Challenging Executive-Branch Conceit in the Murder of a President
Can the judiciary and legislature, acting concurrently, finally humble the national security state?
Congress is now voicing public anger over suspected “Deep State” complicity in a host of current affairs including January 6th, Big Tech censorship, and the origins of COVID-19. Hearings have been loud. At a lower volume, the age-old issue of still-withheld records related to the assassination of President John F. Kennedy has entered the mix, and a new JFK bill has taken its first short steps in the national legislature.
The Justice for Kennedy Act, introduced by Rep. David Schweikert, an Arizona Republican, mandates publication of all assassination-related records within thirty days. Prevailing law gives the House Oversight and Senate Homeland Security Committees continuing supervisory jurisdiction over the mysterious files, but several more House committees—including Judiciary and Foreign Affairs—have some form of authority. After referral to the Intelligence Committee in March, the JFK bill moved to the Subcommittee on the CIA.
As Congress considers Schweikert’s legislation, the case of Mary Ferrell Foundation v. President Biden and the National Archives, in which Schnapf serves as co-counsel for the plaintiffs (MFF), is appealing to the judiciary to compel executive-branch compliance with the will of Congress. By postponing—in an “arbitrary and capricious” manner—release of records related to the assassination, the defendants are violating a federal law, the JFK Records Act, passed unanimously by Congress in 1992.
In opposition to the Justice Department’s motion to dismiss the suit in federal court, MFF filed a 44-page brief detailing government illegalities. In short, Biden does not enjoy “unfettered discretion” in delaying release of assassination records. Rather, he has a “ministerial” duty to apply the criteria of the statute.
“The battle is joined now,” said Morley on the podcast.
A layer of complexity concerns a particular agency, the Assassination Records Review Board (ARRB), which the JFK Records Act created to collect and classify all assassination-related records and file them, redacted or fully disclosed, in the Archives (NARA). The ARRB released millions of pages to the public in the 1990s but was strangely terminated after only four years, before it could complete its work.
With the Act still in force, NARA—the ARRB’s legal “successor in function”—is supposed to carry out all its predecessor’s duties as the law prescribes. That means not just dealing with files already in the Archives but also chasing down documents that agencies are illegally withholding all these decades later. Since NARA has neglected to secure assassination-related records that researchers have established were never turned over in the first place, NARA has failed to obey federal law.
In December 2022, Biden postponed release of thousands of files in the JFK Collection, the fourth time a president has done so since October 26, 2017, the date for full disclosure under the Act. Shortly thereafter, former ARRB Chairman John R. Tunheim, a federal judge, told me in an online press conference that some records had never been turned over for transfer to NARA at all, “for one reason or another.”
“There are some cases in which I believe the Review Board and its staff were misled about the importance of certain records,” said Judge Tunheim, noting that by the end of the ARRB’s short life, “things were coming through fast,” and “that’s where there was some significant misrepresentation.”
The national-security state’s latest strategy for evading accountability is the CIA’s “JFK Transparency Plan.” In a letter to the National Security Council in September 2022, the Pentagon claimed that it “assesses continued withholding of certain classified and controlled unclassified information from public disclosure beyond December 15, 2022.” The same letter refers to a series of “triggering events” in the CIA plan that would supposedly make files public automatically: relevant people die, “sources and methods” become obsolete, partnerships dissolve, etc. Agencies would control the announcement of such “events” indefinitely, burying the Act’s timeframes under new norms and even excluding the President from the review process.
The “good faith” track record of our national-security agencies, especially the CIA, is not encouraging. Not only did they mislead the ARRB on the relevance of records that should have been transferred to NARA in the 1990s. They have already violated their own criteria for release as well.
Among records released in December 2022, a 1977 memo concerns an investigation conducted by the CIA’s Miami station in 1963 into whether anti-Castro Cuban exiles were involved in the assassination. The probe occurred as the Warren Commission was putting together its final report, concluding a “lone nut” had murdered JFK. It turns out the memo’s author, Donald Heath, died in 2017, yet the CIA waited five years to reveal his identity. The investigation’s actual findings remain concealed.
Further, the CIA only disclosed in December that one of its officers, James McCord (later a Watergate burglar), had gone to Berlin in 1960 to monitor American defectors to the USSR, including accused assassin Lee Harvey Oswald. The revelation undermines the official version of a disturbed loner who took everyone (even the CIA) by surprise, “coming out of nowhere” to kill the President. Like Heath, McCord died in 2017. Both men could have provided valuable information to historians.
“The remaining witnesses to this historical event are now in their 80s or 90s,” MFF notes. “With each passing year, the facts that they could add to the nation’s understanding of this tragic event are gone forever.”
While the buck should stop with Biden, NARA bears hefty blame for the American public’s enduring mistrust. Instead of handling requests for disclosure directly, as the ARRB once did, NARA has deferred to the more stringent Freedom of Information Act (FOIA) system, in violation of the law.
In 2016, a lawyer for the non-profit Assassination Archives and Research Center contacted NARA about records related to one Werner von Alvensleben, a double agent for the CIA’s predecessor, the Office for Strategic Services (OSS). On a mission for Nazi SS Reichsführer Heinrich Himmler, von Alvensleben tried to assassinate an Austrian official and was convicted and imprisoned by the pre-Anschluss Austrians in 1933. His favorite hunting rifle, the Mannlicher-Schönauer, used bullets “virtually indistinguishable” from those of the Mannlicher-Carcano, the rifle Oswald purportedly used to shoot Kennedy.
In late 1963, former SS Gruppenführer von Alvensleben was in Dallas as a guest of David Harold Byrd, owner of the Texas School Book Depository (TSBD), from which—the official story goes—Oswald discharged all the shots fired at the presidential motorcade on November 22, 1963. Byrd, an oil man, was also brother of Senator Harry F. Byrd, a passionate JFK-hater and crony of Vice President Lyndon Johnson. When the assassination occurred, Byrd was at von Alvensleben’s hunting preserve in Africa.
“After the assassination, Byrd had the ‘sniper’s window’ removed from the TSBD building and installed for display in his home in Dallas, where it reportedly became the focus of high-powered social events,” the attorney writes, urging that NARA designate government records on von Alvensleben and Byrd as “assassination related” and release them to the public under the JFK Records Act.
The NARA functionary eventually ends the communication curtly:
At this point, I think these fall under the FOIA, rather than the JFK Act, using the definition of an assassination record as stipulated by the ARRB in their Report.
Since the Act’s broad “definition” includes any record “reasonably related to the assassination,” one would think files on the owner of the TSBD would have qualified. The letter pleads with NARA to do what the ARRB surely would have done; NARA’s response reflects institutional negligence toward its legal obligations.
In a sense, this is an old story. Litigation will test the mettle of judges and justices in standing up to executive power, including America’s myriad “Deep State” agencies. Our black-robed reviewers and interpreters of law and its enforcement have often proven unwilling (or afraid) to contravene the executive on issues of “national security” as defined by our intelligence mandarins. As always, those who still believe in the rule of law hope this time something finally gives.
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Despite the judiciary’s patchy record in defying executive hubris, there may be more hope now. MFF v. Biden is dovetailing with popular ire over “Deep State” abuses, expressed through legislative hearings, and a pending JFK bill in America’s parliament. Rep. Schweikert, a fiscally conservative Ways & Means Committee member, doesn’t fit the far-out “QAnon” conspiracy-theorist mold. He is blunt about anxiety among U.S. national-security agencies over reduced budgets, sullied reputations, and lost political clout that might result from government transparency in the murder of JFK.
“It’s money, power, vanity, and in some cases in Washington, it’s all three,” said the sixth-term Arizona legislator on Tucker Carlson Tonight. “Treat the American citizens like adults, and I think actually that might be the moment that you have people start to trust institutions again.”
A “two-pronged” charge in Congress and the courts might prove enough to overcome high-handed executive-branch secrecy over a horrific watershed in U.S. history. For the sake of our nation and government, let's pray that it is.