Classification and Control: The Legal and Policy Implications of the Kennedy Family’s Control of RFK’s Files
Recently, the Boston Globe reported that the Kennedy family was “keep[ing] a vise-g
rip
papers, but the family had the absolute right to determine who could view
them. The family also agreed to deed the papers to the National Archives for public disclosure, but never finalized a date. As a result, the family has still not signed the deed, and the papers remain in the Library, under the tight control of the family. The family came to this agreement in the chaotic aftermath of Kennedy’s assassination, out of a desire to prevent the world from seeing his private letters and documents. The problem, however, is that Kennedy’s private files are interspersed with his official notes and other documents pertaining to the Cuban Missile Crisis, Operation MONGOOSE, and other Cold War events. These files, once classified, have passed the date of declassification, and scholars want the ability to access the information.
The deposit agreement between the Kennedy family and the Library is actually illegal. According to the National Archives and Records Administration, classified documents should be declassified, if possible, no later than twenty-five years after the original date of classification. Under this policy, most of the documents in Kennedy’s files should have been declassified in 1993, twenty-five years after his assassination. In addition, “the Archivist shall establish procedures for the declassification of . . . White House materials,” including those in presidential libraries. Although the files contain notes, not actual written documents, these notes came from events occurring at the White House. Therefore, under any set of rules, the National Archives, and not the Kennedy family, should decide the use of these particular papers. Second, and more importantly, the agreement allows Kennedy’s widow, Ethel, to control documents that she legally cannot access without a security clearance. Under U.S. law, classified information requires “a specific degree of protection against unauthorized disclosure for reasons of national security.” The only people who can view and control such information are those with security clearances, given by federal law or the head of a specific agency. Although each agency has its own way of awarding security clearances, an individual cannot obtain one without federal authorization. Therefore, the deposit agreement between the Kennedy family and the Library gives Ethel Kennedy more power than she is entitled to under federal law.
In addition, the family’s refusal to allow scholars and officials access to Kennedy’s non-personal documents has the potential to negatively impact how the US government handles Iran’s nuclear ambitions and other similar situations. The prospect of a nuclear-armed Iran presents a situation similar to the Cold War of the 1960s. Iran’s ongoing nuclear enrichment has led to tense negotiations and increasingly hawkish rhetoric from the Israeli government, with the US government, a staunch Israeli ally, caught somewhere in the middle. An armed attack by Israel against Iran is illegal under Article 2(4) of the United Nations Charter. Although Article 51 of the Charter does authorize countries to act in self-defense, a country exercising this option can only respond to an “armed attack,” and cannot take pre-emptive action. As UN members, both Israel and the United States are bound by the Charter, and so the US cannot legally support or participate in any pre-emptive Israeli strike against Iran, should the situation reach such a peak.
The John F. Kennedy administration managed to deal with a similar situation during the Cuban Missile Crisis without resorting to an armed attack. Robert Kennedy was an important participant in the negotiations during the conflict, and his notes likely contain valuable insights into the evolution of the government’s response. The importance of these notes could provide valuable insight for both the Obama and Netanyahu Administrations. In such a potentially dire situation, the American and Israeli governments may need to look to history for a precedent on how to avoid violations of international law and help resolve the Iran conflict. Thus, the Kennedy family’s tight control over Robert Kennedy’s formerly classified documents could decrease the effectiveness of the American response to a nuclear Iran or other similar situations in the future. In addition to sidestepping federal law, the agreement giving the family such control could negatively impact future foreign policy.
