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The Divine Right of Joe Biden

Wishing away the ghost of a slain predecessor, our president is trying to bury a living law.

President Biden And Vice President Harris Speak At DNC Event In Washington, DC
President Joe Biden speaks during an event hosted by the Democratic National Party at the Howard Theatre on November 10, 2022 in Washington, D.C. (Samuel Corum/Getty Images)

Hypocrisy is never a good look. On June 30, our secretary of Education declared that the Supreme Court, by striking down President Biden’s student-debt forgiveness program, had “substituted itself for Congress.” On the very same day, Biden issued his “Memorandum on Certifications Regarding Disclosure of Information in Certain Records Related to the Assassination of President John F. Kennedy,” decreeing that, from now on, executive-branch agencies would adopt the CIA’s “Transparency Plan” for releasing assassination related files they control. 

The problem: The federal law governing disposition of such files, the President John F. Kennedy Assassination Records Collection Act of 1992, is still in force. It set a deadline of October 26, 2017, nearly 54 years after the horror in Dealey Plaza, Dallas, for the release of any still-withheld documents. By executive fiat, Biden made his memo the “final certification” under the Act, meaning that, at least so far as our commander-in-chief is concerned, the legislation passed unanimously by Congress over three decades ago is now dead.

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To those familiar with this situation, Biden’s edict looks like an effort to preempt a troublesome conclusion to legal action currently under way. In October 2022, the non-profit Mary Ferrell Foundation (MFF) filed suit in federal court against Biden and the National Archives, charging that the president had already violated the JFK Records Act when he certified postponement of withheld files in October 2021. In December 2022, Biden proclaimed he was again certifying postponement, the fourth time a president had done so since the legal deadline. His 2023 diktat is trying to put a “final stamp” on an already illicit process, in hopes of brushing away the will of Congress forever. 

MFF v. Biden raises constitutional issues related to the separation of powers, but its most important element may actually be an ancient principle of Anglo-American law. The defendants’ lawyers argue that the courts have no authority to enjoin or constrain the President in the exercise of his powers, including declassification of government records, and their argument rests on the idea that there is nothing special about the JFK Records Act. Yet they know this is untrue. 

The JFK Records Act is a “remedial statute.” That means it was designed to correct an error in the implementation of another law. As the plaintiffs’ lawyers explain:

The canon grew from the “mischief” rule that calls on courts to identify the mischiefs and defects that the legislature identified when it enacted legislation, and then construe the statute in a manner that would suppress the mischief and advance the remedy.

In other words, the courts should interpret the law as broadly as possible to fulfill Congress’s objectives, and a run-of-the-mill “executive privilege” claim shouldn’t be good enough. In contending that Biden is “above the law” regarding declassification of assassination records, the government is flouting the “mischief rule” on the grounds of “national security,” expecting us to trust that the CIA and other executive-branch agencies have our best interests at heart, even as they collude with industry to censor free speech and commit other rights abuses. But what is at the heart of the secrecy that is now set to continue indefinitely if the CIA’s scheme takes root?

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While educated guesses are not irresponsible in contemplating government abuses of power, it is unlikely that conspirators would have put a plot to kill the president in writing, to say nothing of documenting it in official files. Still, suspicion that President Kennedy’s murder was the result of a conspiracy remains widespread, and an examination of the historical record may offer clues to what transpired on November 22, 1963—and to why our national-security grandees might be hiding a titanic disgrace to their reputations and consequent mortal threat to their power.

In early 1962, the Pentagon conceived and approved a program called Operation Northwoods, involving “false flag” attacks to be staged on American territory and blamed on the Communist regime in Cuba. These would have constituted acts of terror, but hawkish members of the U.S. national-security state saw them as worth the price, since they would create the pretext for a full-scale invasion of Cuba and removal of its charismatic leader, Fidel Castro, whose CIA cryptonym was “AMTHUG.”

When presented with Operation Northwoods, President Kennedy rejected it. He had already nixed hawks' exhortations to bomb Soviet military bases during the Cuban Missile Crisis of October 1962, and in 1961 reportedly had walked out of a National Security Council briefing during the Berlin Crisis. The chairman of the Joint Chiefs of Staff was explaining how the United States might launch a surprise nuclear attack on the Soviet Union and survive the response. As he was leaving the room, Kennedy remarked to his secretary of State: “And we call ourselves the human race.”

But Operation Northwoods lived on. The JCS revived its “pretext” plans without presidential approval in spring 1963, and by November a complementary CIA psychological warfare operation codenamed AMSPELL was in full swing. Designed to trumpet the menace of Cuban Communism infiltrating American society and institutions, AMSPELL made a special target of the New York-based Fair Play for Cuba Committee (FPCC), a group calling for normal diplomatic and trade relations with Havana. In violation of the Agency’s own charter prohibiting operations on American soil, the CIA funded and directed U.S.-based anti-Castro Cuban exiles for propaganda purposes. In August 1963, the group at AMSPELL’s core—the Revolutionary Student Directorate, or DRE—had an altercation on the streets of an American city with the man ultimately accused of killing JFK.

As the CIA financed the DRE to the tune of half a million dollars a month in today’s money, Lee Harvey Oswald was captured on camera handing out FPCC leaflets to passers-by in downtown New Orleans, a city with no official local chapter of the organization he claimed to represent. After a scuffle seen by many, Oswald and the DRE activists were briefly jailed, and within days the twenty-three-year-old Oswald was speaking on TV about U.S.-Cuba relations and debating the local DRE leader on the radio. Wittingly or unwittingly, Oswald thus perfected his own “legend” as Castro-sympathizing Marxist oddball, so that hours after the assassination, the DRE was broadcasting (without evidence) that he—an “ex-defector” to the USSR—had murdered JFK on Castro’s orders.

These events hint at some toxic mix of the Northwoods and AMSPELL having led to Kennedy’s murder, prompting an official cover-up to protect careers. The DRE’s “conspiracy theory” about Castro would be abandoned, and the man in police custody—describing himself angrily on camera as “just a patsy”—would be depicted instead as just a lone nut. Plans to invade Cuba would fizzle as preparations for the Vietnam intervention ramped up, and documentation of AMSPELL and Northwoods would be withheld from the public to the present day. While it may be a stretch to suggest anything in these files reflects foreknowledge of Kennedy’s murder, the idea that the CIA knows much more about the assassination than it has ever revealed seems inescapable.

In October 2017, CIA Director Mike Pompeo—appointed to head a powerful agency with which he had no professional experience, and that both he and his boss were keen to appease—convinced President Donald Trump to continue withholding assassination-related files. Whatever the former president saw, he probably did actually lay eyes on “sensitive” materials. He has reportedly conveyed his shock at their contents to people he knows. The anonymous source quoted by Tucker Carlson in December, in answer to the question of whether the CIA had a hand in the assassination, sounded distinctly Trump-esque: “The answer is yes. I believe they were involved. It’s a whole different country from what we thought it was. It’s all fake.”

But is Joe Biden, who doesn’t even appear to know where he is most of the time, aware of any of this? So far, he has evinced no emotion about the files, never mind shock, so maybe he’s seen nothing meaningful at all. The JFK Records Act vests the president with the sole, non-delegable duty to review assassination records, to certify whether—by “clear and convincing evidence”—“identifiable harm” to national security from disclosure outweighs the public interest in transparency about an acutely painful episode in our nation’s history. It looks as if unlawfully delegating this duty to agencies such as the CIA is just fine by Joe Biden. He might rather take a nap anyway. 

As for any agency in control of embarrassing or incriminating files, the current scenario is ideal. With a little CIA sleight of hand, an apparently debilitated chief of state can be convinced to sign anything. Endowed with a “divine right” he can’t even perceive, our elected king can avert his unsteady gaze from a bloody ghost of America’s past while a corrupt national-security state continues to get away with murder at home and abroad. Figuratively speaking, of course.

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