Prior to the JFK Act, the declassification of records was controlled almost exclusively by the Federal agencies that had created or obtained the records. Although the Freedom of Information Act provided a significant mechanism for the release of government information, it has not been an effective means for the release of classified information. Very few judges in FOIA litigation have been willing to order Federal agencies to release classified information that the agencies have argued should be closed.
The JFK Act was the first attempt to place the effective power of declassifying government records outside of the originating agencies. Although the Review Board itself technically cannot declassify Executive Branch records -- that power remains with the President -- the Review Board has become the first body with the significant authority to require agencies to justify redactions in their records. The only agency to have appealed Review Board determinations, the FBI, ultimately withdrew its appeals prior to a presidential decision. In this sense, the Review Board has essentially become the principal agent for determining what classified information should be released to the public.
The novel mechanisms of the JFK Act have caused agencies to rethink and to revise their earlier approaches to releasing classified information. This rethinking and reevaluation has been a difficult and time consuming process for the agencies involved, particularly the FBI and CIA. There is no doubt that many people in the agencies have strongly resisted this important declassification effort. But it is equally clear that, for the most part, the agencies as a whole have made strong and significant efforts to cooperate with the Review Board to bring about the goals of the JFK Act. Although the work has not been smooth, easy, or swift, most of the agencies are helping to satisfy the Congress' goals.
The Review Board has had a different experience with each agency that it has encountered. In every case, there has been a period of education during which the agencies have learned the nature of their responsibilities under the Act, while the Review Board has learned about the particular needs and sensitivities of the agencies.
The two over-arching problems have been first, identifying and locating assassination records, and second, determining the proper standard for the postponement of the release of information in agency records. Brief descriptions of the status of the compliance of Federal agencies with the JFK Act are provided below.
Review and Processing of FBI Assassination Records
The Review Board has worked with FBI documents continuously throughout FY 1996. To date, the Review Board has voted on postponements claimed in more than 1,300 FBI records. The FBI also has agreed to release in full an additional 1,600 assassination records that previously were available only in redacted form, rather than submit to the Review Board evidence in support of its redactions. When it has chosen to ask the Review Board to uphold claimed postponements, the FBI has significantly improved in making timely and pertinent evidence submissions.
Establishing and applying disclosure standards for FBI records proved to be a protracted and difficult process. The largest body of postponements claimed by the FBI concerned confidential informants and Sections 6(2) and 6(4) of the JFK Act. On December 14, 1994, the Review Board received its first briefing by FBI officials on the Bureau's reasons for wishing to withhold information tending to identify informants. In the months that followed, the Review Board members and staff learned much from the FBI about how the Bureau handled informants and informant reports in the 1960's, and explained to the FBI its reasons for believing that the JFK Act required more particular consideration of current circumstances before the Review Board could sustain informant postponements. Although the FBI and the Review Board identified a number of postponements that both agreed should be released under the JFK Act, they were unable to resolve larger issues.
When the Review Board first voted on a set of informant postponements in July 1995, the FBI sought protection of its informants as a class, rather than provide evidence regarding individual informants. The Review Board voted to open these postponements and the FBI exercised its right to appeal to the President. In August 1995, the FBI and the Review Board thoroughly briefed the White House on the appealed issues. The FBI subsequently provided information about these informants and the Review Board thereupon reconsidered its prior determinations in the light of this evidence. The FBI then released the records in accordance with the Review Board's determinations rather than renew its appeals to the President.
Since that time, the FBI and the ARRB staff have worked to ensure that information relevant to informant postponements is efficiently provided. Nevertheless, a period of ten months and a labor-intensive appeal had been required to establish the type of evidence needed to support continued postponement.
The second largest group of postponements in FBI records involve the FBI's "foreign counterintelligence" ("FCI") activities and Sections 6(1)(B) and 6(1)(C) of the JFK Act. At the request of the FBI, the Review Board delayed consideration of these postponements until 1996, in order to give the Bureau and the Department of State sufficient opportunity to review this set of issues. When, in 1996, the Review Board voted to open a number of FCI postponements, the FBI, with the support of the Department of State, noticed for appeal over a hundred of these determinations to the President. The issues presented on appeal were exhaustively briefed in May 1996, with supplementary papers filed later in the year. In December 1996, the FBI advised the White House and the Review Board that it was withdrawing all of the records from the briefed FCI appeals in the light of comparable official releases identified by the Review Board. While it now appears that the most important issues regarding FCI postponements have been resolved, another lengthy appeal process had been required to reach that resolution.
By a significant margin, the FBI has identified more assassination records than any other Federal agency. As a result, although the FBI has devoted substantial resources to implementing the JFK Act, more than 200,000 pages of assassination records still remain unprocessed. At the current rate, the FBI will not have completed its processing of these records until after the scheduled termination of the Review Board's mandate at the end of Fiscal Year 1997. In view of these resource and time constraints, the Review Board is taking steps to ensure that it focuses on those FBI records of greatest use and interest to the public. Within the body of unprocessed assassination records, the ARRB staff is identifying subjects of highest interest, so that the FBI can process these subjects next. The FBI has fully cooperated in this effort.
Identification of Additional FBI Records and Information
The Review Board has continued its efforts to locate additional FBI assassination records by making several requests for records and information. The FBI has assisted in this effort by giving Review Board members access to requested files. The FBI has, on the whole, been extremely cooperative and helpful to the Review Board and has provided the information requested.
Review and Processing of CIA Assassination Records
Unlike the FBI, the CIA did not employ the presidential appeal process to clarify issues in dispute. The CIA met extensively with the Review Board, providing detailed evidence in support of the proposed postponements. The ultimate outcome, not unlike that with the FBI, was an identification of the truly important issues. The contrast between the initial postponements taken by the CIA and the formal determinations made by the Review Board and ultimately accepted by the CIA is dramatic indeed. time and energy invested in the process, however, was significant.
In December 1996, the CIA transferred many of the records from the HSCA Sequestered Collection to a secured space adjoining the Review Board offices. The close proximity to the Review Board will increase the efficiency of record review.
Identification of Additional CIA Records and Information
The Review Board has initiated a number of requests to the CIA for additional information and records. Although the CIA has repeatedly stated its intention to fulfill these requests, many have been long outstanding. The Review Board expects that these requests will be promptly and fully satisfied during the upcoming year.
Review and Processing of Secret Service Assassination Records
Over the past twelve months, the Secret Service has developed a system for its internal review of records and submission of documents and disks both to the Review Board and to the JFK Collection at the National Archives. Since October 1995, the Secret Service has processed approximately 500 records referred from the HSCA collection at Legislative Archives. Of those 500 records, the Secret Service forwarded approximately 450 records without postponements to the JFK Collection and submitted more than 50 items with postponements to the Review Board. Four documents are still under consideration by both the Review Board and the Secret Service. The Review Board continues to be engaged in discussions regarding specific requirements under the JFK Act with the Secret Service.
Identification of Additional Secret Service Records and Information
Time consuming and careful review of Secret Service activities by the Review Board produced a series of requests for additional records and information that, in turn, led to the identification of additional relevant assassination records. In response to the first eight requests for additional information from the Review Board, the Secret Service has submitted more than 1,500 pages of material. Three requests are still outstanding, and a few documents from the submitted material are still under review. The Review Board will be following up some of these responses with additional requests in the coming year. The Secret Service has forwarded material from Chief Rowley's files, letters from the public, and protective information (including trip reports, administrative files, and Warren Commission memoranda) from the 1963-1964 period.
Within these legal constraints, the IRS and the Review Board have worked together to ensure that the JFK Collection is as complete as possible. For example, the IRS has already agreed that tax return information may become part of the JFK Collection if the taxpayer (or his surviving spouse or descendant) consents in writing to disclosure of the information. After receiving this assurance from the IRS, the Review Board contacted Marina Oswald Porter and asked for her consent to release of the tax return records. Although she requested that the Review Board pursue certain records, and although the Review Board is in the process of seeking those records, she has thus far been unwilling to take the simple step that would enable the documents to be released promptly.
Customs is now preparing electronic identification aids for all of its assassination records and will transfer the records to the National Archives when these aids are completed. Customs has advised that it does not anticipate seeking postponements in any of these records. Finally, Customs has approved release in full of all assassination records referred to it by other agencies.
As of November 1,1996, the INS had not transferred any of its own assassination records to the Review Board or to NARA. Although the INS had reviewed its own equities in third agency documents and returned them to the appropriate agencies, it had not completed any of its own review. Beginning in November 1996, the INS finally began the process of transferring records to NARA with its shipment of INS files for several individuals, none of which contained any postponements. It recently transferred to NARA the original Lee Harvey Oswald and Marina Oswald Porter files. More recently, the INS failed to adhere to its November 4,1996 promise that it would complete the review and transfer process by February 1, 1997.
The many components of the armed services have required extensive support and follow-up in their efforts to comply with the Act. Military records are distributed among a wide variety of entities, and their records are scattered among numerous repositories. Military records include those of the Office of the Secretary of Defense, the individual services (Army, Air Force, Navy and Marine Corps), the Joint Staff, and individual DOD agencies such as the National Security Agency (NSA) and the Defense Intelligence Agency (DIA). The records of each service or agency are organized separately; each sets its own standards for which records will be retained, which will be destroyed, and what the destruction schedule will be; and each stores its records in one or more archival repositories which often lack any centralized index or catalogue. Additionally, the sheer magnitude of DOD records (which is several times greater than that of CIA, FBI and Secret Service put together) makes it extraordinarily difficult to identify and locate assassination-related records.
As a consequence, a major problem in the search for military records involves simply finding assassination-relevant materials within so many large, separately-managed records collections. Unlike the FBI and the Secret Service, the Department of Defense and the military services did not play a role in investigating the assassination. Consequently, while those other agencies often have records holdings clearly marked "JFK Assassination" or "Assassination Investigation," DOD entities do not. Instead, individual DOD documents referring to the assassination are generally to be found (if at all) buried in collections dealing primarily with other topics. Finding these records among the voluminous military records holdings is no easy task, since detailed subject headings for old file collections are frequently so vague (hundreds of boxes marked "General Office Files, 1963") as to be useless.
Further exacerbating this problem was the initial difficulty in educating DOD records managers on what broad topics or records groups should be searched in detail in the hopes of uncovering information that might have had some bearing on the assassination. For example, records dealing with domestic surveillance of possible "subversives" by military intelligence units in Texas and Louisiana (and which led to the creation of a pre- assassination file on Oswald by an Army intelligence unit based in San Antonio) may shed additional background information on the Kennedy assassination. Such connections were not necessarily apparent, however, to the people who did the initial search of DOD records: they were not themselves experts on the assassination and tended, therefore, to limit their search to documents directly related to the president's assassination in Dallas on November 22,1963. An important component of the ARRB's work with DOD has been to broaden the search for files to other related topics to see if they will yield information that will broaden our understanding of the assassination and its historical context.
Yet another difficulty in assuring a thorough search of military records arises from the way in which such records are stored. For the most part, the initial records search done by each service and agency in compliance with the JFK Act focused on records currently in its custody. Significantly, however, these efforts generally failed to search the stored records that are under the service or agency's legal control, but that are no longer in its custody: namely, records stored at archival repositories like the Federal Records Center in Suitland, Maryland. These records have not yet been accessioned by NARA and thus remain the property of the individual service or agency that created them. (To access these records, one must obtain permission from the owning service or agency, not NARA.) This initial failure to search Suitland records was a serious omission inasmuch as many records from the early 1960's are located there. To give just two examples, both the Defense Intelligence Agency and the Navy's former Office of Naval Intelligence have substantial records holdings at Suitland from the 1962-64 era; neither of these voluminous collections was searched for assassination-relevant material in response to the Review Board's initial request.
The ARRB staff received and reviewed two packages of assassination-related documents from the Office of the Secretary of Defense (OSD). The first, an unclassified package, contained information regarding FOIA requests previously processed by OSD. The second package, which was classified, contained six documents (totaling approximately 130 pages) related to U.S. policy toward Cuba in 1962-63. Of the classified documents, three have now been cleared for full release. The three remaining documents have been cleared by State, CIA, Army and OSD, but have redactions proposed by the Joint Staff. The ARRB staff will meet with the Joint Staff records manager to request reconsideration of Joint Staff redactions to facilitate voluntary declassification and consent release of all documents. If such consent is not obtained, the records will be sent to the Review Board for its review and formal determinations.
Approximately 20 Joint Staff or Joint Chiefs of Staff documents have been identified for immediate release without postponements. The ARRB staff has identified additional historical documents (chiefly within J-3 Special Operations Division) as possibly assassination-related. Review of these records is ongoing.
In one of the more interesting and successful activities related to military records, the ARRB staff located the microfilm records of the Pentagon Telecommunications Center. These records consist of all regular cables either originated by or addressed to senior Army of officials or Army agencies in the Pentagon. Documents in this collection include records from all of the military services as well as some from the CIA, State Department, and other agencies. DOD has assisted the ARRB staff in locating, reviewing and partially declassifying documents of relevance to the assassination. To date, more than 300 documents (all of which are either incoming or outgoing messages in the 1962-64 time frame) have been photocopied for declassification, referral and possible Review Board action. Personnel from the Army's Center of Military History in Washington, DC, and the Military History Institute at Carlisle Barracks, Pennsylvania, have been particularly helpful in searching for and declassifying Army records.
With the help of the ARRB staff, the Army located, reviewed and cleared for release without postponement the Army Corps of Engineers documents related to the JFK grave site. Other components of the Army have been helpful as well. The Historical Office of the Army's Intelligence and Security Command (INSCOM) assisted the ARRB staff in locating Army intelligence files previously accessioned by NARA and held in NARA's classified storage. A review of these records is ongoing. They include military intelligence records of persons of interest to assassination researchers.
In addition, Army declassification will begin soon on six cartons of Top Secret and Secret documents found by the ARRB staff at NARA. These documents pertain to military policies and activities involving Cuba during 1962-64.
The Air Force located, reviewed and cleared for release without postponement approximately ten assassination-related documents. Additional classified records currently are being reviewed. In an interesting discovery, the Air Force canvass of subordinate commands yielded a ledger entitled "Log of Events" and "Death of JFK" that appears to be a record of incoming and outgoing messages, orders, and reports kept by an unknown individual assigned to the headquarters or operations section of the 1254th ATW at Andrews Air Force Base. This book contains handwritten entries from November 22 to November 25, 1963, describing actions related to the return of Air Force One from Dallas to Andrews and other activities. It will be transferred to NARA without redactions.
The Navy and Marines have provided the Review Board with the least substantive feedback of all the services. After several calls, however, the Review Board was finally able to secure Oswald's original personnel and medical records for transfer to NARA. The Navy also provided two cartons of documents (previously open to the public) concerning USMC operational planning during the Cuban Missile Crisis in 1962. The ARRB staff is continuing its work to ensure that the Navy and Marines locate any existing assassination-related records, particularly records relating to Oswald, who had served in the Marines.
ARRB staff and National Security Agency (NSA) officials met throughout FY 1996 to identify and prepare documents for the Review Board. Throughout this process, NSA officials showed sensitivity and responsiveness to the Review Board's goals. Because of the secrecy and sensitivity of NSA activities, record identification had to be carried out by selected members of the ARRB staff with appropriate security clearances and often involved review of files at NSA headquarters in Fort Meade, Maryland. NSA officials also provided a series of candid, comprehensive briefings for the Review Board and ARRB staff on NSA procedures, capabilities, and record holdings. These briefings were of great assistance to the Review Board when it later came time to consider declassification of NSA documents in light of the peculiar challenges faced by NSA. As a result, in December 1996, the Review Board released approximately 80 NSA documents (primarily communications intercepts) with minimal redactions.
With the exception of its handling of cables, the Department of State has provided a high level of cooperation and has continued to release, in full, most of its records related to Oswald or the JFK assassination. In addition, State actively participated in the Review Board's joint-agency review of Cuba-related records at the JFK Library, clearing for release most of those records containing Department of State equities.
The Lyndon B. Johnson Library and the Gerald R. Ford Library were among the earliest institutions to complete their initial review, processing, and forwarding of copies of assassination records to the JFK Collection. The staffs of both libraries have responded to the requests of the Review Board. The Review Board is currently awaiting shipments of unredacted copies of records so that it may render its formal determinations on the proposed postponements.
Proceed to Chapter Three
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