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COPA v. DOD FOIA appeal lost

Date: Sun, 27 May 2001 23:34:28 -0400
Subject: COPA v. DOD FOIA appeal lost

What follows is the basic text of the ruling in our court appeal of a D.C. District Court ruling that the U.S. Army had performed an exhaustive search for records of surveillance on Dr. Martin Luther King. Jr. in the period leading up to his assassination. We based our Freedom of Information Act request in 1998 on published reports that such surveillance by military intelligence had taken place up to the day of his murder, and that it included photographic surveillance of the events of the assassination, and even of the assassin responsible.

After initial denials, and the filing of this suit at the district court level, the Army claimed that it had "purged" most of those records in the 1970's, and had sent records of any historical, legal or research significance to the Archives, as required by law. The Archives then informed us that they had located one pertinent document, an after-action summary of Operation Lantern Spike, performed in Memphis in the days surrounding Dr. King's assassination by members of the 112th Military Intelligence Group out of Atlanta, Georgia.

The exepedited declassification and release of this report was very significant, proving for the first time that, despite earlier denials, the Pentagon was spying on Dr. King directly. However, this 30 page document could not be, in our view, the only record that met the conditions for preservation under the law. If the summary of records was significant, then were not the original reports on which it was based? Yet, we were told all other records had been destroyed.

We petitioned the court to order an additional search of records concerning Operation Lantern Spike and the specific units and operations mentioned in the released record. The Army still failed to produce any documents, after an 18-month delay. We also had other indications that records exist in their files. Mark Perresquia, a reporter for the Memphis Commercial Record, filed an FOIA in the 1990s and was given 12 pages of records concerning the specific unit members of the 112th present on April 4, 1968 in Memphis. He interviewed them for an article in which they admitted to being in the city, but denied they were spying on Dr. King. However, these duty reports were never released to us under our suit. The Army claimed at one point they had come from the Center for Military History, but at the oral argument of the appeal they made an unsworn statement claiming they had come from the Military Personnel Records Center in St. Louis, which is now under the National Archives, not the Pentagon.

In addition, we discovered testimony, in the civil suit brought in Memphis by Dr. King's family against Lloyd Jower and unknown co-conspirators, from the Memphis Fire Chief that he led two individuals who identified themselves as Army Intelligence onto the roof of the firehouse, directly across the alley from the Lorraine Hotel balcony where Dr. King was shot, to set up photographic surveillance on the afternoon of April 4. Yet no record of their presence or the photographs they took was released to us by the Army.

We also noted that the recent report on new investigations into the murder of Dr. King by the Department of Justice mentions new records from military intelligence being secured as part of their search. Whatever records were provided to them were refused to us as well.

Despite all these indications that records should still exist, either with the Army or with the National Archives, the court ruled against our effort to remand the case back to the district court so that an argument could be heard for additional searches by the Army for these files. One option open to us would be to file new, separate FOIA requests to the Department of Justice, the Military Personnel Records Center and the National Military Archives, but our effort has already taken nearly two years with little tangible result. This case is a good indication that using the FOIA in efforts to reveal records relating to the political assassinations of the 1960s and related counter-intelligence operations is fruitless. Instead, legislation should be drawn up to secure a full release of records in the King case, as was done for the JFK assassination records. We believe that the full historical record has not yet been released in either of these cases.

Please join us this year on June 10-11 at American University in Washington, DC to commemorate JFK's 1963 speech there calling for an end to the arms race, and to lobby for Congressional oversight hearings on the success and failure of the Assassination Records Review Board, and for continued release of files. And join us in discussion and preparation of a federal grand jury petition to renew a medico-legal investigation into the murder of JFK. If you can attend and will be staying overnight at the University on Sunday, June 10 ($74 single/double), please RSVP at once to this message.

We will also hold a moment of silence on the Grassy Knoll on November 22 in Dallas, and two days of regional COPA meetings on the assassinations from November 23-25 at a nearby hotel. We are still negotiating arrangements.

John Judge

The court decision follows:

United States Court of Appeals
for the District of Columbia Circuit
Coalition on Political Assassinations v. Department of Defense
Appeal from an Order of the U.S. District Court for D.C.

Circuit Judges: Henderson, Tate, and Garland

This case was heard on the record from the U.S. District Court for the District of Columbia and on the briefs and arguments by counsel. The court has accorded the arguments full consideration and has determined the issues present to occasin no need for a published opinion.

The district court correctly held that the Department of Defense (DOD) satisified its obligation under the Freedom of Information Act, 5 USC Sec. 552, to search for "[a]ny and all records related to any surveillance of Dr. Martin Luther King, Jr. during March or April 1968." The DOD's affaddavits establish thst it searched its record indices for documents relevant both to the appellant's inital request and to specific code words athe appellant later supplied. Further, the appellant has not offered any evidence rebutting the adequacy of the search. That responsive documents may have once existed does not establish that they remain in the DOD's custody today. The DOD demonstrated below that its repository was purged of surveillance records during the mid-`1970s and that documents such as those sought were at that tiem either destroyed or forwarded to the National Archives and Records Administration. Nor should a search based on the appellant's limited request have produced, as the appellant claims, daily personnel assignment records with no apparent connection to the alleged surveillance or to the code words. In sum, the DOD met its burden on summary judgment to "demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Nation Magazine v. United States Customs Serv. 71 F, 3d 885, 890 (D.C. Cir. 1995).

Accordingly, it is ordered that the judgment of the district court be affirmed.

For the court,
Mark J. Langer, clerk

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