COMMENTS ON JOINT RESOLUTION (S) ON JFK ASSASSINATION FILES
Originator: CIA
Document date: 04/02/1992
Document type: PAPER - TEXTUAL DOCUMENT

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104-10331-10268

2022 RELEASE UNDER THE PRESIDENT JOHN F. KENNEDY ASSASSINATION RECORDS ACT OF 1992

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WTELLIGENCE

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JFK Comments

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COMMENTS ON JOINT RESOLUTION(S) ON JEK ASSASSINATION FILES:

The resolution is based upon

"records" rather than

information and thus does not comport fully with the "third

agency" rule, whereby the Agency whose information is at stake

reviews the information.

The body that originated a particular

"record" may not be the "originator" of sensitive information

contained within it.

The resolution creates the anomolous

situation that the entity whose interests are actually at stake

with respect to a dissemination determination has no knowledge

of or involvement in that determination.

(This is particularly

troublesome with respect to congressionally generated documents

derived from Executive branch information, with respect to

which the resolution provides no appeal

• from Review Board

determinations.)

The broad definition of "assassination material,"

coupled with the Review Board's broad

materiall, could lead to a new investigation of the

assassination, rather than review of existing efforts-and such

efforts could well stray into sensitive areas in fact unrelated

to the assassination.

There should be a provision whereby

unreasonable Board requests for additional materials that

strayed into sensitive areas unrelated to the assassination

could be appealed--perhaps to the President..

There is a potential conflict between E.O. 12356 and the

resolution.

The resolution contains no provision requiring

security clearances or secure document handling and storage

practices by the Assassination Materials Review Board or its

Executive Director/staff elements.

Absent security procedures

and facilities that met Executive

branch standards, agencies

would be unable to

provide assassination materials

body or its staff.

There should be substantive expertise injected at the

early, informal stages of the review process.

Neither Board

members nor the Executive Director may be government employees

or have any background in the assassination investigations, so

they are unlikely to have any familiarity with the documents at

issue and'may well have no expertise in intelligence or law

enforcement equities.

While the Executive Director may request

detailees from Executive agencies and may consult with

originating agencies, there is no requirement that he do so.

An Executive branch agency with knowledge of the information

stake and potential harms (or lack thereof) likely to result

from release of the information may have no involvement in the

process until after

a disclosure determination has been

made--until a formal appeals process.

Mandatory detailees

(within reasonable limits, if they are to be nonreimbursable)

from agencies originating information (who would review their

Agency's materials), and/or mandatory consultations before

determinations are

brought to beat as part of the decision-making process.

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• The Board's broad powers to

subpoena witnesses and

documents and hold hearings could conflict with the DCI's

statutory duty to protect sensitive intelligence sources and

methods from unauthorized disclosure.

This could be remedied

if the Board were required to consult with the DCI (perhaps AG

or D/Secret Service, in their areas of expertise?) as to

whether a hearing should be closed, or whether a subpoena

should be narrowed. Disagreements

could be appealed to the

President.

while the resolution specifically provides that it does

not affect FOIA actions, we

suggest that litigation related to

assassination materials

should be stayed while the Review Board

is conducting its business.

The resolution

clearly has more

liberal standards for public disclosure of information than

other access laws, and the public is

likely

to get more

assassination materials more expeditiously if agencies ate:

permitted to focus their resources in this area on supporting

the work of the Review Board.

fOr

Section 6 of the resolution, which outlines the bases

postponement of public release, represents an improvement

over the earlier draft we had seen.. However, one major gap is

that there is no provision for any type of deliberative process

or similar privilege exemption that might apply to certain

records or portions of records.

(Moreover, if the Review Board

agreed that this type of exemption applied, sending these

documents to Congress would undermine the privilege.)

We also

believe that intelligence agent under section 6(1) (A) should

defined with reference to the Intelligence Identities

Protection Act (see 50 U.S.C. § 606(4) definition of covert

agent).

• We are concerned also that the procedure whereby CIA

assassination material qualified for postponement of disclosure

would be transferred to the Archives.

This would disrupt

existing arrangements worked out between the DCI and the

Archivist with respect to handling sensitive CIA materials.

This problem could be alleviated by providing Archives an

index, with actual

materials to be returned to CIA for holding.

• Other agencies and particularly the White House are.

likely to have additional concerns, such as the burden the

resolution places upon the President to determine appeals.

• We also have a number of more detailed concerns

and

suggestions relating to other specific provisions of the bill

and would be happy to work with you when the Committees get

down to specific drafting issues.

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