Broadcast 11/11/2013 at 20:59:24
The Rob Kall Bottom Up Radio Show Podcast
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James H. Lesar is an attorney licensed in Washington, D.C., several federal appellate courts, and the Supreme Court.
He is also President of the Assassination Archives and Research Center (AARC), a nonprofit organization which obtains, preserves, and disseminates information on political assassinations, especially the assassination of President John F. Kennedy. On behalf of the AARC, he testified before three Congressional committees in support of the President John F. Kennedy Assassination Records Collection Act of 1992, which was unanimously passed by Congress and signed into law.
Now in his 43rd year of practice, Lesar has litigated over 200 FOIA cases in federal district and appellate courts. A number of his cases have set important precedents, including, recently, Morley v. C.I.A., 508 F.3d 1108 (D.C.Cir.2007), which held that the CIA had to search its operational files on George Joannides, a former CIA case officer who had been in charge of a Cuban exile organization when it was in contact with Lee Harvey Oswald before the assassination of President Kennedy. Other of his cases set precedents on such issues as the right to take discovery in FOIA cases, the right to obtain interim awards of attorney fees for substantially prevailing in a cases where the public interest in disclosure warranted such an award, and the right to obtain records by submitting a un-notarized declaration according to the prescribed statutory form rather than being required to submit a notarized affidavit.
James H. Lesar
President of the AARC
Assassination archives and Research Center
Attorney in private practice specialization in FOIA requests exclusively.
Pioneer in the use and evolution and creation of law having to do with the freedom of information act.
My interview notes-- mostly my questions -- to tease you to listen to interview.
What is FOIA, how does it work and why is it important?
First there was the APA administrative procedure act.
1966 Freedom of Information Act-- revolutionary idea-- right to give people government information-- right was conferred to any person in the world.
Congress amended FOIA during watergate-- gave ability to get law enforcement agencies.
There were still major problems getting anything usable from CIA and FBI.
In 1992 Oliver Stone's JFK movie had a tag line urging congress to release records-- to that date there had never been such a popular outpouring for congress to do something.
The JFK Act was the most liberal disclosure law ever passed. JFK act says all information must be relesed-- can be postponed but eventually released. Citizens appointed to a review board were able to over-ride decisions on classified materials. Now over 5 million pages of records.
There are still thousands of pages held by CIA that have not been released after 50 years.
Rob: it seems that now, Obama, having prosecuted more whistleblowers than all past presidents combined,
Rob: The JFK act recently expired".
NO, the review board did" There was a deal but the process has not been honored.
Congress never heard hearings to explored benefits and failures of this law.
The JFK act could be a model for broader legislation than just the Kennedy assassination records.
What we really need to do is pass an historical records act. The FOIA doesn't deal with historical records.
There are all kinds of black holes in the FOIA because congress has, particularly since 911, passed all kinds of laws called exemption 3 statues. Those are exempt forever. This is profoundly contrary to American history and democracy. The founding fathers of the United states were inveterate historians, obsessed with studying history"
And yet we're in a position now where we can't get access to our own history. We are denied our own history. Something needs to be done about this in terms of broader legislation.
Were the legislators behind the JFK act? Where they Democrats or republicans?
THE FOIA was passed unanimously. The only opposition to the amended form were George Bush and Dick Cheney.
Recently there has been political support from both parties.
There's something of a split in the judiciary"
Rob: Then there's Dianne Feinstein, who protects the agencies from regulations, disclosures, etc".
JL: I have a client who has discovered systemic corruption between the FBI and the mafia.
ROB: Have there been further improvements to FOIA since the JFK act?
Law changed regarding attorney's fees-- if litigation done in public interest, plaintiff may be able to get award of attorneys' fees. The problem is the Obama/Holder administration is still fighting tooth and nail to avoid paying.
Has anyone recently floated a bigger better FOIA bill.
A lot of FOIA attorneys have given up the hope of anything comprehensive because the nothing gets done in congress and there's a risk thinks could be made worse.
How would you describe the potential of FOIA and how people can actually use it?
7-law enforcement files, but there are exceptions to that exemption
6 and 7C exemption for privacy --
Despite all of the handicaps you can get an amazing amount of extraordinarily important information if you go to court. If you don't go to court the chances are much less.
FOIA is only about government records. Can you ask about government behavior?
Not unless it's contained in a government document. So you have to formulate a strategy to pinpoint the government records to answer the question.
How do you do that?
I make omnibus requests-- everything on the subject-- My requests have entailed up to 350,000 documents. The government wants to restrict the searches that it is required to make. Gov will restrict their search to what appears in indices-- they have tricks of the trade to restrict what requesters get.
discussion of electronic surveillance requests.
Rob: Give me some tips that you've learned on how to get FOIA information
typically deal with FBI, CIA, NSA and state department.
Describe the search you want.
Most agencies have short, medium and long queues-- under 500 fastest, 1500 or 2500 you're in for a very long wait. So you break up a request.
Rob: How do you know it's 500 or 1000 or ten thousand.
FBI may limit request to "main files." other mentions in "cross reference" files won't be provided unless requested.
Rob: What's the average time it takes to get a request fulfilled?
Gregory Scarpa-- Grim Reaper-- murdered tens of tens of people while on the FBI payroll.
Rob: Let's say I want to ask for my FBI file. What's the time to get a response, to get the file" with redactions
Required to respond in 20 working days-- a month.
Then, an administration appeal-- just to get a determination, not to get the documents.
Is there a website to go to to make a request?
Google an agency's FOIA there will be info.
What else can you tell me about FOIA inquiries?
persistence helps". agencies have all kinds of excuses for putting things off.
Do your research. Know the subject matter. Know what's already public.
They're requesting information on a third party-- someone other than themselves.
Rob: so, if I ask for the FBI records on you, I'll be turned down.
Agencies require privacy release or death certificate.. but if public interest in disclosure outweighs the privacy interest. That'll require a court fight.
What's involved in bringing an attorney into the picture. Can an hour of consultation help, or does it take a week or more of attorney time?
Most FOIA attorneys are on the staff of public interest publications. It's hard to make a living doing a private practice doing FOIA law. I may be the only one.
An attorney may be willing to take it on a contingency or partial contingency. I take most of my cases on a pure or parial contingency.
Is it sometimes possible to do an hour consultation and move the project forward?
JFK assassination-- No longer any doubt that there were at least two assassins and Lee Harvey Oswald was not one of t hem
New generation of critics are really honing in on who did do it.
Similarities between JFK assassination and 911 attack?
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