The Sentencing Reform Act (SRA) was passed to address what Congress thought were inconsistent sentences imposed by different judges on different individuals convicted of the same crimes, as well as arbitrary parole decisions. A new system—one of determinate sentences—was born and the Parole Commission was abolished.

At the heart of Peltier's argument is the refusal of the government to enforce Title II, Chapter II, Section 235(b)(3) of the Sentencing Reform Act. Effective on October 12, 1984, this part of the law ordered that parole dates "consistent with the applicable parole guideline" be issued to all "old system" prisoners within the following five-year period, at the end of which time (on October 11, 1989) the Commission would cease to exist. 

On December 7, 1987, Congress enacted Public Law 100-182 which amended the SRA; repealed, in Section 2, the release criteria established by the original section 235(b)(3); and restored the release criteria under 18 U.S.C. 4206.  This amendment did NOT restore the Parole Commission or remove its obligation to establish mandatory release dates, with sufficient time for appeal, by October 11, 1989. These changes to the law also applied only to crimes committed AFTER the law was amended on December 7, 1987. The amendment simply did not apply to the Leonard Peltier or some 6,000 other "old system" prisoners still held by the U.S. Bureau of Prisons today.

After it had technically ceased to exist, the Parole Commission claimed it needed more time to complete its work. Congress inexplicably granted a number of after-the-fact extensions, the first in 1990 and the latest in 2002. Peltier's attorneys claim these extensions were legally invalid and therefore inapplicable because, at the time they were made, the Parole Commission had already been abolished. 

Mr. Peltier should have been given his certain release date by October 11, 1989, minus sufficient time to exhaust appeals. Had the Parole Commission followed the congressional mandate, Peltier would have been released over a decade ago. Lacking in any statutory authority, the U.S. Parole Commission in fact illegally extended Leonard's term of imprisonment. The failure of the Parole Commission to give a release date to Peltier violated the ex post facto, Bill of Attainder, and Due Process clauses of the U.S. Constitution.

A civil rights lawsuit was filed on Leonard Peltier's behalf on March 5, 2007, in the Pennsylvania Middle District Court. The suit is related to the previous complaint filed in Washington, DC, in 2004 (and subsequently transferred to Kansas) in which Peltier attorneys claimed that United States Department of Justice officials have knowingly violated the Sentencing Reform Act of 1984 (and its amendments) and illegally extended Peltier's prison term. The government's Motion to Dismiss was granted on November 20, 2007.

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 142,579 pages of material which it has failed to provide to the Legal Team.

Buffalo, New York—On August 11, 2004, the Peltier attorneys filed a Memorandum of Law in opposition to the government's Motion for Summary Judgment in the Buffalo case, a FOIA lawsuit pending in the United States District Court for the Western District of New York.

There were 812 pages of material responsive to Leonard Peltier’s FOIA request submitted to the Buffalo Field Office. The FBI released 797 pages in full or in part in 2004. Fifteen pages were being withheld in their entirety.

The catalyst for the Buffalo case was a heavily excised 1975 teletype message from the Buffalo office of the FBI to then-FBI Director Clarence M. Kelley that indicates that an informant was trying to infiltrate Peltier's defense effort. Kelley later testified during the Butler/Robideau trial that the government used informants against the American Indian Movement. This information could have a potentially explosive impact on the case, providing grounds for a new trial or even for an outright reversal.

The majority of the sought-after documents in the Buffalo case are over 25 years old. Nevertheless, the government vigorously resisted 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 argued, 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 contended 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.

Oral arguments were heard on September 13, 2004, on the government's Motion for Summary Judgment.

On April 5, 2005, citing legal provisions that protect identities of FBI personnel and confidential sources, U.S. District Judge William M. Skretny denied the Legal Team access to the full text of the 1975 Teletype message from the FBI's Buffalo office to then-FBI Director Clarence M. Kelley. Skretny deferred a final decision on releasing seven of the 15 requested pages; all had been withheld on national security grounds. The Legal Team appealed the decision to the U.S. Court of Appeals for the Second Circuit in New York City. 

On February 27, 2006, Skretny issued his ruling on the remaining seven documents. The FBI can keep secret a handful of documents, he said, in the interest of national security. Skretny issued the decision after reviewing some of the pages in private. The pages of most interest to the Peltier attorneys revolved around a teletype from Buffalo, a three-page document that seems to indicate that a confidential source was being advised by the FBI not to engage in conduct that would compromise attorney-client privilege.

Peltier attorney Michael Kuzma argued an appeal before the Second Circuit Court of Appeals on December 7, 2006.

In two separate decisions rendered in March 2007, United States District Judge Donovan W. Frank and the three-judge panel for the United States Court of Appeals for the Second Circuit refused to order the FBI to release thousands of pages of documents relating to Leonard Peltier, upholding the FBI's claims that release of the sought-after information would, among other things, cause serious damage to the national security of the United States and the war on transnational terrorism.

Chicago, Illinois—In 2004, the Chicago Field Office released its documents on the Peltier case to the Legal Team.

Manhattan (New York, New York)—A FOIA request was made on November 1, 2002, to the FBI Field Office in Manhattan (New York, New York). The FBI alleged that its file on Leonard Peltier was 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. This file has yet to be located by the FBI. The "missing" Manhattan file is of particular significance given that a number of Peltier's attorneys including William M. Kunstler, Elliot A. Taikeff, and Ramsey Clark were based in Manhattan.  The Peltier legal team has filed a brief with the United States Court of Appeals for the Second Circuit in Manhattan.  In this case, the legal team is seeking the production of   FBI documents which the government is withholding on, among other grounds, national security.  This is the first of several legal filings that have been prepared to require the FBI to produce the documents it has been withholding for over 30 years.  Put simply, it is Peltier's position that the government would not be fighting so hard to keep these documents secret unless it had something to hide.

Minneapolis, Minnesota—On August 15, 2003, in connection with attempts by the legal team to obtain documents still being withheld by the Minneapolis FBI field office, 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 are reviewed. Specifically, the FBI was to begin releasing documents no later than December 2004 and to complete processing by December 2005.

The records in this FBI field office are of particular interest as Minneapolis was the Office of Origin for the RESMURS investigation. This field office maintained 90,000 pages of material responsive to Leonard’s FOIA request.

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 on February 25, 2005.

On January 6, 2005, because Leonard Peltier had exhausted his administrative remedies as they relate to his request for expedited processing, the Legal Team requested that the judge issue a briefing schedule and a date for oral argument so that the Court may reconsider its decision in this regard.

On January 11, 2005, Judge Nelson issued his Reply.

On March 21, 2005, the U.S. District Court, District of Minnesota, issued a Memorandum and Order for oral argument regarding an appeal of Magistrate Judge Nelson's decision. 

Oral arguments were heard on April 15, 2005.

On April 26, 2005, the U.S. District Court, District of Minnesota, affirmed Magistrate Judge Nelson's decision.

This has been an arduous process, but the Minneapolis field office recently produced certain sub-files of particular interest. 

The government tried to delay producing these documents and future documents by demanding the payment of monies (fees) up front. This was a change in tactics because, until this production, the government had produced the documents and the Legal Team then reimbursed them for the cost. Thanks to loyal supporters, the attorneys were able to quickly raise the funds to get the documents.

On September 8, 2006, Peltier's attorneys 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. To date, 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.

Mr. Peltier seeks release of documents relating to informants, particularly with respect to the extent the Federal Bureau of Investigation paid informants to infiltrate Leonard Peltier's defense team. Leonard Peltier's legal team has recently discovered evidence 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."

Knowing the impact such revelations would have on Leonard Peltier's case, the government is fighting vigorously to prevent these documents, that date back over 30 years, 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 drive home the fact that Leonard Peltier never received a fair trial. 

Magistrate Judge Nelson, on October 24th, filed a report with Judge Donovan Frank in which she concurred with the FBI's position. In response, the Peltier attorneys formally submitted its objections to Judge Frank.

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. The FBI continues to withhold those documents, claiming that their release would violate promises of confidentiality made to informants and would, incredibly, endanger the national security of the United States. In the brief, it is argued that the FBI's promises to its informants expired long ago, and were waived when those informants testified publicly. It is asserted that the virtually unprecedented public interest in the case of Leonard Peltier warrants careful judicial review of the withheld documents. In addition, it is demonstrated that the FBI's historic misconduct in this case, coupled with its continued misrepresentations about Peltier's case, shows sufficient bad faith to require the most searching inquiry into any claims of privilege.

The government's response was to categorically insist that there is no degree of governmental misconduct toward a FOIA litigant that could cause a court to "question the good faith of the agency," Cox v Department of Justice, 576 F2d 1302, 1312 (8 Cir. 1978) unless the litigant can prove misconduct in the FOIA proceedings themselves.

On October 9, 2007, attorneys Ron Kuby and David Pressman filed a reply brief with the United States Courts of Appeals for the Eight Circuit.

Oral argument in the above referenced case (No. 07-1745MN) was heard by the Court of Appeals for the 8th Circuit on March 11, 2008, at 9:00 a.m., at the University of St. Thomas School of Law, Frey Moot Courtroom, 1000 LaSalle Avenue, Minneapolis, Minnesota. The Court's decision is pending. Listen to the court recording of the hearing here.

North and South Dakota—In November 2002, after attempting for over a year to amicably acquire some of these documents, the Legal Team filed a FOIA complaint in the U.S. District Court for Massachusetts against the Executive Office of the United States Attorneys.  On February 6, 2003, due to the above complaint, the legal team succeeded in acquiring 1,000 documents from North Dakota and South Dakota.

Portland, Oregon—A letter dated February 20, 2007, from the Portland Field Office of the FBI advised Peltier's attorneys that it located 15,264 pages of documents that had not been indexed under Leonard Peltier’s name. The FBI will release 3,866 pages of this material once they receive duplication fees in the amount of $386.60.