13-00000 than 70% of the documents that have come before it on appeal from agency decisions to keep those same documents classified. _ e Original classification decisions, the actions most akin to new secrets, have decreased to historic lows. e Anecdotally, those of us who are exposed to a wide variety of classified information are noting more and more situations in which information that would have been routinely classified in the past is now routinely unclassified, without any increased threat to our national security. Mr. Chairman and Members of the Committee, | can state with total confidence that the United States Government stands far in the forefront among nations in the manner, timing and extent to which it makes available to its citizens and the general public its records of governance, including its formerly classified records. In conversation after conversation that | have had over the years with foreign government officials, and with foreign students, researchers, and journalists, one visitor after another has expressed great admiration for the degree of openness offered by our freedom of information laws, and our security classification system, with its limitations on classification and its emphasis on declassifying information as soon as it is prudent to do so.
13-00000 These indicators of progress do not mean that we have all the answers about our security classification system or that there aren't tremendous hurdles to clear. For example, the implementation of the new system has been uneven among the major © classifying agencies, and a few are only now just getting started; the costs of implementing the system at some agencies are higher than we anticipated; and resource limitations are having a clear impact on agency compliance and oversight. To _be sure, the standards and goals established within the new Executive Order are unparalleled. We are not yet certain that every agency, or perhaps any agency, can achieve them. However, only if the targets are difficult can reaching them be noteworthy. | recognize that the focus of today’s hearing is the legislation before the Committee. | will try to answer any questions you may have conceming the similarities and | differences between the security classification system that currently exists and the system that S. 712, as currently drafted, would impose. The Administration has serious objections to certain provisions of S. 712, particularly as they could impinge upon the President's authority and flexibility to manage the classification and declassification programs. Legislating in this area can be perilous, given the great deference traditionally given to the President in the areas of national defense and foreign affairs.
13-00000 However, the Administration is prepared to work with the Congress to address these concerns and to establish an effective National Declassification Center. The Administration will identify the revisions that would be required to enable the Administration to support S. 712.
os FEDERATION OF AMERICAN SCIENTISTS a 307 Massachusetts Avenue, N.E. E-Mail fas@fas.org Bore af Sponsors Washington, D.C. 20002 Web hitp://www.fas.ore/ Sidney Altman e 6 ® Phone (202) 546-3300 Facsimile (202) 675-1010 Bruce Ames * Pail W Anderson ; wane Aneirod Cari Kaysen Robert M. Adams Ann Druyan Charles C. Price Jeremy J. Stone * David Baltimore Chairman Vice-Chairman Secretary Treasurer President *® Baraj Benacerraf . * Hans A. Bethe “Konrad Bloch * Kon joc’ “Noman E Boang . CIA HAS NO OBJECTION To * Owen Chamberiin ; DECLASSIFICATION AND/OR «ean Cus RELEASE OF Cia INFORMATION * Leon N.C EAT TG: apes, Eu Cory WW THIS DOCUMENT Paul B. Comely , * Johann Deisenhofer * Renato Dulbecco John T. Edsall * Gertrude B: Elion | Statement Jerome D. Frank . . of * Jerome L Friedman * D. Carleton Gajdusek co Steven Aftergood John Kenneth Galbraith . . * Walter Gilbert : ‘Director, Project on Government Secrecy Edward L. Ginzton : . . 2 2 ‘ge * Donald Glaser - Federation of American Scientists * Sheldon L. Glashéw . Marvin L. Goldberger * * Joseph L. Goldstein * Roger C.L. Guillemin * Herbert A. Hauptnan * Dudley R. Herschbach : Frank von Hippel before the * Roald Hoffmann . ° _John P. Holdren Committee on Governmental Affairs * David H. Hubel . * Jerome Karle ° United States Senate Nathan Keyfitz . *H. Gobind Khorana * Anhur Komberg * Edwin G. Krebs : 2 ils E Lambs de . Hearing on * Wassily W. Leontief S. 712, The Government Secrecy Act * William N. Lipscomb . . Jessica T. Mathews Matthew S. Meselson Neal E. Miller March 25, 1998 * Franco Modigliani - ; . Philip Morrison : Stephen S. Morse “8 * foseph E. Murray * Daniel Nathans ® Marshall Nirenberg * Douglas D, Osheroff * Amo A. Penzias * Martin L. Pert Gerard Piel Paul Portney Mark Prashne George Rathjens * Frederick Reines * Burton Richter * Richard J. Roberts Vernon Rutian Jeffrey Sachs * Arthur Schawlow * J. Robert Schrieffer * Glean T. Seaborg * Phillip A. Sharp * Herbert A. Simon * Richard E. Smaliey Neil Smelser * Jack Steinberger * Henry Taube * James Tobin * Charles H. Townes Robert A. Weinberg National Council Members Victor F. Weisskopf * Torsten N. Wiesel Eric Hall Amett *Val L. Fitch Morton H. Halperin Arthur H. Rosenfeld C5. Wu Rosemary Chalk Linda Gottfredson Daniel Kamen Raber Socolow Herbert FE. York Steve Fetter David Hafemeister Priscilla J. McMillan Burns H. Weston ex officin: *Robert M. Solow, Andrew Sesster * Nobel laureates
13-00000 Introduction Mr. Chairman, | appreciate the opportunity to address your Committee on the subject of government secrecy. | believe that this subject is as important as any on the Committee’s agenda because it goes directly to the heart of our political system. Government controls on information define the limits of American democracy. Limits on information mean limits on informed debate, limits on the ability of citizens to meaningfully communicate with their representatives, and on their ability to hold elected offi cials accountable. At the same time, it is self-evident that some degree of s secrecy is necessary in certain matters of national security, including the protection of advanced military — technologies and the conduct of diplomatic and intelligence activities. ‘A sound government information policy is therefore one that strikes a responsible and appropriate balance between the imperatives of open, accountable government and the requirements of national security secrecy. Such a balance is precisely what has been lacking throughout the modern era of cold war secrecy, leaving us today with a grotesquely distended secrecy system that improperly withholds unimaginable quantities of records from public access while often failing to protect genuine secrets. . My hope is that Congress and this Committee will take steps towards a new balance that corrects the failings of the past, and will enact a government information — policy that better serves the national interest. In the following remarks, | will first present several assertions about secrecy - policy by way of background, and I will then draw some specifi ic conclusions concerning the Government Secrecy Act. BACKGROUND | would like to emphasize several points that | believe should form the foundation for congressional deliberation on the future of the government secrecy system. 1. Most Americans believe that government secrecy is excessive. One might well suppose that public concern about official secrecy is limited to ‘those who are most immediately affected by it, such as journalists and historians, as well as a small cadre of advocates and activists. But that is not the case. Public surveys conducted for the Department of Defense in 1994 and 1996 consistently found that a majority (55%) of Americans believe that “the government
13-00000 protects too many documents by classifying them as SECRET and TOP SECRET.” in other words, concern about excessive government secrecy is not simply’the province of “special interest” groups; it is shared throughout the general public. Reducing government secrecy truly is a matter of “public interest.” Much of this public concern is latent and diffuse, but it crystallizes time and again around specific issues— the JFK assassination, POW/MIAs in Southeast Asia, UFOs, Nazi war crimes, human rights violations in Latin America, and so forth. 2. Excessive classification is afact. But independent review can overcome it. Even if the majority of Americans believe that government secrecy is excessive, ‘they could conceivably be mistaken. But they are not mistaken. It is demonstrably true that government agencies classify too much and fail-to declassify information that no longer warrants protection. This problem is illustrated with particular clarity by the fact that agency refusals to declassify records are frequently overturned— within the executive branch itself— by the Interagency Sécurity Classification Appeals Panel (ISCAP), which receives appeals from members of the public for documents that agencies have refused to declassify Deputy Assistant Attorney General Roslyn A. Mazer, who was appointed by President Clinton to chair the ISCAP, reported recently on the latest activities of her Panel, which includes representatives of the Departments of Justice, State, Defense, CIA, NSC and the National Archives: . We have taken final votes on appeals for declassification of more than 70 documents on a wide variety of subjects. Of these, we have voted to declassify more than 70 percent of them in their entirety, while declassifying significant segments of most of the remainder. This is significant in my view because, in each instance, we are voting to overturn an agency's decision reached at its highest level of appeal... ‘Not inconsistently, a majority of those surveyed also favor “a high level of secrecy” for technology with military applications. “Public Attitudes Towards Security and Counter-Espionage Matters in 1994 and 1996” by Tom W. Smith, National Opinion Research Center, prepared for the Department of Defense Personnel Security Research Center, November 1996. <http:/Avww.fas:org/sgp/othergov/perssur2.html>. ?Remarks by Roslyn A. Mazer, Chair, Interagency Security Classification Appeals Panel, before the DoD Historical Records Declassification Advisory Panel, March 6, 1998, emphasis added. <http:/Awww.fas.org/sgp/advisory/iscap0398.htmI>. 2
13-00000 The fact that agency classification policies often cannot withstand scrutiny even within the executive branch points to the root of the problem. The problem is not that classifiers are dishonest or acting in bad faith; in general, they are doing.a thankless job the best they can. The problem rather is the natural and often unconscious tendency of all bureaucracies to limit the flow of information to outsiders. As Sen. Moynihan observed, “The problem is that organizations within a culture of secrecy will opt for classifying as © much as possible, and for as long as possible.”* If they go unchecked, agencies will hoard information beyond all reason, which is how we got to where we are today. Fortunately, Ms. Mazer’s remarks also reveal a solution to this unavoidable problem, and that is independent review of agency classification decisions. The record of the ISCAP demonstrates that unnecessary classification can be reduced or eliminated when contested classification actions are reviewed by “outsiders” who share the agency’s commitment to national security, but who do not share its Weberian tendencies toward bureaucratic secrecy. Only such independent reviewers are capable of separating the national security wheat from the bureaucratic chaff. | believe that this is a crucial principle which should ‘inform Congressional action i in this area. 3. Congress is free to legislate on secrecy policy. The Justice Department “strongly opposes a statutory framework for the safeguarding of national security information,” arguing in effect not only that the President has the authority to set and implement classification policies, but that he has - exclusive authority to do so.* The Committee should recognize that this is a natural and predictable response — from the executive branch, which seeks to preserve its prerogatives and to maximize its own freedom of action. But I believe the Justice Department overstates its case. 3Report of the Commission on Protecting and Reducing Government Secrecy (“Commission Report”), 1997, Chairman’s Foreword, page xxxix. Available in searchable “html” format at <http:/Avww.fas.org/sgp/library/moynihan/index.htmi>. ““Subjecting the protection of national security information to statutorily-required standards or procedures would raise constitutional concerns to the extent that it would limit the President's ability to discharge a core constitutional responsibility as he sees fit.” Memorandum from the Deputy Attorney General on the Government Secrecy Act of 1997, September 15, 1997.
13-00000 There is no question.that Congress has the right and, | would say, the obligation to legislate in this area, particularly since the executive branch has failed to manage- the secrecy system in a way that best serves the national interest. As Harold Relyea of the Congressional Research Service has pointed out: Pursuant to its constitutional authority “To make Rules for the Government and Regulation of the land and naval forces” (Article |, Section 8, clause 14), as well as the “necessary and proper” clause (Article |, Section 8, clause 18), Congress" has long established rules, regulations, and procedures of general effect for the government and the armed services.... These clauses would appear to empower . Congress with authority to legislate policy and procedure comparable to that prescribed by presidential executive order to effect security classification.> — The right of Congress to enact secrecy-related legislation has also been clearly recognized by the Supreme Court. Prior to the 1974 amendments to the Freedom of. Information Act, the Court held in EPA v. Mink, 410 U.S. 73 (1973) that Congress had not intended for the courts to examine the propriety of classification decisions or procedures. But, as Kate Martin of the Center for National Security Studies has noted, the Court also found that: Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures— subject only to _ whatever limitations the Executive privilege may be held toi impose upon such congressional ordering.® And of course Congress has enacted legislation dictating classification policy on numerous occasions, including the statutory classification framework of the Atomic Energy Act and the National Security Act, in which Congress (not the President) assigned the Director of Central Intelligence the responsibility for protecting intelligence sources and methods from unauthorized disclosure. Furthermore, Congress has also successfully enacted statutes requiring — 5Statement by Harold’ C. Relyea, Congressional Research Service, before the House Permanent Select Committee on Intelligence hearing on “A Statutory Basis for Classifying Information,” March 16, 1994, page 48ff. ®410 U.S. at 83 (1973). See Testimony of Kate Martin, Director, Center for National Security Studies, before the House Permanent Select Committee on Intelligence hearing on “A Statutory Basis for Classifying Information,” March 16, 1994, page 66ff, for further elaboration of related Court rulings, and her conclusion that “the only possible constitutional limitation would be that the Congress could not order disclosure of advice given to the President that would constitute a state secret.” 4
13-00000 disclosure of certain classified information, including the JFK Assassination Records, Collection Act (P.L. 102-526) and legislation concerning the State Department's . Foreign Relations of the United States series (P.L. 102-138). In addition, Congress has granted itself the authority to declassify any information in its possession.’ Today, several more bills mandating declassification are pending before Congress, including: S. 1220, "The Human Rights Information Act". S. 1232, a bill to declassify the private journal of Dr. Glenn Seaborg®, and S. 1379, "The Nazi War Crimes Disclosure Act.""° Each of these bills was introduced because the public had no choice but to turn to Congress in order to correct the failings of executive branch classification and declassification policies. If the Justice Department position were to be taken at face value, all of these bills as well as the Freedom of Information Act : itself would be unconstitutional, and executive branch officials would have completely _ unchecked power to withhold whatever information they chose. _ Inshort, while the executive branch is entitled to advise Congress to stay out of national security information policy, Congress must be guided by the larger national interest and has every right to reject that advice, as it has in the past. £ 4, The secrecy system is not as bad as it could be. A statutory secrecy system should be conceived as a means, not an end in itself. In considering legislative changes to secrecy policy, Congress should aim to fix what needs fixing, but also to preserve what warrants preserving. In particular, the Committee should recognize the changes that were inaugurated with President Clinton’s executive order 12958, and which have already - produced some impressive results. . Most important, from my point of view, is the order’s automatic declassification provision (section 3.4) which requires the declassification of most historically valuable 25 year old documents by April 2000. This provision has generated an unprecedented surge in declassification, reported at nearly 200 million pages in FY 1996 alone." 7See Senate Resolution 400, section 8. | ®chttp:/hvww fas.org/sgp/congress/s1220.html>. ®chttp:/Avww.fas.org/sgp/congress/s1232.html>. ‘°<hitp:/Awww.fas.org/sgp/congress/s1379.htmI>. 14996 ISOO Report to the President <http:/Awww.fas.org/sgp/isoo/isoo96.html>. 5
13-00000 So Congress need not and should not consider classification policy in a vacuum. it must start with the reality of classification policy as it is today and “first, do no harm.” Legislative changes to the classification system should begin by affirming what is: positive in current policy— and then building on it. THE GOVERNMENT SECRECY ACT OF 1997 The Government Secrecy Act contains a number of important provisions which are derived from the two-year investigation of the Commission on Protecting and Reducing Government Secrecy. The Act's two most positive innovations— a “balancing test” and a National Declassification Center— are also the ones that have elicited the strongest opposition from the executive branch. | will comment briefly on each of these, and suggest one other area for Committee consideration. 1. The balancing test and judicial review. ‘Section 4(c)(1) of the Act would require officials to weigh or “balance” the potential benefit from disclosure against the need for protection in making classification and declassification decisions, and further dictates that if there is significant doubt about the need to ‘classify the information, it shall not be classified. . From the perspective of a non-governmental consumer of government information, this is the Act’s single most important provision. In the abstract, the idea of “balancing” is unexceptionable and is almost built into | the practice of classification. Executive order 12958 includes a discretionary balancing test for declassification (sect. 3.2b) as well as a “significant doubt" standard (sect. 1.2b) for classification. (Interestingly, the CIA promulgated a balancing test during the Carter Administration which r remains in effect today [32 C.F.R. 1902. 13(c)].) This provision of the Act has drawn agency opposition not because of its balancing requirement per se, but because it would allow judicial review of agency balancing decisions under the Freedom of Information Act. The idea that courts would presume to “second guess” agency classification decisions is profoundly unwelcome to classifiers, who warn of disastrous consequences if their judgment is questioned. This warning is self-serving and needs to be taken with large grains of salt. Similar concerns contributed to President Ford’s decision to veto the 1974 amendments to the Freedom of Information Act, which allowed judges to determine whether information had been “properly” classified.'* Fortunately, Congress overrode that veto and it turned out that the opponents’ fears were not realized. . '2See President Ford’s veto message at 120 Congressional Record H36243-4. 6
13-00000 To the contrary, judicial review has been a potent factor in making the FOIA as useful a tool of democracy as it is. Indeed, it has been persuasively argued that the’ courts are not sufficiently diligent in reviewing agency classifi cation decisions."* The CIA has warned of “costly legal challenges that risk second-guessing of DCICIA judgments.” This is a considerable exaggeration since in practice, no judge would reject a sworn affidavit from the DCI that certain information must be withheld. But at the same time, CIA classification judgments are in need of the checks and balances that judicial review would provide, particularly when it comes to the invocation of “sources and methods.” Thus, the Secrecy Commission last year found that: the sources and methods rationale has become a vehicle for agencies to automatically keep information secret without engaging in the type of harm analysis required by executive orders as a prerequisite to keeping other kinds of information secret. The statutory requirement that sources and methods be protected thus appears at times to have been applied not in a thoughtful way but almost by rote.“ Federal court judges will never reject a sthoughtful" or even a merely plausible argument about the need to protect intelligence sources and methods. But the possibility of judicial review will serve to discourage indefensible “rote” classification. Dire warnings of the consequences of judicial review of classification have not been borne out by the last 24 years of judicial review under the FOIA, and there is no reason to believe that courts would suddenly become reckless now when confronted with a balancing test. | would add that any suggestions of a “flood” of lawsuits resulting from this _ provision are certain to be exaggerated. For the typical FOIA requester, there are huge . “parriers to entry’ to the judicial system. Legal representation is absurdly expensive, and pro bono assistance is generally available only in cases of considerable national importance or when victory is all but assured. In the last twenty years | must have filed hundreds of FOIA requests, but have brought suit under the FOIA only once. The absence of effective “checks and balances” on executive branch classification actions has helped to produce today’s bloated and highly arbitrary classification system. A balancing test that is subject to judicial review is the most ‘National Security Information Disclosure Under the FOIA: The Need for Effective Judicial Enforcement,” Boston College Law Review 25: 611-643 a 984). “Commission Report, Chapter Ml, page 70, emphasis added, 7
13-00000 appropriate solution.* 2. A National Declassification Center The proposed National Declassification Center is a response to the fragmented | quality of declassification policy, and to the inadequacy of executive branch oversight, which the Secrecy Commission described as “the critical missing link.""® As currently conceived, however, the Center risks becoming an extraneous bureaucracy that agencies are free to utilize or not, as they wish, and that has little or no independent authority. In order to fulfill its intended purpose, the Center should be assigned specific tasks and authorities. For example: ° The Center could be assigned to perform independent review and approval of all agency declassification guides, so as to ensure their consistency and compliance with the provisions of the Act and the executive order. «The Center could be assigned to perform or to coordinate the declassification of all documents involving multiple agency “equities,” in order to optimize the efficiency of the declassification process. Perhaps most important, the Center could undertake in an expanded form many of the oversight responsibilities now assigned to the Information Security Oversight Office (ISOO) and the interagency Security Classification Appeals Panel (ISCAP). ISOO, under Steven Garfinkel’s leadership, has a profound understanding of the intricacies and shortcomings of secrecy policy and, in my opinion, has generally demonstrated good judgment about what is appropriate and achievable and what is not. But ISOO’s staffing and resource levels are laughably low when compared to its nominal responsibilities. This disparity between resources and responsibilities sends a — message throughout the executive branch that “we're not going to take secrecy oversight seriously.” ‘SThe characteristic risks and benefits of information disclosure, and the mechanics of actually balancing them in practice are elucidated by Arvin S. Quist in Security Classification of Information, Vol. 2: Principles for Classification of Information, Martin Marietta Energy Systems, Inc., Oak Ridge, TN, Report No. K/CG-1077/V2, April 1993, Chaps. 5; 6. Of particular interest, Quist discusses how legal standards for weighing eviderice that are already part of the judicial process— such as “beyond a reasonable doubt,” “clear and convincing evidence,” and “preponderance of the evidence”-- could be used in balancing and in any subsequent review (pp. 61-69). *°Commission Report, Chapter 2, page 42. 8
13-00000 The ISCAP, meanwhile, is doing a fine job, but on a tiny scale. And it is already operating at full capacity, although its tasks are expected to escalate ® sharply i in coming years. As ISCAP Chair Roslyn Mazer has noted, When | consider what the next few years may hold for ISCAP, | fear that to a considerable extent we may become victims of our own successes-- and the caseloads that these successes may engender. Unfortunately, SOO [which also supports the ISCAP] is a very small organization that faces ever-increasing demands on its resources from the dramatic changes in the classification and declassification systems now underway.... the onus on the ISCAP’s staffing structure may very well prove too much to bear.'” Therefore, one straightforward “fix” that Congress might consider, at least in the interim, would be to significantly increase the stature and resources available to these two organizations so as to help fill in the “missing link” of executive branch oversight. But whether Congress chooses to invigorate the existing oversight entities or to establish a new National Declassification Center, the goal should be one that has been . clearly formulated by the Secrecy Commission: Oversight should be the responsibility of a strong and active organization, independent of the agencies that classify, perhaps modeled after agency inspector general offices. To be truly effective, such an organization should also possess the means to compel agency compliance with established policies... Equally critical is that such a body have adequate resources, whether through a budget line item or the reallocation of resources from the principal classifying agencies."® 3. What About the “Other” Classification System? " If the Government Secrecy Act became law, we would not just have a statutory . secrecy system-- we would have two statutory secrecy systems: one for national security information and one for atomic energy information, prescribed by the Atomic Energy Act of 1954. This may be too much of a good thing. The existence of two parallel classification systems has proven to be a significant obstacle to efficiency in secrecy policy, as numerous records must undergo separate declassification reviews under each system. "Remarks by Roslyn Mazer, footnote 2 above. Commission Report, Chapter 2, page 44. fs)
13-00000 Even the high-level executive branch officials who are members of the Interagency Security Classification Appeals Panel have been flummoxed by the , difficulties in coordinating the declassification of information controlled under the Atomic Energy Act. This is particularly absurd because, according to Ms. Mazer, information that is similar or identical to much of what we have seen designated as FRD [i.e. classified under the Atomic Energy Act] has been in the public domain for many years, often as a result of a prior Department of Energy declassification review. Moreover, there appears to be no system in place to get this information declassified, even though the Departments involved— Energy, Defense, and State acknowledge that it is innocuous."® The perpetuation of two distinct classification systems would represent a signifi icant compromise of the Government Secrecy Act’s goal of “a more stable and cost-effective set of policies and a more consistent application of rules and procedures.” Therefore, | would suggest that the Committee consider the feasibility of consolidating both classification systems into one. CONCLUSION Although the Cold War has officially been over for several years now, we still face the challenges of adapting the inherited structures of that era to the present day. Fixing the classification system is foremost among those challenges. It is only natural that any significant changes to the status quo will be resisted by the bureaucratic systems that are now in place. But the Committee should have confidence in the traditional American mechanism of “checks and. balances.” By installing new checks and balances into a classification system that has long been allowed to function unilaterally, Congress can induce prudent changes that will advance the national interest in open and accountable government, while more efficiently protecting genuine national security information. ‘Remarks by Roslyn Mazer, footnote 2 above, emphasis added. 10
13-00000 4a: ner. , & 05/09/97 jv emmenrmetnene THIS DOCUMENT THIS CR ISSUE Go TO THIS SEARCH Next sit Forward Next Dogument. New Search Prev Hit Back Prey Document HomePage Hit List . Best Sections Rally Digest Help Dec Contenta Extena Contenta CR Isaues by Date Congressional Record entry 1 of 100. ELR. 1553, 1-YEAR EXTENSION OF AUTHORIZATION OF THE ASSASSINATION RECORDS REVIEW BOARD (Page: E876] CIA HAS HO ORJECTION TO: _ -  DECLASSIFICATION 2 ANDIORy, | RELEASE OF CIA I FORMATION in the House of Representatives THURSDAY, MAY 8, 1997 ® Mr. BURTON of Indiana. Mr. Speaker, today I am introducing H.R. 1553, which amends the President John F. Kennedy Assassination Records Collection Act of 1992—Public Law 102-526--to provide 1 additional year for the Assassination Records Review Board to complete its work. This legislation would extend the Review Board 's September 30, 1997, termination date under. current law to. September 30, 1998. H.R. 1553 authorizes $1.6 million in fiscal year 1998 for this purpose. I am pleased that the Honorable Henry Waxman, the ranking minority member on the Committee on Government Reform and Oversight, and the Honorable Louis Stokes, who sponsored the 1992 Act and who chaired the House Select Committee on Assassinations that was established in 1976, are original cosponsors of ELR. 1553. The purpose of the 1992 legislation was to publicly release records relating to the Kennedy assassination at the earliest possible date. The Assassination Records Review Board was set up to review and release the voluminous amounts of information in the Government's possession. The FBI, ‘the Secret Service, the CIA, the Warren Commission, the Rockefeller Commission, the Church Committee in the Senate, and the House Select Committee on Assassinations have all held assassination records , and records have also been in the possession of certain State and local authorities as well as private citizens. When this legislation was considered, nearly 1 million pages of records compiled by official investigations of the assassination had not been made available to the public, some 30 years after the tragedy. Congress believed that simply making all relevant information available to the public was the best way to respond to the continuing high level of interest in the Kennedy assassination , and was preferable to undertaking a new congressional investigation. The 1992 law requires the Review Board to presume that documents relating to the assassination should be made public unless there is clear and convincing evidence to the contrary. I believe that the release of this information is important to ensure accountability in the Government and to clearly demonstrate to Americans that the Government has nothing to hide. _ As aresult of the Review Board ‘s efforts, ovcr 10,000 documents have been transferred to the national archives and Records Administration for inclusion in the JFK collection. At the end of 1996, that
13-00000 ee 4 & wiuUs ARKD 8 ; “Z: " ZUZ (24 Vasil | . Ca/UR/9F FKL 22:16 FAA | 5 collection totaled approximately 3.1 million pages and was used extensively by researchers from all over the United States. The Review Board was in the news last month when it voted to make public the Abraham Zapruder film of the Kennedy assassination . The President John F. Kennedy Assassination Records Collection Act of 1992 originally provided a 3-year timetable for the Assassination Records Review Board to complete its work. Unfortunately, there were lengthy delays in the appointment of Board members, and as a consequence the Review Board was scheduled to cease operations before it even began its work. As a result, in 1994 Congress restarted the clock by extending the 1992 law's termination date for 1 year, until September 30, 1996. The Review Board subsequently exercised its authority to continue operating for 1 additional year, until September 30, 1997. Because the review process proved to be more complex and time-consuming than anticipated, the President included in his fiscal year 1998 budget a request for a 1~year extension of the Review Board 's authorization. . I support the Assassination Records Review Board 's request for a 1-year extension of its authorization so that it can complete its mission in a professional and thorough manner. I have always believed very strongly that Congress should not indefinitely continue funding for Federal entities that were clearly intended to be temporary in nature. The Review Board has informed me that it is confident that it will be able to finish its work and complete its final report if Congress will extend its life for 1 additional year, until September 30, 1998. ‘ere SEARCH TarTs DOCUMENT THIS CR ISSUE GO TO Next Bit Forward Hext Document Hew. Search Prev Hit Back Prev. Document HomePage Hig. Dist Best Sectiona Raliy Digagt Help Dec Contents Bxtens. Contents CR segues by Date
13-00000 - - TESTIMONY OF ATHAN G. THEOHARIS PROFESSOR OF HISTORY MARQUETTE UNIVERSITY MILWAUKEE, WISCONSIN on S.J. Res. 282 "The Assassination Materials Disclosure Act" Before the SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS MAY 12, 1992
13-00000 STarcstaw OF acHas G. DHsCHAPIS Iam a professor of history at Marquette University, specializing in U.s. intelligence and surveillance policy, and have published extensively on matters relating to the history of the Federal Bureau of Investigation (FBI). As a consultant in 1975 to the Senate Select Committee on Intelligence Activities (the so-called Church Committee), I researched classified and nonclassified records deposited at the Truman, Sisennower, Kennedy, and Johnson presidential libraries and since 1978 have filed numerous Freedom of Information Act (FOIA) requests for FBI records. I welcome this opportunity to testify on S.J. Res. 282, the Assassination Materials Disclosure Act of 1992, and the question it raises: Should Congress create a special Review Board and authorize it to release or postpone the release of relevant Government records? There are precedents for legislating procedures governing the release of “Government records relevant to the assassination of President John F. Kennedy,'' most notably the Freedom of Information Act of 19606, as amended in 197+, mandating the release of and stipulating the exemptions for withholdins agency records. The congressional response to the so-called Nixon-sampson agreement of 1974 offers a further precedent. Rejecting former President Richard Nixon's claimed right to retain exclusive control over the records pertaiming to his presidency, including the right to destroy the sc-called Oval Office tapes, Congress rescinded this agreement, created the 3rownell Commission, and enacted the Presidential Records Act of 1978. Presidential records were public records, and not a president's personal property, Congress affirmed when defining the criteria to govern the disposition and release of all presidential records. As in the case of the Nixon presidential records, there exists widespread public suspicion «bout the Government's Gisposition of the Kennedy assassination records stemming from the beliefs that federai officials (1) have not made available all Government assassination records (even to the Warren Commission, Church Committee, House Assassination Committee) and (2) have heavily redacted the records released under FCIA in order to cover up sinister conspiracies. S.J. Res. 282 effectively addresses these concerns first by creating an impartial body, the proposed Executive Director and Review Board, with the authority tp review and if necessary subpoena all relevant records and then by establishing the criterion of full disclosure except in cases where "clear and convincing justification exists for postponing" the release of specified documents. There is reason to believe that all relevant Government records pertaining to the Kennedy assassination have not been released and cannot be precisely identified by persons outaide the executive branci:. It might not be the case that all such records were filed under specific names and programs (Oswald, Ruby, Ferrie, Fair Play for Cuba Committee, Warren Commission). The federal intelligence agencies, for example, had in the.
13-00000 -~2- recent past instituted separate records procedures to safeguard their most seusitive documents. CIA files, for one, are compartmentalized to limit access on the "need to know" principle. As one result, when responding in 1975 to the Church Committee inquiry into the Agency's drug testing program, CIA officials a¢vised that the relevant program file had been destroyed in 1973. In 1978, however, CIA officials admitted to having discovered among the Agency's financial records extant documents which provided additional information about the scope of this program. During the Iran-contra hearings of 1987, moreover, CIA officials, at times, distinguished between official and informal records while NSC official Oliver -North admitted to having employed a "do not log"! procedure to ensure that hia communications to his superior, John Poindexter, were not indexed in the NSC's central records system. Although the FBI maintains a central records system, FBI officials dating from 1940 had authorized a series of special records procedures to ensure that sensitive records were not serialized or filed in the Bureau's central records system or that sensitive information cculd be withheld if a FBI report was circulated outside the Bureau. These included: the Do Not File procedure for memos requesting and authorizing "black beg jobs;" blue/pink/informal memos for "administrative" matters in which casé, was “to be destroyed after action is taken and not sent to files section;" JUNE Mail for reported information received from “gources illegal in nature" or from "most secretive" sources such as "Gcu-vernors, secretaries to high officials who may be discussing such officiala and their attitude;" and administrative pages/cover letters for reporting "facts and information " which could "cause embarrassment to the Bureau, if distribut -d." Do Not File and blue/pink/informal memos were to be maintained in “office files" of senior FBI officials (and were to be destroyed every six months), JUNE Mail was to be maintained “under lock and key" in FBI field offices or in the Special File Room at FET headquarters, while administrative pages/cover letters were to be detached whenever the report to which they were appended was "distributed to any agency outside the Bureau." S.J. Res. 282 addresses the inability of requestors to identify all relevant Kennedy assas.ination records and how and where tiey might have been filed. Executive agencies are mandated to make available to the Review Board "all asscessination materials" even if "uncertain if a record is assassination material" and the Executive Director is authorized to "inquire as to the existence of further records" and then recommend that the Review Board “subpoenas such records in the event of denial." Properly. placing the burden of ensuring the accessioning of all Kennedy assassination materials on agency officials who are most knowledgable about their agency's records practices, S.J. Res. 282 further enables the Executive Director and etaff to identify additional records learned through a close reading _of cross references in the "available" documents. Section 6, moreover, addresses the companion obatacle to full disclosure, the discretion which the FOIA allows federal agency officials to withhold categories of information when releasing FOIA-requeated documents. Particularly *
13-00000 | 5am during the 1980s agency officials have withheld information clearly relevant to an understanding of the relationship of the agencies to individuals identified directly or‘indirectly with the Kennedy assassination. Administrative and legislative changes encouraged such non-disclosure--notably President Ronald Reagan's 1982 classification order, legislation of 1984 totally exempting CIA "operational" files from disclosure, and legislation of 1986 authorizing the FBI to withhold and deny the existence of FBI informant files. Section 6 dovetails FOIA's exemptive provisions but, at the same time, introduces a stricter non-disclosure standard to require release unless "the threat to the military defense, intelligence operations or conduct of foreign relations of the United States posed by its disclosure is of auch gravity that it outweighs any public interest in its disclosure." My skepticiam about agency practices in withholding documents, moreover, is based on my experiences as a frequent user of the FOIA. I recognize that this is not the proper forum for reviewing how federal agencies have processed FOIA requests but think the following examples shed light on whether the FOIA, and its provisions accepting agency discretion, can be expected to ensure full and reasonable disclosure. In 1980, I filed an FOIA request for the Official and Confidential File of former FBI Director J. Edgar Hoover and in 1983 received approximately 6,000 heavily redacted pages of this 17,700 page file. Exercising my right to appeal these withholdings, I eventually (in 1985) received approximately 2,000 additional documents. Granted the right of a second appeal, at this time I offered a detailed folder by folder challenge, arguing that much of the withhelu information was already in the public domain and further that since the former FBI director had maintained in his office derogatory informati.a on presidents, members of Congress, and other prominent personalities the question of what use had been made of this information required its release. These arguments proved somewhat convincing and in 1989 the FLI released approximately 15,000 pages including information formerly redacted in the earlier processed releases. , The enclosed Fortas document (see Appendix A) was one of the documents released to me in 1989, but withheld entirely both in 1983 and 1985. When withholding this document (and five others pertaining to the same matter), the FBI had originally claimed that ita release, would reveal FBI sources and methods and violate personal privacy rights. Yet, Fortas had not been acting as a FBI Criminal Informant or Security Informant when concerting with FBI Assistant Director Cartha Deioach in 1966 and the withheld information records Fortas's willingness to service the political and bureaucratic interests of President Iyndon Johnson and FBI Director J. Edgar Hoover. This example, because the FBI had evaluated the same document three times, offers insights into the criteria employed to deny the release of records. And while the agency ultimately decided to disclose, this
13-00000 Whe decision indirectly supperts S.J. Res. 282's "clear and convincing" standard. For, my original 1980 request and receipt in 1983 of the heavily redacted Hoover file had become known to U.S. News and World Report which devoted its "1984" issue of December 1953 to summarizing the contents of the released Hoover file. The resulting publicity heightened public and media interest in the heavily redacted Hoover file. By 1989, if not 1985, FBI officials were no longer williug to risk FOIA litigation challenging their claimed interpretation of the FOIA's exemptive provisions. My second example bears indirectly on how the FBI would process a FOIA request for still-unreleased wiretap records first diclosed by the House Assassination Committee. The House report had disclosed that FBI wiretap intercepts recorded critical comments of organized crime leaders, notably Carlos Marcello, regarding the Kennedys. Did the Mafia put a "contract" out on John Kennedy? Did FBI officials purposefully withhold this information from the Justice Department and the Secret Service in 1963 and then from the Warren Commission in 1964? The answera to these questions would require the release of the wiretap transcripts as well as other FBI memos recording how the FBI dealt with these transcripts. My experience involving how the FSI has processed my requests for other FBI wiretaps suggests that any FOlIA-released Kennedy documents will be sc redacted as to preclude answers to these questions. In describing one of my FBI wiretap requests, let me also outline for the Committee the considerably broader "records universe"! sought by scholars and which cistinguish our approach from those of journalists, congressional staff, and lawyers. This case of FBI wiretapping involved Henry Grunewsld, a Washington, D.C.-based investigator with close ties to New York insurance-executive: --.....-- Henry Marsh, isolationist Republican congressmen, former New Dealer Thomas Corcoran, and :ashington bureaucrata. FBI officials were keenly interested in Grunewald'. activities, confirmed by the inclusion in Hoover's office file of two folders containing the transcripts of two FBI wiretaps of Grunewald in 1941 and 1945. As in the case of the Fortas document, these two folders had originally been withheld in entirety on sources and methods and personal privacy grounds. The released 1941 wiretap transcript- particularly interested me as I had learned from documents contained in former FBI Assistant Director D. Milton Ladd's still extant office file that Grunewald, as other conservative critics of the Roosevelt Administration, became the subject of FBI "espionage" investigative interest during the early 1940s. The Ladd file, however, did not resolve whether this 1941 wiretap had been known or authorized by the Attorney General or the White | House. Accordingly, I filed a further FOIA request for the FBI's headquarters files on Grunewald. The released, redacted records confirmed the Roosevelt Administration's interest in Grunewald's activities in 1940 but (see Appendix B): either because of redactions or the Justice and Treasury Departaents® failure to have processed as yet documents which they originated the
13-00000 =f wiretap authorization question cannot be resolved. The heavily redacted Grunewald filee further disclosed that Grunewald became the subject in 1953 of a third FBI wiretap. In 1952, a House Committee held public hearings on the subject of influence peddling that centered on Grunewald's activities, among others. Thin inquiry proved embarrassing to the Truman Administration and was exploited by the Republicans during the 1952 presidential and congressional campaigns. In 1953, the new Republican-controlled House revisited this issue. Particularly interested in Grunewald, the so-called Kean Committee sought assiatance from the Justice Department. The heavily redacted records (see Appendix C), however, preclude answers to the questions as to why concurrent with this congressional inquiry Attorney General Herbert Brownell had requested and authorized this wiretap and whether the Justice Department's assistance to the Committee included information learned from this wiretap. (I have only appended a summary of one FBI report to the Attorney General, based on this wiretap. -The released transcripts of this 1553 wiretap, in contrast to those released to me involving the 1941 and 1945 taps, were heavily redacted--the FBI withheld on personal privacy grounds the names and intercepted conversations of Grunewald's telephone partners, rendering the released transcripts virtually incomprehensible and of minimal research value.) I have gone into detail om the Fortag anc Grunewald matters as I think they offer imsights into the processing of FOIA requests, an issue central to these hearings. It has been my experience that the “culture of the intelligence agencies encourages agency officials to interpret the FOIA exemptive provisions broadly but also that more senior agency officials will release even embarrassing information in those instances when their decisions are potentially subject to critical scrutiny. The Review Board procedure promotes this needed accountai. lity. At the same time, the Bo:-.rd‘'s independence can undercut public suspicions that claimed national security or privacy justifications are a mask to preclude full disclosure. Surely now, thirty years after President Kennedy's assassination and with the end of the Cold War, we should be able to assure the public that relevant Kennedy assassination records are neither secreted nor withheld for bureaucratic reasons. While I doudt that the rlease of the Kennedy assassination records will conclusively resolve the question “who killed Kennedy,'' I am convinced that the procedures outlined in S.J. Res. 282 will undercut suspicions that records documenting a government conspiracy are being purposefully withheld. Release of the Kenncdy assassination records, moreover, will service other significant research interests of the scholarly community. Let me conclude by briefly list some of these non-assassination-related questions: (1) the liaison relationship between the FBI and the CIA before and after the assassination; (2) the liaison relationship between the FBI and the Secret
13-00000 | ry -# ° ° ~6~ Service and the background to the FBI's revised delimitation agreement of 1964 with the Secret Service; (3) the politics of presidential commissions (the purpose for creation, the level‘of agency cooperation, and the responses of federal agencies, Congress, the White House, and the public to the Warren Commission's findings); (4) the paradex of the FBI'a apparent disinterest in Oswald (Soviet defector and Fair Play for Cuba Committee activist) in contrast to the intensity of FBI interest in more respectable national leaders (Eleanor Rossevelt,. Adlai Stevenson, Joseph Alsop, Ernest Hemingway, even John Kennedy); and (5) the FBI's and the CIA's relationships with and uses of informants and sources recruited to provide foreign intelligence, counterintelligence, criniinal, and "subversive activities" information.
Cié, HAS NO CBJECTION TO DECLASSIFIC ATION ANLYOR RELEASE OF THIS DOCUMENT TESTIMONY OF SENATOR DAVID L. BOREN BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS ON THE ASSASSINATION MATERIALS DISCLOSURE ACT OF' 1992 Part etl dc tenable Tne May 12, 1992 Thank you, Mr. Chairman. I very much appreciate the opportunity to appear before this Committee to discuss with you Senate Joint Resolution 282, the Assassination Materials Disclosure Act of 1992. The purpose of this legislation is to provide for a comprehensive process ultimately leading to the release of all materials held by the United States Government regarding the assassination of President John F. Kennedy. Congressman Louis ‘Stokes, the distinguished former Chairman of the House Select Committee on Assassinations, has introduced identical legislation in the House of Representatives. I am particularly pleased, Mr. Chairman, to have you as an original cosponsor of this legislation. We have had at least four substantial federal government investigations into the Kennedy assassination: the first conducted by the Warren Commission appointed by President Johnson in 1962; the second, by the President’s Commission on CIA -1-
13-00000 Activities -- the Rockefeller commission -- in 1975; the third by the Senate Select Committee-to Study Governmental Operations with Respect to Intelligence -- the Church Committee -- in 1975 and 1976 as part of its investigation of CIA assassination plots against foreign leaders; and finally, the extensive investigation of -the House Assassinations Committee in 1978 and 1979. Each of these investigations, particularly the Warren Commission and House Assassinations Committee investigation, produced long, detailed public reports concerning the Kennedy assassination... In addition, literally hundreds of books and articles have been written on the subject. Yet still, almost 30 years later, the questions remain. The recent release of the controversial film "JFK". has raised them anew, suggesting that answers may well lie in the assassination records and other materials that remain sealed by our Government. Even prior to the release of "JFK," in fact, there were diligent efforts made by researchers as well as concerned legislators to open these files for public review. Mr. Chairman, I do not know what all of these files contain. Specifically, I do not know whether they contain information that would call into question or undermine the findings of the previous investigations or not.
13-00000 ‘ But it seems to me the time has come to open these files to the public and let them speak for themselves. Let historians and journalists and the people read them, and draw the appropriate conclusions. “As a general principle, the Intelligence Community should make available its records after the passage of a reasonable amount of time when current sources and methods would no longer be compromised. The American people have a right to assure themselves to the greatest degree possible of the accuracy of the historical record of our government. The timely release of all documents of historic value and importance helps to assure that even the most secret programs of our government will be operated in accordance with basic American values. Current intelligence ‘operations will be even more carefully conducted when it is recognized that they will be scrutinized by the public during the lifetime of many of those who administered the programs.: This is not to say that all of the files should simply be pulled from the vaults, turned upside down and dumped onto — Pennsylvania Avenue for general consumption. Careful review is required to ensure responsible public policy and fundamental fairness. Even after almost thirty years, there remain governmental interests, as well as individual privacy interests, that we must consider. But these concerns must not stand in the way of disclosure unless they are shown in a given case to be especially compelling. . ~3-
13-00000 What this Resolution proposes is a comprehensive, government- wide review of the Kennedy assassination records conducted under the auspices of an impartial, independent board. It may be useful to state precisely what these records are. First, they encompass all of the records of the FBI, the CIA, Secret Service, military intelligence, and other Executive branch agencies which may pertain to the Kennedy assassination. They also include the records of the Warren commission, the Rockefeller commission, the Church committee, and the House Select Committee on Assassinations. Many of these records are now stored under seal at the National Archives, while many others remain in agency files. The Rockefeller Commission files were claimed by President Ford as part of his personal papers and then deeded by him to the — Ford Presidential Library in Ann Arbor, Michigan. There may be other relevant records at the Kennedy and Johnson presidential libraries. These presidential library records are administered by the National Archives, and thus we envision that they would be subject to this Joint Resolution. " I can report to you briefly on the status of one group of these records -- the Church committee files, which are now in the custody of the Senate Select Committee on Intelligence. All of the Church committee files are housed in some 500 boxes in a single small room at the National Archives. There is a rudimentary index, but it is not always sufficiently descriptive, -4-—
13-00000 and a file-by-file review is probably necessary. My staff has examined some of these files, and we believe the process of separating out J.F.K. assassination materials -- once that term is more precisely defined (as I will discuss in a moment) -- will not prove especially cumbersome or time-consuming. The Kennedy | oes assassination investigation was only a small component of the Church committee’s work and the investigation conducted concerned only the role of the intelligence community in investigating the assassination; it did not seek to determine who killed President Kennedy. In addition, many of the Church records are in fact copies of records originated by other agencies. However, the Church staff did interview numerous witnesses, both inside and outside of government, and the transcripts and notes of those interviews, among other materials originated by the Church committee, are an important part of the J.F.K. files. .----..--.---- —--—--. Although many government records on the J.F.K. assassination have previously been released by the Archives and as a result of Freedom of Information Act litigation, a great deal remains shielded from public view. Approximately twenty boxes of the internal files generated by_ the Warren Commission are still sealed. Experts estimate that a much greater volume of FBI and CIA files remain sealed. Many pages of documents that have been released have been so extensively redacted that their informational value is minimal. The extensive files of the House Assassinations Committee, some 848 boxes of materials on both the Kennedy and King assassinations, currently are sealed until the ~S-
13-00000 year 2029. To date, these records have been withheld from the public due to a variety of concerns: the fear of damaging foreign relations and military defense, the-concern for disclosing the identities of confidential sources or informants, and the desire to protect the privacy of individuals. While these concerns may yet retain some validity in a very few isolated cases, it seems to me that with the passage of time, there should remain very few objections to full disclosure. I believe it is time to review these records, not in terms of the old assumptions, but rather in light of the need for openness and to encourage confidence in the Government. We need to assure ourselves of the facts, that there is not information lurking somewhere in the Government. that would shed new light-on what remains perhaps the most heinous and enigmatic crime of this century. The Joint Resolution would make it much harder to justify the continued shielding of a document from public view. It would also create a process by which many records could be promptly released. Any arguments made for withholding any document or portions of it must be weighed against the strong public interest in disclosure. The resolution establishes this kind of balancing test -- with a strong presumption in favor of disclosure. In addition, to address the, problem of heavily redacted and therefore meaningless documents, the Joint Resolution borrows a ~6—
13-00000 page from the Classified Information Procedures Act, the law that covers the handling of secret information in criminal trials. Under that law, federal judges have discretion to permit introduction in evidence of summaries or substitutes in place of classified information. The Joint Resolution provides for creation of such summaries or substitutes where appropriate, so that the public can learn essential facts about the Kennedy assassination from a document even where references to private matters or crucial national security secrets would render the document itself mostly unreleasable at present. In all cases, the Joint Resolution requires that the presumption be in favor of release. All records will be released unless there is clear and convincing evidence that postponing release is essential to a vital interest. Now let me briefly discuss the process established by the Joint Resolution for applying these disclosure standards. The Joint Resolution creates a five-member panel called the Assassination Material Review Board. The members of this Review . Board would be distinguished private citizens outside of government who have had no prior involvement with previous inquiries into the Kennedy assassination. This Review Board, aided by an executive director and staff, would play the central role in the release of the assassination materials. The Board would be required to complete its work within two years of its -7-
13-00000 first meeting, although it is certainly expected that it could be completed much more quickly. The point is to proceed expeditiously, while still doing a careful job. We faced a difficult choice in deciding who should appoint the Review Board, and I am aware your Committee is looking at other alternatives. I am certainly amenable to this, but let me give you some idea of why we came out as we did. Given the allegations of government cover-up and the potential for perceived conflict of interest, allowing the President or Congress to appoint the Board did not seem appropriate. We settled instead on the special three-judge federal court division that appoints independent counsels for criminal investigations. The Justice-Department;--in-an-April 27,°1992, letter to "7777 77 77 Chairman Glenn, worries that "it is not clear" that our approach to appointing the Review Board is constitutional. In addition, some may feel that a judicial panel is ill-suited to make appointments for this task. The judges themselves, who have very small staffs and.other concerns, might well prefer to avoid this assignment. In short, we recognized that this approach would raise possible constitutional objections, as well as practical ones, but, on balance, we felt the appointment authority should rest with an impartial source without no interest or stake in the outcome. I believe a strong argument can be made that the appointment process is constitutional under the principles enunciated by the Supreme Court in Morrison v. Olson, 487 U.S. 654 ~8-
13-00000 a (1988), which upheld the power of the same court division to appoint independent counsels ‘to investigate executive branch misconduct. If the Committee nevertheless concludes that this approach is undesirable, I would offer two alternatives for consideration, conceding that both are also susceptible to possible constitutional objection. The first would be for the President and the leadership of the House and Senate each to appoint a given number of Board members. Each body has interests in, and responsibility for, certain of the records at issue. I would not make these appointments subject to Senate confirmation, since they are not policy positions, and confirmation would only delay the task at hand. A second alternative would be the approach suggested by the ACLU: adopt some variant of the formula used last year by Congress in establishing the Advisory Committee on Historical Diplomatic Documentation in the State Department, namely to have the President appoint based on specific criteria, i.e. background in particular disciplines, with most of the members coming from lists submitted by designated professional associations. . Once the Review Board, however it is appointed, is constituted, it would appoint an executive director, and the first step in the process would be to make available to the Executive Director all Government assassination materials. Where the Executive Director suspects that the agencies have failed to ~9~
13-00000 submit some of the relevant records, he or she has authority to question the agencies and to use the subpoena power of the Review Board to obtain any additional records. The Executive Director, assisted by employees of the Review Board and, if deemed necessary, detailed from elsewhere in the Government, would undertake the initial screening of these records. If the Executive Director concluded that a particular record was appropriate for release, the record would automatically be released, unless the record implicated personal privacy or the Executive agency or congressional committee with responsibility for that record filed an appeal with the Review Board. In this manner, many records could be promptly released without formal Review Board deliberations. If the Executive Director determined that a particular record was not appropriate for release under present circumstances or that the record implicated personal privacy concerns, he or she would automatically be required to refer that decision to the Review Board. The Executive Director would also be permitted to refer particularly difficult decisions, or decisions requiring further investigation, to the Review Board. In deciding on appeals and-referrals from the Executive Director, the Review Board would have authority to conduct -1Q-—
13-00000 — hearings and subpoena records and witnesses. The Review Board would have final say as to the release or non-release of all materials, except that in the case of Executive branch materials, the President would have the authority to supersede the Board’s determination and postpone release. But each time the President did so, he would be required to explain his reasons, both in a notice to the public and to the Congress. Decisions by the Review Board itself to postpone release of records would also have to be explained to the public and Congress. Finally, under the Joint Resolution, no item would remain permanently sealed. The Review Board, before finishing its work, would designate as to every item still withheld a specified time or a specified occurrence following which the item could be released. The files would then be transferred to the Archives, where the Archivist would have a continuing duty to reconsider them for release under the standards set by the Joint Resolution. a Materials released by the Archivist or the Review Board would be available in the Archives for public review and copying. Our Joint Resolution makes clear that an Executive branch agency or congressional committee retains its existing powers under. the law to release a particular record even if the Joint Resolution does not require it to do so, and that the members of -11-
13-00000 the public can continue to use the Freedom of Information Act to x request from the agencies documents related to the assassination. Mr. Chairman, this Resolution may appear complicated, but the matter of disclosure is itself complicated. It cannot be accomplished arbitrarily or summarily. The process established by the Resolution, in my view, is logical and takes account of all the interests and equities in the disclosure of these documents. In the end, I think it will result in all of the pertinent information pertaining to the assassination of President Kennedy being made public in a prompt and orderly way, and, in doing so, will help restore confidence among the public in our Government. Since the Joint Resolution was introduced, comments have been received from the Justice Department as well as others suggesting the need for change. With regard to the reaction of the Justice Department, I must say I found it very unfortunate that the Department chose to take what I found to be an extreme, hard-line position in opposing many of the key provisions of the Resolution. Rather than showing the flexibility needed in this unique circumstance to deal cooperatively with the Congress on a matter that is a serious concern for many Americans, the Justice Department chose to reassert familiar claims of Executive privilege and all of the other reasons asserted over the years to block the release of government information. ~12-
13-00000 The whole point of this legislation was to create new criteria and new procedures to maximize the release of information hitherto withheld by the Government. The old laws and old. procedures have been tried for the last 30 years, and have not produced the type of disclosure needed to restore the confidence of the American people. It seems to me that just this once, where the public policy interest in full disclosure of these records is so apparent, the Justice Department could dispense with its usual "“to-the-last-man" defense of Executive branch prerogatives, and help us deal with solving the problem. I feel obliged to take special note of one point in the Justice Department letter, and that is their claim that the Executive branch must have not only increased safeguards over its own material ~- but also have the ability to veto release o£ any congressionally—created assassination record. This strikes. me as preposterous, particularly coming from a department that is ostensibly so concerned to preserve a separation of powers. If Congress wants to release information it has developed, the President should not be able to stand in the way. Hopefully, the Committee will yet be able to obtain executive branch cooperation and move forward with this process. The public expects action on this matter, as the many letters, postcards, and a a
13-00000 telephone calls to congressional offices demonstrate. » 4 Having said this, there are, in fact, several points raised by the Justice Department's letter, and by private citizens in touch with me, which I believe merit further:consideration by the Committee. ‘1. Perhaps the most important matter involves setting the boundaries of "assassination material." The Joint Resolution defines “assassination material" as "a record that relates in any manner or degree to the assassination of President John F. Kennedy.... But given the wide range of theories that have developed as to who killed President Kennedy and why, many types of records arguably relate in some manner to the assassination. @, oy ' i i j 1 { 1 What. records regarding, for example, Cuba, Vietnan,- and organiz crime should be covered? This matter requires careful consideration. The Justice Department urges a substantial narrowing of the definition of “assassination material," apparently to only those records that on their face directly concern the assassination. I am concerned that this formulation may be too narrow. There is widespread public suspicion that some sort of conspiracy led to the murder of President Kennedy. If we go out of our way to avoid records that might shed light on activities linked to such an. | alleged conspiracy, we make little progress toward assuring the public that it has the full story. If we err on the side of -14—
13-00000 © * « inclusiveness, and as a result learn a bit more about the operations of our government and our foreign policy in the early 1960’‘s, I think we will benefit. My only concern would be that the search becomes so broad that it delays action of the release — of documents clearly germane to the assassination. But where records have already been segregated, such as the executive branch materials obtained by the House Assassinations Committee, full review is probably appropriate. I do, however, suggest that the Committee, either in the Joint Resolution itself or in report language, set more precise parameters defining "assassination material,“ or else direct the Review Board to do so promptly after it is established. Otherwise, we may end with widely varying interpretations by the various records agencies and committees as to what documents should be forwarded to the Review Board executive director. 2. As the Justice Department’s letter to Chairman Glenn noted, the Joint Resolution, as drafted, would give an agency or committee control over release of a record it originated even if that record contained information obtained from another agency or committee. I agree that this provision should be changed to give agencies authority over release of their own information. | However, the change suggested in the Justice Department letter may not by itself do the trick, because a record, for example a lengthy congressional report, may contain both information -15-
13-00000 . developed by the body that created the record and information originated by a- ‘xecutive agency. Instead of letting either of these two "“oric zing bodies" have veto power over the release of an entire document, we should work out language that give an agency or committee control over release of that portion of a document for which it was responsible even if other information in the document was originated elsewhere. 3. On reflection, I think it would be best to amend the Joint Resolution to make the records of the Review Board itself subject to the Freedom of Information Act and the Privacy Act, and to make the Board’s proceedings subject to the Sunshine Act and the Administrative Procedures Act. A law mandating increased government openness should not itself establish an exception from general standards for accountability. “I still’ strongly believe, however, that we should avoid subjecting the Board to extensive court litigation over the release of the J.F.K. files themselves either under the standards set by the Joint Resolution or under the Freedom of Information Act. 4. Section 11(a) should probably be amended to make clear that the Joint Resolution’s provisions take precedence not only over other laws, but also over executive orders and regulations. 5S. A sentence might be added to Section 8(f) to ensure that the public is clearly informed when summaries or substitutes are. released instead of actual records or information: “Any such ~16—
13-00000. summary or substitution shall be clearly labeled as such when released to the public." 6. The Joint Resolution should probably be amended to recognize the records of the Rockefeller commission as a component of this effort. The Archives would be the appropriate custodian of Rockefeller commission materials for purposes of the Joint Resolution. I thank the Committee for this opportunity to express my views on this measure. -17-
Statement for the Senate Committee on Government Affairs, May 12, 1992 CIA HAS NG voane TO. DECLASSIFICATION AND/OR *s Ernest R. May RELEASE OF CIA INFORMATION iN THIS DOCUMENT --~ Tt is an honor to be invited to ‘testify on this bill. — I am.a professor aft history. at Harvard University, where I teach both in the history department and in the John F. Ken- nedy School of Govermment. - While I have done research on the history of intelligence agencies and have served in Washington from time to time as a consultant, I do not speak as an expert on the matter before the committee. _My com ments are merely those of a historian looking at legislation dasigned to unearth historical source material. The bill now under consideration Seeks to clear doubts about President Kermedy’s murder. The Warren Commission had the same aim. Its make-up was supposed to reassure the pub-- lic. It failed. The Commission reported in 1964. Almost _within months, books challenging its ‘£indings hit best— seller lists. “ae a .., Over time, other theories multiplied. Now, it takes whole books just to list books about the murder. Some of these books picture the CIA or FBI as plotters. This is not new. A number appeared in the 1970s. Recently, this par- ticular set.of theories has found new life. Two books of this genre reached best-seller lists in the spring of 1952, and Oliver Stone’s filn, "TEE," became a box office hit.
13-00000 ~ ww Oe aes at tits WS ate 6 Bow Oe am deiott wie wary t . taal AAA a The bill now under consideration would open records so that the public can be reassured that these theories are ~ fantasies. The stated aim is to "contribute to the trust of the people in their government." . ' o achieve this, the bill proposes to create a five— person Review Board. As reassurance against a cover-up in behalf of the Presidant or Congress, the District of Colun- -bia Circuit of the U.S. Court of Appeals would appoint the _ Board. (The Supreme Court presumably is thought too partisan: besides, it might bring to mind Chief Justice war- ren.) | The bill says that members of the Board are to be "dis— tinguished and impartial." Otherwise, it demands only that they not be currently in government ‘employ end that they ‘never have been involved in any investigation of the Kennedy murder. | ; The Board and its Executive Director would hava wide powers. ‘They would look at all materials relating to the murder. Te they suspect any agency of withholding material, they would have a right to conduct a hunt. The bill gives . the Board power to subpoena records and persons, to take testimony under oath, to grant immunity to witmesses, and to punish éefiance.
13-00000 Lures BZ d1:16 SP0L7 4b lLbITZ bin Sto GU , iy OOS The Board’s decisions are to be final unless the Presi~ — dent himself intervehes to insist that some piece of in~ formation not be released. The bill giving the Board its . powers is to "take precedence over any other law, judicial decision ..., or common law doctrine" that might be in con- | flict. | My comments on this bill are mostly cautionary. I question whether any legislation can achieve all that this bili seeks to achieve. I question giving to a court-— appointed Review Board such broad responsibilities and powers. I believe that a Review Board differently selected, with a more limited mandate, could do a better job. ‘The first cautionary point concerns the aim of clearing doubts about the Kennedy murder. Even if every bit of relevant docitmentation becomes public, it will not yield a story that all Americans will accept. Why should it? Though we now know just about everything about the Pearl Harbor attack, new conspiracy theories continue to be woven. one of the latest bas Winston Churchill as the villain! Despite more than a century of research, new theories still appear about conspirators helping John Wilkes Booth kill Lincoln. The chances are that the same will always be true for Oswald and Kennedy. "After another decade or so,
13-00000 wer MOF OS ahi dD ed VAI OB ADia difes Owds ww ee YY however, Kennedy’s murder will probably become, like Lin- coln’s, more an interest of buffs than of the public at The chances of clearing away all doubts are lessened by the fact that every bit of relevant documentation will not be released. This bill itself speaks of protecting secret agents and intelligence sources and methods. It speaks also of privacy rights. CIA and FBI reports and National Security Agency intercepts contain much material that, by these criteria,-would have to remain secret. in fact, still more material may be kept from the pub- lic. This bill refers only to protecting the privacy of living persons. If the Review Board yields to human feel- ings, it may eacbert protection to families and friends. Suppose, for example, that it sees ray FBI files recording old accusations against some Cuban-American. Even if the person is dead, anyone ever connected with’ that ‘person could suffer should the accusations become public. If the Review Board suspects that the accusations were malicious and false, will it not choose to leave the files secret? Also, it has to be assumed that some files will tum oat to have been lost or destroyed. The proposed Review Board vould thus have to confess ‘not only that it chose to
13-00000 leave some material under wraps but that other material was simply missing.. Would spinners of conspiracy theories take the Board’s word? Would they not instead accuse it of col- Luding in concealment of "smoking guns"? The Review Board would meanwhile be under pressure not to let privacy rights or other considerations inhibit release of documents. Investigative reporters, writers, and docudrama producers would hammer at it. So would scholars, including many interested in subjects other than the Kennedy murder. So would others with axas to grind. Some ‘material sought might have only a remote rela- tionship to the murder. The clamor would be no less fero- . cious. How mich of the central files of the FBI and CIA would have. to be opened, for example,.to persuade disciples of Mark North or Mark Lane or Oliver Stone that neither FBI nor CIA officers participated in a murder plot? The Review Board. would surely be urged to pursue data on the possible involvement of right-wing extremists. ob- vious items would include not. only FBI files but also tax 'yeturns. Imagine the scope of possible documentation if, in feirness, the. Review Board also sought data on financial © transactions by individuals associated with Vice President Lyndon Johnson!
13-00000 wes Vo/sus diidy SPGl7 465 1972 EEN SCa GOY Tt’ forecast, in other words, that ‘new evidence will not dispel conspiracy theories. At most, it will curb some of ‘the more adventurous theorizing. | I also forecast that, if release of tha evidence is managed as this-bill proposes, one of two results will fol~ low. . If the Review Board yields to outside pressures, it will conduct a fishing expedition. Much embarrassing and possibly harmful information will be made public. Alterne- tively, the Review Board will resist pressure. It will | define its mandate nacrowly. It will be prudent in what it reveals. It will then ‘be accused of a "whitewash." The latter result could make matters worse rather than better. Suspicion could be fed, not eallayed. - - There may , however, be better means of doing what needs doing. The current bill would have the Rqview Board ané its Executive Director evamine all materials to ‘be released. They would be charged with ferreting out ‘undisclosed materi- al, and they would have effective responsibility for decid- — ing what would and would not be released. An: alternative would be a bill simply enjoining holders of records to identify and locate materials that, in the language of the current bill, "relates in any manner or de~ Moos
13-00000 ee es ate we ame me meee mete an tr grea" to the murder. of President Kennedy. The injunction “would apply to all congressional committees and all execu— ’ tive agencies, including the CIA, the FBI, the Secret Ser- vice, and the National archives. ‘The bill could direct these record-bolders to make the materials public. It could specify thet the only materials to be held back would be those itemized in the current bill ~~ agents, intelligence sources and methods, etc. , Where legislative writ does not rm or is disputable, a statute could urge voluntary action. “The current bill asks such cooperation from state and local agencies and foreign governments. A statute that sought to avoid constitutional disputes could ask the same of the President regarding records of the White House and Executive Office. This alternative bill could require or request public reports describing naterials withheld from release — their ‘characteristics and quantities, the genexai reasons for non- disclosure, and plans for eventual release. . | A Review Board could -be crerted with a limited — and more workable -- mandate. Its first duty could be to review racord-holders’ . guidelines. These might well differ from agency to agency. Procedures for searching National Security Agency files of
13-00000 communications intercepts might not be the same as those for searching the much less voluminous files of CIA stations and headquarters divisions. The Board could try, however, to ensure comparative uniformity in the diligence of searches. The Board could try also to ensure ‘comparative ‘uniformity in definitions of what is to be withheld. ft might urge, for exemple, that the intelligence sources and methods criterion apply only to sources and methods in cur- rent use, not just to any ever used. - fhe Board’s second duty could be to scan materials that . vYecord-holders proposed actually to withhold. The Board might question record—holders’ decisions. If so, it could ask that the agency or committee think again. If dif- ferences continued, the Board could. appeal to the President er, for Congressional documents, to the President of the Senate ¢ or the ‘Speaker of the House. In a final public report, the Board could describe any still umresolved differences. While.the description would be in generalities, the issues would become publicly known. The broad purpose of the Board’s report would be to validate: the record-holders’ non-disclosure decisions. Such a Review Board could be selected by comparatively traditional methods. Nominations could be asked of the
ae eet at HO Oe te ddunet oP toth apis d mold American Bar Association, the American Historical Associa- tion, the American Political Science Association, or kindred podies.. Appointments could be made by the President, with _ advice and consent of the Senate. Unless the quantity of material withheld-proved to be much larger than I would expect, the Review Board could be kept small. Tt could probably manage with minimal staff.. I believe that this alternative statute would ac- complish all that can be accomplished. It would leave the _Onus for release or non-release of records on those already familiar with these records. Committees of Congress would make rules for their fiies. The President, the heads of de- partments; the Directors of Central intelligence and the . FBI, and the Archivist of the United states would make rules for theirs. : 7 This alternative statute vould limit the powers and _ responsibllities to be thrust on an untried and potentially vulnerable Review Board. It would create a Board with the assignment only of checking the coherence and consistency of . Stiteria for disclesure and non-disclosure. _ Since the invitation to testify included questions | reaching beyond the current bill, I take the opportunity to | respond ‘to that concerning general declassification
1s ee eS MUULZ - * 10 policies. I believe the procedure just outlined could be’ applied much more widely. A statute could declere that ell government records more than thirty years old would become public unless the originating agency showed specific cause for continued non-disclosure. A Board or Commission ap~ . pointed by the President with the advice and consant of the Senate could have euthority to review all such materials and to question or appeal the non-disclosure. Tis approximates practios in the United Kingdon. | In conclusion, I repeat e warning against expecting any | legislation to create consensus and thereby "contribute to | the trust OF the people in their goverment." Inventors of conspiracy. theories will always be more ingemious than as- seublers of evidence. The imediate result of releasing records will be, moreover, to Provide grist for the ‘theorists’ milis. ven if everything were released tomor- row, it would take at least a decade for researchers to sort the newly released materials. In the meantine, conspiracy builders would be picking out those bits and pices of evi- dence that suited them. In the Jong run, release of docu- ments will get us closer to truth; but, as Keynes observed, thet. long run probably stretches beyond any of our lifetimes. |
TESTIMONY OF- JAMES H. LESAR PRESIDENT ASSASSINATION ARCHIVES AND RESEARCH CENTER ON S.J. RES. 282 "THE ASSASSINATION MATERIALS DISCLOSURE ACT OF 1992" BEFORE THE COMMITTEE ON GOVERNMENTAL AFFAIRS OF THE UNITED STATES SENATE : May 12, 1992
Mr. Chairman and members of the Committee: I am honored to have this opportunity to testify before you on the legislation to require the government to release its records pertaining to the assassination of President John F. Kennedy. I appear on behalf of the Assassination Archives and Research Center ("the AARC"), of which I am President. The AARC is a private, non- profit organization which collects, preserves and disseminates information and materials on political assassinations. The AARC is funded by membership dues and donations from the public. I am an attorney specializing in Freedom of Information Act litigation, and have litigated well over 100 such lawsuits. Over the past twenty years I have represented nearly all of the major authors and researchers who have litigated their Freedom of Information Act requests for records pertaining to the assassination of President Kennedy. To date, I have handled over fifty such lawsuits. I have carefully studied the proposed legislation. I have also read the letter which you received from the Department of Justice. I have heard that the Administration may seek to achieve its goals, particularly that of using more restrictive standards for release of Executive Branch records, by issuing an executive order rather than awaiting action by Congress. In my mind the only thing worse than seeing the Justice Department's wishes granted in legislation would be to see them set forth in a stand-alone executive order which goes unchallenged by Congress. . Legislation is needed to bring each branch of government which holds records
13-00000 af 3 on to the same playing field, and to create a process which is accountable, independent and credible. Incorporating the Justice Department's restrictive standards in an executive order would duplicate the devastating damage to the ideal ‘of full disclosure which occurred when the Reagan Administration successfully sabotaged the 1974 amendments to Exemption 1. by drastically altering the standards for classifying information in the interests of national security. The difficulty which researchers have had gaining access to Kennedy assassination materials amply démonstrates the need to alter the standards employed by the FOIA and the current executive order on national security classification. If you support release of the Kennedy assassination records, you cannot favor the Justice Department's recipe of simply mixing one part political will to three parts of existing standards and stir. You must substantially liberalize the existing standards and make it stick. A few illustrations from my practice will- show the inadequacies of the FOIA and the enormous frustration which accrues to those who attempt to use it to obtain infermation about the Kennedy assassination. These examples reveal a pattern of delay, costly litigation, and untrue representations by the government. Cases brought in the 1980's also show that massive withholding of information, with little significant information being released. Case 1: In 1969 Harold Weisberg, a leading Warren Commission critic, made a simple request to the FBI. He wanted to see the results of the spectrographic. tests which had been conducted on
13-00000 4 bullet(s), bullet fragments and items of evidence allegedly struck by bullets during the assassination of President Kennedy. Denied access by the FBI and the Attorney General, in 1970 he brought suit. A four-year legal battle ensued. First, the district court, relying on the Justice Department's representation that it was not in the national interest to release the results of these scientific tests, denied his request. A court of Appeals panel reversed, but the dissenting judge wrote a scathing opinion in which he referred to FOIA requesters as "rummaging writers" and characterized Weisberg as "some party off the street." Stating that the FOIA "forfend(ed) against" Weisberg's proposed further inquiry into the Kennedy assassination, he concluded his dissent with a Latin phrase in capital letters, “REQUIESCAT IN PACE." "Rest in Peace." But the case did not rest in peace. The Justice Department sought a rehearing before the full court, which was granted. On rehearing en banc, the full court ruled that the files of the FBI were exempt from the FOIA's disclosure requirements. That case set a precedent so bad that when Congress first amended the FOIA in 1974, it ‘specifically overturned the Weisberg case, requiring that the FBI and other law enforcement agencies demonstrate that allegedly exempt records fall within one or more of six enumerated harms. In 1975, when the new amendments took effect, Weisberg again brought suit on his request for the spectrographic analyses, this time adding a request for neutron activation testing on the same evidentiary items. This new phase of the battle lasted eight years and involved three trips to the’ Court of Appeals. Ultimately,
13-00000 a 5 Weisberg obtained important records on these scientific tests, including records that the FBI had first said did not exist, then Claimed were missing or destroyed. Other records were never located or were meaningless. From the date of the first request, the legal battles lasted fourteen years. | Case 2: In 1980 another requester asked the CIA to release all of the records it had made available to the House Select Committee on Assassinations. The CIA refused and the requester brought suit. In court the CIA stated that there were approximately 300,000 pages of records responsive to the request. I spent the first three years of this lawsuit litigating four ‘threshold issues raised by the Government. Had.my client lost any one of these four threshold issues, the CIA would not have had to release a single page from its 300,000 page collection. By 1984 the CIA had begun to release a trickle of documents. Although the .cCIA told the court that it had assigned seven people to work on the request, it processed the documents at an incredibly slow pace. When it became evident that it would take the CIA several decades to process all of the documents, the requester had no choice but to drastically limit the scope of his request. Thus, he entered into a stipulation which restricted his request to some of the subjects discussed “in the report of the House Select Committee on Assassinations and its supporting volumes. Although the CIA's job of reviewing documents was reduced by more than one- half, it took several more years for it to complete processing of the remaining documents. Moreover, the CIA continued to withhold
13-00000° 6 virtually everything. Only a few thousand pages were released, and most of them consisted of newspaper clippings, records that previously had been released, or documents that were heavily redacted. Case 3: In 1976, Dr. Paul Hoch requested two batches of CIA documents which had remained to be processed after the CIA had made its initial releases of Kennedy assassination documents. Many of the records responsive to this request related to the 1966-1969 investigation and trial of Clay Shaw by New Orleans District Attorney Jim Garrison, who charged that Shaw, David Ferrie and others had plotted to kill the President. The CIA repeatedly. told Hoch that his request was being processed and that if he would only be patient the documents would be released in "a few months," “in six to eight weeks," “in the near future." Indeed,. Hoch received such assurances on no less than 11 different occasions over a six- year period.. After having been strung-out for six years, Hoch retained counsel and filed suit. After the suit was filed, evidence was developed. which indicated that all the CIA had done . over the previous six years was to number the focuments. It had numbered several documents one month, a few more another month, a couple more the next month. Then, in one month, it engaged in a veritable orgy of numeration, numbering, as I recall, nearly a hundred documents that month. | | A few months after Hoch filed his complaint in district court,. the CIA produced 808 pages. It also continued to withhold a considerable volume of materials; mostly on grounds of national
13-00000 7 security or because disclosure allegedly would identify intelligence sources and methods. The district court upheld all of the CIA's exemption claims save one. This one was an ll-page memorandum which the CIA swore must be withheld in its entirety under Exemption 5's deliberative process privilege. The judge ordered this anonymous, undated memorandum disclosed. Then things got really interesting. The CIA moved the judge to reconsider his order. on this memorandum, asserting that it had claimed, albeit obscurely, that this document was also withheld in its entirety under Exemptions 1 and 3 in order to protect national security and intelligence sources and methods. But before the court could act on the motion for reconsideration, the CIA rushed to court with a new revelation: the eleven-page memo, which dealt with the CIA/Mafia plots to kill Cuban Prime Minister Fidel Castro, matters exposed by the Church Committee in 1975, had been released nearly in full almost a decade earlier, by the CIA itself. Case 4: In 1969, Harold Weisberg made a request for FBI records on the assassination of Dr. Martin Luther King, Jr. J. Edgar Hoover himself ordered that no response be made to this ‘request. In 1975, when the amended FOIA became effective, Weisberg submitted a new request for King assassination records. He specifically included a request for crime scene photographs. After he filed suit, the FBI claimed that it did not have any crime scene photographs. This statement was false. Ultimately, the FBI released more than 150 crime scene photographs to Weisberg. During the same case, Weisberg picked up indications that an
13-00000 8 FBI supervisor named Long had kept a tickler on the King assassination. A tickler is a file containing extra copies of documents kept at hand so it can be immediately retrieved. The FBI first denied that such a tickler file had been kept. Then it claimed that it could not locate it. After a long period of resistance, the Justice Department finally located the Long tickler exactly where Weisberg had suggested they look for it. When finally located, most of the file had been gutted. Weisberg's suit for the King assassination documents lasted 15 years. He obtained approximately 60,000 pages. If the same suit were filed today, I believe that he would get about one-fourth of what he obtained in the late 1970's and early 1980's. These stories that I have related are unusual only because the requesters actually went to court to fight the CIA and FBI. Most requesters cannot afford the time or the money of litigating their FOIA requests. against these agencies. You might be tempted to conclude from the absence of litigation that the FOIA is working just fine. The opposite is true. The FOIA has been severely damaged by the 1984 amendments eliminating access to CIA operational files and by the 1986 amendments to Exemption 7, which applies to law enforcement records, as well as by a string of decisions in the Supreme Court: and the United States Court of Appeals for the District of Columbia which have greatly expanded the amount of material which can be withheld from the public. Let me add that while it is important to have obtained the public pledges from CIA Director Gates and FBI Director Sessions
13-00000 9 which you heard today, if you support release of the records, you must also ensure that you have the support of other agencies, . including the Department of Defense, the Treasury Department, the State Department, and such divisions as the Secret Service and the National Security Agency. I wish to caution that while I think that this legislation will result in greatly enriching our fund of knowledge about the Kennedy assassination and the official investigations of it, at least if modified along the lines I suggest in the attachment to this statement, I do not believe that there is likely. to be any “smoking gun," which will “solve the case." Rather, this legislation must be defended on the ground that the American people have a right to the fullest possible disclosure so they can make of it what they will. It will take much time to read, analyze, and _ understand the information released. Whether it will lead to the resolution of any controversies which beset this subject remains to be seen, but it is a course which cannot be avoided. The American people want to know the details of their history, however painful and puzzling it may be, and that is their right. The proposed legislation has both strengths and weaknesses. I am attaching to this statement a detailed discussion of the joint resolution which includes a number of recommendations for changes. To briefly summarize, the major provisions of the bill include: a definition of “assassination materials," the composition of the Review Board, and the standards for the postponement of the release of information. The standards for postponement are critical
13-00000 10 because they determine the amount of material which may be withheld. | Before discussing the limitations on the term “assassination material" as related to the assassination of President John F. Kennedy, I note that this section excludes records on the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. The House Select Committee on Assassinations ("HSCA") conducted an extensive investigation on Dr. King's assassination and concluded that his murder probably involved a conspiracy. Public belief that Dr. King was killed as a result of a conspiracy and that this crime remains unsolved is widespread. The alleged assassin, James Earl Ray, denies that he shot Dr. King. Unless the importance of historical issues is to be determined by whether a movie has been made about them, there is no justification for excluding the King assassination records from this legislation. The assassination of Senator Robert F. Kennedy is equally the subject of profound controversy. Recently, a group of distinguished citizens have submitted a lengthy petition to the Los Angeles County Grand Jury to investigate evidence that the Los Angeles Police Department engaged in “willful and corrupt misconduct" in its investigation of Senator Kennedy's assassination. In support of these charges, the group submitted more than 800 pages of exhibits, mainly derived from the Los Angeles Police Department's own files, which document its charges. that L.A.P.D. destroyed crucial items of evidence, ignored material evidentiary leads, cannot account’ for important missing evidence,
13-00000 11 engaged in a cover-up of its failures, and failed to conduct a thorough investigation of the crime. The records of federal agencies and congressional committees relevant to Senator Kennedy's assassination should also be included in this legislation. The term Wassassination material" is broadly defined, but it falls short of ensuring that scholars will have all of the iba? . documents which they need in order to pro rly study the subject. It should include policy documents which provide the context of decisions in the Kennedy Administration which may shed light on the assassination. It should include, as it presently does, all documents obtained or created by any previous official investigation. It should include materials on those persons who have figured in previous official investigations: state, Federal or local. Because no one can predict in advance where new avenues of study may lead, or what they may produce, the definition should be flexible enough to provide scholars with those materials reasonable calculated to shed light on the assassination or its investigations. Finally, it should also include information records on agency operations and functions which may be relevant to the study of the assassination. The current provision defining assassination materials contains an exemption for “personnel matters oor other administrative affairs of a congressional committee, the Warren Commission, or any entity within the Executive Branch of Government." I strongly oppose this exclusion. The Warren Commission records on this subject have been publicly available
13-00000 & 12 through the National Archives for many years and should not now be made secret. The work of prior commissions and committees is a perfectly legitimate subject, but it has been the subject of some secrecy which has impeded the public's right to _ know. In particular, the staff of the House Assassinations Committee, with the exception of its General Counsel and Staff Director, G. Robert Blakey, pledged an oath of secrecy about their work. Blakey has published a commercial book about the committee's work, and is quite public and outspoken about it. Because of the secrecy oath, others who are quite knowledgeable about the Committee's work have been silenced. The public has been denied their views and their information. In this regard, I would urge the insertion of an additional provision in this legislation which would rescind any secrecy oaths taken by the staffs of any previous congressional or executive branch commission or committee. This provision would also be used to prohibit release of information regarding a very troubling incident in which the House Select Committee discovered that its most sensitive files on the Kennedy assassination had been rifled by a CIA liaison officer assigned to assist the committee. According to published accounts in the Washington Post, this officer, Regis T. Blahut, surreptitiously entered the safe reserved for physical evidence of President Kennedy's assassination, including autopsy photos, X- rays, and other articles, including the so-called “magic bullet" that wounded both Kennedy and Texas Governor John Connally. According to the Post, Blahut was given several polygraph
13-00000 13 examinations. He was asked whether he did it, and according to one source, he flunked that. He was asked whether anyone had ordered him to do it, and he is said to have flunked that question too. Materials regarding incidents of this kind should be fully available to the public. A second problem with this legislation is that is proposes to exclude from the Review Board anyone who has had "previous involvement with the investigation or inquiry relating to the assassination of President John F. Kennedy." I believe this is too broad and should be limited to involvement in prior “official" investigations. Having a panel of Kennedy assassination agnostics might have some idealistic allure, but the public is unlikely to be persuaded that the government intends to disclose all pertinent materials if the panel does not include experienced and knowledgeable Kennedy researchers. A third and critically important area that needs refinement is the standards for postponenent of disclosure. Particularly significant is the need to narrow the definition of the term "intelligence source" and the term "intelligence method." Virtually all information an intelligence agency document can be withheld under these terms. “Intelligence source" must be defined to make clear that it does not include dead sources who have been the subject of widespread publicity that is tantamount to official acknowledgement, .and sources who are willing to have their. identities disclosed, and sources who cannot reasonably be expected to suffer death or serious bodily harm if their identities are
13-00000 14 disclosed. Similar restrictions must be put on the term "confidential source." With respect to intelligence methods, it must be made clear that this term does not include outmoded methods, methods which are known to the public or methods’ which may be commonly deduced. Nor should it include methods that are known to other hostile intelligence services. New legislation is needed. Half measures will not do. If this legislation does succeed in substantially clearing the air, it does not convince the public that nothing of critical importance to our understanding has been withheld but for the very best of reasons, then public cynicism about government will continue to increase. I ask that additional comments be placed in the record.
13-00000 ANALYSIS AND COMMENTS on S&S. J. Res. 282 Sec. 3. Definitions (2) “Assassination material" is broadly defined but still may fall far short of the documents which scholars need in order to properly study the Kennedy assassination. In essence, the present definition limits “assassination materials" to those records which have figured in previous inquiries by Congressional committees or Executive Branch agencies or commissions. Since these entities may . not have asked for all of the relevant records, and may in fact not have asked for records on some relevant subject areas, the definition of “assassination material" needs further refinement. . It should be modified to indicate that “assassination material" includes any material which any member of the Assassination Materials Review Board ("AMRB") or any individual seeking release under the Freedom of Information Act ("the FOTA"), can plausibly contend may shed light on the assassination or any of its investigations. The definition also contains two explicit exclusions. The first of these excludes material to the extent that it pertains "to personnel matters or other administrative affairs of a congressional committee, the Warren Commission, or any entity within the Executive Branch of "the Government. .. . " This
13-00000 % 2 language could be used to prohibit release of materials pertaining to Regis Blahut, the CIA employee suspected of tampering with autopsy materials pertaining to the Kennedy assassination. The second exclusion relates to the autopsy materials donated by the Kennedy family to the National Archives. This assumes that the autopsy materials were those of the Kennedy family to give to the Archives. This legitimizes a bad precedent. The autopsy materials ought to be subject to public, not private, control. The remedy for abuse of autopsy materials should be a newly created right of legal action by family members rather than denial or public access. Sec. 5. Assassination Materials Review Board (b) Court of Appeals division shall appoint "5 distinguished and impartial private citizens, none of whom are presently employees of any branch of the Government and none of whom shall have had any previous involvement with any investigation or inquiry relating to the assassination of President John F. Kennedy, to serve as members of the Review Board." Query: Is this language designed tq exclude private citizens who have written or spoken critically of the official investigations of President Kennedy's assassinations? Or only those persons who participated in official investigations or inquiries? If it excludes the former, then it will be difficult to find individuals who are sufficiently knowledgeable about. Kennedy assassination matters to make the judgments called for by the Joint Resolution (i.e., defining what materials are related to
13-00000 3 the assassination and whether the public interest in disclosure outweigh other concerns). Additionally, without such persons on the Review Board, it may be difficult to persuade the public that all pertinent materials will be disclosed, thus undercutting the objective of restoring trust in government. A committee of distinguished citizens who know nothing about the subject is not likely to inspire trust. Sec. 6. Grounds for Postponement of Disclosure Subsection 1 states that disclosure may be postponed if its release would (A) reveal “an intelligence asset." This must be qualified. It should only apply to living, covert intelligence agents. Furthermore, if material in the public domain identifies or suggests the identity of an intelligence agent, the presumption should be that such material shall be disclosed unless the agency which employed the agent can show by clear and convincing evidence that serious damage ‘to the agent can reasonably be expected to result from disclosure. Subsection 1 states that disclosure may he postponed if its release would (B) reveal "an intelligence source or method which is currently utilized, or reasonably expected to be utilized, by the United States Government. .. ." This provision also must be modified. The first problem is that there is no limiting definition of "intelligence source of method." Under this proviso, it would be possible to withhold such "intelligence sources" as newspapers, libraries, law enforcement
13-00000. 4 agencies, etc., as well as. the personnel affiliated with them. Research in a public library is an "intelligence method, " and it, too, is no doubt currently utilized. A fortiori would this definition include the surveillance techniques employed at the Cuban and Soviet embassies in Mexico City. The “intelligence source" definition should be limited to living sources in circumstances where disclosure could reasonably be expected to result in actual serious personal damage to the source. Where disclosure of the identity of the source will not cause serious actual damage to the current national defense or foreign policy interests of the United States or where the identity of the source has become publicly known or is likely to have become known to any hostile or formerly hostile foreign power or an agency thereof, it should be released. “Intelligence methods" must also be modified so that it applies only to methods that are unknown to the public or to foreign intelligence agencies. Subsection 1 states that disclosure maybe postponed if its release would (C) reveal “any other matter currently relating to the military defense, intelligence operations or conduct of foreign relations of the United States; and the threat to the military defense or conduct of foreign relations of the Unites States posed by its disclosure is of such gravity that it outweigh any public interest in its disclosure. The chief problem with this provision is that there is no standard for what constitutes a’ "public interest" of sufficient
13-00000 5 moment to outweigh any of the putative threats. Is the general interest in the fullest possible disclosure a public interest which may be considered, or must a showing of public interest in the substantive content of the material at issue be shown? Subsection 2 provides that invasion of the privacy of a living person is a grounds for postponement of disclosure "if that invasion of privacy is so substantial that it outweigh any public interest in its disclosure." This exemption contains a phrase stating that it applies "whether the person is identified in the material or not." This phrase should be stricken. With this phrase included this provision is significantly less liberal than current FOIA exemption 6, which covers only those invasions which result from the actual production of the materials themselves. Additionally, some content... needs to be given to. the invasion of privacy concept. One limitation would be that it must cause an actual as opposed to a theoretical invasion of privacy. A second that it relates only to intimate personal matters the disclosure of which would be likely to have profound adverse impact on an individual. Subsection 3 states that disclosure may be postponed if its release would constitute "a substantial and unjustified violation of an understanding of confidentiality between a Government agent and a witness or a foreign government. ..." This provision needs to be amended to include only those promises of confidentiality--either to a witness or a foreign government~~-made in writing. | Among the reasons for this are the
13-00000 6 fact that (1) if the promise of confidentiality is not required to have been made in writing, then there is seldom any effective means to counter the agency's claim of confidentiality and the agency wins by default; and (2) the agency's claim of confidentiality frequently reflects not the desire of the witness but its own desire for secrecy. This provision needs to be amended to make it clear that it does not authorize withholding of the identify of, or information provided by, a deceased witness. Secondly, there should also be some time limitation on any understanding of confidentiality made with a foreign government. And perhaps there should be a requirement that the foreign government officially object to each such disclosure in writing. . Additionally, it should be made clear, either in the text or in the legislative history, that it is not a "substantial and unjustified violation of a promise of confidentiality to disclose information supplied by a witness if the identity of the witness Gan be concealed. . Section 8. Determinations by the Review Board Subsection (g) provides that any decision of the AMRB that a record is not assassination material or that disclosure should be postponed "shall not be subject to judicial review." Why not? Likely to pose less of a burden and expense than litigation under the FOIA. Subsection (h) (2) provides that the President may certify that material “qualifies for postponement of disclosure pursuant to
«. 13-00000. . 7 section 6, in which case release of the material shall be postponed, and this decision shall not be subject to judicial review." | There is no limitation on the duration of postponement by the President. Suggest that the maximum period of time be that portion of the President's term which remains. Section ll. Rules of Construction Subsection (b) provides that nothing in the Joint Resolution shall be construed to eliminate any right to file requests with any Executive agency other than the Review Board or seek judicial review of the decisions of such agencies under the FOIA. One problem here is that transferring all agency records to the Review Board may mean that they are no longer "agency records" within the meaning of the FOIA." | A second problem is that this provision eliminates the AMBR from FOIA coverage. This sets a bad precedent and sets up circumstances of highest irony in which an agency whose overriding mission is openness will itself operate in secrecy. A provision should be added here stating that in any FOIA action involving assassination materials the court is to apply the standards for postponement set forth in the Assassination Materials Disclosure Act in lieu of the exemptions provided in the FOIA. Additional Notes It may be a good idea to expressly mention the Rockefeller Commission as subject to the Act. *
CIA HAS NO OBJECTION TO ‘ DECLASSIFICAT {103 udge John R. Tunheim vIrICATION AND/OR Judg jon RELEASE OF CiA INFORMATION Assassination Records Review w Boaril! THIS DOCUMENT ” Prepared Testimony In Support of ELR. 1553, To amend the President John F. Kennedy Assassination Records Collection Act of 1992 to extend the authorization of the Assassination Records Review Board until September 30, 1998. Before the N: ational Security, International Affairs and Criminal Justice Subcommittee, House Government Reform and Oversight Committee June 4, 1997 I. Introduction Mr. Chairman and Members of the Subcommittee, I would like to thank you for the opportunity to testify on behalf of the Assassination Records Review Board in support of H.R. 1553, which would extend the authorization of the Review Board for one final year. The Board acknowledges that all of the issues surrounding the assassination of President Kennedy will likely never be fully resolved, however, this additional time ‘will allow us to complete our work, including the review and public release of critical FBI and CIA records, submit a comprehensive and complete final report to the Congress and the President, and make available to the American public as much information as possible on the assassination of President John F. Kennedy. I would also like to take this opportunity to thank Chairman Burton for introducing ELR. 1553, and Congressmen Waxman and Stokes for cosponsoring this bill. These Members have exhibited an admirable bipartisan spirit and an understanding that we as a government, and as a nation, must bring closure to a sad chapter of our history, and that we must seize this opportunity to do itnow. In addition, we would like to express our appreciation to Chairman Hastert for chairing this hearing today. It provides an opportunity to explain what the Review Board has accomplished to date and discuss how we could finish our work in Fiscal Year 1998, if given the opportunity. Please allow me to introduce the other members of the Review Board with whom I have had the professional honor and personal pleasure to work: Dr. Henry F. Graff, _ Professor Emeritus of History, Columbia University; Dr. Kermit L. Hall, Dean, College of Humanities, and Professor of History and Law, The Ohio State University; Dr. William L. Joyce, Associate University Librarian for Rare Books and Special Collections, Princeton University; and Dr. Anna K. Nelson, Distinguished Adjunct Historian in
13-00000 _ Residence, The American University. We have been honored to engage in this important effort to make the history of the Kennedy assassination available to the American public and I am pleased to be here today to testify before this Subcommittee and answer any of your questions. I would also like to describe briefly the professional staff that we are fortunate to have hired. The Executive Director is Dr. David G.: Marwell, a professional historian who gained vast experience dealing with large numbers of important historical documents _. with the Office of Special Investigations at the Department of Justice and later as the Director of the Berlin Document Center. He leads a staff of 28 full-time employees, who have varied backgrounds as historians, lawyers, analysts, investigators, and administrators. The members of the staff have approached their unique task with seriousness of purpose, creativity, professionalism, and competence, and have assisted us in shedding new light on the assassination through the release of thousands of Federal Government records, and the acquisition of records in private hands and local governments that were not previously-available to the American public.I believe: ‘that 7 we assembled exactly the typé of professional and diversified staff that Congress : : envisioned would be necessary to accomplish this difficult assignment. Il. Accomplishments to Date As I know you are aware, the Review Board was created by The President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act) as an independent Federal agency to oversee the identification and release of records related to the assassination of President Kennedy. I know that certain members of this subcommittee played a role in crafting and passing the JFK Act—a unique piece of legislation designed to remove doubt and speculation about the content of government records related to the assassination of President Kennedy. As a result of these lingering suspicions, Congress determined that an independent board was the most effective and efficient vehicle to make all assassination records available to the public. The Review Board has accomplished much since we began releasing previously secret records in June of 1995. The Board has acted to transfer more than 14,000 documents to the President John F. Kennedy Assassination Records Collection (JFK Collection) at the National Archives and Records Administration. We would not have been successful in our efforts without the significant assistance of the National Archives. The JFK Collection currently totals approximately 3.7 million pages and is used extensively by researchers from all over the United States. By the end of Fiscal Year 1997, the Review Board will have reviewed and processed. . nearly all of the assassination records that have been identified by the more than 30 different government offices believed to be in possession of relevant records, with the
13-00000 . important exception of the FBI and the CIA. I will elaborate on the status of records held by these two agencies later. The overwhelming majority of previously redacted information will have been made public by the Review Board. Before discussing what we will accomplish with one final year, I would like to highlight for the Members of the Subcommittee some of the important records that the Board has made public. They include: * Thousands of CIA documents on Lee Harvey Oswald and the assassination of President Kennedy that made up the CIA’s Oswald File and detail the agency’s investigative activities following the assassination; _ * Thousands of once-secret records from the investigation by the House Select Committee on Assassinations, chaired-b y Congressman: Stokes, ineeane thes wal a Tees controversial Staff Report on Oswald‘s trip'to: Mexico City; ~~”: rc: Mand 4 Thousands of records from the FBI's core and related assassination files that document the FBI's interest in Oswald from 1959-63, after he had defected to the Soviet Union, three years before the assassination; and * The extensive FBI files on its investigation of the assassination. The important work in which the Review Board has been engaged can be best and most graphically demonstrated by showing you the “before” and “after” versions of one of the pre-assassiriation FBI documents to which I just referred and that the Board has released to the public. Prior to the Review Board's review, this FBI document JFK Collection Record Number: 124-10023-10236, Attachment Number 1) was available to the public as you see it on the left. As you can see, it is heavily redacted. The only information that was not secret was the date of the memorandum, “October 12, 1960,” that it was to the “Director, FBI,” from “Legat, Paris” (the FBI representative in Paris), that the subject was “Lee Harvey Oswald, Internal Security,” and that it had to do with a “Paris letter 9/27/60.” The rest of the text was blacked out. Obviously, this version of the document left room for a great deal of speculation among historians and researchers regarding what was underneath the black ink on this document with the provocative subject title. The Review Board aggressively pursued the release of the redacted information in this document and several others that relate to the FBI's interest in Oswald before the assassination. After protracted negotiations with the FBI, an initial FBI appeal to the White House in an effort to keep the document secret, and a direct appeal to the Swiss os,
13-00000 government, we were able to release the information. The unredacted memorandum shows that the Swiss Federal Police had been enlisted by the FBI to try to locate Oswald and to determine whether or not he had enrolled at a school in Switzerland. Now the. public is able to see the document in full and judge its importance. In its redacted state, the document could have meant anything that a researcher's imaginationand - . speculation could invent. In its released form, it must be analyzed for what it says. One of the most important, most difficult, and most time-consuming responsibilities of the Review Board is to identify and locate additional records-that are relevant to the assassination. This is a task that-to some degree must logically come later inthe process, after the Review Board has gained a full understanding of the records that have already been identified. Although the Review Board has made a significant number of requests for additional records and information, some of which I would like to outline, much remains to be done betore: it can. be confident that it has completed. this wae gre. Luk responsibility. Terncanay onli I would like to highlight some of our efforts to identify and locate additional. assassination records. Some examples: % . The Review Board has several ongoing efforts to identify and locate assassination records involving medical issues. As with any homicide, the medical records are among the most important pieces of evidence. As part of its attempt to ensure that the medical records are as complete as_ possible, the Review Board staff has deposed the principal pathologists involved ~ in President Kennedy’s autopsy, as well as other individuals who had knowledge of the autopsy and related photographic records. Review Board has continued its 5 efforts to locate additional FBI assassination records by making several requests for records and information. The FBI has assisted in this effort by giving the Review Board members access to requested files. The JFK Task Force at the FBI has, on the whole, been extremely ~° cooperative and helpful to the Board and has provided the requested information. . Review Board has initiated a number of requests to the CIA for additional information and records. The Review Board expects that these requests will be’ promptly and fully satisfied during the upcoming year.
13-00000 information. Time consuming and careful 1 review ‘of Secret Service activities by. the Review Board produced a series of requests for additional recordsand = * information that, in turn, led to the identification of additional relevant assassination records. For example, in response to the Review Board's first eight requests for additional information, the Secret Service has submitted more than 1,500 pages of material. Department of Defense (Gneluding it its many components and the atey services) (collectively “DOD"), identified few assassination records on its own initiative. DOD has nevertheless been cooperative with the efforts of the Review Board to locate assassination records. When such records have been located, DOD has been willing to release the records with few redactions. Additional work would be required in‘our last year to.ensure that all.°: ° 245 fo ensure inet | assassination records in the military-archives have been made a part of the TRIES = Mads 2 te Collection. Fortunately, the diligent efforts of the ARRB staff have set the stage for accomplishing this task. In addition to the release of records in the Federal Government's vast files,and consistent with the Board's mandate to make the historical record of the assassination as complete as possible, we have been aggressive in identifying and acquiring significant assassination-related records in the possession of private citizens and local . governments, including: * The original personal papers of Warren Commission-Chief Counsel J. Lee Rankin that give further insight into the operations of the Commission; * Copies of the official records of New Orleans District Attorney Jim Garrison's investigation of the assassination; The original papers of New Orleans attorney Edward Wegmann, from his work as a member of the legal team that successfully defended Clay Shaw in 1969 against a charge of conspiracy to kill President Kennedy. Copies of records from the Metropolitan Crime Commission of New Orleans, including records on District Attorney Garrison's investigation and prosecution - of Clay Shaw and records regarding New Orleans organized crime figures;
13; 00000 * Long-lost films taken in Dallas on November 22, 1963, that the public had never seen and that shed new light on the events of that day; and Private collections of records from individuals including Warren Commission attorney Wesley Liebler, author David Lifton, FBI Special Agent Hosty, Attorney Frank Ragano, as well as others. Iam also pleased to announce today that the Review Board has just acquired the original personal papers of Clay Shaw, the late New Orleans businessman who is the only person ever tried in connection with the assassination of President Kennedy. Shaw was acquitted by a jury in 1969 after being charged as part of District Attorney Garrison’s investigation. The Shaw papers will surely add another dimension to this particular chapter of the assassination story. All of these records will enrich the historical record of the assassination for future generations of Americans...Once these records are- processed and described d byt the FAL RA tule sa. National Archives, they will’be available for-résearch.. VL The Need For Additional Ti Despite our best efforts and significant accomplishments, some of which I have outlined, the Review Board will not be able to complete its work within the original three-year timetable set by Congress for the following reasons: * First, the authors of the original legislation believed that our task would take three years. That estimate was based on the best available information at the — time, but the legislation established an unprecedented process. There was no way of knowing the problems of scale and complexity that the Board would encounter, nor was there any way to factor in the comprehensive approach we have taken in fulfilling our mandate. Second, the Board was not appointed until 18 months after the legislation was signed into law. Asa result, without the guidance of the Board, Federal agencies initially defined for themselves the universe of records that should be processed under The Act and to speculate about the kind of evidence that would be needed to sustain the redaction of assassination-related information. Once the Board was in place, agencies needed to redo a considerable amount of work. In fact, many agencies have yet to complete their review and the Board is still seeking their compliance. Third, our enabling legislation imposed several restrictions on the manner in which the Board could operate. Unlike other temporary agencies, the Board e?
13-00000 could not hire or detail experienced federal employees, but rather had to hire new employees who had to undergo background investigations and be cleared at the Top Secret level. Locating and renovating space that was suitable forthe * storage of classified materials was required. As a result, the Board could not begin an effective review of records until the third quarter of our first year. We are pleased and proud that the Review Board and staff have been able to overcome | these obstacles, and that we have developed an efficient and effective process for the review of records. All involved in this process want to see that the job is done, and do not want to cease now with a reasonable conclusion in sight. We want to finish the job we began, and with one additional year we can. Vil. The Job Ahead The additional year of operations will permit the Review Board to finish its task by | completing several major areas of our:work. Please be-assured that these are: 0! f8oerey war ineces identifiable projects that are ‘critical to exisuring' that the JFK: Collection iss: eoenples gue once a2 possible, that relevant Federal agencies have been held accountable, and thatallthatwe = have done is documented in our final report. The Board would focus in our final year on the following: * CTA Sequestered Collection. The Review Board has completed its review of the Oswald “201 file,” the file created and maintained by the CIA on Oswald and the assassination. The Review Board is now faced with the task of reviewing the agency’s “Sequestered Collection,” the large collection of files that was assembled by the CIA in response to requests made by the House Select Committee on Assassinations, chaired by Congressman Stokes, in the late 1970's. These records find their relevance to the assassination defined in part by the course of the HSCA investigation. The Sequestered Collection originally consisted of 63 boxes of CIA- and HSCA-originated records as well as 72 reels of © microfilm. Unfortunately, these records are in a confused order, poorly described, and are replete with duplicates. Some of these records are clearly of great significance, some are of only marginal interest, and the relevance of others cannot be identified. * FBI Sequestered Collection. The FBI divides its assassination records into two general categories. The first is the “Core and Related Files,” consisting of nearly 600,000 pages of files collected in the course of the massive FBI investigation into the assassination. The Review Board will complete its review of this significant collection by the end of FY 1997. The second, which the FBI refers to as its “HSCA records,” is a large collection of records that were identified as being of interest to the HSCA and which remain to be reviewed by the Board. Like the
13-00000 CIA's Sequestered Collection, this voluminous body of records (approximately 280,000 pages) ranges widely in relevance to the assassination. Additional time will allow the | Board to finish its work with several agencies, including the Secret Service, the National Security Agency, and Congressional Comunittees, including the Senate Intelligence Committee. * Search for Additional Records. With one more year of operations, the Board’s search for additional records held by Federal agencies, private individuals, and local governments would be concluded with greater confidence. Some of these records have been identified, but not yet acquired by the Board. * Federal Agency Compliance. In November 1996, the Review Board initiated a compliance program to ensure that Federal agencies have fully cooperated with the Board in discharging its responsibility of assuring Congress andthe | -— ere ag a American public that the goals ofthe JFK Acthave beeraccomplishéd to thie * greatest possible extent. The requests to document compliance with the JFK Act were sent to 27 U.S. government agencies and departments to confirm that the U.S. government has identified, located, and released all records relating to the assassination of President Kennedy. The agencies’ statements of compliance will be included in the Review Board's final report to the Congress. The one-year extension will ensure that the compliance program is completed and fully documented in the final report. It is important for the Review Board to complete these major projects. The Board believes that the completion of the task outlined above, the inclusion of these important records in the JFK Collection, and the documentation of Federal agency compliance as part of the final report will mark an appropriate point at which to conclude the Board’s work. We are confident that all that remains for the Board can be accomplished in an _ additional year. It is clear to the members of the Review Board that there is much work to be done. The ~ review of the remaining CIA and FBI records is a cumbersome and complicated task. However, the Board and staff have the benefit of our experience to date that sets the stage for an efficient and effective review of the remaining records. I would like to briefly describe our early experiences reviewing records and how the past two years set a firm foundation for the future and would work to our advantage in our last year.
13-00000 - Our review of records in the early months was slowed by the complexities of the issues Yaised in the records. The unprecedented new standards of the JFK Act, which go far _ beyond those established under the Freedom of Information Act, requiredatime- * consuming early phase. At first, the review process proceeded slowly and the agencies were afforded ample opportunity to present their evidence. Over time, the Review Board began to standardize its interpretation of the relevant section of the JFK Act and the issues raised in the various documents. Now that the Review Board and the agencies are familiar with the rigorous demands of the JFK Act, the process has accelerated. Ina progressively increasing number of cases, records that initially contained proposed postponements can be released through a “consent” process. In this consent process, the ARRBB staff notifies an agency that its proposed postponements are not likely to be approved by the Review Board and the agency thereupon voluntarily consents to the release of the information. in our review of the FBI’s'“Core ‘and Related Files”: divdthe CIA’s“ Oswald 201 File” 0-0 - se the records that have been the focus of our attention to date, we subjected every requested redaction to a rigorous test: did the evidence of the harm that would result from the release of the information outweigh the public interest in the information? In considering our review of the CIA and FBI “Sequestered Collections,” the Board ecognized that it needed to develop a different approach, one that would take into account the varied degree of relevance of individual records to the assassination. Only - in this way could the Board ensure that it would appropriately expend its resources in its last year. As a first step, the Board carefully analyzed each collection in order to determine what priority should be assigned to the category of records. In addition, the Board developed a set of guidelines for the review of these records which recognized that some categories of records did not require the intensivé word-by-word review that had been the rule for the core collections that have been the subject of the Board’s attention to date. The development of these guidelines began with the August 6, 1996 Board public hearing and culminated in their adoption at the October 16, 1996 Board meeting. The ARRB staff will distinguish between records whose relevance to the assassination is clear and those not believed to be relevant (or “NBR”). Applying these new standards will permit the ARRB staff to identify and review the most significant remaining records in order of priority. These detailed guidelines will reduce the loss of valuable Review Board and ARRB staff time expended to review, on a word-by-word basis, those documents thathavea __ remote relationship, at best, to the Kennedy assassination. Those documents that are identified as relevant to the assassination will continue to be reviewed word-by-word. These standards of relevance are designed to ensure that the greatest number of true
13-00000 ~ assassination records is properly identified, reviewed, and made public in the JFK Collection at the National Archives. a The fruits of our labor from the first three y years would be realized in our last year, one in which we would be reviewing some of the most difficult records, and potentially most important records, but with the benefit of our invaluable experience. lam happy . to report that we have received assurances from the FBI and CIA that they will work with us in a final year to make sure that the necessary resources are applied so that our task can be completed. IX. Conclusion In making our recommendation for a one-year extension, we, the members of the Review Board, are fully cognizant of the difficulties inherent in extending a temporary commission. We are aware of the concern that temporary bodies may haveaself- preserving and self-perpetuating instinct, and want to.assure'you in the clearest and * most unambiguous mannef that our recomméridation'is motivated ‘strictly by our deste’! 2°" °" to complete the job. My colleagues and 'I were appointed as private citizens and have many competing claims on our time and energy. It is our collective conviction that the additional time is necessary and our sincerest commitment that we will complete our task by the end of Fiscal Year 1998, if given the means. I would like to note that, as you may be aware, the Administration is supportive of the one-year extension for the Review Board and has submitted an FY 1998 budget amendment to allow us to complete our work, close out our operation, and submit our final report. ‘Since the Review Board began this effort three years ago, we have witnessed the widespread and passionate interest that the American public has in the assassination of President Kennedy. We have received thousands of letters, telephone calls, faxes and e-mail messages from individuals who care deeply about our history. They come from all walks of life, from all over the country, and are of all ages. Their interest is of varying degrees and they do not all agree on what happened in Dallas on November 22, 1963. However, they do agree that the public has the right to see the files on i the assassination. I believe that what the Review Board is all about can be summed up in a letter we received from a man from California just last week. The author is not a professional historian, not a student working on a paper for a history class, but simply a private citizen interested in learning about this tragic historical event. He wrote the following: “In my humble opinion, it appears that the ARRB is having a healing effect 10
13-00000 upon the American public, who may be coming to realize that there may be closure in sight (in our lifetimes) with regard to the JEK assassination.” These words capture why the Review Board was created by the Congress and why w we hope that the Review Board will have the additional year to complete our task. The Assassination Records Review Board was conceived as a means of eliminating uncertainty and speculation about the contents of government files relating to the assassination of President Kennedy. We, the members of the Board, believe that a premature termination of the Review Board would surely generate intensified doubts within the general public about the commitment of Congress to release all information that relates to the assassination of President Kennedy, as well as renewed speculation about the conduct of our government and its institutions and personnel. If appropriate closure is not reached now, the identical issues will likely have to be addressed again in the future—at even greater cost. The additional year that we recommend. will allow for a confident conclusion of this important task? #0: of tres maupomtert = ee ae ' Mr. Chairman, and Members of the Subcommittee, on behalf of the members of the ‘Assassination Records Review Board, I thank you for allowing us this opportunity to discuss our work and our future. We urge you to favorably report FLR. 1553. I would be happy to answer any questions that the members of the Subcommittee may have for me. The Board and staff stand ready to provide the Subcommittee with any additional information that may be required. Thank you.
Copyright 1997 Federal Information Systems Corporation Federal News Service JUNE 4, 1997, WEDNESDAY CIA HAS NO GBJECTION TO . SECTION: IN THE NEWS DECLASSIFICATION AND/OR *, RELEASE OF CIA INF “ORMATION LENGTH: 12335 words IN THIS DOCUMENT HEADLINE: HEARING OF THE NATIONAL SECURITY INTERNATIONAL AFFAIRS AND CRIMINAL JUSTICE SUBCOMMITTEE OF THE HOUSE GOVERNMENT REFORM AND OVERSIGHT COMMITTEE SUBJECT: ASSASSINATIONS RECORDS REVIEW BOARD REAUTHORIZATION CHAIRED BY REPRESENTATIVE DENNIS HASTERT (R-IL) 2154 RAYBURN HOUSE OFFICE BUILDING _ WASHINGTON, DC BODY: REP. HASTERT: The Subcommittee on National Security, International Affairs and - Criminal Justice will come to order. This hearing will focus on a very important piece of legislation, HR 1553, the John F. Kennedy Assassination . Records Review Board Reauthorization Act. This bill was introduced by Chairman Dan Burton on May 8, 1997 and included in original cosponsors ranking minority member Henry Waxman and Congressman Louis Stokes, our first witness for today, also who chaired the House Select Committee on Assassinations. In 1992, 30 years after the assassination, nearly one million pages of records compiled by official investigations still had been not made public. Congress decided to set up a process for reviewing and releasing to the public the records surrounding the Kennedy assassination. The result was that on October 26, 1992, President Bush signed into law Public Law 102-526, the President John F. Kennedy Assassination Records Collection Act of 1992. The original act provided a three-year timetable for the review board to complete its work. Unfortunately, extensive delays in the appointment of board members delayed the review board's work from the very beginning. In 1994, the Congress extended the 1992 law's termination date for one year, until September 30th, 1996. The review board subsequently exercised its authority into the statute to continue operating for one additional year. The review process has proved to be more complex and time- consuming than
13-00000 anticipated. And although we believe that Congress should not indefinitely continue funding federal entities that were intended to be temporary, Chairman Burton and this subcommittee support the request for a one-year extension of the board's reauthorization. I believe that by releasing these documents to the public we serve an important public right to know and advance the cause of total accountability to the people of this country. At this time I would like to recognize the gentleman from Wisconsin, Mr. Barrett. REP. THOMAS M. BARRETT (D-WI): Thank you, Mr. Chairman. I'm honored to welcome my esteemed colleague, Representative Louis Stokes, to testify before this subcommittee. We are fortunate to be able to draw on your experience in this area. Over 30 years ago this country was shocked by the assassination of President Kennedy in a way that it had not been shocked since the bombing of Pearl Harbor or the bombing or Hiroshima. Yet today we are still prying papers out of the government about that assassination.
PAGE 17 Federal News Service, JUNE 4, 1997 The legislation that created the Assassination Review Board broke new ground by establishing the principle that there should be a presumption of public access to government information. That legislation was necessary because administration after administration had failed to release documents. That should not be. The Assassination Review Board has released millions of pages that could have otherwise remained locked in government file drawers. We are here today to extend the authorization of this board because the process of making government information public has been more complex and time-consuming than anticipated. I am not criticizing the work of the board or the dedication of its members. I am, however, critical of the fact that we are still fighting with our government to allow public access to government documents. Congress has passed laws and resolutions reiterating the principles of public access that were laid down when this country was founded. Administration after administration has worked to thwart that access. I applaud President Clinton for his efforts to declassify xdocuments, but we need to do much more. I hope that every employee at the Office of Management and Budget, and every agency in the government will pay attention to what this board has accomplished. It is the refusal to allow public access that breeds suspicion of the government. It is the thwarting of public access that causes the public to mistrust government officials. If we are to turn the tide of mistrust and suspicion, it will be done by opening the doors of access. Today is one step in that process, but there is much more work to be done. Thank you. REP. HASTERT: Are there any other members wishing to make an opening statement? If not, our first witness this morning is fellow Congressman Lou Stokes, who served as the chairman of the House Select Committee on Assassinations from 1976 to 1979, and is a cosponsor of this important bill. And, Mr. Stokes, we want to say welcome, and thank you for your fine work in this area. And please proceed with your opening statement. REP. LOUIS STOKES (D-OH): Thank you very much, Mr. Chairman. Mr. Barrett, Mr. Turner, Mr. LaTourette. Mr. Chairman, I'd like to submit my written testimony for the record, and if I may, I'd like to just summarize my testimony. . REP. HASTERT: Without objection. REP. STOKES: Thank you. It seems, Mr. Chairman, it was not as long as it is, but actually it's been 20 years; it was in 1977 when I was appointed as chairman of the House Select Committee on Assassinations. We were authorized at that time and directed to complete an investigation surrounding the assassination and the death of President John F. Kennedy. We completed, as you've already stated, our _
13-00000 investigation in 1979. And on March 28th of that year, we filed our final report. In addition to it, 12 volumes of evidentiary material, printed by the Government Printing Office, was made available to the American public. In addition to this, we conducted 18 days of public hearings and an additional two days of public policy hearings. Prior to the committee running out of both time and money, we had released everything that we had the time and resources to release. All of our other _ records were placed in the National Archives, under a House of Representatives rule which existed at that time, Rule 36, requiring such unpublished records routinely to be sealed for 30 to 50 years. The records of our committee relative to this investigation consisted of 935 boxes, which we turned over to . the National Archives. Then, over the years, a considerable public debate about these records has ensued, including accusations that these records, if released, would contain evidence of a government cover-up, or complicity of government agencies in the assassination of President Kennedy.
PAGE 18 Federal News Service, JUNE 4, 1997 A great deal of this was fueled in 1992 by a movie entitled "JFK." That movie contained many distortions of the facts and circumstances surrounding the death of our president. As a result of that movie, my office was deluged with | thousands of letters and telegrams by Americans calling for the release of these sealed files. As a member of Congress, and a former chairman of that committee, I deemed it important not to have the good work of our committee impugned by such baseless accusations. Our committee had attempted to conduct its investigation into the assassination of the president, and to present the results of that investigation to the Congress and to the American people in a thorough and dignified manner in keeping with the memory of this great president. Consequently, in 1992, I introduced, and the House and Senate passed, PL 102-526, a bill entitled The President John F. Kennedy Assassination Records Collection Act of 1992. That law created the Assassination Records Review Board, which mandated and authorized that board to identify, secure, and make available all records related to the assassination of President Kennedy. It was our intention, Mr. Chairman, that everything that could be released from every agency, every court record, anywhere they existed — that those records be released to the American people. Under the law, the board had until October 1, 1996, to fulfill its mandate, plus an additional year, at the board's discretion. We were very fortunate to have a very distinguished panel appointed. This panel was appointed by President Clinton 18 months after the law was enacted here by the Congress — a considerable delay in the appointment of this panel. But we were very fortunate to have persons sucli as Chairman Tunheim, Dr. Henry Graff, Dr. Kermit Hall, Dr. William Joyce, Dr. Anna Nelson, and an outstanding executive director, David Marwell. Under this panel, they have now released more than 10,000 Previously secret government documents. They have released a report, which I would urge all the members of the committee to read, if they have an opportunity, because I think you will see the extensive amount of work in which they have been involved. They now need one additional final year in order to complete their work. Their work during this period of time will be primarily to secure the release of documents from the CIA and the FBI. Those are the two main agencies left from which they still have a considerable number of documents to be released. Mr. Chairman, in closing I think that it's important that we complete this work in an orderly manner with full and complete disclosure to the American people, that they will feel that they know everything that their government knows about
the assassination of their president. And I would urge the support and passage of this legislation sponsored by Chairman Burton, of which I am one of the “original co-sponsors. I'd be pleased to answer any questions. REP. HASTERT: Thank you, Chairman — or, Mr. Stokes. And I really appreciate the work that you've done here. I have just two brief questions. Actually, three. Do you believe that the Ford Review Board is up and running smoothly now? REP. STOKES: Absolutely. In spite of the delay of 18 months they have done just a yeoman's amount of work. It's just been almost incomparable to realize how mutch they have done. And to their credit, they feel that if given just this one additional year that they will complete the work. REP. HASTERT: And do you believe that this process is consistent with the goals of your original legislation in 1992? REP. STOKES: Yes, I do, Mr. Chairman.
PAGE 19 Federal News Service, JUNE 4, 1997 REP. HASTERT: And then you are confident, as you said before, that the review board can finish its task by September 80th, 1998. REP. STOKES: I am just very confident that —- in projecting the fact that they can do this work with one year. And when they say themselves as they will say . to you when they appear, this'll be one final year. REP. HASTERT: Thank you very much, and thank you for your testimony. REP. STOKES: Thank you, Mr. Chairman. REP. HASTERT: The gentleman from Wisconsin. REP. BARRETT: Thank you, Mr. Chairman. I don't have a lot of questions, either. I just want to compliment j you, Congressman Stokes, for the fine job that you have done. REP. STOKES: Thank you. REP. BARRETT: And just one question. Do you think in the unfortunate and hopefully unlikely scenario that there are future assassinations in the future that this was a good way to approach this problem, the panel that you served? | Do you think that you have accomplished what you intended to accomplish? REP. STOKES: Mr. Barrett, at the time that we undertook this panel and Congress passed the act to create this panel, 85 percent of the American people believed that someone other than Lee Harvey Oswald had participated in the assassination of President Kennedy. A national poll had told us that. There were boundless rumors and myths. People were writing numerous books and things of that sort. And as a consequence of it, I think that putting this panel together and permitting this type of investigation I think was very helpful. I think it allayed many of the rumors and myths that grew up and abounded around the assassination of our president. However, I don't think that it put to bed everything. We uncovered many things. For instance, we pointed up many of the things that the Warren Commission had not done properly. And we were able to destroy many of the myths, such as the umbrella man theory and things of that sort. But we couldn't put everything to bed. We had begun that investigation 15 years after the assassination of the president. I think had we been given this type of investigation immediately after it had occurred, it would have been a different result. But many of the witnesses had died. Evidence had disappeared. As you can see now, there were materials which we were not able to get even within that two-year period before we went out of existence. And so as a consequence of it, I think we did an outstanding job. No one e has ever been able to refute any of the work that we did. No one has been able thus far to say anything was ever covered up from the American people. And so to that degree, I think that it performed a good service for the American people.
REP. HASTERT: Okay, thank you very much. The gentleman from Ohio. REP. STEVEN LATOURETTE (R-OH): Thank you, Mr. Chairman. Mr. Chairman, I want to thank you for having this hearing today and for also expediting the markup on 1553, and give praise to the co- sponsors, our chairman, Mr. Burton, Mr. Waxman, and also to Congressman Stokes. The editorial comment I would make is I'm always amazed each succeeding day that I serve in Congress at the rich history that a number of our colleagues have, and to now have our fine colleague from Ohio, Congressman Stokes from Cleveland, here and talk about his previous work on the House Select Committee on Assassinations. Although many members in the House remember his service, I would venture to say there are a number of people back home that don't know ail of the things.that you've done during your many years of service to this Congress and this country. Just as an example, the other day I found out — and I don't know if you're a
13-00000 PAGE 20 Federal News Service, JUNE 4, 1997 lawyer or not, Mr. Chairman, but I found out that Congressman Stokes -- well, you're lucky you're not a lawyer, but I am, and I'm proud to be a lawyer. I found out that Congressman Stokes was responsible for a ruling called Terry versus Ohio, and you might have heard of a “Terry Frisk and Search," and I didn't know that till the other day, that Congressman Stokes had a hand in that, and so, again, we find Congressman Stokes showing up again, sharing his expertise with the country. Lou, the one question I would have, deals with, in both your written testimony, and then also your observations to Congressman Baird's question. You talked about the "JFK" movie, and all of the rumors and innuendoes and the public polls. And you still run into people - as I'm sure — [ still run into people that aren't convinced that Lee Harvey Oswald acted alone on that November day in Dallas. And part of it has to do, I think, with, after your commission met, and now the legislation in ‘92, and a little delay in getting everybody in place in the review board. Do you think it was necessary, after you've reviewed the documents in this case, that we waited, as a government, 34 years to make these documents available? Was there something impinging upon the national security that you found or discovered that made it necessary for the government to wait 34 full years before releasing this information, and hopefully dispelling some of those rumors? REP. STOKES: Thank you very much, Mr. LaTourette, firstly for your nice remarks. But it's a good question, because not many people realize that this was not -- when we sealed these records for the period 30 to 50 years, this was not done because of anything relative to this particular investigation. That was a House rule in existence at that time, that applied to any committee that, when it completed its work and filed its final report, if they had documents which had not been released publicly, under that House rule, they had to be sealed for 30 to 50 years. The same applied to the other part of that investigation which we conducted, which was to investigate the assassination of Dr. Martin Luther King Jr., which was a companion part of our investigation. So that applied to that one also. . But as a result of it, in compliance with the House rule, it just sort of sat there until things were stirred up by that "JFK" movie and it sort of brought things to the head. REP. LATOURETTE: Okay. The principles behind your '92 legislation, the Assassination Records Collection Act -- obviously, now we collect records differently than we did before. A lot of them are electronically stored. Do you think that we can use that act as a vehicle, should another tragedy -- God forbid we should ever have such another tragedy in this country, but should
13-00000 another tragedy such as this occur, could we use the lessons learned in the model of this review board to prevent the significant time lag between the date of event and the eventual release of documents for public review? REP. STOKES: I would hope, Mr. LaTourette, that we have learned some lessons. Firstly, here in the Congress we'd no longer have such a rule in effect, and that will help us, I think, tremendously. But also, I think, by the agencies now working with a review panel of this s sort and realizing that many of the type of documents which they will cite to you in their testimony -- for instance, there's a very interesting document that they will talk about, where the whole page, with the exception of just the date and the name of a country -- everything was redacted. And under their work, that whole page has been released, and everyone can read that. What you do by that is that you're to allay all the suspicion as to what really _ has been redacted and people can really see. And then you can't have the kind of rumors and myths that grow up around it.
13-00000 PAGE 21 Federal News Service, JUNE 4, 1997 And I think and hope that in the event of such an occurrence in the future — _ which all of us hope would never occur - that our agencies will realize that this has been a good example of how we could allay some of the fears and suspicions that the American people have around the manner in which we conduct this type of thing. REP. LATOURETTE: Thank you very much, Congressman Stokes, for your expertise — REP. STOKES: Thank you. REP. LATOURETTE: — and thank you, Mr. Chairman, for yielding. REP. HASTERT: Thank you. And at this time I recognize the gentleman from Texas. REP. JIM TURNER (D-TX): Thank you, Mr. Chairman. And all I would add is to also compliment you, Mr. Stokes, for your many years of work on this effort. I too stand somewhat in awe at the number of years of service and your contributions to this body. REP. STOKES: Thank you. REP. TURNER: And I know the Congress and the American people are grateful for the years of service you' ve provided not only on this issue, but on many other issues to which you've contributed. . And I also want to thank those who've served on this panel, because I'm sure it is a time-consuming endeavor to carry out this task. Thank you, Mr. Chairman. REP. HASTERT: Thank you, Mr. Turner. Thank you, Mr. Stokes. REP. STOKES: Thank you. REP. HASTERT: The second panel, come forward, please. Our distinguished second panel includes four witnesses: Mr. John Tunheim, the chair of the Assassination Records Review Board; Mr. Steven Tilley, the chief of the John F. Kennedy Assassination Records Collection at the National Archives. We also have Mr. Max Holland, the author and contributing editor of the Wilson Quarterly; and Mr. Bruce Hitchcock, an historian and teacher at Noblesville High School in Indiana, our distinguished chairman's home state. And I also would say that, at this time, Mr. Burton would have wanted to be here to make a few comments. He is not here yet. We may entertain that at any time. So, if you gentlemen would please stand, and -- (witnesses are sworn in). Thank you. Let the record show that the witnesses answered in the affirmative. And we start with you, Mr. Tunheim. JOHN TUNHEIM (Chair, Assassination Records Review Board): Thank you, Mr. Chairman. I, too, would like to submit my written testimony for the record and
just give a brief summary to members of the subcommittee today. I'd like to thank the subcommittee for this opportunity to testify today in favor of House bill 1553. And I'd also like to note our thanks to Congressman Stokes for his leadership on this issue and his guidance in the important effort to release the records relating to the tragic assassination of President . Kennedy. The review board is confident that the additional time requested and provided by Congressman Burton's bill will allow us to complete our work and submit a truly ' complete final report to the Congress, to the president and to the American public. I'd like to thank Chairman Burton for introducing the bill and Congressman Waxman and Stokes for co-sponsoring the bill that is before the | subcommittee today. And I also appreciate, Mr. Chairman, your role in chairing this hearing today and assisting in this effort. One of the other members of the review board is present with us today -- I'd like to introduce her — Dr. Anna Nelson, who is the distinguished adjunct
13-00000 PAGE 22 Federal News Service, JUNE 4, 1997 historian in residence at the American University and is seated in the row directly behind me. Dr. David Marwell, the executive director of the review board, is also here, as are a number of staff members who are very professional and very dedicated and have done their work for us very well. The review board, Mr. Chairman, began releasing records in July of 1995, pursuant to the act passed by Congress. And thus far, the board has acted specifically to transfer more than 14,000 documents to the JFK collection at the National Archives. That collection, as Mr. Tilley will tell the subcommittee shortly, now contains more than 3.7 million pages' worth of material. I'd like to show one brief and rather dramatic example of the work that the review board is doing. Congressman Stokes mentioned this issue in his testimony. This involves one particular record. This is the "before" version, the record that was available to the public up until several years ago. You probably cannot see it from here, but it is a document that was sent from the FBI's representative in Paris to Director Hoover on October 12, 1960. That is indicated at the top of the memorandum. The subject, as indicated, is Lee Harvey Oswald: Internal Security. And then it says Re: Paris Letter 9-27- 60. And the remainder of the entire document is blacked out. And not surprisingly, a document like this dated three years prior to the assassination of President Kennedy, a document sent to J. Edgar Hoover attracted a great deal of interest among researchers who saw it because everything was blacked out underneath. The — speculation that individuals had about this was great. Well, the board aggressively pursued the release of this information, initially ordering its release. The FBI appealed that decision to the president. Subsequently we worked out with them, including an aggressive effort to contact Swiss authorities who were the subject of this particular document. I met personally with the Swiss ambassador to the United States to ask for his assistance in obtaining Swiss approval to release it. And here is the record that is now released to the American public at the National Archives. All of the material is released. And what it indicates was the FBI was interested in whether Oswald was indeed attending a college in Switzerland during that period of time. And the document tells about the investigation that Swiss authorities did to determine whether Oswald was, indeed, enrolled. He was someone who the FBI was following because of his interest in defecting to the Soviet Union. That's a good example of the type of work that the review board is doing: pursuing individual releases of information that has long been redacted from the public. The board has worked closely with federal agencies. The vast majority of the records are at the CIA and the FBI. We have completed the review of the core collections in both of those agencies and significant numbers of materials have
13-00000 been released. The board has also been aggressive in identifying and acquiring significant assassination-related records that have been in the hands of private citizens and local governments. Just a couple of examples: _ . The papers of J. Lee Rankin, who was the chief counsel to the Warren Commission, have now been released through the efforts of the review board. Virtually all of the records of the prosecution in New Orleans of Clay Shaw was also released. And I'm announcing for the first time today that the review board has just acquired the original personal papers of Clay Shaw. He was the individual prosecuted in New Orleans in 1969, the only individual prosecuted for the assassination of President Kennedy. That will add another dimension to this story. This is an example of his diary, which the board has just obtained, and will be released as soon as we can process the materials. It's very interesting. It's his diary from the day that he was arrested, on March Ist, 1967 and his feelings about Oswald on that particular day.
13-00000 PAGE 23 Federal News Service, JUNE 4, 1997 Despite the best estimate, Mr. Chairman, that this job could be done in three years, we cannot finish our work by the end of this fiscal year. We're confident that in the additional year we will be able to get through the records, which will largely involve the sequestered collections at the CIA and at the FBI - records sequestered by the House Select Committee on Assassinations. I'd be happy to answer any questions, Mr. Chairman, that you and the members have. REP. HASTERT: Thank you. We'll hold all the questions until the end of the testimony. MR. TUNHEIM: Very well. REP. HASTERT: Mr. Tilley? . STEVEN TILLEY (Chief, Access and Freedom of Information Staff, National Archives and Records Administration): Mr. Chairman, I am Steven Tilley, and I'm the chief of the Access and Freedom of Information Staff at the National Archives and Records Administration. And I wish to thank you for the opportunity to testify today on behalf -- for the National Archives in support of HR 1553. I'm appearing today in my capacity of NARA's chief of the President John F. Kennedy Assassination Records Collection. In that role, am charged with implementing NARA's responsibilities under the act, and I serve as NARA's liaison to the Assassination Records Review Board. And it's my understanding that my written statement will be made part of the record, therefore, I'll be brief in my remarks. Mr. Chairman, this month marks the 20th anniversary of the closing of the office of the Watergate Special Prosecution Force. I oversaw the closing of that office and supervised the transfer of those records to the National Archives. Most of my career at the National Archives since then has been involved with working with sensitive records. And in 1993, I became the chief of the JFK Collection, and I've served in that capacity ever since. _ When the review board members were confirmed by the Senate in April of 1994, my ‘staff and I began to work with the board, and later with the board staff, to provide information on the records in the JFK Collection, the development and use of NARA's data base, our contacts and discussions with other agencies — involved in searches for assassination records, and the existence of assassination records in the custody of private repositories or individuals. The review board and NARA have maintained an excellent working relationship through the. three years of the board's existence, and I'd like to think that this close relationship has in some way contributed to the success of the review board. NARA enthusiastically supports passage of HR 1553 to extend the review board's authorization.
13-00000 PAGE 24 Federal News Service, JUNE 4, 1997 of the records in the collection cannot be underestimated. In addition to the records of numerous executive branch agencies and offices, the records of relevant congressional committees, related court cases, and records donated by private entities are also available in the collection. This rich documentation is searchable electronically, giving researchers the ability to seek out documents concerning a topic, person or event, or even individual documents, not only at NARA's College Park facility but from their own personal computer through the Internet. Finally, Mr. Chairman, public demand for these records is the ultimate evidence of the value of this collection. Reference requests have risen in number every year since the collection opened with new records in August of 1993. This year we have already received over 600 written inquiries, an increase of over 30 percent from this period of time last year. The number of inquiries on our computer Web site is also steadily increasing. Since March 1996, when the assassination records database was made available through the Internet, it has been accessed over 100,000 times by the public. Due to the exceptional work of the Assassination Records Review Board, great progress has been made on making available as complete a record as possible in the history of the assassination of John Kennedy. Without the focus, integrity and expertise of the review board, the collection would not have the size, quality or public demand witnessed today. However, there is still much to do. NARA supports passage of HR 1553 so this © important work can be completed. _ That concludes my statement, Mr. Chairman. I'll be glad to answer any questions. - REP. HASTERT: Thank the gentleman. Mr. Holland? MAX HOLLAND (Author, contributing editor of Wilson Quarterly): Thank you, Mr Chairman. I'd like to make a brief statement summarizing my testimony. Nearly 75 years after President Lincoln's assassination, a chemist-turned-author named Otto Eisenschiml provoked a national furor with his 1937 book, "Why Was Lincoln Murdered?" Eisenschiml claimed one of the most important events in American history was still a mystery. And Eisenschiml claimed to have uncovered the truth: President Lincoln was the victim of a conspiracy organized by his secretary of war, Edwin Stanton, who was allegedly opposed to the president's program for a charitable post-war reconstruction of the South. When pressed, Otto Eisenschiml openly admitted that he had no evidence to support his case. At the same time, it was precisely the documentary record that enabled critics to prove that Eisenschiml's book was just another in a long line of lunatic theories about the first assassination of an American president.
13-00000 Here lies, I submit, the long-term importance of the work being carried out by the AARB. The meaning of the raw data being unearthed by the review board will probably not be appreciated any time soon by the generations sentient when President Kennedy was murdered in Dallas, but if these generations cannot come to terms with history as it happened in their lifetimes, then at the very least, they have an obligation to hand over, insofar as possible, a complete and thorough documentary record. Citizens will need that record to rebut the Otto Eisenschimls of the next century, not that there is any dearth of them now. I strongly support without qualification extension of the review board for another year and full funding of its operations. Bringing its work to an abrupt end would not only diminish the investment of time and resources already made; in all likelihood, it would throw the whole initiative into chaos. Not least of all, gutting the effort now would surely create ineradicable suspicion about the federal government's intentions in the first place. I'd like to spend the balance of my time describing the three areas where I thank the review board
13-00000 PAGE 25 Federal News Service, JUNE 4, 1997 had made its greatest contributions. The first has to do with the Warren Commission. The review board's labors have resulted in many new documents that I believe will eventually remove the stigma that has been attached to the commission, which is probably the most unfairly reviled and/or ridiculed entity — ever created by the federal government. These records paint a sobering portrait of our federal government during a very traumatic time. It's not the idealized versions depicted in civics text books nor the demonized version featured on talk radio. It's the real federal government: imperfect, plodding, riven by ambition, distrust, rivalries, compartmentalized by secrecy, working at cross-purposes or in ignorance, simultaneously guided by the most banal bureaucratic instincts and the most elevated national concerns. Somehow, through all of that, it does struggle and manage to do the right thing. Besides the Warren Commission, I think the work of the review board has made a very substantial contribution towards understanding the operations of the intelligence community. The assassination necessarily caused what could only be termed a mobilization of the U.S. intelligence community's far-flung resources. The government had to determine that weekend who was responsible and whether the assassin or assassins had any co-conspirators either foreign or domestic. © Consequently the records being released now constitute a gold mine of information about domestic and foreign intelligence operations at the midpoint of the cold war. These records not only shed new light on what the government knew 34 years ago; the release is an object lesson in why they were kept secret for all those years. They do not contradict the federal government's official conclusion at stated in the Warren report. Rather, the documents were kept secret because they disclosed or tended to disclose ongoing intelligence sources and methods. With the release of these documents, the intelligence community's record in the wake of the assassination can finally be assessed with some fairness and thoroughness. The fact is that the information provided by the FBI, CIA and other agencies was instrumental to preventing the United States government from overreacting when the circumstantial public evidence was highly suggestive of a link between Lee Harvey Oswald and a foreign power. The last area in which the review board has made a -- perhaps its greatest contribution has to do with whole issue of secrecy and disclosure. The balance between secrecy and disclosure has always been in favor of secrecy, especially since World War II, controlled by laws highly deferential to the equities of the interested government agencies. The five citizens who serve on the review board decided that if their mandate was to have any meaning it was imperative to pierce this veil. They had to get at categories that had been classified here
13-00000 before, including information derived from intelligence sources and methods. While some historians have been critical of the resources devoted to this particular effort, I like to believe that a breakthrough had to be achieved somewhere, and in fact, the records pertaining to President Kennedy's assassination make an excellent demonstration project of what can now be released. The lines drawn by the review board should prove helpful as the government undertakes to declassify the vast body of records generated during the Cold War. . Finally, I'd like to say the entire history of the federal government's efforts in the wake of the assassination, including the experience of the review board, serves as a cautionary tale. Perhaps it will enable the government to strike a better balance between secrecy and disclosure in the future, for there exists no better example of the heavy wages of doubt, suspicion and public cynicism: exacted by secrecy than the Kennedy assassination experience. Thank you, Mr. Chairman.
13-00000 PAGE 26 Federal News Service, JUNE 4, 1997 REP. HASTERT: I thank the gentleman. And now, Mr. Hitchcock, I'd like to welcome you especially. A gentleman from Ohio asked me a little while ago if I was an attorney. Indeed, I was not an attorney, I happened to be a history teacher for 16 years before I ever got into politics. So it's certainly a noble trade, and happy that you're here. I know the chairman wanted to introduce you personally, but he couldn't make it this afternoon. You have contributed students, I understand, a clerk for this commission, and have been involved in it at a very high degree. So we welcome you and listen to your testimony. BRUCE HITCHCOCK (Teacher, Noblesville High School, Indiana): Thank you, Mr Chairman. And I, too, would ask that my written statement be entered into the record and I will briefly summarize. REP. HASTERT: Without objection, all written statements will be entered into the record. MR. HITCHCOCK: Thank you. My name is Bruce Hitchcock and I am a teacher at Noblesville High School located in Noblesville, Indiana, which is a community approximately 20 miles north of Indianapolis. Iam currently completing my 28th year in secondary education. My teaching assignment has primarily been in the areas of United States history, American government, and international relations. And I want to express my appreciation to the committee for affording me the honor and privilege of being here today and permitting me to make some brief remarks concerning an issue about which I have very strong convictions not only as a citizen, but as an educator. In the spring of 1994, I assigned my Honors United States history class a project studying the assassination of President John F. Kennedy. This project culminated in the students placing the Warren Commission Report on trial. Half of the class represented the prosecution and half the class defended the Warren Commission Report. The class became quite interested in, and many would say obsessed with this subject. The project resulted in a trial which became quite intense and divisive, so much so that the class had to have a party at the end of the semester to rekindle friendships. They became so fascinated with the subject of the assassination that they requested an opportunity to travel to Washington, DC during the summer following their graduation to do additional research. From that modest class assignment developed an internship opportunity with the JFK Assassination Records Review Board. To date, four student groups from