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The National Archives: Lawbreaker and Cover-Upper

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On October 26, 2017, the National Archives, an independent federal agency that is headed by a man named David Ferriero, became a federal lawbreaker.

The reason?

On that date, the National Archives became legally obligated to release to the public all of the CIA’s and other federal agencies’ files relating to the JFK assassination in its possession. On that date, the National Archives failed and refused to release those long-secret records in its possession. On that date, the National Archives, under Ferriero’s auspices, became a federal lawbreaker.

In 1991, the movie JFK, directed by Oliver Stone, was released. The movie posited that the assassination of President Kennedy was orchestrated by the CIA and other elements of the U.S. national-security establishment as part of a U.S. regime-change operation designed to protect the country from a president whose policies and practices, they felt, constituted a grave threat to national security. (See FFF’s ebook JFK’s War with the National Security Establishment: Why Kennedy Was Assassinated by Douglas Horne.)

At the end of the movie was a blurb advising Americans that the CIA and other elements of the U.S. national-security establishment were being permitted to keep their JFK-assassination-related records secret from the American people. The implication was clear: They were keeping those records secret to cover up their complicity in the assassination and regime-change operation that took place on November 22, 1963.

In every generation for the past 50 years, most Americans have never believed the official narrative set forth by the Warren Commission, the body that President Lyndon Johnson put together to “investigate” the Kennedy assassination. That narrative holds that a lone-nut, former U.S. Marine communist, with no motive, suddenly decided to kill the president.

Thus, when Americans learned in 1991 that the CIA, military, and other national-security agencies were still keeping their assassination records secret, they were angry and outraged. In a remarkable display of “people power,” in 1992 they forced Congress to enact the President John F. Kennedy Assassination Records Collection Act (or simply the JFK Records Act), which forced the CIA and other federal agencies to release their assassination records to the American people.

At the time, George H.W. Bush was president. Given ordinary circumstances, there is little doubt that Bush, who was a former director of the CIA, would have vetoed the bill. But circumstances were not normal. Bush was running against Bill Clinton. And Clinton had come out publicly in favor of the law. Undoubtedly believing that Clinton would accuse him of participating in the cover-up of the regime-change operation outlined in Stone’s movie, Bush signed the measure into law.

The JFK Records Act called into existence the Assassination Records Review Board (ARRB), whose job it was to enforce the law by making sure that the CIA and other federal agencies complied with it.

The law permitted the CIA and other federal agencies to request the president to continue secrecy of particular records on the ground of “national security.” To his credit, President Clinton turned down every single request that the CIA and other federal agencies made for continued secrecy. The United States did not fall into the ocean as a consequence and the federal government wasn’t taken over by the communists.

There were three interesting provisions that were inserted into the law, perhaps by CIA assets in Congress.

One provision prohibited the ARRB from reinvestigating the Kennedy assassination. Under the law, its job was limited to securing the release of records. What would happen if a released record called for investigation, which occurred often throughout the term of the ARRB, especially with respect to the records relating to the autopsy that the military conducted on the president’s body? The ARRB was prohibited from investigating the matter. (See my book The Kennedy Autopsy. Also, see the five-volume book Inside the Assassination Records Review Board by Douglas Horne, who served on the staff of the ARRB. Also, see Horne’s five-volume video series for FFF entitled “Altered History.”)

Another provision entitled the CIA and other federal agencies to keep their records secret for another 25 years. The CIA took advantage of that provision and kept thousands of records secret for the next 25 years, including the trip made to Mexico City by accused assassin Lee Harvey Oswald, a trip that is still shrouded in mystery. It’s important to keep something in mind: The CIA’s long-secret records are not 25 years old. They are actually more than 50 years old.

The period of time for secrecy expired on October 26, 2017. On that date, the National Archives was legally required to release all of the JFK assassination records to the public, with no redactions. Those records included those of the CIA that the CIA had delivered to the National Archives back in the 1990s, as mandated by the JFK Records Act.

Interestingly, however, the ARRB went out of existence in 1998, notwithstanding the fact that it had not completed its job in securing the release of all JFK assassination records of the CIA and other national-security state records. That’s why last May, convinced that the CIA would try to extend the cover-up of its domestic regime-change operation posited in Stone’s movie, I wrote an article that called on Congress to call the ARRB back into existence to enforce the final stages of the JFK Records Act. Not surprisingly, Congress did not do that.

The third interesting aspect of the JFK Records is that it permitted the president to exempt particular records from disclosure prior to the October 26, 2017, deadline. However, the law is very clear on what the president must do to relieve the National Archives of its legal duty to release the records. To exempt any records from release, Trump had to follow well-defined steps set forth in the law. If he didn’t follow those steps, the law required the National Archives to release the records to the public.

There has been no indication that President Trump followed those steps prior to the legal deadline of October 20. Trump himself hasn’t said that he followed those steps. The CIA hasn’t said so. The National Archives hasn’t said so. The mainstream press hasn’t said so. Unless Trump acted in secret, we have to assume that he didn’t follow the steps required by the law to relieve the National Archives of its duty to follow the law.

What are those steps? Here is what the JFK Records Act states in part:

Each assassination record shall be publicly disclosed in full, and available in the Collection no later than the date that is 25 years after the date of enactment of this Act, unless the President certifies, as required by this Act, that — (i) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and (ii) the identifiable harm is of such gravity that it outweighs the public interest in disclosure. (Italics added.)

Notice the requirement: that the president certify. There is no evidence that Trump has issued any certification. Moreover, the certification must be specific: The law requires Trump to certify that continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations and (notice the “and”) the identifiable harm is of such gravity that it outweighs the public interest in disclosure.

Again, there is no evidence that Trump has issued such a certification on any of the records that were in the possession of the National Archives on October 26, 2017, which the JFK Records Act required the National Archives to release. Instead, according to CNN,

In a memo Thursday [the day of the deadline], Trump directed agencies that requested redactions to reassess their reasons for keeping the records secret, and said he would make a decision on those requests within 180 days. But it is unclear what his latest statement would do to that timeline.

Here is what Trump’s memo stated:

The American public expects — and deserves — its Government to provide as much access as possible to the President John F. Kennedy Assassination Records (records) so that the people may finally be fully informed about all aspects of this pivotal event. Therefore, I am ordering today that the veil finally be lifted. At the same time, executive departments and agencies (agencies) have proposed to me that certain information should continue to be redacted because of national security, law enforcement, and foreign affairs concerns. I have no choice — today — but to accept those redactions rather than allow potentially irreversible harm to our Nation’s security. To further address these concerns, I am also ordering agencies to re-review each and every one of those redactions over the next 180 days. At the end of that period, I will order the public disclosure of any information that the agencies cannot demonstrate meets the statutory standard for continued postponement of disclosure under section 5(g)(2)(D) of the President John F. Kennedy Assassination Records Collection Act of 1992 (44 U.S.C. 2107 note) (the “Act”).

One big problem: Trump’s memo does not comport with the requirements of the law. It certainly does not certify that postponement of the release of the 98 percent of the records that are still being kept secret is “made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations and the identifiable harm is of such gravity that it outweighs the public interest in disclosure.” In fact, there is no indication in Trump’s memo that he or any of his minions have even read the records in order to make such a certification.

Instead, Trump’s memo consists merely of a request from agencies for continued secrecy and Trump’s response stating that he has “no choice” but to grant their request. Trump’s memo is clearly not the certification required by the law.

Trump’s memo also gave the CIA and other agencies 180 days to continue reviewing and reassessing the records. That’s not in the law either.

Rather than comply with the law or ask Congress to amend the law, Trump, consistent with his dictatorial tendencies, has effectively rewritten the law to suit himself and the CIA.

When Trump failed to provide the National Archives with the required certification by legal deadline of October 26, it was legally incumbent on the National Archives to comply with the law by releasing all the JFK-assassination records in its possession, without redactions. Since Trump’s memo and his 180-day edict fail to comply with the law, the National Archives had a duty to ignore it. That’s the way things operate in nations that are based on the “rule of law.”

Why didn’t the National Archives comply with the law on October 26?

It cannot be that National Archives officials weren’t familiar with the terms of the law. Take a look at this video by a National Archives official named Martha Murphy, who is part of a research branch of the National Archives. The video is from 2015. In it, Murphy makes it clear that the National Archives was already preparing for the upcoming 2017 release of the JFK Records Act, which implies that National Archives officials had read the law and were thoroughly familiar with its terms.

So, why didn’t the National Archives follow through with its plans to comply with the law by releasing the long-secret records? Why didn’t it perform the duty that the law required it to perform, given that it had not received the certification from the president that the law required?

The answer is: Welcome to dictatorship, a type of political system where what the law says doesn’t matter. Instead, what matters is what the ruler dictates. The National Archives obviously decided that discretion was the better part of valor and decided to comply with Trump’s and the CIA’s desires rather than comply with the law.

In a word, cowardice. Or to be more specific, fear, cowardice, submissiveness, and deference to authority, the primary characteristics of bureaucracies and bureaucrats under dictatorial regimes.

The shame is aggravated by the fact that the National Archives was set up as an independent agency, not a subsidiary department of the executive branch. As such, it is free to do its job and comply with the law without having to respond to the dictates and wishes of the president or the CIA.

When the National Archives failed to receive the specific certification required by the JFK Records Act by the day of the deadline, it had a moral and legal duty to exercise the independence that the law provided to it and to follow the law. It had a moral and legal duty to release the records, even if it angered or displeased Trump and the CIA.

By succumbing to pressure from Trump and the CIA and by aiming to please them, rather than following the dictates of the law, the National Archives has failed in its responsibilities and it has failed the American people. It has also shamed our nation, our political system, and the principle of the rule of law. In the process, it has also advanced the cover-up outlined in Oliver Stone’s movie JFK.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.