In reply to Roger Odisio's assessment of the legal aspects of requesting the Darnell and Weigman Films
Roger’s statement at the Education Forum, followed by my responses:
Offline I’ve been discussing what JFK Act requires to be done with the Darnell and Wiegman films. I’m posting the note here because it summarizes and explains that requirement, and suggests what the Luna committee should do to get the film from NBC/Comcast.
That offline discussion was with me. Since I asked Roger not to take it public, but he chose to anyway… I will make my reply here.
Maybe some of you might even be motivated to sign Ed LeDoux’s petition to Luna:
I hope you’re right. Petition can be signed here
I disagree with much of what you assert here, and have asserted in other messages. I conclude the best way to answer is to briefly run through the basic facts of the case. I emphasize the word “fact”. These facts can be found in the JFK Act itself, its legislative history, and the ARRB Final Report. The ARRB was created by the Act to seek JFK records being withheld, and to put them in the JFK Collection, also created by the Act, as the central place for all records to be made available to the public.
This underlines what Roger fails to understand.
None of that matters now. The ARRB no longer exists and NARA is exactly as he states above – a place for those records identified as Assassination Records under the JFK Act to reside on behalf of the public.
That is at the very heart of the real issue. Roger is laboring under the impression that if a record meets the criteria for being an Assassination Record, it automatically is one. That is not the case. A determination has to be made by an authority who has that power of determination.
The ARRB no longer exists.
NARA does not have it.
The President does not have it. He only has the power under Section 5(g)(2)(D) of the JFK Act to withhold records that have already been determined to be Assassination records under 36 CFR §1290.1 of the Act.
So who holds the authority currently to make a determination that the films are Assassination Records?
Congress does, including through its committees such as Rep Luna’s subcommittee of the House Oversight Committee.
Such committees generally can
Request / subpoena records
Make public findings
Compel compliance or clarify designated authority
So getting a determination on the films that they are in fact Assassination Records needs to be the first order of business.
The Act was written in terms of records being withheld by federal govt agencies because those records motivated the public outrage that led to Congress to unanimously pass the Act in the first place. But section 7(1)(2)(A) “explicitly empowered the ARRB to decide whether a record constituted an assassination record”. (see Chap 2 of the ARRB Final Report, p.16) The legislative history explains why the ARRB, and not Congress, “had to define the term”, JFKA record. (Chap 2, p.17)
That was then. This is now. The ARRB was indeed explicitly empowered AT THAT TIME to make such determinations, not congress – it passed to Congress by default when no part of the Act empowered another body to take over that function from the ARRB.
Unlike the Warren Commission the Board realized the determination of what was a JFK record must be done openly, in public. It wanted to hear all views. About 2/1/2 years after the law was passed, in the summer of 1995, the Board published its final definition of JFKA record.
In defining “record”, the Board sought to avoid missing any important information by casting as wide of a net as possible, which allowed it to seek records “in the possession of all federal government entities, all state and local government entities, private individuals, *private institutions*, all courts, and all foreign governments.” (Chap 2, p.19)
Section 1400.1 of the Federal Register, where the ARRB’s final decision was published, says: “An assassination record includes, but is 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 Kennedy, and investigations of, or inquiries into, the assassination.
The Board further indicated that a record does not even have to mention the murder as long as it provides information relevant to understanding what happened.
Chapter 7 of the ARRB’s Final Report is entitled “Pursuit of Records and Information from Non-Federal sources. There you will find many discussions of nongovermental records, including the notes of James Hosty donated to NARA after he wrote his book. And the Board’s unsuccessful attempt to get Walter Sheridan’s notes, that NBC is also still hiding.
Again, the ARRB is defunct, It does not currently exist, It has fallen off its perch. It is an ex-review board. And citing a failure by that board to obtain privately held records is hardly encouraging.
Hosty donated his notes upon request. As seen with the Sheridan situation, asking NBC to make a donation is like asking a vampire for blood. But it makes no difference. That was then, this is now. We are dealing with a different situation because of the lack of clarity around who has responsibility, how that responsibility should be carried out, and how such requests should be made in order to avoid ambiguity or wiggle room.
Given the definition of record, it it obvious the D&W films are JFKA records. It is *impossible* to argue they are not. NBC/Comcast employs a bunch of high priced lawyers. None is dumb enough to try to make that argument, which is probably one reason they chose instead to claim they couldn’t find the films.
Meeting the criteria for inclusion as a record is meaningless without a determination by a proper authority that they ARE assassination records. Until that determination is made, the films remain the property of NBCUniversal to do with as they please.
Congress has oversight committees responsible to see its laws are faithfully executed. Luna’s committee is now part of that process whether or not they have subpoena power at the moment. The oversight committee surely does.
Exactly. But what you are missing is that part of the law states that a record has to be determined to be an assassination record under the Act. Not sure why you cannot understand that part. But if you want to talk facts as you claim – that is the first one you need to deal with. The records meet the criteria, but lack the authorized determination.
The next communication from Luna to NBC/Comcast must explain her committee’s official position that the films are JFKA records, and assert they have no choice but to turn them over to NARA. If they insist they don’t have them she can indicate she will call a public hearing for them to explain what happened. We know they admitted to Ed LeDoux about 10 years ago, that they still had them.
And that is what I have been telling you all along will be included in the covering letter with the petition.
Rep Luna has to make the determination and make sure she includes that fact in her second request, along with very careful wording as to what is required to be handed over. I thought I was making that clear to you, but apparently not clearly enough.
Luna can also waive a subpoena in their face. The last thing NBC/Comcast wants is the public spotlight on them on this issue.
Here, we find ourselves in agreement again.
The best way for Luna to “bulldoze” NBC/Comcast into turning over the films is by first explaining that legally they have no choice. Under the JFK Act, the films belong to the government to display so the public can use them, not NBC/Comcast. That was what was explained to the Zapruder family when the ARRB took the Z film from them.
Not to be picky… but they have no choice UNDER HER DETERMINATION that the films fall under the JFK Act as Assassination Records… they are not AUTOMATICALLY assassination records just by dint of meeting the criteria.
THE WAY FORWARD
You did force me to think longer and harder about this than I might otherwise have done.
My opinion only, of course.
1. As already emphasized – a formal determination of record status needs to be made for the following reasons
Authority: Since the ARRB is defunct, no current body has explicit statutory authority to designate new records.
Solution: The House Oversight Committee, specifically Rep. Anna Paulina Luna’s subcommittee, can assume investigatory authority and request or compel the films to be handed over.
That, along with the need for a more targeted letter in regard to how the request is met, led to the making of the petition
2. Subpoena or Legislative Pressure
Subpoena Power: Congressional committees do have subpoena power. If NBCUniversal refuses to cooperate, the committee can and should escalate.
Precedent: Despite a determination that the Zapruder film was an assassination record, it was only obtained after a lengthy process, including legal pressure and valuation. A similar path could be pursued here—either via subpoena or negotiated acquisition.
3. Public and Scholarly Pressure
Visibility: The petition gives these matters public visibility and adds to the pressure on NBC.
Expert Testimony: We also need an expert to testify that the original in-camera strips of film, when scanned, would yield enough clarity to identify the individual in the back corner who is believed may be Lee Oswald, given it matches where his alibi placed him. They should also testify that such scanning will preserve the films for future generations.
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