LEGAL UPDATE ON THE CASE OF POLITICAL PRISONER LEONARD PELTIER
By Michael Kuzma, Esq. (June 6, 2005)

Leonard Peltier is a political prisoner who is currently languishing in the United States Penitentiary in Leavenworth, Kansas. He was tried and convicted in a North Dakota federal court in 1977 for the June 26, 1975 shooting deaths of two FBI agents at the Pine Ridge Reservation in South Dakota.

In order to better understand what happened, it is necessary to provide a brief overview of the events leading up to the June 26, 1975 firefight in which Joe Stuntz Killsright, a member of the American Indian Movement (AIM) and two FBI agents lost their lives. Leonard Peltier was a member of the AIM. AIM was an indigenous liberation organization established in 1968 in Minneapolis by Dennis Banks and George Mitchell.

AIM and its members were targeted by the FBI’s Counterintelligence Program (COINTELPRO). COINTELPRO is the FBI acronym for a series of covert action programs directed against domestic groups. One of the primary purposes of COINTELPRO was to maintain the existing social and political order by disrupting and neutralizing groups perceived as threats. Federal law enforcement officers, in effect, looked upon themselves as guardians of the status quo. COINTELPRO tactics included all manner of official lying and media disinformation, systematically levying false charges against those targeted, manufacturing evidence to obtain their convictions, withholding evidence which might exonerate them, and occasionally assassinating key leaders.

At the time of Leonard Peltier’s 1977 trial, the government turned over roughly 3,500 pages of material to defense attorneys. The prosecution claimed that this was the extent of material in its files relating to Leonard Peltier and RESMURS. The FBI titled its investigation into the death of its two agents RESMURS, which is short for Reservation Murders.

In the early 1980’s, attorneys for Leonard Peltier submitted a request to the FBI under the Freedom of Information Act (FOIA). In theory, FOIA is a law that is designed to ensure public access to records maintained by the federal government. As a result of this request, it was discovered that the FBI actually maintained 18,000 pages relating to Leonard Peltier’s case-- 12,000 pages were released in full or in part; 6,000 pages were withheld in their entirety. The government refused to release this information on the grounds that it would harm national security.

Fast forward to 2001. Attorneys working on behalf of Leonard Peltier sent a new round of requests to every FBI field office in the United States. By virtue of these FOIA requests and two lawsuits that have been filed in federal court, it has been discovered that the FBI actually has 142,579 pages of material that have never been made available to Leonard Peltier or his attorneys. The FBI field office in Minneapolis alone has 90,000 pages. The data maintained by this FBI field office is particularly important in that the Minneapolis field office was the Office of Origin, or in other words, the office in which the RESMURS investigation was based.

A FOIA request made to the FBI field office in Manhattan on November 1, 2002 has revealed that its file on Leonard Peltier is allegedly missing! Correspondence from the FBI claims that the so-called missing file is on “special locate,” a bureaucratic manner of saying that they are looking for the file. Nearly three years have elapsed and this file has yet to be located by the FBI. The “missing” Manhattan file is of particular significance given that a number of Peltier attorneys such as William M. Kunstler, Elliot A. Taikeff, and Ramsey Clark, were based in Manhattan.

Currently, there is a FOIA lawsuit pending in the United States District Court for the Western District of New York. There are 812 pages of material contained in the dossier maintained by the Buffalo field office of the FBI concerning Leonard Peltier. The FBI has released 797 pages in full or in part. Fifteen pages are being withheld in their entirety. On March 31, 2005, United States District Judge William M. Skretny, in a 38-page decision, upheld most of the government’s claim of exemption. This decision is being appealed to the United States Court of Appeals for the Second Circuit.

A great number of the sought-after documents in the Buffalo case are over 25 years old. Nevertheless, the government is vigorously resisting efforts to release this data on national security grounds. Documents are supposed to be automatically declassified after 25 years under Executive Order 12958. The FBI is arguing, however, that this material should not be subject to automatic declassification because it could damage or cause serious damage to national security and the so-called war on “transnational terrorism.” The FBI also contends that release of the data could have a chilling effect on the free flow of intelligence information and strain diplomatic relations between the United States and a foreign government.

On May 27, 2005, a hearing was held before Judge Skretny regarding the seven pages being withheld on national security grounds. The government attorney advised the court that the seven pages would be turned over to the judge the week of June 13, 2005 so that he could determine whether or not they should be released. At the same time the government turns over the seven pages of FBI files being withheld on national security grounds, it will file an ex parte affidavit with the court, explaining why the documents should continue to remain secret. It should be noted that these affidavits will not be made available to the public, and that includes Leonard Peltier and his attorneys.

The United States Court of Appeals for the Tenth Circuit recently stated: “Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The government withheld witnesses. It intimidated witnesses. These facts are not disputed.” See Peltier v. Booker, 348 F. 3d 888 (10th Cir. 2003).

The time has come to liberate the FBI’s secret files on Leonard Peltier and, more importantly, liberate Leonard Peltier from federal prison without any further delay! Call, write, and lobby your representatives in Congress and demand that they work to pressure the FBI to release all documents pertaining to Leonard Peltier and RESMURS.

For more details concerning COINTELPRO, readers are advised to obtain a copy of “Agents of Repression: The FBI’s Secret War Against the Black Panther Party and the American Indian Movement” by Ward Churchill and Jim Vander Wall (South End Press: Boston 2002).[AMAZON.COM LINK]