A Presumption of Disclosure: Lessons from the John F. Kennedy Assassination Records Review Board
by Guest Blogger, 7/15/2002
This report provides a profile of the Kennedy Assassination Records Review Board (hereinafter the Review Board or Board), a public access success story of how millions of government records were set free from the 27 federal agencies that had kept them hidden for 30 years. The Board was very carefully and thoughtfully crafted and its inner workings over its 4-year term were complex; the story yields important insights for declassification policy and practice.A Presumption of Disclosure:
Lessons from the John F. Kennedy Assassination Records Review Board
(This report is also available in PDF.)
BACKGROUND ON DECLASSIFICATION
WHAT WORKED AND WHY
- Active support
- Structure, adequate funding, and a very competent staff
- Board power
- Open, impartial process
- Focus on increasing public access
- Broad definition of "Kennedy assassination records"
ABOUT THE JFK ASSASSINATIONRECORDS REVIEW BOARD
- What prompted the Board's formation
- The Congressional mandate
- Board and staff
- Review Process
- Current Status
RELATIONSHIPS WITH FEDERAL AGENCIES
- Secret Service
RELATIONSHIP WITH THE WHITE HOUSE
DRAWBACKS, ROADBLOCKS, AND LESSONS LEARNED
PUBLIC POLICY ISSUES
- Declassification Status Quo
- Public Interest Declassification Act
- Declassification and the Freedom of Information Act (FOIA)
- The Role of the National Records and Archives Administration (NARA)
SUMMARY AND CONCLUSIONS
APPENDIX -- Obtaining Access to the JFK Assassination Records Collection
"All information ultimately becomes archives. The government information that people get from the National Archives becomes our nation's history. People have a desire to understand and know their history. It is a search for honesty. A lack of information creates mythologies, while access to information creates dialogue. It is a fundamental part of our national health and identity. Secrecy is dangerous to a government -- or rather, to a Democracy that truly wants to involve people."
(A member of the Kennedy Assassination Records Review Board)
This report provides a profile of the Kennedy Assassination Records Review Board (hereinafter the Review Board or Board), a public access success story of how millions of government records were set free from the 27 federal agencies that had kept them hidden for 30 years. The Board was very carefully and thoughtfully crafted and its inner workings over its 4-year term were complex; the story yields important insights for declassification policy and practice. A more thorough description can be found in the Board's 200-page Final Report.
As part of the Agenda for Access project, we investigated the mission, goals, structure, processes, and procedures of the Review Board to assess whether it might be replicable as a model, and to view the initiative within a broader declassification policy construct. To supplement information provided in the Board's Final report, and from other sources, we conducted interviews with four key players involved with the Review Board's establishment, development, and functioning. Two of the interviewees are former Board members. One was a staff member, and the fourth was an employee of the National Archives and Records Administration who functioned as its liaison with the Board and the federal agencies. Unless otherwise noted, all quotes in this report came from the interviews.
The candid and intelligent insights, reflections, and perspective of these project participants proved invaluable in fleshing out how the Board functioned on the ground, and how they so successfully met the many challenges they faced.
BACKGROUND ON DECLASSIFICATION
To protect national security, the executive branch is responsible for overseeing and implementing classification and declassification efforts. Traditionally, Congress and the general public have little input into this facet of government information policy. The classification system specifies: (1) the types of information that will be classified, (2) the amount of time information will be considered secret, and (3) the extent to which the public (and government employees) can obtain access to the information. Declassification refers to the process of releasing classified government records, documents, data, files, maps, and other information, and making this information available to the public.
There are legitimate reasons why some types of government information should be classified -- at least initially -- by the twenty-nine executive branch agencies with the authority to classify their records. Indeed, information is properly classified only if it reasonably could be expected to cause damage to national security. There will always be some dynamic tension between the government's obligation to disclose information, and the legitimate demands of national security secrecy. The need to protect information must continually be weighed against the public's right to know and its need to have access to information about the government.
Public interest advocates maintain that the government has been unnecessarily secretive, and is, in fact, overclassifying—classifying information that does not need or merit protection under the standards. Additionally, interpretation of existing classification and declassification guidelines has been inconsistent from one agency to another, as has been the quality of documentation, recordkeeping, storage, and information management pertaining to classified information.
The climate within agencies tends toward internal protectionism and secrecy. Some consider this ethos to be a vestige of a dusty Cold War mentality. Others maintain it is a proper response to looming threats of an increasingly dangerous world. The reality remains that the internal climate of the agencies, and the failure of agency leadership to impel change, contribute to agencies' uncertainty about how best to carry out the President's classification and declassification mandates.
A "gradual but encouraging shift in recent years on the part of many agencies that use classified information toward declassifying and releasing more of that information to the public" has been noted by some (Report of the Commission on Protecting and Reducing Government Secrecy, 1997, Senate Document 105-2). However, these recent agency efforts to increase access to government information through declassification have come about through pressure applied from the public, the media, and Congress -- and not from the agencies themselves.
Since the Eisenhower Administration, classification laws have been established by Executive Order by almost every new President in office. Executive Order 12958 ("Classified National Security Information") was issued by President Clinton in 1995. The policy ordered that all classified information contained in agency records 25 years old or older (and determined to have permanent historical value) be systematically and automatically declassified by April 2000.
It is estimated that "over 1.5 billion pages of records 25 years old and older are still classified by the Federal Government. Of this amount, agencies currently plan to review less than one-half -- approximately 719 million pages -- under the automatic declassification provisions of the Order, meaning that agencies are exempting from automatic declassification over three quarters of a billion pages." (Report of the Commission on Protecting and Reducing Government Secrecy, 1997)
President Clinton's Executive Order was amended on November 19, 1999. The amendment extends the automatic declassification deadline for 18 months, until October 2001. Several agencies had appealed to the President because they were behind schedule and did not believe they could meet the 2000 deadline, with hundreds of millions of pages of information still to review. According to "a White House official …without an extension…the CIA, State Department, Pentagon and other agencies could have been forced to release sensitive national security information in April without adequate review of the documents." (Washington Post, November 19, 1999, page A43)
Declassification is a public right-to-know issue. It is one that is sometimes overlooked by the media and the public, however. Of the nation's major newspapers (Washington Post, New York Times, Chicago Tribune, San Francisco Chronicle, Los Angeles Times, USA Today, etc.) news of the amendment to Executive Order 12598 was covered by the Washington Post exclusively.
Executive Orders pertaining to declassification address broad, government-wide, "systematic" declassification. An alternative to this approach is "targeted" declassification, in which records on a particular topic are reviewed for declassification, and released en masse to the public. The Kennedy Assassination Records Review Board is the best example in existence of a successful, targeted declassification effort.
WHAT WORKED AND WHY
The Kennedy Assassination Records Review Board is the best example in existence of a successful, targeted declassification effort.
The JFK declassification initiative was successful for a number of reasons.
Active Support -- marked by bipartisan Congressional backing, as well as support from President Clinton and the public. According to a Board member, "Dan Burton (R-IN), Chair of the House committee that had oversight of the JFK Act, was very helpful. He introduced a bill instantly to get another year added on when we needed it. Later he volunteered to write letters to the recalcitrant agencies to get them moving."
Structure, adequate funding, and a very competent staff -- all contributed to its success. The JFK Act specified that Board members be "distinguished persons of high national reputation in their respective fields who are capable of exercising…independent judgements." The Board was strong, solid, and well-suited to their task, which they took seriously. One interviewee mused, "If you'd had a bunch of oddballs, it would have spoiled the whole process."
Independence -- no government employees were permitted to serve on the project's Board or staff. "It was structured that way to ensure that the process wouldn't be tainted by one group or another—so that one agency or another's bias wouldn't drive the process," according to an interviewee. "We were trying to keep credibility high, and not get bogged down in details—the type of details wedded to an internal, agency point of view," commented another. "The Board was made up of private citizens," said a Board member, "We all were Washington ‘outsiders' or part-timers, and that independence was necessary. We weren't relying on Washington for our next job. Our independence—which was built into the structure developed by Congress and supported by the President—gave us the ability to do things we wouldn't otherwise have been able to." Especially crucial, given the high level of public interest, concern, and scrutiny, "it was unique because it was the first time Congress had given power to an outside entity to order the declassification of government documents. It wasn't the CIA declassifying documents." All interviewees were unanimous that the independent review process was at the core of the Board's success.
Board power -- by Congressional design. As one interviewee put it, "it had teeth." Only the President could overrule its decisions. One interviewee described it this way: "Agencies had to specifically justify how a document's release would threaten national security. For example, some intelligence agencies said, ‘There is no way this document will be released. Trust us. We will not discuss it further.' The Review Board said, ‘If you don't explain better than that, in 30 days we will go ahead and [direct you to] release the entire thing -- if you care to explain your objections, we will consider them all or in part. But a blanket "National Security" claim is not enough'." According to the terms of its Congressional mandate, the Board was able to make and follow through with such demands.
As a result of their powerful position, the Board's authority was generally respected. "A few depositions were taken—but we used depositions more as a threat hanging over their heads than actually deposing the agencies. They had to certify under oath that, to the fullest extent possible, they were complying with the JFK Act -- doing the requested records searches. And they did."
The reach of the Board extended beyond its immediate mandate. The National Archives and Records Administration and the Board entered into memoranda of understanding (MOU) with the agencies to ensure that they completed their obligations under the JFK Act. The MOUs set out deadlines for the transfer of records that were pending at the time the Review Board "went out of business." "The National Archives holds these compacts, and anyone can have access to them. So if anyone feels the agencies are not moving quickly enough, they can access those compacts and raise a ruckus with Congress to get the agencies moving," said an interviewee.
Open, impartial process -- which engendered public trust, and perhaps worked to restore some lost faith in government. "We really had a tremendous amount of public participation," said an interviewee, "Over the course of the project there were thousands of inquiries from the public. People would suggest we look for x, people would share their theories, people would donate materials from their private collections. The public had the opportunity to participate in a very real way." Another recounted, "Through the work of the Review Board, we invited people who led conspiracy groups to attend open meetings. We let them know we were not going to hide anything." Another expressed a similar view: "The public's opinion was we were acting in good faith and were accomplishing a lot."
Focus on increasing public access -- not on solving the mystery. "Congress didn't give the Review Board the responsibility to figure out what really happened. It was a wide open search to find and release information that might be relevant to the Kennedy assassination. It helped us maintain credibility with most everyone," an interviewee explained. Another remarked, "I suppose some considered the Commission a failure -- it didn't solve the mystery, and it didn't prove their favorite conspiracy theory. However, according to the mandate from Congress, the process was ultimately a success."
Broad definition of "Kennedy assassination records" -- with the result that "the collection includes documents on a very wide range of topics -- everything from Cuba to Vietnam to what was going on in Central America," stated an interviewee. "We consider this ‘targeted declassification.' And it is targeted -- on the Kennedy assassination -- but it is also the records of the United States in the early 1960s. The process worked well for this group of records. It was better to be inclusive, rather than to leave something out that later might be found to be pertinent. This broad definition led us to records we wouldn't otherwise have found," summed up a Board member.
ABOUT THE JFK ASSASSINATION RECORDS REVIEW BOARD
"...it was unique because it was the first time Congress had given power to an outside entity to order the declassification of government documents."
In the words of its final report, the Kennedy Assassination Records Review Board was "a unique solution to a unique problem." It presents an alternative to traditional systematic declassification, or, more likely, a useful supplement to it. The records of 27 federal agencies were reviewed and declassified, resulting in a collection of approximately 2,000 cubic feet of records, or more than 4.7 million pages, which are now accessible to the public.
The size of its budget, and the vast amount of time and complex coordination it demanded, make this effort impracticable to replicate widely as a model for regularly declassifying government records. However, the work of the Board is a compelling example of how an immense volume of government records on a specific topic might be declassified relatively quickly.
The records encompassed by the Review Board's mandate are, as one of the Board members said, "a treasure trove, full of very interesting and comprehensive information about the United States in the early 1960s." And now this information, vital to our understanding of a disturbing time in our history—and hitherto regarded as "secret" -- is open, and accessible to the American public.
What prompted the Board's formation
"The topic," as one person noted, "had been around for 30 years, and the public was thinking about it the whole time." As the Final Report notes, though, much of the record was closed to public scrutiny and, thus,
The assassination of President Kennedy had been the subject of lengthy official investigations since 1963. However, the American public continued to seek answers to nagging questions raised by this inexplicable act. These questions were compounded by the government penchant for secrecy. Fears sparked by the Cold War discouraged the release of documents, particularly those of the intelligence and security agencies. Even records of the prior investigative commissions and committees were withheld from public view, and sealed. As a result, the official record on Kennedy's assassination remained shrouded in secrecy and mystery.(Final Report of the Assassination Records Review Board, 1998, p. xxiii, 169)
The Review Board, then, was created out of the broad public frustration that the federal government was hiding important information about the Kennedy assassination by placing its records beyond the reach of its citizens.
In response to this frustration, and ever-growing conspiracy speculation, Congress passed the President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act). The JFK Act (P.L. 102-526) mandated the gathering, reviewing, and releasing of all records concerned with the Kennedy Assassination. The JFK Act was signed into law by President Bush a week before Election Day in 1992. Soon after President Clinton entered office in January 1993, he began the process of selecting members for the Review Board to further develop, guide, and oversee the implementation of the Act.
The Congressional Mandate
Congress' intent was that the Board be a neutral entity—an independent review board, composed of "impartial private citizens" who were neither federal government employees nor had any previous involvement with any formal investigation of the Kennedy assassination. Congress stipulated that the Board be composed of "distinguished persons of high national reputation in their respective fields, who are capable of exercising . . . independent and impartial judgment," and include at least one attorney and one historian. In the second half on 1993, President Clinton nominated five members to serve on the Review Board. They were confirmed and sworn in after Senate review in April 1994.
The mandate of the Board was not to investigate the assassination itself, but to oversee the release of as much classified assassination-related information as possible, and to establish a comprehensive collection of records on the assassination to be housed at the National Archives and Records Administration (NARA). NARA's responsibility was, and continues to be, to: (1) receive and maintain the collection, (2) make the collection accessible to the public, and (3) maintain a searchable database.
Congress asserted that records relating to the assassination would "carry a presumption of immediate disclosure…only in the rarest cases is there a need for continued protection." Importantly, however -- as a Board member noted -- the Board "had the authority to direct the agencies to release the documents—not the authority to release the documents directly."
Board and staff
The Board had its work cut out for it. "Congress didn't develop the actual process; they left it to the Board. We had to establish the process—and the review process had to be as ‘public' as possible." The JFK Act directed the Board to appoint an executive director and staff, which would carry out the project's work and report to the Board. A liaison to NARA (a NARA employee) was also selected. (See Final Report of the Assassination Records Review Board, 1998, pp. 177-182, for a list of and biographical notes for Board members and key staff.)
The Board's first major task was to define the term "assassination record." The JFK Act and the Senate Report on the JFK Act addressed this question at some length. However, it was left to the board to fully refine the definition and to make it workable. The Board began discussion of the definition at one of their first meetings, on July 12, 1994. In October 1994, the Board held a public hearing on the issue, and actively invited public comment to help guide them. The proposed definition was published in the January 8, 1995 Federal Register.
According to an interviewee, "Defining what is an assassination record was challenging and time-consuming. We went with a broad definition. As a result, you get a window on so much of what was going on at that time in history." Additionally, based on comments from members of the public—and in anticipation of agencies challenging their judgment—the Board reasoned that broadly defining "assassination records" would aid in their directing the release of the fullest range of relevant documents possible.
The Board's final definition of an assassination record was published in the Federal Register on June 28, 1995. In summary, it defined an "assassination record" as including, but not limited to, "all records, public and private, regardless of how labeled or identified, that document, describe, report on, analyze or interpret activities, persons, or events reasonably related to the assassination of President John F. Kennedy." It specifically included all records "collected by or segregated by all Federal, state, and local government agencies in conjunction with any investigation or analysis of or inquiry into the assassination of President Kennedy."
Congress gave us the additional responsibility to restore confidence in the federal government . . . lost because of government secrecy following the assassination.
The JFK Act required federal agencies to identify, review, process, and transfer all their assassination records to NARA, and prohibited them from destroying or altering any records. In case there was doubt about whether a document was relevant, agencies were instructed to err on the side of submitting more, rather than fewer, documents; the Board would make the final determination. Once an agency had identified its assassination records, they were to submit them to NARA immediately.
While "the process, as established, was very weighted toward immediate disclosure," the Act also established standards regarding the postponement of document release that were more stringent than would be required by the existing Executive Order concerning declassification or through the Freedom of Information Act. Even if an agency believed that a record's release should be postponed, it was still required to submit it to NARA, which would put it in a temporary, "protected collection." Those records would not be publicly accessible until 2017 (25 years after the JFK Act was enacted). At that time all postponed records would be released to the public.
The President could reconsider any Board determination—and had the "sole and nondelegable" authority to require any document to be released or postponed. If an agency disagreed with a Review Board directive to release a particular record, the agency could appeal to the President. But, as one interviewee noted, "The FBI appealed to the President a couple of times. However, the President was committed to not overturning our decisions."
The Review Board staff implemented a program to ensure, to the fullest extent possible, that each agency complied with the JFK Act. A signed declaration was required from each agency, under penalty of perjury. This compliance statement described the record searches that the agency completed, records it located and other actions it took to comply with the law. Before agencies submitted their Final Declarations of Compliance, the Board worked with them to resolve outstanding problems. In the compliance statement, each agency addressed the scope and adequacy of its search, the adequacy of its response to the requests for additional information, and the timeliness with which it processed its records for release. The Board and staff also had the ability to depose officials of agencies with poor records systems and those that failed to comply with the spirit of the Act. (Final Report, p. xxv)
Of the twenty-seven agencies the Board worked with, "the JFK Act placed the largest burden on the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the Secret Service, and the Department of Defense because those agencies were deeply involved in the investigations of the assassination." (Final Report, p. 29)
Additionally, the Board reviewed records generated by various Congressional investigative efforts—the Warren Commission, the Rockefeller Commission, the Church Committee, the House Select Committee on Intelligence, the House Select Committee on Assassinations, and additional investigations. Furthermore, the Board was directed to review records from non-federal investigations, and to attempt to secure relevant documents from state and local governments (i.e., the New Orleans District Attorney's office, and Dallas City and County agencies), private citizens and organizations (e.g., the New Orleans Metropolitan Crime Commission), and foreign governments (i.e., Russia, Belarus, Cuba, Mexico, Canada, and Great Britain).
The mission of the Board was not restricted to the declassification of hundreds of thousands of documents. "Congress gave us the additional responsibility to restore confidence in the federal government that was lost because of government secrecy following the assassination. We set up public hearings and other methods for the public to track what we were doing," remarked a Board member. The Board held seven public hearings throughout the United States. In addition, Board members participated in meetings of historical associations, met with countless citizens groups, cooperated with students and assassination researchers, and made themselves highly accessible to the media.
The actual review process was complex and thorough. The Board opted to meet often and make decisions on a document-by-document basis, rather than on a broader issue-by-issue basis. Each agency reviewed its records and informed the Board what they wished to have released or postponed. Staff then reviewed the submitted records, and recommended to the Board whether it should sustain or overrule any postponements. A Board member observed, "the staff work area consisted of a number of tables, open boxes, file cabinets, and staff furiously checking through the boxes."
The agencies also made the process very cumbersome for the Board:
We were told by the agencies that they would only give us one document, which was not to be copied. The logistics of having five Board members looking at one document were tricky. We devised a way to look at each document simultaneously. There were two television monitors and a machine like an overheard projector—it was called an "Elmo." We'd put the document on the machine and it allowed all five of us to go through it line by line. In the beginning, we all had to vote on each document to be released, so we all had to review it.
After making the recommendations, the staff arranged for the records to be reviewed by the Board at their next meeting. Once the status of each record was determined through Board vote, the Board notified the agency of its decision, published the decision in the Federal Register, and submitted the record to NARA -- unless the agency asked the Board to reconsider their decision, or directly appealed to the President.
Eventually, once the Board was confident that the staff was applying their guidelines correctly, the Board directed staff to present to the Board only those records that presented new issues. The Board reviewed and voted on over 27,000 individual records for which agencies had requested postponements. Every three weeks, for two days, for over three years, we met," said a Board member, "But it's not over. I'm on the Board for life -- they keep finding new documents!
Another Board member remarked, "I'm still engaged—with this and [other] declassification efforts. I'm usually the first one who's called when there are questions or problems." Not only are the Board members still involved, several JFK staff members are currently working on another recent targeted declassification project overseen by NARA, and are on hand to assist with processing future records released to the JFK Assassination Collection.
At the conclusion of the project, some of the Assassinations Records Review Board staff became part of the National Archives and Records Administration's Special Access/FOIA staff. One staff member still spends most of his time on the JFK records collection, and three others spend part of their time on it.
The Review Board itself has formally gone out of existence. Additions continue to be made to the collection, however, as agencies review records identified as relevant, and submit newly opened records to NARA. One participant said, "There are works in progress—there's lots of organized crime research going on—and we have a huge amount of information in that area. In terms of the media, researchers, and the public, there's always renewed interest when we release new documents."
RELATIONSHIPS WITH FEDERAL AGENCIES
When an agency can be convinced to explain itself, and can hear the other side, unexpected things can happen.
The Board interacted with twenty-seven separate government agencies. The priority agencies were the CIA, FBI, Secret Service, and Department of Defense, as these agencies were most actively involved in the assassination investigations. The requirements of the JFK Act were rigorous not only for the Board and staff, but also for agency personnel. Some of the agencies had a massive volume of information to locate, identify, peruse, and submit to the Board, and it was often stored in systems less than adequate to the task. For the most part, the agencies ultimately cooperated, and some were exemplary in this respect: "Most agencies were cooperative. It was more work for everybody, but they realized they needed to cooperate and do the right thing."
In some agencies, a long-held institutional ethos of maintaining secrecy was so heavily entrenched that they seemed at a loss with exactly how -- or why -- they should comply.
Many agencies complained of the burden on their staff. In some agencies, a long-held institutional ethos of maintaining secrecy was so heavily entrenched that they seemed at a loss with exactly how—or why—they should comply. Some agencies were logistically vexing to work with. Some of the larger agencies are composed of many separately functioning departments, and it was not possible to find a centralized point of access to them, which made it difficult to streamline the records review process: "The DoD is so fractured it was initially difficult working with them. Anyone who talks about overbearing, centralized government should try getting hold of records!" Another interviewee added, "At DoD we had to break down a few barriers, partly because there are so many departments and it is so decentralized. But, once the walls were broken down at the Pentagon, it was very smooth."
Few agencies were either entirely effortless or entirely exacting to work with. Some agencies claimed not to understand the mandate or the expectations of the Board. A particularly unyielding agency was the President's Foreign Intelligence Advisory Board:
They claimed to have power to provide unfettered advice to the President, and none of this advice, they claimed, under any circumstances, would ever be released to the public—the nation's security depended on it.
The Board did not accept this argument and noted that the records being sought were 35 years old.
We appealed to the President. Still, nothing was released. Two appeals are currently pending—we're still trying to move it along.
The two Boards eventually negotiated which files would be protected and which released. In September 1998, a list was sent to PFIAB, asking that they ship the agreed-upon files to the National Archives. "A day or two after the Review Board shut down," the PFIAB appealed the agreement to the President. To date, there has been no resolution.
Some of the JFK team became quite familiar with agency staff, systems, and procedures. According to one, "The Review Board staff knew the filing systems better than some of agency personnel. An agency person would say ‘We don't have that,' and one of our staff would say, ‘I remember seeing that,' and it would be there."
It appears that the process was an education for everyone involved. One interviewee reflected, "When an agency can be convinced to explain itself, and can hear the other side, unexpected things can happen. Starting out, there was little trust on either side, and sometimes each side was right about its misgivings about the other. The agencies are generally suspicious of the access community. The process of being forced to engage seemed to work well."
"Generally, the best lesson learned was about how the agencies ‘think' -- how they go about their business. We were able to get clued in to how an agency would react, through repeated exposure to them," said another interviewee. Below is a more in-depth look at the Board's experiences with the FBI, CIA, and Secret Service.
In general, the Board concluded, the FBI has a well-indexed central records filing system, which made their main files easily identifiable, and these records were made readily available to the Board. At the outset of the declassification effort, however, the FBI had designated large parts of its records collection as "NAR" (Not Assassination Related). After assessing which types of records were receiving this designation, the Board agreed that the records were not, in fact, relevant (e.g., records pertaining to the assassination of Martin Luther King, Jr.). Nevertheless, the Board pointed out that it was its mandated role, not the FBI's, to determine what, according to the Board's definition, was assassination-related. Consequently, the FBI abolished the "NAR" designation, and made all records available to the Board for review. On several occasions throughout the process, the FBI appealed to President Clinton, claiming 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.
In 1997, the Review Board streamlined its review processes to ensure that all assassination records would be reviewed by the close of the Review Board's term. During 1997, the FBI assured the Review Board that it would attempt to finish its processing of assassination records as a result of the streamlined processes. However, "in March 1998, the FBI wrote a letter to the Review Board stating that it did not expect to finish its assassination records processing until February 2000." The Review Board and the FBI met a number of times on this issue and the FBI again committed to finishing its JFK Act processing before the end of September 1998.
The Review Board formally submitted to the FBI more than 50 requests for additional records and in response to the Board's requests, "the FBI made its original files available….The Review Board designated thousands of documents for assassination records processing as a result of these requests." (Final Report, p. 147-148)
"You must understand -- no one at CIA has ever been fired for protecting information."
The Board sought to obtain the release of all their records on the Kennedy assassination, including all records about Lee Harvey Oswald. According to one interviewee, "We battled with the CIA from beginning to end." Another put it this way: "The CIA was actually good once they got on board. No one at CIA will now say they regret their participation. They think it worked out okay. The old culture is still pushing for the old ways, but a new, more open, culture is emerging. You have a situation at CIA where the old school and the new school don't know (and, yes, sometimes do know, but proceed anyway) what the other side is doing."
Throughout the course of the project, the Board had to make "16 formal requests in writing and 37 informal requests for additional records and information to ensure the most complete disclosure possible . . . The Review Board encountered early CIA resistance to making records available to the Review Board, as well as resistance to the ultimate disclosure of records." (Final Report, p. 145) Indeed, one interviewee said, "One of the chief censors at CIA, early in the process, put an arm around me and said, ‘You must understand -- no one at CIA has ever been fired for protecting information'."
Despite the somewhat rocky relationship, the Board persevered. Two years into the project the CIA moved their records to Dulles (20 miles outside downtown Washington DC). They told the Board that "we would just have to send our staff out there. So we did. We created our own workspace, a ‘vault,' at the CIA," recollected one interviewee.
The Board went to great lengths—unparalleled to those taken with any other agency—to ensure that diligent and thorough searches and disclosure were made for all assassination records. According to the Final Report, early on the CIA provided the Review Board staff with several briefings by representatives of each directorate with respect to their files and record keeping systems and their searches for assassination-related record. Ultimately, their efforts paid off, and the CIA "became one of the best agencies to work with, particularly in the last two years. Lots at the CIA knew that much of this information should be released, but they needed the ‘cover' of the Review Board's mandate to release them. They realized there was a great advantage to cooperating and working with us—besides," reflected an interviewee, "the CIA didn't have files that said that they killed JFK."
However, in 1998, the Review Board expressed to the CIA concern regarding the thoroughness of CIA's initial record searches. The Review Board's concern arose out of the CIA's belated discovery of several files relating directly Harvey Oswald: "These files were located through Review Board inquiries regarding specific records" related to a CIA covert operation involving an anti-Castro student group (DRE) in Miami and its relationship with Lee Harvey Oswald. Jefferson Morley, a Washington writer, has researched and documented the student group and its CIA contact (a man called "Howard" whose real name was "George"). In late 1997, Morley asked the Board to inquire of the CIA about its relationship with the student group in the summer of 1963, the time of the group's contacts with Oswald. The Board requested from the CIA all records relevant to "Howard's" handling of the DRE.
The CIA professed complete ignorance of any such person. However, a senior researcher for the Board (who had worked for several years in the record-keeping division of the CIA) found this implausible and conducted some research in the CIA archives. Seven weeks later, she found the personnel file for aGeorge Joannides, in which his work with the DRE was documented. "The Review Board was disturbed by the belated discovery of these records, particularly given its mandate to assure the public that all relevant materials on the Kennedy assassination were being released by the U.S. government." The Board did not have time to analyze the Joannides records nor to pursue related records before it went out of existence. Consequently, in an effort to ensure that the CIA had conducted thorough and adequate searches under the JFK Act, the Review Board specifically requested that "CIA Director George Tenet issue a directive to all components of CIA requesting that they identify any records relating to the assassination. Director Tenet issued the directive. . . The Executive Director, the third highest level official of the CIA, certified under oath that the CIA had fully complied with the JFK Act." (Final Report, p. 147-148)
The Secret Service "was a very difficult agency to work with," said a Board member, "Not difficult in a substantive sense, but difficult in that they just didn't get it. They seemed to believe that terrible things would happen if they released documents. In some cases, they were concerned with information that had already been released 15 years ago. In fact, they tried to reclassify some information that had been declassified 15 years earlier. . . On the other hand, November 22, 1963, was a very dark day for them."
Another interviewee told us, "Some agencies were more cooperative than others. Secret Service was the most difficult. They were a brick wall. They destroyed records after the law was passed."
In January 1995, the Board discovered that the Secret Service had destroyed presidential protection survey reports for some of President Kennedy's trips in the fall of 1963. The Board learned of this destruction "approximately one week after the Secret Service destroyed them, when the Board was drafting its request for additional information. The Board believed that the Secret Service files on the President's travel in the weeks preceding his murder would be relevant." (Final Report, p.149)
Apparently, parallel (and unrelated) to when the law was passed, the Secret Service had already scheduled the travel records (i.e., six boxes of documents) for internal review as part of the agency's regular, ongoing declassification efforts. The Board learned of the travel records' existence, and requested access to them for the JFK project's review process. Evidently, at the time the Board's staff was reviewing four of the boxes, Secret Service staff was simultaneously disposing of the contents of the other two. By the time the Secret Service had received the Board's request for the remaining two boxes—which the Board realized contained the records they would consider to be of high priority—the records were already gone.
The Review Board requested the Secret Service to explain the circumstances surrounding the destruction after passage of the JFK Act: "The Secret Service formally explained the circumstances of this destruction in correspondence and an oral briefing to the Review Board." The explanation was that they had made an honest mistake. Essentially, they apologized, and were not sanctioned. The Secret Service submitted its Final Declaration of Compliance on September 18, 1998, but did not execute it under oath.
RELATIONSHIP WITH THE WHITE HOUSE
Aside from acting as a final appeal for agencies contesting Board directives to release particular documents, the Administration played a fairly low-key role. "Generally, the President just wanted people to cooperate," one interviewee said. When the Board handed President Clinton the final report he was delighted, and inquired about specific information collected, requesting to see particular files of personal interest to him. He had read the interim reports and followed the progress of the Review Board fairly closely. 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."
It is important to point out, however, that the PFIAB appeal is still unresolved, as is a Secret Service appeal. And "well over a million CIA records" are still outstanding.
DRAWBACKS, ROADBLOCKS, AND LESSONS LEARNED
Our interviews yielded insight on both the great accomplishments and afforded the participants an opportunity to examine the project critically and objectively. As one noted, "The time involved was intense -- but with any future citizen review, and with any future panels, it will move faster because of what was learned from this."
Staffing was also a problem at the outset of the project: "We had a problem with the first staff member who organized the research. He hired too many inexperienced people -- young people who were not from the fields of history or research. Because the JFK Act required that staff be made up of private citizens, they were inexperienced and had to start from scratch -- even learn what federal records were. You really should have people who understand research and records."
Toward the end of the Board's term, the CIA and FBI notified the Board that they would not finish the review. "We had had good relations with them," said one person involved with the process, "they had no good
reason to say they wouldn't finish. So our staff would go in -- and they were very familiar with the agencies' records by this time, and they knew what was there to go through -- and if the agency said ‘we're not getting to these,' we'd say, ‘Well, we'll just open them, then." The agencies were aware that if they appealed the Board's decision there was always the possibility that the Board would "issue a press release, which could have made headlines." So the agencies did not challenge them. "It wasn't worth it to them. And they mostly finished on time." This interviewee clarified that relations with agency staff were excellent -- "any problems we had were not with the staff -- they weren't making the decisions; they were just opening the documents -- it was more with the policy makers."
The scope of the process also may have created some problems: "We may have gone after too many ancillary documents (for example, from the Metropolitan Police in New Orleans), and may have wasted some time on collecting all the doctors' reports."
The most recurrent criticism, however, focused more on the structure of "targeted" declassification efforts generally, than on the work of the Board and staff itself. A targeted effort like this one is a rather costly method of declassifying government information, as compared to standard, ongoing declassification efforts: "The problem is it's not the most efficient way to do things -- it's an inordinately expensive way to get documents released to the public." Another agreed, but qualified his response,
"The process was expensive. It cost $2.1 million per year, for the first four years (plus some), which covered 30 staff members. The money for year one came from the White House budget -- we gave back $600,000 of that. For context, consider that the Justice Department paid $16 million for acquiring the Zapruder film alone, as part of a ‘government takings' agreement. So I'd consider it relatively cost-effective, given the mandate of Congress and the character of the project."
One interviewee told us, "We essentially went from agency to agency saying, ‘Declassify this.' And that's expensive. Well-run, systematic declassification, as standard procedure, takes pennies. But in that scenario, the access decision -- the decision of whether to declassify -- resides with the agencies, although it would take 20 years before NARA could demand they open them."
The final lesson learned was that "the media didn't care -- they didn't carry anything for four years. We got a few front-page stories at the end, and a few other stories when additional documents were opened." This Board member had hoped that media would cover the declassification effort more thoroughly, since this was such an unprecedented effort of the government to release classified information to the American people.
A MODEL FOR FUTURE INITIATIVES?
Is the Kennedy Assassination Records Review Board a model for other declassification efforts? The Board's final report "recommends that the Review Board model could be adopted and applied whenever there are extraordinary circumstances in which continuing controversy concerning government actions has been most acute and where an aggressive effort to release all ‘reasonably related' federal records would serve usefully to enhance historical understanding of the event." (Final Report, p. 175) A Board member elaborated: "A process like this could work again for another ‘targeted declassification,' focusing on, for example, the King Assassination, or the arms race. As far as applying the process government-wide…that's tougher. It takes a lot of people to keep it moving, and to keep an eye on things. A process like this works well for a limited number and scope of records."
Another was less sanguine: "We can thank Oliver Stone for this, in part. It wouldn't have happened otherwise. The film, JFK, galvanized public attention—and it went to the soul of the country as a whole. The mystery of the assassination gets to the public's head and heart—it was a unique situation; I can't imagine it happening again." The implication is that Congress and the President would be less inclined to invest the time and resources on an extensive targeted declassification effort if it were not for the high degree of public support, such as that surrounding the Kennedy assassination.
Current targeted declassification efforts are, in fact, underway. Two examples are the Nazi War Criminal Records Interagency Working Group, and the effort to release from the CIA records on all intelligence activities in Chile related to the military coup that landed General Pinochet in power, and the subsequent human rights violations of Pinochet's officers and agents. Each of these efforts differs significantly, however, from the Kennedy Review Board model.
One interviewee observed, "The Pinochet effort is not as powerful as JFK, because it is an interagency effort without an independent board. The Nazi War Criminal Records Interagency Working Group is closer to, and is actually based on, the experience of the JFK Board. It doesn't have quite as much power, though. And there is a very limited number of people working on Pinochet and the Nazi War Criminals IWG." The core group working on these efforts is "reassigned NARA staff and a couple of contractors—retired agency people and a couple of agency historians…and there is no appropriations for these efforts."
Neither of these targeted declassification efforts has the same authority in directing the agencies to release the documents as did the Kennedy Review Board. "There are not a lot of enforcement provisions. Agencies can be ordered to release the documents, and some are released, but if they're not released there is no appeal to the White House; an agencies' determination cannot be overruled. If agencies don't comply, they can work with them…but no formal procedures are involved."
In addition to these two efforts, legislation is currently pending in Congress that would establish a permanent Public Interest Declassification Board (see p.13). While it might be possible "to keep a staff on hand permanently for other efforts if there were an independent, outside board, perhaps. But I'm not sure how desirable that would be. You could set up something like that to run for maybe eight to ten years, but there is a great risk of succumbing to reliance on the bureaucracy. You need staff that doesn't need future employment in the agencies."
The fact of permanency, as opposed to the Review Board's limited timeframe, has been noted as another potential liability: "We got the vast majority of the records we wanted within our timeframe. It was supposed to be temporary, as it should be, so we stopped after four years. In that time we collected over 4.7 million documents."
PUBLIC POLICY ISSUES
Declassification Status Quo
Executive Order 12958, "Classified National Security Information," was issued by President Clinton on April 17, 1995. The order provides that all classified information contained in records that are more than 25 years old and have been determined to have "permanent historical value" will automatically be declassified within five years of the date of the executive order—unless an agency moves, in accordance with provisions in the Executive Order, to keep them classified.
The Executive Order was amended on November 19, 1999. The amendment extended the automatic declassification deadline for 18 months, until October 2001. Several agencies had appealed to the President because they were behind schedule and did not believe they could meet the 2000 deadline, having hundreds of millions of pages of information still to review. According to "a White House official,…without an extension…the CIA, State Department, Pentagon and other agencies could have been forced to release sensitive national security information in April without adequate review of the documents." (Washington Post, November 19, 1999, page A43)
"The Justice Department typifies the [problems with] the current system," offered one interviewee. "World War II to 1964 records are now being processed for declassification. These records need careful screening. These are potentially very sensitive materials." A significant problem is that they, like most agencies, really don't have adequate staff to handle this load: "Most of the information can be released, but it all must be reviewed. There are all sorts of privacy issues too—who's alive and who's not—that takes some research on the part of the agency personnel, and it's difficult and takes more time and staff than they usually have."
Other systemic problems were noted in the interviews. One interviewee asserted: "The agencies do need more people and money to do good classification. Also agency culture has to change regarding disclosure." However, because of the efforts of the Review Board, "things in the agencies will be generally churning about more and, regardless of traditional agency culture, the Review Board has pushed the line. There are more people within the agencies now thinking about records and working toward declassification."
Another impetus for agencies to sharpen their focus on declassification is the Interagency Security Classification Appeals Panel (ISCAP). ISCAP was established in 1995, by Executive Order 12958, to provide an "independent review" (i.e., appeals) mechanism of agencies' decisions on requests for mandatory declassification. ISCAP is composed of representatives of the Departments of State, Defense, and Justice, and the National Security Council, CIA, and National Archives and Records Administration. Its three primary functions are:
- to rule on appeals from members of the public who have filed requests for mandatory declassification (and been denied by the classifying agency);
- to rule on appeals from government employees who challenged agency classification policies; and
- to approve, deny, or amend agency exemptions from automatic declassification requirements.
Through September 1999, the Panel has decided appeals seeking the declassification of 161 documents that remained fully or partially classified upon the completion of agency review. The ISCAP has declassified information in 83 percent (82 documents in full, 54 percent; 44 documents in part, 29 percent) of the documents reviewed. ISCAP has affirmed agency classification actions fully in only 17 percent (25 documents) of the 161 documents. (Highlights of Activities of the Interagency Security Classification Appeals Panel, May 1998 -- September 1999) The majority of the documents reviewed were from the State Department, CIA, or Pentagon, and nearly 85 percent of ISCAP's votes were unanimous. "This means that ISCAP members from the State Department, the Defense Department, and the intelligence community often vote to declassify information that their own agencies had kept classified. ISCAP members are in fact scrutinizing their own agencies' classification decisions in an independent and unbiased way." (Roslyn A. Mazer, ISCAP Chair, at Freedom Forum National FOI Day, March 16, 1999)
ISCAP is not a panacea. It is equipped to review only a small fraction of the overall declassification program. And other problems remain. The current system of declassifying government is inadequate, and stanches the flow of government information to the public. Additionally, the current Executive Order is considered to be ineffectual, poorly enforced, and riddled with loopholes—some of which have been initiated by or acceded to by the Administration (e.g., exemptions, exceptions, extensions).
The following two approaches offer only partial and flawed alternatives to the current system. They contribute little toward overall, systematic reform.
Public Interest Declassification Board
Well-run, systematic declassification, as standard procedure, takes pennies. But in that scenario, the access decision—the decision of whether to declassify—resides with the agencies...
On October 27, 1999, Representative Chairman Porter Goss (R-FL) and Senator Daniel Patrick Moynihan (D-NY) introduced legislation to create a permanent review board that would direct and oversee the declassification of government information (S.1801 and H.R. 3152, respectively). The legislation was subsequently incorporated into the Intelligence Authorization Act of 2001, Title VII. Although the proposed Board resembles the Kennedy Assassination Review Board in many respects, it also differs significantly.
According to one of the interviewees, "Moynihan's [bill] is an outgrowth of the Kennedy experience… Whose documents would get declassified, what would a Board look like—these are all outgrowths of the unique Kennedy experience."
The proposed Board, appointed by the President, will be composed of private citizens—archivists, historians, scholars, and legal and national security experts. It has been criticized because it lacks the fundamental authority or compliance mechanisms that in part ensured the success of the Kennedy Assassination Review Board. For example, the agencies, rather than the Board, would have ultimate say over what would or would not be declassified. Furthermore, the Board would not have power to enforce their directives against agencies that did not comply with them.
The iteration of the bill passed at the end of the 106th Congress, moreover, has been watered down to the point that it would have no direct impact on secrecy policy whatsoever, according to declassification policy expert, Steven Aftergood: "The bill would create a ‘Public Interest Declassification Board' that has no independent authority to declassify or compel declassification. Its ‘advice' and ‘recommendations' would create no obligation on the part of the recipient." (Statement of Steven Aftergood before the Committee on Governmental Affairs United States Senate Hearing on S.1801, The Public Interest Declassification Act, July 26, 2000)
One of our interviewees was also skeptical for other reasons: "There are Consti