources and “ methods of intelligence collection with the public need for disclosure of _ ’ information relating to the assassination. n181 The inappropriate release of documents, either in part or in full, dealing with our intelligence agencies' ‘gources and methods could afford hostile nations, organized crime, terrorists; .; and drug dealers an understanding of our intelligence: capabilities. Tf another “ 3. nation ox a térrorist group knows how we are able to exercise surveillance over ~ them, they are likely to adopt appropriate countermeasures. They also might seek. to provide selectively misleading information, knowing that we are listening and how we are listening. Many of the documents already. available in the JFK Collection at the National Archives indicate that the United States bugged, tapped,. photographed, and otherwise conducted surveillance of persons and places.. The question arises whether we should also reveal the precise kind of equipment that was used, how it was employed, and against whom it was targeted. Knowledge about equipment. and technique would be important in evaluating the capability of the intelligence community, not only to ply its craft, but to organize a conspiracy on its own. Again, the question arises whether disclosing a source, method, or technique should turn: on whether positive of negative information becomes available. Ce me ee ee eee 7 s = « = - -Footnotes- - - - - ef ewe ee ee ee nl8l1. See 44 U.S.C. 2107 (7) (authorizing postponement of the velease of vecords if the threat of disclosure *is of such gravity that it outweighs the public interest"); see also supra note 102 and accompanying text. Exhibit Five provides a good indication of the kinds of issues involved in dealing with sources and methods. ni82 This document is a cable sent from the Director of the CIA on November 23, 1963, only hours after the murder of the President, seeking information about a surveillance operation conducted in Mexico City. n183 The message [#30] sought information about what the CIA operatives: in Mexico City knew about the existence of tapes and transcripts involving surveillance of the Soviet Embassy there. n184 The CIA originally requested the postponement of much of the information in this document; however, the Board decided that ite centrality to understanding the assassination story required its releage, with the only redaction being the name of. the authenticating office, whose pseudonym was used in its place. n185 Because it helps to clarify the issue of whether the CIA taped Oswald's conversations in Y the Embassy, this document is one of the most significant released by the Board to date. This document also suggests the CIA's awareness of and interest in Oswald before he purportedly shot the President.
13-00000 . APR @4 °S7 10:11AM P.35/44 . PAGE 35 56 Md. L. Rev. 1, *30 ni62. See Exhibit Five infra p. 47. ni63. Id. _ a a nis4. Id. nies. See id. The material enclosed in brackets in Exhibit Five was originally withheld by the CIA. See id. There is also the question of whether the Board should reveal the identities ef those who handled information relating to the investigation of the ee , , — -assassination. America's intelligence machine is a huge bureaucracy that Pm ge processes information in staggering quantities. nis6 How and by whom information i _xelating to the assassination was organized, processed, and distribiited is ; - central to evaluating the CIA's role in the assassination. For example, Exhibit Six pertains to the continuing | debate about whether the Agency photographed Oswald entering the Soviet Embassy and whether a record of what he had to say there was ever sent to CIA headquarters. n1e7 Arguably, | ‘unraveling the chain of custody of that material is critical. Yet, to do so would require identifying the persons who handled it. In this instance, the Board decided that, on grounds of personal privacy and potential harm, it would not disclose the name of one CIA official involved with.the Mexico City operation, although the names of ether officials were released in cooperation with the CIA. wee ee eee ee ee = = ePootnotes- - - - - - - - sree we Be eee nlé6. See Asgassination Materials Disclosure Act III, supra note 96, at 397. (photograph depicting voluminous JFK assassination files); Wald, supra note 128 (describing the Department of Energy's accumulation of information). nl87. See Exhibit Six infra p. 48. om oe ee ew ew - -End Footnotes- = = = «.= = - - = = mm Oe em X. Foreign Liaison The American government conducts its intelligence operations in collaboration -with the services of other nations. ni88 For example, the most secret agreement ever entered into by the English- speaking world is the. pact by which the United os States, Great Britain, Canada, [#31] Australia, and New Zealand carved the Yo world into spheres of cryptolegic influence, assigning each nation targets and agreeing to standardize terminology, code words, and other. operations ' , procedures. n189 Revelations of these and other relationships could prove extremely embarrassing to the cooperating governments, especially when those governments profess to be neutral or have publicly stated that they have no connection with the CIA. However, a full understanding of the intelligence base upon which the Warren Commission and the intelligence community as a whole assessed the Kennedy assassination depends on a thorough accounting of such connections. Moreover, perhaps nowhere else is negative information more _ important than when the intelligence service of another country has access to -
13-00000 \APR @4 97 16:41AM ae P.36744 PAGE 36 i 56 Md. L. Rev. 1, *31 unique sources. There is, as well, the related question of how much information was known at the top of the cooperating governments and the extent to which such knowledge would enhance our understanding of the assassination as being the work of foreign conspirators. If we compromise any of those relationships and consequently cause political damage to the ccoperating. government, we may find a valuable future source of intelligence ‘closed. n190 vv ste te ee (s = = = = © © © = ePootmnotes- - - - = - ee ee ett te nlg8. See Stafford T. Thomas, The U.S. Imtelligence Community 89-94 (1983). nls9. See James Bamford, The Puzzle Palace: A Report on America's Most Secret Agency 309, 315-17 (1982). nl90. Congress acknowledged this concern in the JFK Act by allowing postponement of the release of documents, which clear and convincing evidence -establishes will "compromise the existence of an understanding of 7 confidentiality currently requiring ‘protection between a Government agent anda wae foreign government." 44 U.S.C. 2107(6) (4) (1994). ” a Exhibit Seven poses some of these liaison issues. n191 The FBI provided the Board with this heavily redacted document ,; arguing that release of the body of material in the message from the FBI field office in Paris to the Director of the FBI in Washington on October 12, 1960 (three years before the assassination), would damage the ability of the United States to work with the intelligence and police operations of a foreign nation. The cable, however, struck the Board as being particularly important, in that it showed that thrae years before.the murder of the President the. FBI-was engaged in surveillance of — . -- Oswald's activities. nl92 The Board was also concerned that concealing so large , an amount of material would enly heighten speculation about the document's significance. — meee ee ee ee * «+ - = - ~ -Footnotes- - »« - ------- = see - - - nl91. See Exhibit Seven infra p. 52. nl92. See id. As Exhibit Bight demonstrates, the contents of the cable were far more sinister when redacted than when they were disclosed in full. ni93 To gain this release, the Board sought the cooperation of the Swiss ambassador to the United States, whe consented to the release, only with the proviso that the names of specific Swiss officiale not be divulged. As a result of the cable's release, we know that the FBI had knowledge of and interest in Oswald's activities well before the assassination, to the extent of relying on officials of. the Swiss Pederal Police to learn about his possible attendance at Albert Schweitzer |. College. ni94 , ;
13-00000 _ APR G4 °S7 10:12AM . oO P.37/44 ; PAGE 37 , 56 Md. L. Rev. 1, *32 nl93. See Exhibit Eight infra p. 53 (observing that Oswald announced his plans to attend Swiss college, but that he never arrived to attend classes). ni94. See id. (documenting FBI's request to Swiss police for information about Oswald) . : XI. Of Times and Theories How to address the host of issues raised by these intelligence materials depends on answers to two overriding questions: The first is whether the passage of time renders open that which currently requires postponement. The second is whether, by adopting a particular theory about what happened in Dallas, the Board so y fundamentally shapes its assumptions about the significance of documents that it. may actually fail to open the most critical of them. More than a third of a century has passed since the murder st.-treotéent Kennedy. When asked whether the sources, methods, and techniques used then are - < no longer worthy of protection today, the intelligence and law enforcement agencies appropriately answer no. ni95 They argue that disclosure at any time will reduce their capabilities and, hence, our national security. ni96 In the world of intelligence operations, all secrets must live forever, lest we be wnable to find new secrets in the future. wat nl9§. See supra notes 154-157 and accompanying text. nigé. See.supra notes..154-157 and accompanying text. The passage of time, however, has. made a difference, and in some instances dramatically so. There is today no Soviet Union to which Lee Harvey Oswald could return. If he returned to Minsk, he would find.it a capital of an independent. mation, rather than a satellite of the Communist Empire. The. Warsaw Pact has dissolved; the capitals of Eastern Europe now sport trendy shops and capitaliet enterprises; Cuba survives by importing tourists from everywhere but the United ‘States; and China has emerged as a major American market. Not only is the Cold War dead, but so too are many of the principal figures in the assassination - President Johnson, Robert F. Kennedy, John Connally, and Jacqueline Kennedy. The U-2 is regularly fea- {*33] tured on television decumentaries; photographs from the once super-secret Keyhole surveillance satellites of the 1960s and early 1970s leap from the pages of the current issues of Scientific American. nl97 There is no doubt that the CIA, FBI, and military intelligence services enooped on us and other nations, friend and foe. n198 The CIA in particular argues that current intelligence activities must remain plausibly deniable and that the Board's rele should be to postpone the disclosure of actione taken a third-of-a-century ago that conceivably could compromise current operations. VA Yet, we might reasonably ask ourselves, as the Board has, whether, three decades later, we would compromise our security interests around the world by indicating that a CIA station once existed in Moscow. a '=Footnotes= = = - - = = = = - - 8 tm me em we
13-00000 PAGE 38 i 56 Md. L. Rev. 1, *33 .ni9?. See Dino A. Brugioni, The Art and Science of Photo Reconnaissance, Sci. Am., Mar. 1996, at 78. Few secrets were accorded more respect. than the techniques associated with photo reconnaissance by spy planes and satellites. See id. (discussing 800,000 reconnaissance photographs taken by the CIA from a -1960-72 and kept secret) . There is now, however, growing information about the — capabilities of the United States during the Cold War. See id.; see also Stuart F. Brown, America's First Eyes in Space, Popular Sci., Feb. 1, 1996, at 42, available in 1996 WL 9275085 (describing the government's declassification of 800,000 photographs); Philip Chien, High Spies: U.S. Reconnaissance Satellites, Popular Mechanics, Feb. 1996, at, 47, available in LBXIS, News Library, Mag File (explaining that one of the original reconnaissance satellites of the 1960s will be displayed at the Smithsonian's Air and Space Museum) . ’ ni98s. See generally Michal R. Belknap, Cold War Political Justice (1977) - (describing the Department of Justice's nationwide campaign to bring down the. Communist party of the United States); Nelson Blackstock, Cointelpro: The FEI's: Secret War on Political Freedom (1976) (describing the FBI's ‘countérintelligence.- ° operations and violations of constitutional rights); Ward Churchill & Jim Vander Wall, The Cointelpro Papers x (1990) (describing FBI documents that “expose the secret, eystematic, and sometimes savage use of force and fraud, by all levels of government to sabotage progressive political activity"); Frank J. Denner, The Age of Surveillance (1980) (describing U.S. domestic intelligence operations) ; Brian Freemantle, CIA (1983) (attributing CIA excesses to lack of direction or misdirection from the Executive Branch and presidency) ; Jeffreys- Jones, supra note 174 (describing how allegations of the CIA's failed operations in Bogota, Columbia led to an expansion of intelligence operations); Mark Reibling, Wedge: The Secret War Between the FBI and CIA (1994) (discussing the CIA's efforts to. assassinate Fidel Castro); David Wise, -The American Police State: The Government Against the People (1976) (describing U.S. domestic intelligence operations). — If the passage of time makes no difference, then the American people would “oO never have a right to all of the information used or denied by the Warren ~ — Commission. The passage of time meutere secrecy, and eventually, like Douglas | MacArthur's old soldiers, secrets just fade: away. If there are any ‘secrets that a democratic government has a right to keep permanently from its people, surely the murder of the: President would not be ene such secret. . Then there is the problem of what ‘theory the Board should adopt to explain events in Dallas. Gerald Posner, for example, has pub- [#34] lished a widely read book on the assassination entitled Case Closed. n199 It concludes that Lee ‘Harvey Oswald murdered President Kennedy, that he did so acting alone, and that there is no evidence of a larger conspiracy, foreign or domestic. n200 That notion of the assassination is countered by a hoet of critics that insist on just the oppesite. n201 n1s9. Posner, supra note 6. n200. See id. at 472. . APR 84 °97 10:12AM P, 38744
13-00000 , APR G4 797 10:13AM . -P.39744 PAGE 39 5 56 Md. L. Rev. 1, *34 wv? n201. See, e.g., Harrison &. Livingstone, Killing Kennedy 282-334 (1995) (arguing that Posner's book tricked the public with false scholarship); G. Robert Blakey, Murdered by. the Mob?: 30 Years After the Kennedy Assassination, Thie Case Isn't Closed, Wash. Post, ‘Nov. 7, 1993, at C1, available in LEXIS, News Library, Wpost File (arguing that credible scientific and other evidence points to a conspiracy); Jeffrey A. Prank, Who Shot JFK? The 30-Year Mystery, rv Wash. Post, Oct. 21, 1993, Book World, at K4, available in LEXIS, News Library, Wpost File (arguing that Posner "rarely strays from paths staked out by the Warren Commission" and that the "book ultimately becomes an all-too-transparent brief for the prosecution"); Jonathan Kwitny, Bad News: Your Mother Killed JFK, L.A. Times, Nov. 7, 1993, at 1, available in LEXIS, News Library, Lat File (contending that Posner "presents only the evidence that supports the case he is trying to build"). Posner related that other reactions to his book included an accusation that he was a CIA agent, a computer network asking its members to discredit his book, -and demongtratore in. front of his hotel. See Geoffrey C. Ward, The Most Durab}s .. Assassination Theory: Oswald Did It Alone, N.¥. Times, Nov. 21, 1993, 7, at 48,0, available in LEXIS, News _‘ibrary. Nyt File (describing the reactiors Posner received from his book) . . The general assumptions the Board holds about what happened inform how it assesses the value of a particular document to the public. If the Board assumes. that Oswald murdered the President, and consequently looks only for information that speake to his role, it is likely,.on national security grounds, to postpone certain kinds of information. If the Board assumes that the murder was a conspiracy, then much of what seems irrelevant to the Oswald explanation may actually have great currency. n202 The intelligence agencies rely on the [*35] (*36] theory that Oswald did it and that he did it alone. n203 To support such a position, they turn, ironically, to the findings of the Warren Commission, n204 a body that in some ways they attempted to deceive. Perhaps there is no better evidence of the CIA's attitude than its effort to sway public. .. ..._.. opinion abroad in the wake of the release of the Warren Commission Report. n205: As Exhibit Nine makes clear, the CIA used its substantial resources to just that end. 206 ‘202. The Board adopted a broad definition of an “assassination record" with just such issues in mind. See 36 C.F.R. pt. 1400 (1995). The pertinent sections dealing with the scope for intexpreting the JFK statute read as follows: 1400.1 Scope of assassination record. (a) An assaseination record includes, but is not limited to, all records, public and private, regardless of how labeled or identified, that document. describe, report on, analyze or interpret activities, persons, or events - reasonably related to the assassination of President John F. Kennedy and investigations of or inquiries into the assassination.
13-00000 ~ _ APR @4 °97 10:13AM P.49744 PAGE 40 i 56 Md. L. Rev. 1, *36 , eC (b) An assassination record further includes, without limitation: (1) All records as defined in Section 3(2) of the JFK Act; (2) All records collected by or segregated by all Federal, state, and local government agencies in conjunction with any investigation or analysis of or inquiry into the assassination of President Kennedy (for example, any intra-agency investigation or analysis of or inquiry into the aesassination; any interagency communication regarding the assassination; any request by the House Select Committee on Assassinations to collect documents and other materials; or any inter-.or intra-agency collection or segregation. of decuments and other materials); (3) Other records or groups of records Listed in the Notice of Assassination Record Designation, as described in 1400.8 of this chapter. 1400.2 Scope of additional records and information. The term additional records and information includes: (a) All documents used by government offices and agencies during their - declassification review of assassination records as well. as all other documents, indices, and other material (including but not. limited to those that. disclose cryptonyms, code names, or other identifiers that appear in assassination records) that the Assassination Records Review. Board (Review Board) has a reasonable basis to believe may constitute an assassination record or would assist in the identification, evaluation or interpretation of an assassination record. The Review Board will identify in writing those records and other materials it intends to seek under this section. (>) All training manvals, instructional materials, and guidelines created or used by the agenales in furtherance of their review of assassination records. (c) All records, lists, and documents describing the procedure by which the agencies identified or selected assassination records for review. (a) Organizational charts of government agencies. (e) Records necessary and sufficient to describe the agency's: (1) Records policies and schedules; {2) Filing systems and organization; , - (3) Storage facilities and locations; (4) Indexing symbols, marks, codes, instructions, guidelines, methods, and procedures; . ($) Search methods and procedures used in the performance of the agencies‘ duties under the JFK Act; and (6) Reclassification to a higher level, transfer, destruction, or other \ information (e.g., theft) regarding the statue of assassination records.
13-00000 , APR G4 °S7 16:13AM : ' P.4i744 PAGE 41 S6 Md. L. Rev. 1, *36 gy t (f) Any other record that does not fall within the scope of assassination record as described in 1400.1, but which has the potential to enhance, enrich, and broaden the historical record of the assassination. 1400.3 Sources of assassination records and additional records and information. - Assassination records and additional records and information may be located. at, ox under the control of, without limitation: (a) Agencies, offices, and entities of the executing, legislative, and © judicial branches of the Federal Government; (b) Agencies, offices, and entities of the executive, legislative, and 7 judicial branches of state and local governments; {c) Record repositories and archives of Federal, state, and local _ Me governments, including presidential libraries; 7 cos (d) Record repositories and archives of universities, libraries, historical societies, and other similar organizations; : ; (e) Individuals who possess such records by virtue of service. with a government ‘agency, office, or entity; (f) Persons, including individuals and corporations, who ‘have obtained such records from sources identified in paragraphs (a) through (e) . of this section; (9) Persons, including individuals and cerporations, who have thenselvea created or have obtained such records from sources other than those. identified: in paragraphs (a) through (e) of this section; (Rk) Federal, state, and local courte where such records are being held under seal; or (i) Foreign governments. 1400.4 Types of materials included in scope of assassination record and additional records and information. The term record in assassination record and additional records and information includes, for purposes of interpreting and implementing the JFK Act: (a) papers, maps, and other documentary material; (b) photographs; (cy motion pictures; (d) sound and video recordings; (e) machine readable information in any form; and (f) artifacts.
13-00000 APR 84°97 10:44AM 7 . ; P.42/44 PAGE 42 . 56 Md. l. Rev. 1, *36 ee 4 n203. See Exhibit. Nine infra p. 54 (contending that. "Oswald would not have been any sensible person's choice for a co-conspirator"). n204. See id. (advising that in discussing assassination with “politicians and editors," CIA personnel’ point out that the Warren Commission "made as thorough. an investigation as humanly possible") . n205. See id. n206. See id. (noting that the American public's belief that Oswald did ‘not act alone “is a matter of concern to the U.S. Government, including [the CIA]"). ky re tt te ee ee ee End Footmotes= = = = = = = = mo mm Se eee There is considerable irony in the CIA's position, both then and now. Much of the speculation about the murder of President Kennedy has centered on the: a role of that agency. n207 The only way to sustain its innocence in this matter may well be to fully disclose the. evidence, including selected sources and een 8 methods, that will reveal conclusively that neither it nor some ‘foreign power, was behind the murder. — 3 n207. Sée, e.g., Prouty, supra note 29 (reviewing the history of troubled relations between the CIA and. President Kennedy); Alan J. Weberman & Michael Canfield, Coup D'etat in’ America, The CIA and the Assassination of John F.- Kennedy (1992) (asking whether Lee Harvey. Oswald waa a CIA agent): JFK, supra note. 9. Conclusion The American public should not rely on the JFK Board te settle the question of ; VA ‘what happened in Dallas and why. That is not the [*37] Board's mandate. n208. The Board is not charged with answering the question of who murdered President Kennedy. It 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 ie to be preferred and that accountability is the touchstone for public confidence in government. n209 - n208. See 44 U.S.C. 2107(2) (b) (1994) (identifying the purpose of the JFK Act as establishing the President John F. Kennedy Assassination Records Collection of the National Archives and Records Administration and requiring "the expeditious public tranamission to the Archivist and public disclosure of such {assassination] records") . n209. See supra note 14. eae ee ee ee ww “= = = © -End Footnoteas = - =< = = = ee = se ee ee We are reminded almost daily by the press and. media spokespersons that the ‘maintenance of secrets is bad; that openness is good, and that accountability
13-00000 APR @4 °S7 10:140M . | | P. 43/44 ; PAGE 43 S6 Md. L. Rev. 1, *37 in all public matters is highly desirable. n210 Full disclosure is to be preferred over partial; the full truth is better than something leas, 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. Yet, the intelligence community charged with making the case for secrecy often does so as a matter of routine rooted in . tradition. n211 Secrecy in a democracy deserves better; it cannot be an end in “A itself, and it certainly cannot be justified simply to obscure the intelligence . ~ services that generate much of it in the first place. Such an approach is ultimately self-defeating, both for the. intelligence community and for the government it serves. “210. See, @.g., Weiner, supra note 140 (discussing the CIA's slow release of its files on the most important covert actions of the Cold War). The argument in support of openness and accountability in government is advanced carefully by Norman Dorsen & Stephen Gillers, None of Your Business: Government Secrecy in America (1974) . vai n211. See Wald, supra note 128 (observing that, at the Department of Energy, “ideas are "classified at birth,' or presumed secret until proved otherwise"); see also supra notes 124-134 and accompanying text. George Bernard Shaw was correct when he argued: "There are no secreta better kept than the secrets that everybody guesses." n212 Shaw's words surely describe the approach of the intelligence agencies to the Kennedy assassination. In the absence of disclosure, the public, goaded by a news-hungry press and an activist . research community, will be left to speculate in sensational ways about the assassination. Such speculation will continue to have predictably corrosive consequences. , “- 2 5 +» “+22 ----+- - - -Pootnotes- --++-------------- _ 1212. Christopher Morley & Louella D. Everett, Familiar Quotations: A Collection of Passages, Phrases and Proverbs, Traced to Their Sources in Ancient and Modern Literature by John Bartlett 720 (12th ed. 1948) (quoting George Bernard Shaw). We should all be stunned that, with countless documents still hidden in government filing cabinets, researchers, newspaper reporters, [+36] columnists, and movie and TV producers have managed to convey a broadly held view that the Warren Commission failed and that the government knows more than it is telling. n213 We should stand in awe of their capacity to explain the assassination in such breathtaking terms when so much still remains under lock and key. By breaking confidences with former informants and disclosing clandestine CIA and FBI operations, a fuller record will put to the test the most sinister of all conspiracy theories: that the President was murdered by his own government. Such a matter cannot be left to chance explanation because it eats away at the foundation of public confidence in government, which neither well-intentioned secrecy nor covert operations can restore.
13-00000 /APRO4°S? teidAM |  P.aarad PAGE 44 56 Md. L. Rev. 1, *38 What Americans require is a greater sense that they can trust their © government to protect the secrets that are genuinely important. The government's persistent inability to-distinguish between what is vital and what is not n214 . lies at the heart of the debate about openness and secrecy in government. ‘the historical verdict on the Kennedy ‘assassination, and the legitimacy. of our intelligence. services in an admittedly dangerous world. n214. See Wald, supra note 128 (noting that the Department of Energy is. ‘spending $ 3 million on a computer program that will make an initial assess regarding possible disclosure: of 100 million pages of documents to reduce thé number of secret documents” toa manageable quantity. for further human assessment) - Americans have been left guessing about the Kennedy assassination since the Warren Commission issued its report. When everything is secret, everything is secret - and that is how the intelligence bueiness operates. n215 In the case of the Kennedy murder, however, that strategy has taken a heavy toll. Our task is to accept on a principled basis. the importance of secrets in a democracy and to protect what is truly valuable and in the public interest to keep secret. Only then will ic ‘be possible to assess whether charges of a conspixacy to murder. President Kennedy are but another example of the virulence of the national appetite for beogque revelation. . {SEE EXHIBITS IN ORIGINAL] — = = oe eo em me mo me om mo - ++ + + -Footnotes- - - = - = = 2 ee ee ee n215. See generally Marchetti & Marks, supra note 72, at 370. (concluding chat. secrecy has become a “way of life* for U.S. intelligence operations) .
13-00000 04/23/27 WED 15: 5:53 FAX PAX 202 724 0457 a _____. ARRB JEC! Ont ; . oEctass CF: : FIN SN ANON LINTHIS DOCUMENT ORMATION co VE R S H E— E T ‘To: . _J. Barry Harrelson Fax #: 703-613-3063 Subject: _ Segregated Collections Date: April 23,1997 Pages: _—_7, including this cover sheet. Today the Board adopted the attached guidelines. Fram the desk of... T. deramy Gunn - General Counsel Assaesination Records Review Board 600 E Strear, N.W. Washington, 0.6. 20530 (202) 724-0086 Fax: (202) 724-0457
13-00000 5 teeepnetemmemmentats * 04/23/97 WED 15:53 Fax 202 724 0457 .-_ ARRB jo02 ns 21 FS OBJECTION TO 3 INFORMATION NT fei ne) 3 DOCUMENT Assassination Records Review Board Guldelines for Review of Postponements in the Segregated Collections Adopted: April 23, 1997 ze Background | ee In order to ensure that the Review Board will be able to complete its task of reviewing all identified assassination records, the Board recently took two significant steps.” First, on November 13, 1996, it adopted guidelines with respect to reviewing “Segregated Collections” with regard to information that is “not believed relevant” (NBR)-to the . assassination. Second, in February 1997, the Review Board requested Congress to . extend its tenure for one additional year. It is the Review Board's judgmeni that, even with the assumption that our operations may be extended through Fiscal Year 1998, the Review Board cannot hope to complete review of postponements in the Segregated Collections under the current method of review. In particular, a reasonable modification of current postponement standards would greatly expedite and facilitate the release of additional information and records. ' Otherwise, the Review Board might cease operations without having reviewed claimed postponements in tens of thousands of pages of FBI and CIA records. Postponement Criteria for the Segregated Collections in a further effort to enhance the Review Board’s work, the Review Board now issues these revised guidelines for the review of records in the Segregated Collections.‘ (These guidelines do not affect the FBI's Core and Related Files or the CIA's 201 file on Oswald.) The four principal factors that underlie these review guidelines are: first, continuing, to the greatest reasonable extent, the Review Board's established guidelines for postponements that have emerged over the past two years; second, establishing guidelines corisistent with the Review Board's decision regarding NBR records; third, establishing reasonable and workable guidelines that will enable the 'The regulations adopted by the Board on November 13, 1996, define “Segregated Collections” as including first, FBI records that were requested by: (a) the House Select Committee on Assassinations (“HSCA’) in conjunction with its . investigation into the Kennedy assassination; (b) the Church Committee in conjunction with its inquiry into issues related to the Kennedy assassination; and (c) by other bodies . (e.g., Pike Committee, Abzug Committee, etc.) that relate to the Kennedy ; assassination; and second, CIA records including (a) the CIA's Sequestered Collection of 63 boxes as well as one box of microfilm records and the microfilm records (box 64), and (e) several boxes of CIA staff “working files.”
13-00000 04/23/97 WED 15:54 FAX 202 724 0457 ARRB__ Zoos w iF -2- Review Board, the ARRB staff, the CIA, and the FBI to complete the significant amount _ of work that remains; and finally, to provide reasonably consistent standards for the review of postponements that would apply equally to CIA and FBI records. The following are, in summary form, guidelines for reviewing postponements in the . Segregated Collections.’ CIA Souree and FBI Informant and National Security Asset. Postponements | There are, of course, similarities and differences between FBI informants and. GiA . sources. Like FBI informants and national security assets, CIA sources may or may'not be paid for the information that they provide and they may or may not be providers of - information over the long-term. When providing Information to the Bureau, FBI informants generally are understood to be cooperating with law enforcement officials for a legal and legitimate purpose. It is often the case, although not always, that FBI informants understand that at some point their name might surface in conjunction with a criminal prosecution and that they may need to testify in court. Foreign CliA sources and FBI national security assets, however, are not necessarily deemed to be cooperating with law enforcement officials but may, in fact, be committing the crime of ; espionage. against their native country by cooperating with US authorities. Furthermore, unlike FBI informants, CIA sources and FBI national security assets presume that thelr names will not be released publicly and they certainly presume (in the ordinary course) — that their identities will not surface in criminal trials. As a practical matter, it is generally much easier today for the FBI to locate a former informant who resides in the United States than it Is for the CIA and FBI to locate former sources and national security — assets. Despite these differences -- differences which would generally suggest a greater degree of protection being owed to CIA sources and FBI national security assets -- the issues in terms of postponements are fundamentally similar. . *The existing “NBR” guidelines allow the Review Board to remove from detailed consideration those records or files that truly have no apparent relevance to the assassination. Nevertheless, a significant number of files in the Segregated Collections contain records that shed some light on issues that the HSCA explored as potentially relevant to the assassination of President Kennedy. ‘The following criteria would apply to all records In the Segregated Collections, including records containing some NBR redactions.
13-00000 a Tend ed 04/23/97 __WED 15:54 Fax C202 724 0457 va ARRB oO oo4 CIA Sources : . . ae The Review Board established guidelines, during its December 1996 meeting, for. handling CIA source issues.and applied those guidelines at the January 1997 meeting. _ These guidelines directed the protection of names and identifying information of CIA. sources in cases where the identity of the source is of low public Interest or Is peripheral. to the JFK assassination. The Board's decision was based on two factors: the concern that since CIA sources generally live outside the United States, they could risk hatm if their identities were revealed. Moreover, many of the sources referenced in CIA records appear infrequently and are of relatively low public interest. Therefore, In records where the identity of the source is of importance for understandin ‘the: , . assassination, the CIA will be required to provide additional evidence to Support the: protection of the source's Identity.* In cases where the identify of the source is peripheral to the assassination story, the information will be postponed until 2017. FBI National Security Assets FBI national security assets should be treated in the same manner as CIA sources. FBi informants informant issues represent the largest category of postponements In the FBI's Segregated Collection, as they do in the “core” FBI assassination files, They also provide the greatest opportunity for streamlining the review process. Currently, there are ten. members of the Bureau's JFK Task Force who are responsible for researching individual informants in response to evidence requests from the Review Board.‘ They retrieve and review the Informants' files and attempt, through DMV, Social Security, and _ other database searches, to determine if the informant is alive. Under current Review Board standards for “core” files, this work is necessary to provide evidence to support redacting the informant’s name, regardless of whether the informant provided information. Removing the requirement of proving whether informants are alive in the Segregated Collections would free up significant resources that could be deployed to reviewing unprocessed HSCA subject files. The new approach to HSCA subjects is to protect Informant-identifying information, — 3An example would be the case of John Scelso (pseud.). The Board found that his identity is relevant to the assassination story and CIA offered evidence of a continuing need to protect the identity. In this case, “Scelso” documents would continue to be scheduled for release in five years. ‘Six work full-time on informant evidence, four devote about half their time to informant evidence.
13-00000 I 04/23/97 WED 15:55 FAX 202 724 0457 ARRB | | | oos 4s without requiring the Bureau to make a showing that the informant is alive. This~’ protection would extend to individuals characterized as symbol-number informants, “PSls,” “PCls," “established sources,” “panel sources,” and the like - designations that indicate an ongoing relationship with the FBI. [It would not extend to individuals who requested that their identity be protected in an isolated contact with the FBI or to local. and state law enforcement officers. The. ‘informant-identifying information” to be protected would include the customary (ie., informant-specific) portions of informant symbol numbers and file numbers, informant names, and -- at least potentially - descriptions of, and information received from, the informant. How much, if any, of the latter type of information should ‘be ; redacted would be the principal focus of staff-level discussions with the FBI. The staff's — ‘principal goal in this process, with regard to each informant, would be to release as - much information that is relevant to understanding the assassination as possible. [In . discussions with the FBI, the staff would be prepared, if necessary, to concede redaction of informant-identifying information that is unrelated to the assassination in order to ensure that. more pertinent information is reledsed.® The presumption will be that an informant’s identity will be released if the Informant ' provides “positive” information about an assassination-related Issue. To overcome this _presumption of release for informants with “positive” information,-the FBI would need to. _ make a particularized showing that the identifying information should not be released. To the extent that an informants identity is protected, it will be postponed until 2017, CIA Employee Name Postponements Over the past year the CIA has addressed the employee name issue and has released some names that it had previously asked the Board to postpone. But.during that time the list of names has grown to a size that had not been imagined at the time the work began. To date, the Review Board staff has identified in the JFK Collection over 650 ' names of CIA employees. These names appear in more than 1000 documents already reviewed by the Board and numerous additional records that have not yet been processed. While some of these employee names are important to the assassination ’ gtory, many appear only.a few times in the entire JFK Collection and seem to add little, if any, important information. ‘in HSCA subjects, there typically will not be information about Ruby, Oswald or the assassination itself. However, in'a file on, for example, Sam Giancana, there may be informant reports on Giancana’‘s support of anti-Castro activities, and reports from the same informant on day-to-day numbers operations in the Chicago area. The staff would set a higher priority on release of the former reports than on the latter.
13-00000 04/23/97 WED 15:55 FAX 202 724 0457 ARRB OS gio | 234 02 724 _ . 06 -5- CIA’s argument to protect employee names emphasizes a number of points. First, since many employees are “under cover," the maintenance of that cover is critical to gathering intelligence. CIA argues that identification of a name can Identify the cover provider and jeopardize operations. Second, although the majority of names are of ‘retired CIA employees,.CIA has.a confidentiality agreement with them and many do not - want their past Agency affiliation released. The argument here is that release may ~” jeopardize business relationships or personal safety. Such ‘arguments have already. been presented to the Board. Their.merit can only be determined on a case-by-case basis. However, due to-‘the volume of names in the JFK Collection, the individual review and evaluation of each case would delay significantly the review of documents and ultimately lead to less total Information becoming available to the public CIA has proposed, and the Review Board agrees, that CIA employee names be treated in a manner similar to that applied to Source names: to postpone until 2017 those employee names that are of low public interest or are of peripheral interest to the assassination. It will be presumed that employee names will be released if their identities are important to the assassination, story unless the CIA is able to provide specific information of.a potential harm of release. (CIA acknowledges the presumption of release unless specific evidence Is provided to the Review Board that harm to’ national security or to personal safety would result from the release of the employee name.). FBI “Forelgn Counterintelligence” Postponements It is presumed that the FBI will, at.least partially, carry over its post-appeal standards for disclosing “FCI” activities targeting Communist-bloc nations. To the extent that the HSCA subjects reflect “FCI" activities against other nations that have not been addressed by the Review Board in the “core” files, the FBI will be allowed to redact direct discussion of such activities, unless the information In the proposed redaction meaningfully contributes to the understanding of the assassination. - FBI and CIA Foreign Liaison Postponements The criteria for these postponements would not, in the abstract, depart significantly from the Review Board's current approach of releasing information received through liaison channels, while protecting direct acknowledgment of the source of the information. In. practice, however, the staff would be more flexible in protecting text that implies, — although may not- unambiguously state, that a foreign govemmient is the source of particular information. Nevertheless, the more significant the information is to any assassination-related issue, the more information would be released under these guidelines.
13-00000 04, D : ; _—! 4723/80 WED 15:56 FAX 202 124 0457. ARRB | _ | igi007 CIA Stations and Other Issues Over the past two years the Review Board has established other guidelines that will continue to.guide the review process, some of which will be outlined here. ‘For CIA stations, all locations related to the Mexico City story will be released during the period’ -1960-69. Outside of that window, they will be released on a case-by-case basis should — the identity of the station be critical to understanding the assassination. Other stations, except for those identified as particularly sensitive, will be released from the beginning of the Kennedy administration until the publication of the Warren Commission report, (ie., January 1, 1961 to October 1, 1964). Outside of these windows, stations. will be. postponed. Cable prefixes, dispatch prefixes, and field report prefixes would be > = ‘postponed or released according to the same windows as the stations to which they refer. CIA job titles also are redacted or opened along with the station at which the officer served. Crypts would be released along lines similar to other information. All “LI crypts, except those considered particularly sensitive would be released through October 1, 1964, as are “AM” crypts and U.S. government crypts. In other aréas, only the digraph is protected. Again, the exception is sensitive crypts, which would be protected in their entirety. After October 1, 1964, the presumption shifts towards protection of the crypts, except those that provide meaningful information about the assassination story. (For example, crypts pertinent to Garrison-era documents would likely carry the same presumption of release as those generated during the Warren Commission.) ' Surveillance methods will be released if the nature of the surveillance has a material bearing on information related to the assassination unless CIA provides evidence demonstrating the political or operational sensitivity, in which case the information will be released in 2017, . | e‘\arrb\regs\eview.wpd
MEMORANDUM IN THiS 06: TSR INF abe taba Rog ° sans SNR A ae eats September 16, 1997 To: "Review Board : From: T. Jeremy G AS Subject: Proposed ARRB Time fabld for Review of CIA Records I. Background The CIA Team has developed a preliminary timetable that we hope will provide a & reasonable framework for completing our review of CIA’s assassination records by oo + August 1, 1998.) We are ‘creating this timetable for three purposes: ; First, to establish our own working target dates to measure Review Board progress against the mandatory deadline established by the JFK Act. Second, to provide CIA with our best assessment of the order and scope of our review. _ so that it can make its own internal judgments on the proper allocation of its resources. We provided CIA prior drafts of this memo and solicited its specific advice and suggestions for better ways to accomplish our goals. [We have not asked CIA to _ “agree” to these deadlines, but we have encouraged it to provide alternative suggestions on how best to meet the August 1 deadline.] ; Third, to solicit the Review Board's advice regarding “enforcement” of these (or other) targets. Although we surely hope that both the ARRB staff and CIA will be able to meet the targets, and although we certainly plan to make all reasonable accommodations for problems that no doubt will arise, we nevertheless anticipate that it is possible that CIA might not be able to keep to these timetables. Thus, we anticipate that there may well be times when blocks of records scheduled for Board review will not have been fully processed by CIA. It is our judgment that, in keeping with our commitment to Congress and to the goals of the JFK Act, we may need to have the Board act on groups of records for which CIA has not completed its initial review. At the risk of over- repetition, the ARRB staff seeks to be as reasonable and accommodating as it can on timetables, provided that any proposed changes are consistent with our obligation to complete the task. We realize that this review may have resource-allocation  IBy establishing this target date, we will provide ourselves witha two-month cushion to handle possible appeals and miscellaneous issues that doubtless will arise.
resource impact and to allow. us and the CIA to proceed most ofticintly Wi ththe . _onschedule. Is the Board prepared to make decisions on records if if CIA has not completed its review and to enforce those decisions? : a OS II. Issues applying to all CIA record groups a ~~ 7 - Records to be opened-in-full During the course of CIA's review, it t frequently identifies recon thats ite - is prepared to open in full without Board action. Althdugh there is a~ benefit in promptly forwarding such records to NARA, it is less expensive for CLA to process these records during the summer months. . Accordingly, we are prepared to agree with CIA that it may delay. processing such records, provided that all such processing of opencin-full | ’ records will be completed by August 30, 1998. Duplicates CIA will continue to identify duplicates and may process them after all other documents have been reviewed and transferred to NARA. If the ARRB is shown that any given record is a duplicate, CIA need not complete the processing before September 30, 1998. Il. CIA Record Groups A. Oswald 201 File (17 boxes) ~ Current status: review completed (witha few: minor-exceptions) . B. CIA Sequestered Collection 1. “The 63 boxes” - current status: The ARRB staff has completed a survey of the.63 boxes (on the | folder level) and has assigned each folder a relevance priority on a 1 to 4 scale. CIA has completed its declassification review of roughly 66% of the priority 1 folders. The ARRB Staff has completed its own review of approximately 50% of the priority 1 records and those records have been (or. shortly will) be voted on by the Board. review. We also.take very seriously our commitment to Congress to: complete our work: ~sgeah tae est eat i art eta tents . tener po et het ee oP TataNOLP RTE, “Teeth”
“0p/ie/sh TUE 12: 36 FAX 202 724 0457 ARRB = target dates: Completion of final review ‘of 63 boxes by January 31, 1998." - time line: » 9/30/97 box 40 (priority 1) 10/31/97 box 48 (priority 1) 11/30/97 box 56 (priority 1) 12/31/97 . box 63 (priority 1) 1/31/98 all priority 2,3 and 4 2. HSCA Staff notes (originally interfiled in the 63 boxes)" ' - status: Record Identification Forms prepared for all documents. cla review is 80% complete. ARRB staff completes its review shortly after receiving records from CTA. -targetdates: Complete Board voting by November 18, 1997. 3. Microfilm (72 boxes) current status: CIA identified approximately 33% of these records as NBR. ARRB staff has reviewed all CIA NBR designations, and has identified additional records that should be reviewed by the Board. The ARRB Staff will discuss with the CIA the preparation of Record Identification Forms (RIFs or “IDEN aids” in CIA terminology) and, develop a plan that will best facilitate review? : - target dates: CIA begins review by November 1, 1997 and completes review by July 1, 1998. Complete Board determinations by July 31, 1998. *The ARRB staff has.no objection to the records being identified entirely on the folder level provided that all records in the folder are open-in-full. If there are records © in which the CIA is requesting redactions, those records must be identified individually. The remainder of open-in-full records may still be identified with one RIF | as being the contents of the same folder.
- tentative time: line: 1/31/98 2/28/98 3/31/98 4/30/98 5/31/98 + 6/30/98 4. Microfilm copy of Oswald 201 (approximately 12boxes) " a” - issue: The vast majority (if riot all) Oswald Microfilm records are _ duplicates of records the Board has already reviewed under the JFK - Act. To the extent that the records previously have been reviewed, there is little value in re-reviewing the records. The ARRB staff will _survey the Microfilm 201 in an effort to identify any additional 11/30/97 “12/31/97 boxes 7-13 ©  . (Boxes 32-43 contain LHO’s 201 file, which will = boxes 1-6 boxes 20-25. rcs boxes 26-31 & 44-45 _ be treated as a special case.) ‘boxes46-51 oO boxes 52-62 — a ee boxes 63-72 “ nn aie oo ~ records that have not already been acted upon by the Board. All-- records not ‘previously « acted upon by the Board willbeso designated, a RIF will be prepared, and they will be sent for Board action. The remaining Microfilm 201 will be transferred to the JFK . Collection at NARA and opened in full i in 2017. ~ status: ath Collection. © “e “Working Files” (Gncluding “Russ Holmes” ‘papers, s etc) ~ Status: No Record Identification Forms have been prepared. ARRB staff has conducted a general survey. - target dates: Work to commence by CIA on October 1, 1997. CIA should ’ prepare Record Identification Forms for all records by January 1, 1998. Completion of review and Board determinations by March 31, 1998.  adias completed its initial survey and has thus far identified no oe iE Collin Nn nnreenotaiendy in he . eg ee
13-00000 The “working files” is a group of records that w was 2s assembled 'a CIA by Russ Holmes.. Although he was not'asked formally by Cl to create this separate records group, he did so in oider to facilitate his work and, perhaps, to satisfy his own curiosity. The group - _ contains many original records (copies of some of which are already i in the collection) and it includes some records of which we . are aware of no other copies. It is the best-organized collection of oo _ assassination records held by CIA. Its value as a referencétool is | a greatest as a collection. Therefore, though the file contains many - duplicates of records found in the JFK collection, the ARRB staff ‘recommends that it be preserved as asinglée group. Duplicates and open-in-full documents should be treated in the same manner as they are in the rest of the JFK Collection, As .with the microfilm - from the Sequestered Collection, the ARRB staff has no objection to the records being identified on the folder level provided that all records ini the folder are open-in-full.. If there are records in‘which CIA is requesting redactions, those records muist be identified individually. The remainder of open in full records may still be identified with one RIF as being the contents of the same folder. D. Additional Records ~ status: Research, requests, and negotiations continue to identity and _ include additional CIA records for the JFK collection. Oswald Office of Security File. As a result of an ARRB staff request for additional information and records, CIA located portions ofa previously undisclosed Office of Security fileon Lee Harvey -— _. Oswald. This seven-volume file, of which six parts have been located, contains two volumes of press clippings, third agency. material on Oswald, a copy of Oswald’s address book, and Marina ; . j | Oswald’s INS file. In the upcoming. months CIA will begin to 7 : review and process these materials. | - time line: Completion by July 31, 1998. - strategy: Continue current. efforts.
13-00000 rs E. Referrals 1, HSCA referrals (Numbered files, , Secuity Classified Testimaty “Status: | most of these records have been r reviewed. The database: suggests that a percentage of them has slipped through the cracks, - | ~ target date: . . | - Complete Congressional records to be reviewed aby March 3 31, 1998 -strategy: = oe Continue to clarify records. etc.) : the status of records, Review ¢ any remaining | | 2. Other referrals (BL, Church Committee, LBJ Library, JK Library etc.) oT ~ Status and strategy: Records willbe coordinated. and reviewed ona case by. case basis. , YGe\..\cia\timetablwpd =~ — age 4207 | a | |
13-00000 ‘Christopher Meade Barger 6/25/68 12 July 1996 Date of Birth SSN ne . re David George Marwell 12/31/51 Executive Director . Michelle Marie Seguin 1/12/69 Robert John Skwirot 7/28/56 Manuel Espiritu Legaspi 8/04/68 Mary Sperling McAuliffe 9/25/43 Thomas Jeremy Gunn - 8/25/52 Legal Counsel =
13-00000 . ‘ SECRET 15 May 1995 FOR: David Marwell Executive Director, ARRB FROM: John Pereira CIA/Historical Review Group SUBJECT: Mexico City/Sensitive Information The Directorate of Operations prepared the attached statement to assist the Assassination Records Review Board. The statement explains the sensitivity of the records: related to telephone tap operations in Mexico City. This - may help provide a perspective for further discussions on. -the subject. John Pereira Attachment SECRET
13-00000 SECRET SUBJECT: Release of Information on Mexico City Teltaps 1. Protection of sources and methods /? require that references to the Mexico City Station teltap a activity be excised from any documents released under the auspices of the. JFK Assassination Record Collection Act of 1992. While the teltap activity mentioned jn the documents under revie 2. Release of any information that would constitute official USG acknowledgment of the existence of the I operation wo ~ operations. given Mexico's strong brand of nationalism and tates. | [in“oraer to be able to defend itself against domestic™-critics. SECRET
13-00000 ‘ECTIONTO he LEN Se OF CA ‘A INFORMATION, OFFICE PHONE LIST ea OID ame Sle: Rn tar EER, ARE EH : Ahmed,Sarah 260° | @ ++ * Combs, Michelle 262. ooo Denk, Laura 265 . DiFrisco, Jessica 7 «258 Fagnant, Marie me 230 Fletcher, Carrie OS AT Goslee, Jim ~~ ~~ 259 Gunn, Jeremy 226/267 Haron, Ron oo 239 Horne; Doug 245 Legaspi, Manuel 261 Marr, Irene — . 243 Mays, Christina - 255 Olson, Jerrie 254 Reddy, Sydney ; _ 246 Rhodes, Chet 240 Rockwell, Benjamin 242 Rodriguez,.Cathy 238 Samoluk,Tom 227 V-mail Shycoff, Tracy 233 Skwirot, Robert 268 Spells, Janice 221 Sullivan, Eileen — ' 258 Tiernan, Kevin . 264 Voth, Peter 256 Zimmerman, Joan 263 Kitchen . 223 Board Room 236 SCIF | 241 Guest Phone _ 225 Juelich, Rochelle (Intern) 224
13-00000 Barger, Chriftopher Meade Combs, Kathryn Michelle Golrick; Philip David Gunn, Thomas Jeremy . Legaspi, Manuel Espiritu Marr, Irene Frances Marwell, David George : Rosen, Brian Eliot Skwirot, Robert John Trzaska-Sails, Valerie Marie v
13-00000 ‘Assassination Records Review Board Staff ' October 1, 1997 Guan ; Executive Director Sam oluk ’ Deputy Olrector Shycof = ot Heron - Assoclate Director al Associate _ Administration . General Counsel Administration _ Herd Rhodes, Sentor Attormey. Olson, Rodriguez, | (pending) Mays, Spells Sullivan | . Press and Public Aifalrs Oificer _ Combs po -  Skwirot Special Assistant - _ GIA Coordinator Presidential Libraries , NARA Home ° . Denk Miliary Team Leader FBI Team Leader - : Research and Review sTlaran _ , Senior Analyst Gosiee | - Lopespi fenenen : DiFriseo, Legaspi, - Ahmed, Fagnant, Senior Analyst Marr, Rockwell, Fletcher Reddy : ‘ Voth - ‘ WCIHSCA i ‘ Zimmerman Solld line equals reporting relationship, - “Sentor Analyst . Dotted line equals concurring relationship. Church, SSCl, PFIAB, NSC, Congressional, Postal Service
13-00000 Assassination Records Review Board 600 E Street NW - 2nd Floor - Washington, DC 20530 (202) 724-0088 + Fax: (202) 724-0457 mie “ AVINFORMATION. iS DOCUMENT THE ASSASSINATION RECORDS REVIEW BOARD “All Government records concerning the assassination of President John F. Kennedy should carry a presumption of immediate disclosure." The President John F. Kennedy Assassination Records Collection Act of 1992 Public Law 102-526, October 26, 1992 Introduction to the Assassination Records Review Board’... oe i The Assassination Records Review Board is an independent federal agency created to oversee 2 the identification and release of records related to the assassination of President John F. Kennedy. The Review Board was established by The President John F. Kennedy Assassination Records Collection Act of 1992 (PL 102-526), and was signed into.law by President George Bush. The five members of the Board were appointed by President Clinton, confirmed by the United States Senate, and swom in on April 11, 1994. The law gives the Assassination Records Review Board the mandate and the authority to identify, secure, and make available all records related to the assassination of President Kennedy. The Board has until September 30, 1998 to fulfill its mandate. The Review Board Members | The Review Board consists of the following members: 1. The Honorable John R. Tunheim, Chair; United States District Court J udge, District of Minnesota. , 2. Dr. Henry F. Graff; Professor Emeritus of History at Columbia University. 3. Dr. Kermit L. Ball; Dean, College of Humanities, and Professor of History and Law at The Ohio State University. 4. Dr. William L. Joyce; Associate University Librarian for Rare Books and Special Collections at Princeton University. 5. Dr. Anna K. Nelson; Distinguished Adjunct Historian in Residence at The American - University.” Boaro Memesers: John R. Tunheim, Chair - Henry F. Graff - Keemit lL. Halt - William L. Joyce - Aana K. Nelson Executive Dinecror: David G. Marwell
13-00000 ro ae pe % The Law . The President John F. Kennedy Assassination Records Collection Act was enacted by the- Congress and signed into law by President George Bush on October 26, 1992. The law states “All Government records concerning the assassination of President John F. Kennedy should carry a presumption of immediate disclosure." " “ The law mandates that all assassination-related materials be housed in a'single collection in the National Archives and Records Administration (NARA). The Act defines five categories of information for which disclosure may be postponed, including national security, intelligence gathering, and privacy -- providéd there i is “clear and, d. convincing evidence" of some harm which outweighs public disclosure. v 5 The law requires all federal agencies to make an initial assessment of whether they possess records relating to the assassination. The agencies themselves will conduct an initial review to determine whether their records may be disclosed immediately or whether disclosure should be postponed. The agencies must then give all records that are not disclosed to the Review Board. ‘The Review Board will then evaluate all agency decisions to postpone the release of records. Once the Board completes its review of an agency's recommendation for postponement, all records, including those that have a postponed release date, will be transferred to NARA. The Act requires that all assassination records must be opened by 2017, with the exception of records certified for continued postponement by the President. | Authority of the Assassination Records Review Board . . The Senate report of The President John F. Kennedy Assassination Records Collection Act of 1992 stated that “ the underlying principles guiding the legislation are independence, public confidence, efficiency and cost‘effectiveness.” In order to achieve these objectives, the Act gave _ the Board the specific powers to: * direct government offices to provide identification aids and organize assassination records; * direct government offices to transmit assassination records to the National Archives; * obtain assassination records that have been identified and organized by a Government office; * direct government offices to investigate the facts, additional information, records, or testimony © from individuals which the Board has reason to believe is required; * request the Attorney General to subpoena private persons to compel testimony, records, and other relevant information; * require any Government office to account in writing for the destruction of any records relating
13-00000 | to the assassination of President Kennedy, * receive information from the public regarding the identification and public disclosure of assassination records; and “ * hold hearings, administer oaths, and subpoena witnesses and documents. Background and Need for the Law On November 22, 1963, President John F. Kennedy was assassinated while traveling in a motorcade in Dallas, Texas. His tragic death, and the subsequent murder of Lee Harvey Oswald, the President's alleged assassin, led to the creation of The Warren Commission, seven days after the assassination. Amid continuing public doubts that all of the facts surrounding the assassination had not-comie to light, the House of Representatives established the House Select Committee on Assassinations in 1976 to reopen the investigation. In addition to these two major federal investigations devoted to the investigation of the assassination of President Kennedy, three other federal investigatory bodies have dealt with the assassination to some degree. President Ford created The Rockefeller Commission in 1975 to investigate Central Intelligence Agency activities within the United States. Part of the Commission's efforts related to the Kennedy assassination. Also-in 1975, Congress created the Sénate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee) and the House Select Committee on Intelligence (the Pike Committee).. Some of the work of these committees was related to the assassination. Despite these official investigations and with private researchers continuing their efforts, the public was not satisfied that all of their questions about the assassination of President Kennedy had been answered. The result was the passage of The President John F. Kennedy Assassination Records Collection Act of 1992, which included the creation of the Assassination Records Review Board. Contacting the Assassination Records Review Board The President John F. Kennedy Assassination Records Collection Act of 1992 provides that the — Review Board has the authority to “receive information from the public regarding the _identification and public disclosure of assassination records." If you have relevant information regarding records relating to the assassination of President John F. Kennedy, or would like to learn more about the Board, please contact us at: The Assassination Records Review Board 600 E Street, N.W., Second Floor Washington, D. C. 20530 . Telephone: (202) 724-0088; Fax: (202) 724-0457