From The Public Lawyer, Vol. 8, No. 1, Winter 2000. Reprinted by Permission.
Editors Note: The author, a United States District Judge in the District of Minnesota, served as Chairman of the JFK Assassination Records Review Board. Appointed by President Clinton to serve as the lawyer on the panel after being recommended to the President by the American Bar Association, he was Chairman from the beginning of the Boards work in April, 1994 to its closure in September, 1998."Something has happened in the motorcade. I repeat, something has happened in the motorcade." From the first sketchy reports from Dallas on that fateful day of November 22, 1963, the tragic assassination of President John F. Kennedy has gripped Americans like few events of this century. Did Lee Harvey Oswald act alone? Was the President killed as a result of a conspiracy and if so, by whom? Organized crime? Anti or pro-Castro forces? Foreign interests? Could the so-called "magic bullet" have caused so many wounds? Why did Jack Ruby shoot Oswald? For thirty years, Americans have debated these questions as they watched the lengthy official investigations of the Warren Commission and the House Select Committee on Assassinations, heard new disclosures of the conduct of the federal government in the 60s, read countless books alleging the existence of multiple conspiracies, and saw a movie, Oliver Stones "JFK," that popularized many of the conspiracy theories.
For a generation, the agencies of the United States government held tight to their secrets, the government files classified and sealed and thus kept beyond the reach of interested citizens. This penchant for secrecy, considered by some so important to our countrys vital interests during the Cold War, protected millions of pages of files gathered by the government in its investigations of the assassination and frustrated an American public that continued to seek answers to the nagging questions raised by this inexplicable act. As a result, the official record on the assassination of President Kennedy remained shrouded in secrecy and mystery.
Without question, the suspicions generated by government secrecy eroded confidence in the truthfulness of federal agencies and damaged their credibility in the public's eye. Critical gaps in the assassination story remained unfilled, and critics rushed in to explain the gaps with conspiracy theories that sounded plausible. Finally, frustrated by the lack of access and disturbed by Stones conclusions, Congress passed the President John F. Kennedy Assassination Records Collection Act of 1992, mandating the gathering and opening of all records concerned with the death of the President.
The Act created a five-member independent decision-making panel, the Assassination Records Review Board, to oversee the search for records, to establish workable processes for the eventual release of the records, and to re-examine for release the records that the agencies still regarded as too sensitive to be opened to the public. In addition, the Congress established the Board to help restore government credibility. The entity that was designed to accomplish these lofty goals was truly unprecedented.
Four provisions of the Act were at the heart of the design. First, the Congress established the Review Board as an independent agency outside of the controls of the agencies maintaining records. Second, the Board consisted of five citizens, trained in law, history, and archives, who were not federal employees but who had the ability to order agencies to declassify government documents - the first time in history that an outside group had such power. Third, the standards to be applied by the Board strongly favored disclosure. All records were presumed to be immediately disclosed, and the Board could protect information only if the agency proved by "clear and convincing evidence" that the harm of disclosure outweighed the publics interest in the information. And fourth, and perhaps most important, once the Board made a decision that a document should be declassified, only the President could overrule its decision. The structural and practical independence created by the Congress was essential for the Review Board to meet the anticipated pressure to keep records secret, particularly intelligence and law enforcement documents.
The Review Board broadly defined "assassination record" by rule to include any record that could be determined to be "reasonably related" to the assassination or its investigatory aftermath. With the broad scope of the many investigations in mind, agencies applied the Board's definition to identify records for possible inclusion in the JFK Collection. In some cases, agency staff argued that certain groups of records not be included in the Collection. In such instances, the Board applied its definition to determine whether the records should be designated as assassination records. Once so designated, the records were processed for release unless the agency sought to have the Review Board "postpone" the release of material deemed to be still sensitive. In applying the balancing test mandated by the statute, the Board required agencies to present particularized information demonstrating harm. Because of the presumption in favor of opening the information, the Board determined that generalized conclusions such "national security reasons" were never sufficient to sustain the agency's burden of showing harm.
Because many of the records were maintained by intelligence and law enforcement agencies, the Board was faced with many decisions involving sensitive information. In assessing CIA records, the Board considered issues such the identification of CIA officers, CIA sources, pseudonyms used by the agency, crypts and sluglines from cable traffic, the identity of surveillance methods and installations, domestic facilities, foreign intelligence cooperation and alias documentation. Among the issues identified frequently in FBI records were identification of sources, methods of physical surveillance, foreign counterintelligence efforts, technical sources, investigative interests in diplomatic personnel, and organized crime. Many issues involved consideration of the level of protection that should be afforded to confidential informants and to individuals whose personal privacy would be significantly affected by public disclosure. Foreign governments often held interests in the documents. The Secret Service maintained threat sheets that disclosed the name of individuals considered threatening and also held information still relevant to the task of protecting the President. The only assassination-related material that the Congress ordered not disclosed were the photographs and x-rays from the autopsy on President Kennedy's body and certain tax records held by the Internal Revenue Service.
Fortunately, the Congress did not mandate that the Review Board reach any conclusions about the assassination and the many theories as to what might have happened. This was not a re-investigation of the assassination to question the conclusions of the past. Indeed, the Board conducted an investigation a massive one but it was an investigation and no holds barred search for the records of the assassination. The Boards search went far beyond the bounds of the earlier investigations by design, as the Congress empowered the Board to define the term "assassination record" broadly to include any record that could enhance the historical understanding of that era, and the political and diplomatic context in which the assassination occurred. Since the Board and its staff had high level security clearances, no agency could prevent a search through every file.
The records identified and sealed by the earlier investigations, mostly at the Central Intelligence Agency and the Federal Bureau of Investigation, were relatively easy to identify and release to the National Archives. The search for additional records, time-consuming and often frustrating, led the Board and its staff to the files of 27 agencies of the federal government, to over ten Congressional committees or their predecessors, to dozens of state and local agencies, mostly in Texas and Louisiana, to most of presidential libraries, to sealed court files and to thousands of citizens with information and ideas to share.
The result of over four years of work is a treasure trove of information about the assassination and our nation in the early 1960s, a period that included some of the most tense moments in the Cold War, an escalating conflict over Cuba and the build up of the Vietnam conflict. Over 4 million pages of records now form the nations assassination records collection at the National Archives in College Park, Maryland, with an index on the Web. Nearly every record is now available to the public without redactions. In the instances in which the Board sustained an agency objection to release of information, the redaction is scheduled for release on a specified date. All information will be fully released in 2017.
The Board made over 27,000 decisions on whether to release or postpone information, and to this date, there have been no successful agency appeals at the White House. The Board obtained the consent of the agencies for the release of an additional 33,000 records, material originally sought for postponement. The Review Board designed to be a temporary agency completed its work on September 30, 1998, with the submission of a 240-page Final Report to President Clinton and the Congress.
The records include all critical documents on the events in Dallas, and an enormous quantity of material on the accused assassin, Lee Harvey Oswald. Interesting new materials are written notes of Oswalds interrogation while held by the Dallas Police before his death, his military records, summaries of his tax and employment records, and the FBI records that describe the FBIs attempts to track Oswalds activities in Europe and the Soviet Union before the assassination.
The Board also released all records concerning Oswalds mysterious trip to Mexico City in September, 1963, when he allegedly visited the Soviet and Cuban embassies. Both the FBI and the CIA possessed extensive files on this trip. The Board also released over 99% of the "Hardway/Lopez Report" compiled from CIA records on Oswalds Mexico City trip by the staff of the House Select Committee on Assassinations.
The Board ensured that the famous "Zapruder Film" of the assassination was secured and now owned by the American public. Also accomplished was the first known authenticity study of the Zapruder film.
The Board also worked to clarify the controversial medical record of President Kennedys autopsy and his treatment at Parkland Hospital by deposing ten Bethesda autopsy participants, five Parkland Hospital treating physicians and conducting numerous interviews of Parkland and Bethesda personnel.
The Board released all records in full on Jack Ruby, demonstrating his ties to organized crime throughout his life.
The Board secured records relating to District Attorney Jim Garrisons controversial prosecution of Clay Shaw for conspiracy to assassinate President Kennedy, including Shaws diaries, records from Shaws defense attorneys, investigative records from the District Attorneys Office and the secret grand jury testimony in the case.
The Board made available all FBI and CIA documents from the previous investigations and also released many of the FBIs organized crime files from the early 1960's, including files on such figures as Sam Giancana, Santos Trafficante, Carlos Marcello, and Johnny Roselli. Also released were the transcripts of FBI electronic surveillance of Marcello as part of the "BriLab" investigation in the 1970's. The records of "Operation Mongoose," the CIA's attempt to use organized crime and anti-Castro Cubans to overthrow Castro have also been released.
The Board secured film footage depicting events surrounding the assassination, portions of which had never been seen before, including a Dallas television station's outtakes of the Kennedys in Dallas and the immediate aftermath of the shooting. Kennedy aide David Powers contributed his home movie taken in Dallas on the day of the shooting.
The Board also permanently preserved all the autopsy photographs of President Kennedy in digital form, and conducted sophisticated digital enhancement of selected, representative images. The Act by its terms prevents public release of the photographs and x-rays but the Board had full access to these materials.
The Board sponsored ballistics and forensic testing of Warren Commission Exhibit 567, the bullet nose fragment from the front seat of the Presidential limousine.
The Board identified and sought release of foreign records, including the voluminous records of the former KGB in Moscow and Minsk. Not all records have yet been released, but they have been identified and partially reviewed. Work continues on this effort, the most significant of which includes the KGB surveillance files on Oswald while he lived in the Soviet Union from 1959-1962 and the files concerning the KGB's investigation into the assassination.
The Boards Final Report, available from the Government Printing Office and also on the Worldwide Web details the extent to which the Review Board sought records and what it found. Despite the fact that many pieces of the awful puzzle that is the Kennedy assassination were found, many other pieces appear lost to history thirty-six years after the shooting.
The tragedy of President Kennedy's assassination was severely compounded by excessive secrecy, which has resulted in part in the many conspiracy theories that sought to fill the void left by the shroud of secrecy. There appears to be no "smoking gun" in the huge collection of records that explains precisely what happened on that November day in 1963, certainly not to the degree of certainty Americans want. The records do, however, provide an extraordinary window on the 1960s, its people, its diplomacy, its politics and its obsessions. Millions of pages await the careful examination of historians, researchers and the public. In time, they will tell the stories unhampered by government censors and enhanced by the understandings of history. Interested citizens will have a better opportunity to decide for themselves whether they believe the Warren Commission that Oswald acted alone or whether they believe that a conspiracy killed President Kennedy. They will also be better able to judge the actions of government officials during a critical time in our history. Meanwhile, the most important immediate legacy of the Assassination Records Review Board is that it proved that the United States can release its secrets and survive, perhaps as an even stronger nation willing to admit its flaws.