Despite the signing of the FOIA with a patriotic flourish on July 4, 1967--complete with the quotation from James Madison noted above, it soon ran into serious difficulties. Government agencies were hostile, and the judiciary was seldom favorable in its rulings. The demise came when the FOIA encountered the JFK and RFK assassinations in two lawsuits. The first was a suit brought by Harold Weisberg for the spectrographic analyses
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performed on the bullet and bullet fragments which struck President Kennedy, Senator John Connally, and certain items of evidence, such as the Dealey Plaza curbstone. The second suit was brought by the C.T.I.A. for records pertaining to the assassination of Senator Robert F. Kennedy. Bud Fensterwald represented Weisberg and the C.T.I.A, in both lawsuits. I assisted Bud.
Weisberg's "Spectro" suit got assigned to John Sirica, a judge known as "Maximum John" for being very tough on criminal defendants. He was later to become famous as the judge who broke open the Watergate scandal by granting relief sought by James McCord, a convicted Watergate burglar, who was represented by Fensterwald. Government counsel told Judge Sirica that it was "not in the national interest" to release the spectro test results. FBI Special Agent Robert Frazier filed an affidavit in which he made it appear the FBI would collapse if it had to release the results of its lab tests. Judge Sirica agreed with the FBI and dismissed the case.
On appeal, the United States Court of Appeals for the District of Columbia reversed, sending the case back to Sirica. The opinion was written by the Chief Judge of the Court of Appeals, David Bazelon, a noted liberal. Judge Frank Kaufman, a district court judge from Baltimore, who
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had been appointed to the panel, concurred in Bazelon's opinion. The third judge, John Danaher, formerly an Republican isolationist senator from Connecticut and now a senior circuit judge, filed a vehement dissent, in which he derided Weisberg as "some party off the street" and concluded by stating, "[t]he Freedom of Information Act, as it is presently constituted, forfends against Weisberg's proposed further inquiry into the assassination of President Kennedy." He followed this with a separate, final paragraph, all in capital letters: "REQUIESCAT IN PACE."
But the case did not go back to Judge Sirica. The Department of Justice petitioned the Court of Appeals for a rehearing en banc. Normal practice of the Court of Appeals at that time was to grant such a petition only after soliciting the views of the party who had won the case. But in this
instance, the Court of Appeals granted the petition without getting Weisberg's input. His case was then re-heard, en banc. Actually, en banc plus one, since Senior Circuit Judge Danaher was included because he had been on the original panel. As a district court judge, Judge Kaufman did not make it on to the en banc court, even though he had been on the original panel that heard the case.
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By a 9-1 vote, the full court reversed the ruling in Weisberg's favor made by the original panel, with only Chief Judge Bazelon dissenting. The majority opinion was written by Senior Circuit Judge Danaher, who had been the lone dissenter on the original panel.
The Weisberg case set a very bad precedent, one that decimated the FOIA. It held that the FOIA did not apply to law enforcement records. Thus, the FBI and other law enforcement agencies could not be sued to obtain their records. The Weisberg precedent was immediately followed by a series of other bad decision which adhered to its holding. Weisberg filed a petition for a writ of certiorari with the United States Supreme Court, but only Justice Douglas voted to grant cert.
The much vaunted FOIA was almost dead, having been rendered all but useless by 1973, just six years after it went into effect. The final nail in
the coffin was driven home by the Supreme Court's decision in 1974 in the case of EPA v. Mink. This case was named after Congresswoman Patsy Mink. She and other congresspersons had sought the results of nuclear testing that were being carried out at Amchitka, Alaska. The defending agency, the Environmental Protection Agency ("EPA") relied on FOIA Exemption 1, which was designed to protect against information involving
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