tl;dr Search for !!!! to find the most remarkable learnings and experiences the JFK Review Board had in working with the CIA and the FBI on disclosing JFK assassination records.
The UAP Disclosure Act of 2023 (UAPD Act/”Schumer’s bill”) is modelled on the JFK Assassination Records (JFKAR) Act of 1992. Both acts establish a Review Board to determine (postponement of) declassification and public disclosure.
The text of the JFKAR Act overlaps a great deal with the text in Division G in NDAA-24 – UAP Disclosure (note that this pdf still circulating differs a bit from NDAA-24 text). Since mid July when we first heard of Schumer’s bill I’ve been interested to learn how it actually relates to the JFKAR Act, because frankly I don’t trust claims in press releases in this stigmatized environment, nor the inevitable parroting it entails, even from top-tier news outlets.
In Sec. 9007. the UAP Disclosure Act establishes the UAP Review Board
The President, by and with the advice and consent of the Senate, shall appoint, without regard to political affiliation, 9 citizens of the United States to serve as members of the Review Board to ensure and facilitate the review, transmission to the Archivist, and public disclosure of government records relating to unidentified anomalous phenomena.
With being modelled on JFKAR Act one redditor put it pointedly:
Well JFK records never got declassified so hopefully not like that at all.
So to temper my expectations, I decided to look into the learnings and reflections found in the Assassination Records Review Board’s (ARRB’s) final report from 1998 that was produced as required by JFKAR.
If you’re familiar with former posts on the UAP Disclosure Act e.g. initial post and discussions that is great for what follows. It is even better if you’ve studied this flow chart (I made some weeks ago) about the workings of the Agencies, NRAA, the President, the Review Board and disclosure determinations. You should be able to appreciate the excerpts below regardless.
I expect to soon post a text-to-text comparison between the UAP Disclosure Act and the JFKAR Act. Sure, one act says “assassination records” and the other act says “unidentified anomalous phenomena”, but there’s more to it. Also beyond the well-known and famed Sec. 9010 stating Eminent Domain of UAP/NHI tech+bio, and the composition of the UAP Review Board (9 rather than 5, other professions). To appreciate these differences and understand their significance the final report is also relevant.
You may also be interested to learn that on Jan 1, 2019 the Civil Rights Cold Case Records Collection Act of 2018 became law, and that piece of legislation overlaps almost one-to-one with JFKAR, that is, the changes we’re seeing between JFKAR and Schumer’s bill are not just semantic updates since 1992, because then we’d have seen them in the 2018 act.
Going through (parts of) ARRB’s final report not only provided answers to why the language changed between the two legislations, it actually helped a great deal to fill out missing pieces on how for instance agencies might delay transmission, and eventual disclosure, of records. The ARRB had 18 staffers (including the Executive Director, a lawyer, who could not vote).
Below are excerpts from the final report that I’ve quoted, prefaced with an explanation for its relevance, and that is (again) prefaced with one to four ! based on how noteworthy I found the excerpt (so you may search for !!!! to get highlights). Most are from Chapter 1, Chapter 2 and the Review Board Recommendations.
ARRB Final Report Excerpts with comments
!! This glaring issue delaying disclosure remains present in UAP Disclosure Act of 2023.
Federal agencies, particularly the CIA and FBI, did not review and process the statutorily defined “assassination records” in the time allotted and make them available for Review Board action. Moreover, even if government offices had been able to meet the 300-day deadline, the delay in the appointment of the Review Board prohibited federal agencies from obtaining early guidance on the questions of the definition of “assassination record” and the standards for postponements under Section 6 of the JFK Act.
!!!! Six years in, agencies still had not transmitted all records. Same deadlines used in UAPD Act. FML
No government office completed its work within 300 days as the statute directed, and as the Review Board terminated its operations in September 1998, some government offices still had not reviewed, identified, and organized all assassination records within their custody. For example, the Review Board entered into memoranda of understanding with the FBI and the CIA to allow them to process selected groups of records such as duplicate documents and newly discovered CIA audiotapes from its Mexico City Station after the Review Board terminated its operations.
!! The public is included in shaping what definitions the Review Board works from. Hopefully qualified researchers can steer them towards the truth.
Thus, the Board determined that its deliberations on how to define the term “assassination record” must be conducted in the public eye. In an effort to receive as much comment as possible from members of the public, the Review Board held public hearings devoted to its definition of the term. In addition, the Board published its proposed definition in the Federal Register to attract additional public comments.
! Mainly included as I found the computer specialist floppy disk reference funny.
It took two years, but with the help of a computer specialist, the staff transformed an unwieldy, paper-driven, labor-intensive system into a document-based, computerized system that automatically tracked each document through the review process.
the Review Board urges Congress to think twice before including the type of “electronic identification aid” language that exists in the JFK Act in future records management legislation. [It’s still in the UAP Disclosure Act]
In compliance with sections 5(d)(1)(A) and (B) of the JFK Act, NARA created its database system and loaded it onto 5 and 1/4 inch floppy disks. NARA assumed that any government office could load data from the disk onto a computer, produce electronic identification aids to accompany its assassination records, and then send the same disks back to NARA. NARA then would integrate the disks into the main database for the JFK Collection.
Despite the predictable problems, such as agencies’ lack of appropriate computer equipment, or, more often, agencies’ lack of employees to enter the data, most government agencies managed to create electronic identification aids.
!! There’s a lot of room for human-error to prevent transmission of records by the CIA (and other agencies) when files are decentralized. But this agreement also meant records could have escaped Review Board scrutiny, so effectively a delay tactic.
Other agencies were not as organized as the FBI. When processing CIA records, the Board staff often encountered more than a dozen copies of records. Because the CIA has decentralized files, neither the agency nor the Review Board could determine where duplicates of particular records might be.
Since CIA files do contain so many duplicate records, the Board and the Agency ultimately agreed that, once the Board had voted on postponements in one copy of a record, the CIA would have to assume primary responsibility for processing duplicates to match the first copy. The CIA identified the duplicates in a re-review of the JFK Collection, and the Board staff made sure the records the agency identified as duplicates were in fact duplicates. The CIA has agreed to transfer all duplicates to NARA by September 1999.
!!! Referral issue arises when e.g. an FBI record has information from the CIA in it, in which case FBI won’t declassify it until CIA green lights it, and because there was little incentive for CIA to act on this it slowed the process down so the ARRB had to for instance send out dunning letters. Yet another manner in which agencies delay disclosure.
Because the JFK Act did not consider or address the referral issue, the process impeded the pace of review and the Review Board’s ability to release records.
b. Dunning letters: When agencies were delinquent in returning referred documents, the Review Board mailed letters to the agencies simply stating that if the agency did not process and return the record by a specified deadline, the Review Board would automatically vote to release the record. The dunning letters proved to be very effective in convincing agencies to return their referrals.
c. […] The Review Board sponsored six joint declassification sessions. An unforeseen advantage of the sessions was that agencies were more likely to agree to release a record when they realized that other agencies had already agreed to do so.
!! The more postponements are claimed by agencies, the longer it will take RB to work through, so again a potential delay tactic. 27000 documents is a lot, but I suspect it’s a lot less than what we’ll see for UAP records.
The Review Board’s most basic task was to review postponements claimed by federal agencies in their assassination records and to vote either to sustain or release the information at issue. The review of claimed postponements consumed more Review Board staff hours than any other task and was the primary focus of most of the Review Board’s interactions with the agencies. The Review Board voted on more than 27,000 documents in which the agencies had requested that the Review Board postpone information.
! Once or twice each month is not a lot, but in between the staffers would prepare meeting material for them to vote on. Note review board is doing their work part time, while staffers and ED are full time.
For a group of five citizens who were otherwise fully employed, the Review Board members met as a group very often — once or twice each month. The Review Board held the majority of its regular meetings in Washington, D.C. Due to the Review Board’s need to discuss classified and privacy protected material, the Review Board voted to close most of its meetings to the public. During its tenure, the Review Board held 48 closed meetings and processed for release more than 60,000 documents.
From page 169 come direct Review Board Recommendations which is a great read.
!!!! Qualified researchers will be able to directly influence the UAPRB to make requests, so hopefully people like Greenewald, Knabb, Coulthart can use their vast knowledge of what smells to make sure UAPRB has a look. This measure hopefully makes it impossible for agencies to explain relevant parts of their recorded history. The UAPRB has resources to hold public hearings and expert conferences, and the ARRB was helped immensely by this (subpoenas, witness immunity are also tools).
Many of the Board’s requests to agencies for additional information were suggested by the Board’s continuing dialogue with researchers, authors, and experts.
Frequent public hearings outside of Washington, experts conferences, ongoing public releases of the records, witness interviews, and media availability were among the many tools the Board used to reach out and communicate with a public strongly interested in the results of the Board’s work. The result was that the Board was helped immeasurably not only by the advice and suggestions that resulted from this public dialogue, but by the records that were discovered and opened through the communications.
!! There will be tension, but there are arguments as to why it’s in the agencies interest to help disclosure process, they’re also shaping their own story in the entire matter. The Republic didn’t collapse from the JFKAR, so don’t assume so DoD.
There were, of course, many substantive disagreements between the Board and the agencies, but the course of the relationships were characterized chiefly by growing mutual understanding and markedly improved communications. The Board was gratified to see agency reviewers and decisionmakers grow increasingly aware that the responsible release of information can provide an opportunity to create a more complete record of the extensive work that many agencies did on the issues raised by the assassination. Many appeared also to gain a greater appreciation of the tremendous costs of secrecy, both in terms of public confidence and maintenance of records.
Agency reviewers will note that the Republic has not collapsed under the weight of threats to national security because of Review Board actions and, perhaps, they will also note that openness is itself a good thing and that careful scrutiny of government actions can strengthen agencies and the process of government, not weaken it. There likely will be problems in the future that best lend themselves to the extraordinary attention that a similarly empowered Review Board can focus. Formation of a historical record that can augment understanding of important events is central not only to openness and accountability, but to democracy itself.
!! We can expect a constitutional battle over the Act’s legality, but it was key that agencies did NOT get to set standards and make recommendations.
The central fact that the access standards were embodied in Congressional legislation was of immeasurable assistance to the Review Board. Although Congress’ inclusion of such standards in the JFK Act nearly sparked a constitutional battle over the Act’s legality, the power of independence by Congressional mandate surely muted a fair number of agency disputes. Standards set through agency recommendations and presidential inclusion in an executive order would have limited the Board’s ability to compel disclosure.
!!! Same provisions regarding appeals (via President only) which is important for UAPRB to operate effectively.
The agencies could challenge Board decisions only by appealing decisions to the President, who has the “non-delegable” responsibility to decide them. This stringent provision raised our declassification activity to a threshold level that prompted the agencies to weigh the ramifications of any appeal that expended valuable political capital.
!!! People call the provisions under which records are postponed for disclosure weak and too easy to invoke. According to ARRB they did not accept unexplained vague reasons.
As interpreted by the Review Board, “clear and convincing evidence of harm” required specific reasons for protection. General concepts of “national security” and “individual privacy” were insufficient. If harm were to be caused by release, the Board insisted on understanding the harm.
! The JFKAR Act didn’t explicitly mention funding numbers, and so NARA suffered it seems. The UAPDA remedies this.
Moreover, the Congress provided adequate and sufficient funds for the Board to hire staff to undertake its work. Other federal declassification efforts, especially at NARA, need substantially more resources if they are successfully to accomplish their mandates. The work of the Review Board staff shows what adequate funding can achieve.
! Not sure what to make of this, because there’s certainly a risk the staffers are compromised if hired directly from e.g. DoD or CIA to work on disclosure. But it will slow down disclosure.
the provision that the Board could not hire staff who were currently working anywhere in the government seemed unduly restrictive, and obliged the Board to undertake costly and time-consuming security checks for most employees, for whom security clearances were central to their work with classified documents;
!!!! Given the delay tactics mentioned above, this is very concerning. We’re seeing JFKA records that to this day contain redactions, none of which should have been possible.
the Review Board sunsets but the JFK Act does not and, as a result, there is uncertainty about the status of openings that will occur after September 1998, and whether any further appeals by agencies might be permitted, and, if so, who would represent the interest of openness; Moreover, the sunset enabled government agencies that were not inclined to cooperate to simply try to outlast the Board.
!!!! Again relating to delay tactics, but attempted to be mitigated by a compliance program the ARRB developed. While the UAPD act contains a sunset provision, it could be extended, but otherwise falls to AARO to ensure determinations are followed.
The Board has remained concerned that critical records may have been withheld from the Board’s scrutiny and that the Board did not secure all that was “out there.” It is all too easy to imagine that agencies and agency personnel not inclined to cooperate might simply have waited, using the JFK Act’s sunset provision by waiting for it to take effect and ending the need to cooperate. (The Review Board’s solution to this concern was to develop a compliance program in which each agency designated a “compliance officer” to warrant, under oath and penalty of perjury, that records had been diligently searched for and turned over to the Board for review and/or release to NARA.)
!! Here I believe AARO will be the agency with authority to implement Review Board decisions.
a. that NARA has the authority and means to continue to implement Board decisions,
!!! Due to sunsetting by presumably delay tactics, NARA ends up taking over responsibilities they were never meant to, nor have gotten funding for.
b. that an appeals procedure be developed that places the burden for preventing access on the agencies, and
The Board recommends negotiation of a memorandum of understanding among NARA, the FBI, and the CIA that would establish a common agreement on how to resolve the inevitable issues concerning the extensive assassination records of these two agencies. This is particularly necessary since additional records will be sent to NARA and additional releases of documents are scheduled to take place after the termination of the Review Board.
!! FOIA is just not good enough.
The categories of exclusion are far too broad in the FOIA to constitute a meaningful program of opening restricted federal records, and the succession of executive orders issued since the FOIA was enacted reflects the same problem.
!! I like the reciprocal nature where penalty for secrecy rivals that of unauthorized release. Obviously hasn’t happened.
The most recent, Executive Order 12958, also fails by not creating for federal agencies an “oversight” procedure to ensure that the decisions concerning access to agency records made by that agency’s head will be independently reviewed. The mandate to release should be internalized in the agencies and penalties for secrecy must rival in consequence those for unauthorized release.
!!!! This one is from Wikipedia show casing yet another tactic to avoid disclosure, arguing for irrelevance to ever be admitted in the Collection.
Tunheim and Samoluk pointed out that the CIA had not told the Warren Commission that George Joannides was the CIA lead for the Agency’s links with the anti-Castro group Oswald had a public fight with in mid-1963; nor had they told the United States House Select Committee on Assassinations (HSCA), of which Joannides was the CIA’s liaison. Tunheim said in a separate interview that “It really was an example of treachery … If [the CIA] fooled us on that, they may have fooled us on other things.”]
Hope you found some of these findings and reflections interesting. As mentioned, looking to post on how many of these shortcomings that the ARRB identified have actually been addressed in the UAPD Act / Schumer’s bill (some certainly have).