JFK Assassination Records and the Enduring Lessons from the Assassination Records Review Board

The final report of the Assassination Records Review Board.

JFK assassination records are likely the most frequently and prominently requested classified documents in the National Archives and Records Administration’s (NARA) possession. The Kennedy Assassination Records Collection Act of 1992 (JFK Act) requires that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. The timing of the Act’s “final release date” has the potential to further affect election year politics in an election cycle already dominated by records retention, declassification, and state secrecy. This is also a timely opportunity to consider more broadly the Kennedy Assassination Records Review Board’s (the Board’s) recommendations to improve declassification practices of even the most sensitive government records.

The JFK Act of 1992 – spurred by renewed public interest in assassination records thanks to the success of Oliver Stones’ film, JFK – mandated that all federal records pertaining to JFK’s assassination be transmitted to NARA. The Act further required that each assassination record be publicly disclosed in full, and be available in the collection no later than the date 25 years after the enactment of the Act (October 26, 2017) unless the President certified that releasing the documents would cause “identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations” that outweighed the public interest in disclosure.

The Act also established the Kennedy Assassination Records Review Board (the Board), a temporary, independent agency consisting of five citizens who were not government employees but who had, for the first time in history, the “ability to order agencies to declassify government documents” and whose declassification decisions only the President could override. With its unique authority, the Board opened previously hidden CIA records from the CIA’s Directorate of Operations and FBI files that would have otherwise been protected by the FOIA’s broad law enforcement exemption. The Board also implemented a program requiring agencies sign a declaration, under penalty of perjury, that they were complying with the JFK Act.

In the 1990s the FBI was the only agency to appeal the Board’s decision to President Clinton, claiming that “the Board was directing them to declassify particular records that the FBI did not consider relevant. The Board effectively argued its case, the appeals were withdrawn, and the documents were released.” Somewhat surprisingly, the CIA never appealed any of the Board’s declassification decisions (although it did provide “inaccurate representations” concerning the relevance of records related to a deceased CIA agent named George Joannides).

As the Board itself noted, the Clinton administration “played a fairly low-key role. ‘Generally, the President just wanted people to cooperate,’ one interviewee said… Not unlike a parent coming up against sibling rivalry, the agencies ‘were told [by the Administration], ‘Work it out, because the President doesn’t want to touch this.’ A Board member mentioned that Chief of Staff John Podesta was ‘very supportive of our efforts — he never overruled the decisions of the Review Board.’ Fortunately for the Board the relationship with the Administration was smooth because ‘the wrong President could produce very different results. Clinton was very supportive, and interested in the work of the Review Board.’”

The Board’s work culminated in a collection of 318,866 Kennedy Assassination records — an estimated 5 million pages, and a wealth of insight into – and recommendations to improve – the declassification process, which are as timely now as they were when the Board delivered its final report in 1998. These recommendations include arguing “that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task.” Both bipartisan Freedom of Information Act bills currently in the House (H.R 653) and the Senate (S 337) are a good start to fulfilling this nearly 20-year-old advice, and codify the presumption of openness, thereby requiring records be released, unless there is a foreseeable harm or legal requirement to withhold them.

The Board also addressed the cumbersome referral problem, a topic covered in many Archive op-eds (read here, here, and here for blogs by the Archive’s Nate Jones from this year alone bringing attention to this lumbering problem). The Board said – in 1998 – that the “time-consuming, and expensive problem of referrals for ‘third party equities’ (classified information of one agency appearing in a document of another) be streamlined by (a) requiring representatives of all agencies with interests in selected groups of records meet for joint declassification sessions, or (b) uniform substitute language be devised to deal with certain categories of recurring sensitive equities.”

1.1% of these records were withheld in full, not .1%.

Jefferson Morley, clarifying a slide presented by Martha Murphy, head of NARA’s Special Access Branch, on NDC prioritization earlier this year, reports that 1.1% from the total collection of JFK Assassination Records collection were withheld in full (3,603 individual records); and 11% were partially withheld, and these estimated 41,000 records withheld in full or in part are the records subject to the upcoming 2017 release. NARA is currently preparing for the  release and notifying agencies that have equities in the remaining documents. Murphy recently stated that NARA has “sent letters to agencies letting them know we have records here that were withheld, 2017 is coming.” Murphy further noted that “while no agency has formally requested a waiver yet, some ‘have gotten back to ask for clarification’ and are seeking ‘more information.’”  Murphy noted that while she couldn’t say whether or not the records would resolve the enduring sense of mystery surrounding the assassination, she said that the records will provide a “beautiful snapshot of Cold War America and the intelligence community.”

The appeals process for the 2017 release hasn’t been disclosed yet, but a good bet is that any appeal process would include the National Security Council. There may possibly be convincing arguments to keep some documents secret for “personally identifiable information,” including tax records or social security numbers of persons who are still alive.  Court sealed documents including grand jury records could also pose difficult to release.

There are also, however, many other currently censored documents  — including  those initially withheld to protect law enforcement and CIA information — whose release should be and easy decision. Fifty years after the assassination and 25 years after the signing of the JFK Act, there is extremely little information that can harm US national security, or law enforcement actions; and almost none of this harm can conceivably outweigh the public interest of having access to documents of such an important incident.

Unfortunately, as absurd as it seems that CIA records and information that was compiled for law enforcement purposes in the 1960s should still be protected, those arguments will likely be made. The CIA successfully argued, after all, that releasing a 30-year-old volume of the CIA’s draft “official history” of the 1961 Bay of Pigs invasion would “confuse the public” —  just imagine what concerns the agency has for public confusion surrounding the Kennedy Assassination. The likely reason for these specious arguments is the fact that many secretive federal agencies do not like public oversight of any of their activities, nor like having another executive agency force them to release documents the agencies mistakenly believe are “their own.” Fortunately for the public, the Kennedy Assassination Records Collection Act of 1992 has already largely set this precedent — for one narrow slice of documents.

If, then, agencies do appeal the release of any of the remaining 41,000 documents, will a lame-duck President Obama — or his successor — listen and help agencies keep the 50-year-old records secret? Hopefully not. And since it’s possible that the next president will determine the fate of the remaining secret JFK records — and that their stance on the records’ release may be a good tell on their views on openness and transparency — the media should start getting candidates on the record now.