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Legal Actions

Parole
A parole hearing was held at U.S.
Penitentiary-Lewisburg on July 28, 2009. On August 20, the
U.S. Parole Commission issued its decision to deny parole. That
decision was appealed. A final denial was issued on 24
February 2010.
Withheld Documents
The
legal team continues to press the government to produce the case
documents which it has withheld for over 30 years. As a result of Peltier’s FOIA lawsuits, it has been learned that the FBI actually
possesses over 100,000 pages of material which it has failed to provide
to Peltier and his legal team.
The
following is an overview of only one of Peltier's FOIA lawsuits in
pursuit of documents still withheld by the FBI. Specifically, the
lawsuit is against the Minneapolis Field Office of the FBI. The
records in this FBI field office are of particular interest as
Minneapolis was the Office of Origin for the RESMURS ("Reservation
Murders")
investigation. This field office maintains 90,000 pages of material
responsive to Leonard’s FOIA request.
On August 15, 2003, Magistrate Susan
Richard Nelson (U.S. District Court – Minnesota) issued an order
denying without prejudice Peltier’s Motion for a Vaughn Index (a
listing detailing the documents withheld and the FBI’s reasons for
doing so) and granting the FBI’s Motion for a Stay of
Proceedings. The magistrate concluded that exceptional circumstances
exist where the resources of the FBI are inadequate to deal with the
volume of FOIA requests it receives within congressionally mandated
time limits. The magistrate also ruled that the FBI has shown due
diligence in processing its requests. However, the FBI was ordered
to give four-month updates and produce documents as they were
reviewed. Specifically, the FBI was to begin releasing documents no
later than December 2004 and to complete processing by December
2005.
On
December 30, 2004, the FBI produced 5,112 pages of material from its
Minneapolis Field Office File #70-10239 Sub X Sections 1 through
97. The documents released made it clear that the FBI was not acting
in good faith with respect to the processing of Leonard Peltier’s FOIA
request. The 5,112 pages released consisted of Leonard Peltier’s 1977
trial transcript, as well as the trial transcript from the case of
USA v. Robideau and Butler—material to which the legal team already
had full access. Incredibly, the FBI withheld 144 pages from these
transcripts on the basis that they were exempt from disclosure under
Exemption (b) (5). The FBI subsequently released an additional
5,167 pages of records from its Minneapolis field office.
The
government also tried to delay producing these documents and future
documents by demanding the payment of monies (fees) up front. This
was a change in tactics. Previously, the government had produced the
documents and the legal team then reimbursed them for the cost.
As of this writing, the FBI has reviewed 77,149
pages and released 66,594 pages in full or in part. However, 10,555
pages were withheld in their entirety.
Due to the release of some documents, evidence
was discovered
establishing that Douglas Durham, who was a confidential source paid
by the FBI to infiltrate the highest levels of the American Indian
Movement and who was exposed on March 7, 1975, spoke with and
provided information to William Halprin, the Chief Prosecutor from
Canada against Leonard Peltier in connection with his extradition
proceedings. Halprin requested Durham's involvement "to enable him
to utilize source [Durham] to refute statements made by Peltier's
defense." The FBI instructed Durham "to provide information
requested by Crown Attorney [and]... If recontacted by Halprin, he
would cooperate fully and would keep Omaha advised of developments."
Proof of extensive infiltration of Peltier's
legal defense team would show egregious misconduct on the part of
the government. Such proof would likely result in Leonard Peltier's
conviction being overturned. Therefore, on
September 8, 2006, Peltier's attorneys again argued before United
States Magistrate Judge Susan R. Nelson for the full release of all
FBI files maintained by the Minneapolis Field Office relating to
Leonard Peltier.
Knowing
the impact such revelations would have on Leonard Peltier's case, the
government is fighting vigorously to prevent these documents from being released to the public. Among
other things, the FBI claims that the release of this information
would harm national security and reveal the identities of
confidential sources. Leonard Peltier's lawyers argued that these claims
are nothing more than pretexts to prevent the release of further
evidence of the continuing violation of Leonard Peltier's constitutional
rights, and further drives home the fact that Leonard Peltier never
received a fair trial.
The District Court, however, has concurred with
the FBI's position. Therefore, on June 8, 2007, Peltier attorneys
filed with the U.S. Court of Appeals for the Eighth Circuit an
appellate brief asking the Court to review and release some 11,000
pages of documents related to the investigation and prosecution of
Leonard Peltier. Oral argument in the case was heard by the Court of Appeals on March 11, 2008. Listen to
the court recording of the hearing
here. On 29 April 2009, the Court denied the appeal.
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