Testimony of Jim Lesar

Hearing of 10/11/94 -- Washington, DC.
Our next witness this morning is James H. Lesar from Washington, D.C. We switch here from the historical community to the lawyer community.

MR. LESAR: Well, I have some historical training, too. I nearly got a Master's Thesis but was drafted before completing the thesis, and then later after I got out of the Army went into law.

Good morning, Mr. Chairman, and members of the Board. Thank you very much for inviting me to appear at this hearing.

You have asked me to address the issue of how the term "Kennedy Assassination Records" should be defined. This is a very significant question because it goes to the heart of this Board's capacity to restore the confidence of the American people that they have a right to know their own history, and that they will be provided with all of the government records which may shed light on that history as it pertains to the assassination of President Kennedy.

We hear frequently that trust in the American people and their institutions is at an all-time low. I believe that this precipitous decline in trust began with the Kennedy assassination and is not likely to be reversed at any time soon unless, at long last, the controversies engendered by the assassination are dealt with directly with full disclosure of all relevant facts.

At this point in history, justifications for the continued withholding of such facts pale in comparison with the need to end the corrosive decline in trust spawned in large part by the secrecy, deceit, obfuscation, rumor and innuendo which have accompanied the government's handling of the Kennedy assassination over the past three decades.

I wish this morning to call attention to some specific matters that you must deal with by law because the law requires you to give priority to records which were involved in Freedom of Information Act cases that were pending at the time the act was passed.

Two agencies are particularly involved here, the FBI and the CIA. There were two lawsuits brought, one against each agency, and for all of the records that had been made available to the House Select Committee on Assassinations. In the case of the FBI, some 350,000 pages were made available by it to the House Select Committee, in the case of the CIA, about 300,000.

The problem that has arisen, and it has arisen in court as well as now coming before this body is that these agencies have adopted a restrictive interpretation of "Kennedy Assassination Record," and one that I think is simply unacceptable. The FBI is apparently withholding records related to organized crime matters on the grounds that they are not Kennedy assassination records.

I think that the mere fact that the House Select Committee on Assassinations requested such records in pursuit of its investigation of the Kennedy assassination should be given very heavy weight, perhaps presumptive weight, as an indication that they are Kennedy assassination records. The House Select Committee investigation dealt very heavily, almost predominantly, with the issue of whether or not organized crime figures were involved in the assassination.

The Chief Counsel of that Committee, after the probe had concluded in a book he published, went so far as to proclaim that the Mob did it. Under those circumstances, it would be very unfortunate if all of those records are not to be made available as Kennedy assassination records.

The CIA initially did not take that position with respect to its records, but my understanding at present is that they are now raising that issue. Again, I think that it is simply unacceptable. All of the records that those agencies made available to the House Select Committee must, per se, be defined as Kennedy assassination records.

Among other reasons, one of the functions of the release of the JFK assassination evidence is to enable citizens to evaluate the performance of official bodies, including the House Select Committee, and we will be unable to fully evaluate its performance without access to the records that it had access to.

There is one other matter that is not in my prepared statement that I wish to call attention to this morning. The JFK Act excluded from its definition the Kennedy X-rays and autopsy photographs. That is, in my view, a stunning irony because it means that the most probative evidence on the question of whether or not there was a conspiracy has, by definition, been excluded from the scope of the act.

This fits a pattern over the past three decades in which executive committees and commissions and congressional committees and judicial decisions have precluded access to those materials by members of the American public. I feel very strongly that this must end, that those records must be accessible.

This Board has the power pursuant to Section E(3)(f) of the JFK Act to request additional legislation by Congress, and I would suggest and request that the Board ask that the JFK Act be amended to include those materials within the scope of the act.

Thank you very much.


CHAIRMAN TUNHEIM: Thank you, Mr. Lesar.

Any questions by Board member?

DR. HALL: Yes, I have a question.


DR. HALL: Mr. Lesar, thank you very much. You were kind enough to provide a kind of categorical definition for us and a whole set of categories into which we might be able to fit certain kinds of records, certain kinds of materials. I take your comment at the beginning of this that it is a definition that needs to be worked through and developed, and such.

MR. LESAR: Yes. I think I styled it as a tentative definition, it is a working definition to start the discussion rolling.

DR. HALL: As I tell my students, it is a definition on the run. There are two parts to this though that I would like to seek your help and advice on. One of these goes to all records pertaining to any person or organization who publicly voiced criticism of the Warren Commission in published writings or during radio or television appearances. Could you enlighten us to what your thinking is in that regard?

MR. LESAR: One aspect of this whole controversy is the reaction of the government agencies to citizens who were critical of government reports. We know, for example, from those disclosures that have been made under the Freedom of Information Act and in connection with the congressional investigations that the CIA, at one point, issued a memo suggesting that their assets be called in to counter the criticisms of the critics.

That is, I think, very relevant. There are other writers, and one in particular that I know of, who feels that the CIA interfered with his attempts to publish works critical of the Warren Commission report.

I think it is vital to throw open this area so that we can assess fully what was going on with respect to this unusual, extremely unusual, I think unprecedented, situation that we have had here for decades in which the majority, even the preponderant majority of American citizens have believed that there was a conspiracy and that there were coverups, and yet the news media have been very supportive of the official view, and have attacked the critics with great vigor. What is going on here? We need to find out the answer to that question.

DR. HALL: But underneath what you are asking is, was there an effort to muzzle within government those who would have otherwise spoken out?

MR. LESAR: Yes, or those who did speak out.

DR. HALL: The other is Section T, and you ask, all records relating to the CIA's mail interception program, Code Name HT Lingual, what is your thinking there?

MR. LESAR: Well, the congressional committees have gone into the HT Lingual Program, and we know something about it. Some of the critics who are in the audience, some of the researchers who are in the audience here, and some who will be addressing you, can probably elaborate better than I, particularly Paul Hoch, I think, exactly why that is important. But at the time that Oswald was in the Soviet Union, the CIA had a mail intercept, a vast mail intercept program, and some of Oswald's letters were intercepted, and questions arise as to whether or not there was -- just exactly what was going on here.

DR. HALL: Thank you very much.


DR. GRAFF: Mr. Lesar, again, I repeat what Kermit was just saying, we thank you.

You know that the bias of this Board is in favor of full disclosure, so we are not talking adversarial terms at all, and I would like to stress that in all comments that we make. We are all on the same side. I would ask you though, since you have set forth this broad brush request for documents, prima facie, this is an investigation of the whole United States Government, and I wonder if you put any limits on the request for organizational charts for each agency involved in the planning or implementation of policies, operations and activities in regard to Cuba, Viet Nam, the Soviet Union, and organized crimes for the years 1954 to 1974. It just seems enormous. Do you have a limit?

MR. LESAR: Well, it is a request confined to organizational charts, which are not a vast body of documents. Each agency has an organizational chart, and it would be very helpful to researchers to know who was responsible for what decisions at what point in time. In fact, most of them are probably publicly available already, but I think that it would be very helpful to have them in a compendium so that you don't have to go to each agency to figure out who was in charge when.

DR. GRAFF: So you would put no limits on what we might be looking for in the way of an assassination record?

MR. LESAR: Well, I think that the limits are whether or not it plausibly relates to a controversy regarding the Kennedy assassination, whether or not it is plausible that it will shed light on some aspect of the question, and I think that is really driven by the interest of the individual researchers. If a researcher is interested in something, that is prima facie evidence that it is relevant to the controversy.

DR. GRAFF: Thank you.

CHAIRMAN TUNHEIM: I have one question, Mr. Lesar. There has been some question raised as to whether Congress, in its definition of assassination records, intended to include nondocumentary material, artifacts are the way some would refer to it, evidence related to the Warren Commission investigation. Could you give us your views on that subject, about whether nondocumentary material should be included in the term "assassination records"?

MR. LESAR: I would think that they should, and I am not quite sure as to the reference to nondocumentary materials. If you are referring to physical objects like the limousine windshield, for example, it is obviously of vital importance and relevance to the question and should be included, yes.

CHAIRMAN TUNHEIM: Anything further?



MR. JOYCE: I have a question concerning the definition and it relates to Mr. Graff's comments about the breadth of it. Given the presumption to disclosure that we all understand to be a congressional mandate, and at the same time given the reality of congressional allocations of a budget nature and time constraints, I am wondering, as you formulated your definition, if you had any approach to the definition that would create some sense of internal priority or how we might look at this in terms of the feasibility of surveying some of these broad areas of documentation that you have outlined here? Do you have any further comment on that?

MR. LESAR: I don't have -- I haven't really thought about that. I would say that there is one suggestion that I might throw out, and I haven't really thought about it carefully enough to say whether it is a good idea or not, but in connection with this issue of the priority which the Board must give to records which are JFK assassination records that were pending at the time as FOIA litigation matters at the time the act was enacted, the courts have held that there is no direct right under the JFK Act -- they have held so far, it is still in litigation. They have held so far that there is no direct right of persons to demand access under the JFK Act and go to court and enforce that right in court. If the legislation were amended to do that, that might take some of the burden off this body and put it where there are more resources. But other than throwing out that, I have nothing that occurs to me at the moment.

DR. HALL: That is an important matter, isn't it, the setting of priorities which is of some consequence here?

MR. LESAR: Well, the priorities have been set to the extent of the matters that were pending as of the date of this act.

DR. HALL: But the expectation would be that we would get beyond those.

MR. LESAR: Right. You have to go far beyond that, without question. I think that probably you will get a sense, I think, from the various critics who are going to appear before you, the various researchers, as to what they consider to be vital and important. Again, I think that is what you have to respond to, the people who can make the best case for directing attention to particular areas.

CHAIRMAN TUNHEIM: Thank you, Mr. Lesar. We appreciate your testimony today and all of your assistance.

MR. LESAR: Thank you very much.

CHAIRMAN TUNHEIM: Before we go on to our next witness, I want to just point out to everyone who is here today that the Board intends to hold the record from this hearing open for an additional 30 days so that if anyone wishes to supply additional material that will be part of our hearing record, we will accept that for 30 additional days to make sure that we have a complete record.

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