CHAPTER 3
OSWALD’S WIFE MARINA WAS THE FIRST WITNESS TO TESTIFY—THE FIRST of her four appearances before the commission. Commission members and staff were never fully satisfied with her testimony, perhaps because we expected more insights than she could provide. Her appearance prompted immediate criticism of the commission’s commitment to public disclosure of its work and an internal debate regarding the proper handling of commission witnesses.
Marina Oswald Testifies
Oswald married Marina in 1961, during his nearly three years in the Soviet Union (1959–62). She willingly left the Soviet Union to accompany her husband (with their daughter) when he decided to return to the United States. Now she occupied a place in the national spotlight like no other.
As a witness, Marina Oswald presented the commission with some difficult challenges. She spoke reasonably good English but exhibited some gaps in understanding, and already had run a gamut of intimidating interviews by federal and local officials. She had been recently widowed under horrific circumstances—after learning that her husband had killed President Kennedy and then seeing him murdered when surrounded by Dallas police.
Starting with this somewhat bewildered and frightened witness carried a substantial risk that the commission might stumble at the outset. Beginning in December, Redlich had immersed himself in preparation for her appearance. He reviewed all the available investigative reports about Lee Harvey Oswald’s activities in Russia and the United States. He proposed questions that might elicit important details about his activities and motives, their life together, and their friends and associates. When he solicited suggestions from the other lawyers, several emphasized the need for more detailed questions about his emotional state to explore possible motives for his shooting of President Kennedy.
By the time Marina Oswald testified before the commission, we knew that she had lied to the Secret Service and the FBI in earlier interviews. Notably, she had denied knowledge of her husband’s attempted assassination in Dallas of retired General Edwin A. Walker in April 1963 and his trip to Mexico in an effort to get to Cuba several months later. Investigative reports and exhibits provided to the commission demonstrated that these denials were false. All of us were eager to see what she would say about these incidents when she was under oath before the commission, hopefully providing a gauge whether she was believable on the many other topics the commission would explore with her.
There was a flurry of activity in the commission’s office that morning. The commission was finally beginning to work in a way that the public could appreciate. Further, the commission was starting with the wife of the man who would have been the most notorious criminal of his generation if he had lived to be tried for his crime. What does she look like? What will she tell the commission? Why did she marry this loser? Many of us had these questions in mind as a few lawyers and secretaries caught a glimpse of Mrs. Oswald, her lawyer, and the commission members entering the VFW building. The impatient reporters whose grumbling and repartee could be heard through the windows on the fourth floor also had some questions.
The reporters greeted Chief Justice Warren when he arrived at the VFW building after walking over from the Supreme Court that morning. Would her testimony be made public? they wanted to know. “Yes, there will come a time,” Warren told them. “But it might not be in your lifetime.” He went on to explain: “I am not referring to anything especially, but there may be some things that would involve security. These would be preserved but not made public.” Several reporters and commentators failed to quote the full text of Warren’s comments and overlooked his reference to matters involving “security.” The widely publicized shorthand for this comment became “Not in Your Lifetime.”1
Warren’s too casual comment drew immediate criticism as violating the commission’s mandate “to satisfy itself that the truth is known as far as it can be discovered and to report its findings and conclusions to the American people and to the world.” The Baltimore Sun emphasized the need for full disclosure of the facts because “there is a great deal of confusing and distressing speculation in other countries about the motives of the assassin.” The chief justice’s warning that “some parts of the commission’s findings may not be made public during the lifetime of those of us who lived through the tragic days of November … will feed rather than scotch speculation, for it hints of doings too dark for the public to comprehend.”2
The immediacy and severity of this criticism drove home to all of us the intense scrutiny under which we operated. And it wasn’t over yet. Two weeks later, a congressman introduced a resolution in the House of Representatives calling for full disclosure of evidence presented to the commission. A full-page “Open Letter to Chief Justice Earl Warren” in the New York Times by a consistent commission critic called for Warren’s resignation and the creation of a new investigating group because of his apparent determination to suppress relevant information about the assassination. Several months later, Warren’s “not in your lifetime” comment was identified as one of the three significant factors contributing “to the widespread impression in Europe that Mr. Kennedy was murdered by a fascist conspiracy.” The same story reported that the chief justice later confided to a friend about his controversial remark: “I could have kicked myself afterward for saying that.”3
The chief justice and Rankin scrambled to address such concerns. They issued a short statement a few days later to the effect that all results of the commission’s investigation would be made public at the conclusion of its work, except those classified materials that for national security reasons could not immediately be released. As is usually the case, the accurate restatement of the commission’s position never caught up with the pithier sound bite that the press and critics favored.
Although Marina Oswald’s testimony had been long anticipated, the commission had not yet adopted procedures for the taking of testimony. But it never occurred to me—or other members of the staff—that Redlich would not attend the commission hearing to assist Rankin and the commission in questioning Marina Oswald. Rankin appeared to welcome and anticipate Redlich’s assistance. Typically, the lawyer who prepares the questions for a witness almost always attends the session when that witness testifies and is usually the one asking the questions, for the obvious reason that he or she has the most knowledge of the facts. We had the reports of what Marina Oswald had said to others, but none of us had talked with her before she came to Washington. So it was inevitable that she might respond to questions with answers we could not always anticipate. Questioning of a witness can miss important facts or waste time on unproductive detours if the questioner has not prepared thoroughly and cannot handle the unexpected. So I and others assumed that Rankin and Warren would use Redlich’s extensive preparation by letting him do most of the questioning. We were wrong.
Immediately after the session began, it became clear that the chief justice had decided that Rankin was the only person other than commission members who would question the witness. This prompted considerable consternation among our lawyers. Everyone was wondering why Redlich was not assisting in the interrogation. I raised this with Rankin at lunch and learned that he was simply deferring to the chief justice’s wishes and had not proposed any different arrangement. I held my peace until after the day’s testimony, when Redlich and I went to discuss the matter with Rankin.4
Going into the meeting, Redlich and I wanted to find out whether the chief justice had expressly told Rankin that no other staff lawyers could participate in the questioning of Marina Oswald. If he had made this decision, we had to persuade Rankin to get the chief justice to change his mind—not an easy task. I began by asking Rankin exactly why Redlich had not been allowed to help him question the witness. Surprisingly, he told us that he had not requested that Redlich assist in the interrogation at all. I told him the commission would have a seriously defective record if we did not use the expertise of the lawyers who knew the most about the facts. No matter how competent and experienced the commission members were, without the mastery of the facts they were simply not able to conduct an orderly and complete examination of the witnesses.5
It was our first heated exchange with Rankin—but not the last. Because Redlich’s personal status was involved, I took the lead in asserting that he should have been in the hearing room. I was extremely critical of the chief justice and also of Rankin for not standing up more strongly to defend the course of action that he and the staff had agreed upon. Whenever I stopped for breath, Redlich joined in. The result was “a very devastating criticism” of Rankin, “which I am sure he did not particularly enjoy.”6
I realized that we were challenging the judgment of one of the great appellate lawyers of his generation and a truly decent and thoughtful man. When it was his turn, Redlich peppered Rankin with questions about the day’s interrogation of Marina Oswald. He reminded Rankin of the key areas in which we thought this witness had previously lied to the investigative agents. He told Rankin that no single witness could tell us as much as she could about their life in Russia, her husband’s associates, and their personal relationship that might have led in some way to the assassination of the president. Redlich, although obviously disappointed with Rankin’s readiness to exclude him, made his case quietly and effectively.
Lastly, I reminded Rankin that we had managed to assemble a very talented staff. They were working hard in mastering the facts. It seemed fair to suggest that unless the commission fully utilized our lawyers, we ran the risk of alienating them. I pleaded with Rankin to persuade the chief justice to allow staff lawyers to participate in the questioning of witnesses.
I learned the next morning from Redlich that he and Rankin had continued this conversation after I had left and that Rankin had agreed to let Redlich participate in the further questioning of Marina Oswald. Rankin never told me about any conversation he had with the chief justice on this subject. Rankin, as general counsel, was the only staff member who attended commission meetings and the commission members may well have assumed that this would also be the case during their hearings. They knew him; they trusted him; and expected that he was fully able to examine the witnesses—with their help, of course. I think our passion and intensity surprised Rankin. I suspect it caused him to think ahead to the dozens of witnesses likely to appear before the commission and to appreciate that he and the commission would benefit by having the responsible lawyer or lawyers participate in the hearings. It would enable him to share the burden of witness preparation and to expedite the commission’s taking of testimony.7
My guess is that Rankin presented the question to the chief justice along these lines in a way that encouraged Warren to try this approach. Typical of his demeanor and management style, Rankin never suggested to Redlich and me that he had been offended by our vigorous advocacy that day. This was the first of a handful of instances during my commission assignment where I felt the need to challenge Rankin on matters I thought critically important.
At her first appearance before the commission, Marina Oswald admitted through her interpreter that she had previously made some misstatements to federal agents. She assured the commission that she was now ready to correct those errors. For example, she admitted that her husband had told her of his trip to Mexico. The admission that she had withheld information ended up being more interesting than the information she now volunteered. She knew only the basic facts about his Mexico trip, which the FBI had uncovered quite early in its investigation.
Marina Oswald testified for four days. It took longer than expected because of the extensive use of an interpreter. The commission’s questioning led her through the story of her life and her days with Lee Harvey Oswald. She refused to speculate about his motives and provided only facts within her own knowledge. Warren declined to comment after the first day’s testimony, whereas Rankin told the press that she had provided some “new things, new evidence” preceding the assassination, but what they were he didn’t let on.8
After the second day, the chief justice was a little more forthcoming, advising the press that Mrs. Oswald had been questioned about some of the physical evidence and about her husband’s attempt to kill Walker. On the last day, the commission asked her to indentify 145 exhibits, most of them Oswald’s possessions. According to those at the hearing, she wept from time to time as she handled some of these possessions.9
We had another witness on the stand later in the month whose testimony involved Marina Oswald. After the assassination, she had hired James Martin as her business manager to deal with her extraordinary situation. By February, our lawyers had some concern that he was taking advantage of her—both financially and personally. The FBI and the Secret Service provided the commission with evidence that they were sleeping together.10 Within the staff, we debated whether the commission needed to delve into that relationship. As he had done with Marina Oswald, Redlich had prepared for Martin’s appearance. The commission had requested Martin to bring all documents relating to “any conversations and advice, instructions and other material of that kind concerning the testimony of Mrs. Marina Oswald or preparation of articles by her, or other things of that character.”11
Warren severely restricted Redlich’s interrogation of Martin. He “stated very definitely he believed that neither the character of Marina Oswald nor the business relationships” between her and Martin “were of interest to the Commission.” Redlich strongly disagreed with the chief justice’s decision. In a memo to Rankin the next day, he said bluntly: “We cannot ignore, however, that Marina Oswald has repeatedly lied to the Secret Service, the FBI, and this Commission on matters which are of vital concern to the people of this country and the world.” He believed that the commission had an obligation to pursue all possible motives that might have prompted Oswald’s assassination of the president. One of those motives might have resulted from his wife’s actions. For this reason Redlich thought that Marina Oswald’s character, her moral fiber, fell well within the reach of our investigation.12
Oswald’s Attempt to Kill General Walker
An important aspect of Marina Oswald’s testimony involved her husband’s attempt to kill a well-known Dallas political figure named Edwin A. Walker. A graduate of West Point, Walker had been an Army major general, a veteran of World War II and Korea, who recently had been pressured to retire from the military for spouting anti-integration views and insinuations that various American political leaders were communists. In civilian life, his speechmaking became a big draw for right-wing audiences.
On the evening of April 10, 1963, while the general sat at a desk in his Dallas home, someone with a rifle took a shot at him. The shooter had fired from less than one hundred feet away and the bullet deflected off the window frame, but fragments still managed to wound Walker’s arm. The police were unable to identify a suspect in the aftermath of that shooting until the Kennedy assassination. That’s when they started wondering if Oswald had been behind the Walker attempt as well.
Marina Oswald knew about the Walker shooting—if not before, then immediately afterward. Her husband had left a note for her with instructions about what to do if he should be caught. She hid the note in a cookbook, where it remained until early December. When the FBI interviewed her, she did not tell them about his attempt on Walker because, she later said, it was unsuccessful and she didn’t want to be a witness against her husband. But she admitted knowledge of the attempt to the commission.
Oswald’s note wasn’t his only link to the Walker shooting. Investigators had found photographs of the general’s home among Oswald’s possessions, and firearms identification experts told the commission that the bullet recovered at the Walker scene was the same type of ammunition used in the assassination. On the commission staff, we thought that the Walker incident provided strong circumstantial evidence that Oswald had the determination and mental capacity required to plan an assassination and was willing to kill if he thought he had sufficient reason to do so. As to what those reasons were in the case of Walker, Marina Oswald told the commission that her husband thought the general “was a very bad man, that he was a fascist, that he was the leader of a fascist organization, and when I said that even though all of that might be true, just the same he had no right to take his life, he said if someone had killed Hitler in time it would have saved many lives.”13
At this early stage of our investigation, we were struck by certain aspects of the Walker attempt that might shed light on Oswald’s culpability in President Kennedy’s death. Many of the conspiracy theories about the assassination were based on the assumption that Oswald simply lacked the capacity to shoot the president without the assistance of others. As the details of the Walker attempt unfolded, we came to believe that some characteristics of Oswald’s behavior relating to the Walker incident challenged this assumption.
Oswald Planned Carefully: The notebook and photographs found in Oswald’s home indicated meticulous planning for Walker’s assassination. Oswald had studied Dallas bus routes, which he subsequently used. He took photographs of Walker’s house and possible locations for burying his rifle both before and after the attempt. And, of course, there was the note left for his wife with detailed instructions for her to follow in the event he did not return home.
Oswald Planned No Escape: Oswald faced the possibility that he might be apprehended for this attempt on Walker’s life. His note advised his wife where he would be imprisoned if he was captured. He also contemplated that he might die as a result of this plan, and advised his wife regarding the money he left for her, what bills had been paid, and the assistance that friends or the Red Cross might provide her in his absence.
Oswald Left a Historical Record: In his note Oswald advised his wife to send any information in the newspapers about him to the Soviet embassy, which he said “would come quickly to your aid once they know everything.” He posed for two pictures with his recently acquired rifle and pistol and copies of issues of The Worker and The Militant. Although he destroyed most of the notebook about his planning for the Walker attempt, he did not destroy the note that he left for his wife or some of the pictures that he had pasted in the notebook. He told her that he “wanted to leave a complete record so that all the details would be in it.” This concern for his place in history seemed to be an important factor to consider in assessing possible motivation for the Kennedy assassination.14
Oswald Acted Alone: The commission and staff were well aware by this time of the widespread public perception that Oswald might have been part of a conspiracy of some kind. It was important to us, therefore, that we found no indication that Oswald had any assistance in planning for this attempt on Walker’s life, in the attempt itself, or in its aftermath. His note to his wife and his conversations with her after the unsuccessful attempt never hinted of the involvement of anyone else. I am sure I was not alone in thinking: “This Walker incident is really interesting. With all the possibilities of conspiracy that have been swirling around the Kennedy assassination, Oswald seemed to have acted entirely on his own in the Walker case. Although it doesn’t prove anything about the Kennedy assassination, it certainly suggests that it could have been a lone operation as well.”
The Effort to Get Information from the Secret Service
During February, I tried to make progress on our investigation of the Secret Service. In order to prevent future assassinations, we needed to know how and why the service had failed to protect Kennedy. I knew that the Secret Service had few admirers in the law enforcement community, which tended to criticize the laxity of its training program, its pedestrian leadership, and its reluctance to modernize.
If the Secret Service was feeling defensive, one could hardly blame them. Its performance in Dallas had been vivisected by the national press; harsh (although not public) criticism from President Johnson and Mrs. Kennedy stung its leaders; and now the agency faced investigation by a commission it regarded as “political” and predisposed to look for scapegoats. The Secret Service was housed at the Treasury Department, and many commentators anticipated that the commission would consider recommending that some of its responsibilities for presidential protection be transferred to a more effective law enforcement agency. Anticipating the commission’s inquiries, the Secret Service had typical Washington fears about revealing too much about its past and proposed procedures because this sensitive information might be disclosed—through leak or publication—by the commission.
James J. Rowley, chief of the Secret Service, had always managed to survive in Washington bureaucratic battles. A former FBI agent, Rowley transferred to the Secret Service in 1938, during Franklin Roosevelt’s second term. He worked his way up the ladder, steadily and without controversy, until he became the director in 1961. Rowley gave the commission a report about the assassination on December 18, the day after I reported for work. I read it skeptically, looking for reasons why the Secret Service failed to discover a rifleman in a building directly overlooking the president’s motorcade route through a city known for its ultraconservative political opposition to him. The report found no deficiencies in the agency’s preparation for the trip or the performance of its agents in the motorcade. The defensive tone of the report couldn’t help but reinforce my predisposition that the Secret Service was at fault. We did not learn until months later that several of the agents assigned to the motorcade had violated the service’s regulations by drinking alcoholic beverages the night before the motorcade.
In his response to Treasury Secretary Douglas Dillon, Warren noted that the report covered only the Secret Service’s advance preparations for Kennedy’s visit to Dallas and the activities of its agents on that day. It said nothing about proposed improvements in the agency’s policies and procedures. Warren acknowledged the service’s concerns about more extensive disclosures but insisted on access to the investigative materials underlying this report, just as we had demanded of the FBI.15
Rankin and I met with Secret Service representatives on January 7. At the meeting, Rankin asked Tom Kelley, a Secret Service inspector and the service’s liaison to the commission, for all memoranda or other investigative materials the service had gathered after the assassination. Rankin also asked for a formal statement from the Secret Service specifying improvements it had made for the protection of the president in the aftermath of the assassination and any other recommendations aimed at improving its overall performance.16
After the meeting, Kelley called to inform me that the Secret Service had not changed any of its procedures since the assassination, except that President Johnson now rode in a closed car. Unwilling to rely on Kelley’s oral representations to me, Rankin followed up with a letter asking Chief Rowley whether the Secret Service had made any changes in its procedures and for a formal statement of its recommendations regarding all aspects of presidential security.17
After the Secret Service provided some investigative reports, Rankin told Rowley that a staff lawyer would contact him shortly about reviewing additional reports, including those withheld as “secret.” By now Sam Stern had reported for duty from his Washington law firm and begun working in the presidential protection area. Stern had considerable experience in negotiating complicated contracts between his corporate clients and foreign governments, and this commission assignment required similar skills and political sensitivities.18
Secretary Dillon responded in late January to Warren about Rankin’s request for information about improvements in presidential protection. Dillon understood the threat the commission’s investigation presented for Treasury, which had maintained control of the Secret Service since its inception in 1865. Having the Secret Service within the department gave the treasury secretary highly useful information about the president’s daily schedule. A prominent Republican who ran one of Wall Street’s most prestigious investment banks, Dillon had served as undersecretary of state in the Eisenhower administration. Kennedy appointed him as treasury secretary in part because of his close ties to the New York financial community.19
In return for his cooperation, Dillon insisted Warren agree to certain procedures to minimize the risk of disclosure of classified information by the commission. First, he proposed that information of this kind be made available only to commission personnel who had received security clearance. Second, he suggested that only commission lawyers engaged in this area of the commission’s work be given access to the material. Last, he wanted no publicity given to this aspect of the commission’s work and assurances that any recommendations or comments would be classified. A skilled practitioner of cabinet-level maneuvering, Dillon told Warren that he thought the commission might perform a useful service in reviewing these procedures, but nonetheless threw down a gauntlet. “However,” he wrote Warren, “since the terms of the Executive Order do not make it entirely clear how far the Commission’s responsibilities extend, I should like to discuss this matter with the President and would appreciate your advice as to whether my suggestions as to the Commission’s participation are acceptable.” As evidence that Treasury and the Secret Service weren’t being resistant to constructive change, he gave Warren a copy of his earlier memorandum instructing Rowley to draft recommendations to improve the service’s protection of the president.20
Dillon and Warren met on February 4. The chief justice, also an adept practitioner of political maneuvering, seemed to believe that the treasury secretary would ultimately have to provide the information sought by the commission. Warren wanted to resolve this matter quickly, so Rankin asked Stern to prepare a draft letter to send to Dillon, and Redlich and I added comments from the sidelines. Stern’s draft letter basically accepted the conditions proposed by Secretary Dillon.21
After revising it to reflect Warren’s views, the commission on February 24 approved the letter to Secretary Dillon. Warren conceded in his letter that the executive order creating the commission did not specifically direct it to report on this subject. However, he advised Dillon that the commission members had all expressed the view that if any shortcomings were observed in the Secret Service’s performance or procedures, they should be addressed in our report. Warren was not willing, however, to accept Dillon’s proposals on the handling of materials by the commission and its staff.22
I thought this was a mistake, as did Stern and Redlich. We believed that the commission’s response to Secretary Dillon should be firm, but accommodating enough so as to avoid a time-consuming debate between the commission and the department. We now realized that the commission members were sharply divided on the two most important issues in our dealings with Treasury: how much detailed information the commission needed to make useful recommendations on presidential protection, and what advance assurances should be given to Treasury about the confidentiality of its material given to the commission.23
I believed the commission needed full disclosure from the department in order to address the Secret Service’s ability to protect the president. I was concerned that Treasury might try to wait us out, notwithstanding the presidential mandate in the executive order that all federal agencies should cooperate with the commission. “Slow-walking” can be an effective bureaucratic defense by an established institution like the Treasury Department in dealing with a temporary group like the commission. I feared Treasury intended to extend our negotiations, without ever formally denying our requests, until we ran out of time and had to issue our report without the information they kept from us. Stern and I did not want to be outmaneuvered by Dillon, so we kept returning to this issue in later weeks.
The Continuing Struggle with the FBI
Our general difficulties in extracting information from the Secret Service ran in parallel with our more focused efforts in prying information out of the FBI about its contacts with Oswald. We knew that the FBI had not alerted the Secret Service about Oswald. And we knew that Hoover would not readily give up information that supported any criticism of the FBI, no matter how important that information might be to the commission’s work. At this point, we did not yet know the full extent of what the FBI knew about Oswald before the assassination, so we could not evaluate whether the FBI should have informed the Secret Service about him before November 22.
At the February 11 staff meeting, Rankin told the lawyers what he had learned about the FBI’s failure to disclose information about FBI agent James Hosty found in Oswald’s address book. We knew from the FBI’s earlier reports and from Hoover’s detailed response to Rankin on the “informant” question that the bureau had interviewed Oswald on three occasions since his return to the United States in June 1962. After the FBI learned Oswald had moved back to Texas in 1963 from New Orleans, where he’d lived for about five months, Hosty had interviewed Ruth Paine, one of Marina Oswald’s friends, on November 1 and November 5, 1963, regarding Oswald’s whereabouts in Dallas.
Mrs. Paine was unable to tell Hosty where Oswald was living. She told him that Marina Oswald and her two daughters, the youngest less than a month old, were living with her. Hosty left his name and telephone number with Mrs. Paine, who told Marina Oswald, which led to the inclusion of Hosty’s contact information in Oswald’s address book. Now, three months later, Rankin told us that the FBI had omitted this Hosty information from its report about Oswald’s address book and that the commission was very concerned about this FBI failure. Like most of our staff meetings, everyone was serious and had an opinion how the commission should proceed. Some argued that the withheld information was not particularly significant and didn’t require any response by us. Others thought that the deliberate withholding of relevant information (no matter how insignificant) was so important that the commission had to confront the FBI about it, although recognizing that doing so would further impair our relations with the bureau.24
Incensed by their blatant obstructionism, I wanted to fire off a letter right away demanding an explanation for the FBI’s conduct. I was outvoted. Rankin asked me to draft a letter to Hoover, less confrontational than what I had proposed but certainly strong enough to inform the FBI of the commission’s serious concern. It had to reflect our knowledge of what the FBI had done but be couched in such a way that might not damage beyond repair our working relationship with the bureau, though such a letter was probably beyond our collective creative writing skills. The letter we sent referred to the omission in the FBI report and asked: “The Commission would like to be informed of the circumstances surrounding this omission. More particularly, it would assist the Commission in appraising the significance of this matter if we knew the names of the agents, including supervisors, who prepared this portion of the report or made any decision to omit information from the report. Needless to say, we would like a full explanation.”25
The FBI’s response was a model of disingenuousness. It did not provide the “full explanation” we requested. The FBI advised the commission that the agents preparing the report to the commission based on Oswald’s address book decided to confine the report to names of individuals and telephone numbers previously unknown in the investigation so that the commission staff could pursue these “leads” if they wanted to do so. Because these agents assumed that Hosty’s name and other information could not possibly assist the commission in its investigation, the FBI advised us that it had decided to exclude this information from its report on Oswald’s address book. We did not know at the time that Hoover had opposed the creation of the commission and that, as we got organized, he became increasingly apprehensive that the commission was dedicated to finding “gaps” in the FBI investigation of the assassination or in its handling of Oswald after his return to the United States.26
Although the commission staff regarded the FBI response to Rankin’s letter as an insult to our intelligence, we knew there was nothing we could do. We needed the FBI agents in the field to respond to our daily investigative requests. Most of us thought our problems with the FBI lay with Hoover and his lieutenants, not with the agents on the ground. And, in fact, our lawyers and the FBI agents with whom they dealt in future months did develop a mutual respect, sometimes to everyone’s surprise. For example, although FBI agents at first undoubtedly viewed Mel Eisenberg, the young New York lawyer, as an “amateur” in ballistics and other scientific areas, his quick mastery of the literature and technical issues was impressive enough to get their attention and ultimately win their respect. I believe that Redlich accurately described our collective attitude toward dealing with the FBI by saying that we came “with a professional lawyer’s degree of skepticism” but without “any preconceived notion” that the FBI was always right or always wrong.27
Because Rankin had required that all investigative requests be reviewed by me before going to him for approval, I had more dealings than others on the staff with James Malley, the FBI inspector who was our official liaison with the bureau. There were approximately three hundred such investigative requests, most to the FBI. On occasion, Malley discussed a particular request with Rankin or me (or other lawyers) and suggested ways to rephrase or break it down into more limited requests. We almost always agreed to make these suggested changes. If the responsible lawyer and Malley could not agree, Rankin would resolve the issue. Malley described his relationship with the commission as businesslike, and I agree with that. He knew that I worked for the Justice Department and had access to high officials there. I knew that he had superiors at FBI headquarters who insisted that he keep them fully informed about the commission.
The commission’s lawyers weren’t hesitant about questioning the FBI’s work. They understood that they had been appointed from the private sector in large measure to ensure their independence in conducting a thorough investigation. In fact, they relished proving FBI conclusions wrong. Most of our lawyers focused on finding flaws in the FBI conclusion that there were no conspiracies involving Oswald or Ruby. Many likely thought that someone (or some organization) more able and intelligent than Oswald and Ruby might have had a hand in this national tragedy and that this possibility had to be fully investigated. The team worked hard to examine every possible angle from which a conspiracy might have arisen. Conspiracies are almost always eventually revealed. No one on the staff wanted to go down in history as among those who failed to uncover the conspiracy that had taken a president’s life. None of us regarded the FBI denial of conspiracies involving Oswald or Ruby as established fact.
As Rankin later said, he treated the initial FBI report about Oswald as “just an interesting document” and thought “we were probably quite offensive, especially some of the younger members of our staff who looked forward to the opportunity of finding that the FBI was wrong.” Rankin never lost sight of our objective. As he remembered: “I was constantly asking for hundreds of investigations in places all over the country, and as soon as I got the reports on that and the responses, I would ask for some more, and I would ask for more complete reports on the ones that I thought were unsatisfactory.” He recognized that this process created “ a very difficult relationship and I don’t blame them for feeling that they were being ridden pretty hard, which was true, but we never got to the place where they either apparently dared or would say they wouldn’t do it. And as long as they didn’t, I kept on.”28
The Matter of Oswald’s Legal Rights
The issue of Oswald’s legal rights arose quite early in our work, when New York lawyer Mark Lane asked to represent Oswald in the commission’s proceedings at the request of Oswald’s mother. At its January 21 meeting, the commission rejected Lane’s request. I drafted a letter for Rankin to send to Lane assuring him that every effort would be made to ascertain the facts regarding Oswald’s implication in the assassination of President Kennedy as accurately and fairly as possible. As part of that effort, we invited Lane to appear as a witness, which he later did.29
Lane’s effort to represent Oswald raised a question as to what the commission needed to do to demonstrate its desire to be fair to Oswald. The commission was functioning “neither as a court presiding over an adversary proceeding nor as a prosecutor determined to prove a case, but as a fact-finding agency committed to the ascertainment of the truth.” Nonetheless, from the beginning our work focused on Oswald as the likely assassin, whether he acted alone or not. Even dead, Oswald was entitled to the consideration of evidence supporting his innocence and protection from unsupported allegations that further injured his reputation or caused harm to his wife, children, and other relatives.30
After rejecting Lane’s offer to represent Oswald, commission members considered whether they needed to adopt additional measures to protect Oswald. In early February, they decided to ask the American Bar Association to designate one or more lawyers to serve as Oswald’s defense counsel during the commission’s deliberations. I was aware that both Warren and Rankin supported this proposal, but I opposed it. I worried that a large number of ABA lawyers might be required to staff a meaningful defense of Oswald. Inevitably, there would be disputes about the scope of their responsibilities, the need for time-consuming security clearances, their entitlement to subpoena power, and their access to the investigative agencies assisting the commission. I also anticipated they might retrace steps already taken by the commission (for example, the recalling of Marina Oswald as a witness) which could cause a substantial delay in the completion of the commission’s work. Most important, I was convinced that the work of any ABA representatives—the establishment’s lawyers—would never be accepted by Mark Lane, Oswald’s mother or brother, or the commission’s critics as providing the aggressive defense of Oswald they believed necessary. I knew my views were shared by the other commission lawyers.
I stated my case in a long private memorandum to Deputy Attorney General Katzenbach about this proposed approach to the ABA. In addition to these concerns, I pointed out that designating the ABA would make the commission appear to be indecisive or untruthful with respect to its earlier expressed reason for not accepting Lane’s offer to serve in this capacity. It would also give comfort to the commission’s critics and the media who had been circulating Lane’s contentions regarding the deficiencies in the commission’s procedures. I also worried that this decision would reflect adversely on the commission members and staff by raising serious doubt as to their ability or desire to ensure that Oswald’s rights and reputation were given due recognition. I did not ask Katzenbach to do anything specific, but expressed the hope that alternative methods for accomplishing the overall objective be explored. Katzenbach knew much better than I if there was any viable way to derail this train.31
Less than two weeks later, Warren advised the other members that he had extended the offer to the ABA’s current president, Walter E. Craig, to participate in the commission’s investigation and “advise the commission whether in his opinion the proceedings conformed to the basic principles of American justice.” Craig had just recently been confirmed by the US Senate to serve on the US District Court in Arizona, but had not yet been sworn in. The commission issued a press release announcing Craig’s appointment, stating that he could choose associates to assist him and indicating that all the materials available to the commission would be shared with him.32
Katzenbach called Rankin shortly after this public announcement of Craig’s appointment. He told Rankin that he was “very disturbed” by this designation of Craig, among other reasons because Craig had apparently agreed with the Justice Department not to assume “any more extracurricular responsibilities which would postpone his entry on active duty on the bench.” He told Rankin that he had not known that Craig personally would be representing the ABA and expressed to Rankin “a rather strong and negative view” about Craig’s capabilities. Rankin assumed that I had discussed the entire matter with Katzenbach, including the identification of Craig, and was quite troubled by the whole conversation with Katzenbach.33
This led to an awkward confrontation between Rankin and me. I think my difficulty in dealing with Rankin’s reaction to Katzenbach’s call was that I hadn’t known when I wrote my memo to Katzenbach that the commission would choose Craig. If I had known this then, I would have told Katzenbach and he could have had this conversation with Rankin earlier, when his reservations about Craig might have persuaded Warren and Rankin to designate someone else. Rankin assumed that I knew about Craig and had so reported to Katzenbach, which he apparently accepted as an appropriate action for me to take. I had never followed up on my memo to Katzenbach, believing that the matter was in his hands unless he indicated otherwise.
I learned later from Jack Miller that after receiving my memo, Katzenbach contacted ABA officials. According to Miller, the ABA officials confided that Warren’s request was his first contact with the organization since he had resigned from the association in 1957. He had done so in response to an ABA report made public in London, where the chief justice was leading a delegation of American lawyers. Warren later described the report as a “diatribe against the Supreme Court of the United States, charging it with aiding the Communist cause in fifteen recent cases.” With that history in mind, the ABA in 1964 did not feel it could very well turn the chief justice down.34
The commission lawyers greeted the ABA participation in the investigation with varying degrees of dismay. David Belin, the Iowa civil lawyer working on evaluating the evidence that Oswald was the assassin, was particularly upset. He and Joe Ball, the Los Angeles defense lawyer, spent thirty minutes with Rankin on February 25 discussing the proposal. Chief among their complaints—and those of the other staff lawyers—was that no one even bothered to clue them in on the proposal until it was a fait accompli.35
As explained by Rankin, the chief justice and Craig didn’t discuss the mechanics of how Craig would operate. As the dust settled, this issue receded to the background. I periodically put together a large stack of materials that Rankin sent to Craig. Rather than examining the staff’s investigative efforts in detail, Craig elected to undertake only a high-level review, as perhaps the chief justice and Rankin suspected he would. He attended some hearings when witnesses were testifying before the commission, as did some of his associates. Near the end of the investigation, I believe he got access in the commission office to some draft sections of the report. In retrospect, Craig provided only general oversight, which may have been useful to the commission, and he did not interfere at all in the more detailed investigative issues or judgments about the commission’s report. 36
In another matter relating to Oswald’s interests, Rankin asked Stern to look into the treatment of Oswald by the Dallas police before his death.37 He was specific about the questions he wanted Stern to answer: (1) Was undue force used in the arrest? (2) Was Oswald coerced during interrogation? (3) Was he denied access to counsel? (4) What public comments did Dallas authorities make concerning the evidence? (5) How were lineups and other identifications of Oswald handled? (6) How did it happen that Oswald was brought in front of television cameras? (7) Were Oswald’s relatives provided access to him? and (8) Was he arraigned properly? These questions, of course, pale in comparison with the most elemental question bearing on Oswald’s rights that Hubert and Griffin were exploring: How did the Dallas Police Department aid, or permit, Ruby to enter the basement and kill Oswald?
One of the new additions to our staff, John Ely, assisted Stern on this project. Ely had graduated from Yale Law School in 1963 and was scheduled to serve as one of the chief justice’s clerks during the upcoming term of the Supreme Court. When Warren learned that Ely had some time on his hands, having completed his military service obligation, the chief justice promptly recruited him.
Three weeks later, Stern and Ely reported their conclusions and recommendations for further inquiry. Although they were able to answer a few of these questions based on the facts at hand, they recommended more detailed examination of the TV tapes and key depositions of police officials before the other issues could be resolved. Stern and Ely identified two additional issues that deserved some attention: whether there was probable cause for Oswald’s arrest and the legality of the first search of the Paine residence where Marina Oswald was staying.38
Redlich and I endorsed these recommendations and Rankin accepted them. Both Warren and Rankin were determined to discuss these questions affecting Oswald’s rights as an integral part of the commission’s assignment. The commission’s report addressed some of these issues. It concluded that the Dallas Police Department did not violate any of Oswald’s legal rights, including his right to counsel. But the commission was very critical of the manner in which the Dallas law enforcement officials handled the interrogation sessions and the lack of control over the conditions in the police station. It emphasized the crowded and chaotic situation in the police headquarters resulting from as many as three hundred news representatives from around the world jostling to get a picture of the alleged assassin and thrusting microphones in his face as he was moved from room to room. The commission also condemned the publication by the Dallas police of virtually all of the information about the case gathered between Oswald’s arrest on Friday and his murder on Sunday.39
The Lawyers Chart the Investigation to Come
Along with John Ely, we had three other additions to our staff during February. The most important was Al Goldberg, n historian from the Department of Defense. The chief justice personally undertook to find someone who could help shape the commission’s eventual report and provide useful historical context. Warren found his man at the Defense Department, which, it turned out, had a virtual army of historians. Dr. Alfred Goldberg came with a PhD from Johns Hopkins University and many years of experience at the department. In his initial interview, Goldberg asked the chief justice why he wanted a historian on the commission staff. According to Goldberg, Warren said, “I don’t trust all these lawyers.”40
At his first meeting with the staff, Goldberg recommended that the lawyers might consider keeping some personal record of their work with the commission—a suggestion that resulted in my journal. He quickly focused on the documentation of the commission’s efforts—the nature and organization of the files that would eventually be turned over to the National Archives. Goldberg was free to make suggestions to Rankin about our work and undertook some projects of his own with Rankin’s approval. He recognized from the beginning that he was “the odd man out on the commission staff” among all these lawyers, but confessed years later that he got along quite well with most of us. In fact, he became a valuable colleague on whose judgment we relied on a wide range of issues. His outsider perspective and wry sense of humor were appreciated by all of us.41
Richard Mosk was another of our newly minted young associates available to work in any area where they were needed. Mosk, a recent Harvard Law School graduate, had written a polite inquiry about working for the commission, and I had drafted our routine response politely declining his offer of assistance. However, Mosk’s father was, at the time, California’s attorney general and a close friend of Warren’s. Shortly thereafter, the chief justice mentioned to Rankin that he thought “young Mosk” possessed just the kind of credentials the commission needed, and I promptly prepared a second letter welcoming him to the staff. Mosk was completing his six months of military duty with the California National Guard and his departure for Washington was delayed for a few hours because his military superiors insisted that he complete his service with another stint of KP duty, cleaning pots and pans.42
Later the month, Philip Barson, an Internal Revenue Service agent from Philadelphia, reported for duty and began work immediately on the project of documenting Oswald’s income and expenditures.43 One of the possible avenues toward proving or disproving the existence of a conspiracy was whether Oswald had resources beyond his means. Some of the commission critics were already advancing allegations that Oswald’s expenditures during this period exceeded his known sources of income. For this reason, we wanted a professional analysis of his income and expenditures based on the testimony and investigative materials. Barson undertook this task with the enthusiasm of a convert.
By the last week of February, the commission lawyers had completed the memoranda needed to chart the future progress of the investigation. Rankin asked Redlich and me to review these memoranda, consult with the lawyers in each area, and provide him with a frank assessment of where we stood. He and the commission wanted to know whether the lawyers had mastered the relevant information in their area, had a coherent plan for future investigation, and had identified witnesses who should be questioned by the commission or deposed by the lawyers. We needed an early assessment of potential witnesses to meet the commission’s desire for more witnesses and to have our lawyers prepared to go to Dallas as soon as the Ruby trial ended.
Although the lawyers in each area had their own techniques and habits for undertaking a complicated factual investigation, each roughly followed the usual trial-lawyer process. The first step typically involved a lawyer’s critical review of the material at hand. In this case the lawyers examined exhaustively the investigative reports from the different agencies and the available documentary and physical evidence. The next step was to identify the witnesses with firsthand knowledge of the critical events who needed to be questioned; the additional documents that needed to be located, produced and authenticated; and the experts who could testify on the scientific and technical issues. By far, the most tedious part of the task was the first step.
The axiom “truth is our only client” had real-world consequences in the course of the commission’s investigation. First, it meant that nothing—no assertion by an investigative agency or individual—could be taken for granted. It required the development of sworn testimony on the basis of which a responsible and objective judgment could be made. Second, the judgments evaluating the evidence had to be based on a fair consideration of all the relevant testimony, recognizing that conflicts in the testimony of even well-intentioned and honest witnesses are inevitable on factual issues such as we faced.
The Ball/Belin team rigorously applied the “assume nothing” rule in their initial examination of the materials pertaining to the use of the rifle found in the depository. One example related to the conflicting descriptions of the results of the paraffin test applied to Oswald’s skin to determine whether he had recently fired a weapon. Wade, the Dallas district attorney, told the press that the test “showed that he [Oswald] had recently fired a gun. It was on both hands.” Dallas police chief Curry supported Wade’s assessment, saying that “I understand that it was positive.… It only means that he fired a gun.” Mark Lane’s version was diametrically opposite: “The test, however, showed no gunpowder on either hands or cheek and no nitrates on Oswald’s face.” Therefore he concluded that there is “but one possible interpretation—that the paraffin test results were consistent with innocence.”44
Before taking any depositions of the law enforcement officials who had administered this test, Ball and Belin consulted with Eisenberg, who had reviewed the pertinent literature regarding the paraffin test. As a result, Ball and Belin concluded that a paraffin test is wholly unreliable in determining whether a person has recently fired a weapon. As Belin later wrote, “chemicals used in the paraffin test will react positively not only with nitrates from gunpowder residues but also nitrates from any other sources and most oxidizing agents. Thus, contact with tobacco, urine, cosmetics, kitchen matches, fertilizers and many other things may result in a positive reaction to the paraffin test.” In addition, the mere handling of a weapon may leave nitrates on the skin, just as the firing of the weapon might do.45
While a positive reaction to the test is not considered legal proof that a suspect has recently fired a weapon, the question remained whether a negative reaction on the test would be evidence that a person has not fired a weapon. We learned that the FBI had conducted tests going back to 1935 regarding the paraffin test and concluded that a negative reaction from the test did not prove that the person did not fire a weapon. To further explore the matter, the commission asked the FBI to conduct an experiment in which it used the paraffin test on an agent who fired the rifle found on the sixth floor of the depository building using the same type of ammunition as the recovered cartridge cases. The test produced negative reactions on both hands and on the cheek of the FBI agent who fired the rifle. Accordingly, the commission did not rely on the paraffin test in making its finding that Oswald was the assassin.46
The second point—the need to consider all the evidence—required each team to ensure that it had identified all the witness testimony, documents, physical evidence, and expert opinion that related in any way to an issue before the commission. Part of that task required the lawyers to identify conflicts in the evidence and to explain that divergence to the commission. Trial lawyers almost always work in this manner because the adversary system pits a lawyer presenting one view of the facts against another lawyer, who presents an opposing view of the facts, and the judge or jury weighs all the evidence before making its own factual findings. In the commission’s investigation, our lawyers were not adversaries for one or another position on any of the facts; rather they were the first objective finders of fact. They had to consider all the evidence, evaluate competing interpretations of the evidence taking into account the credibility of the witnesses, and propose recommended findings (or conclusions) to the commission, the ultimate decision maker.
One example of the many conflicts in the evidence that Ball and Belin faced in their work related to whether the president said anything after he was hit. Secret Service Agent Roy Kellerman, sitting next to the driver, testified that President Kennedy said “My God, I am hit” after the first of two shots hit him. Secret Service Agent William Greer (the limousine driver), Connally, his wife Nellie, and Jacqueline Kennedy all testified that the president did not say a word after he was shot. Looking only at the testimony of Kellerman, a fact finder might conclude that the first bullet did not cause the throat wound, because it would have impaired Kennedy’s ability to speak.47 But weighing his testimony against the contrary testimony of four other witnesses in the president’s car—plus the autopsy report and other evidence—led us to a different conclusion. All the commission lawyers made the same determined effort not only to summarize the evidence that supported our proposed findings but also to evaluate the contrary evidence.
Bill Coleman and David Slawson had the responsibility for most of the work in the foreign area. Coleman was one of the most prominent African-American lawyers of his generation, and Rankin had attached a high priority to having him on the commission staff. During his law-school years Coleman had met Fidel Castro when both had patronized jazz clubs in Harlem. Although younger than the other “senior” lawyers, Coleman had already gained recognition as a corporate counselor and effective litigator. He had made major contributions in the civil-rights arena for the preceding two decades. Coleman lived in Philadelphia at the time and commuted to Washington each Friday for his commission duties.48
Slawson had moved to Washington from Denver for this assignment and worked on a full-time basis. Warren had mentioned at a January commission meeting that he had just lunched with Justice Byron White, who told him Slawson was one of the best lawyers in his former law firm. Slawson had a very open manner, which the more formal Coleman seemed to appreciate. The two of them appeared to be developing a warm and respectful relationship, which resulted a few years later in Coleman recommending Slawson to serve as general counsel for a federal agency in Washington.49
Redlich and I discussed the memorandum from Coleman and Slawson on February 24, and later considered some unusual lines of inquiry with Slawson. We suggested a formal request to the Mexican government from our State Department seeking any information the Mexicans had relevant to our investigation, which also raised the question whether it might be better if the commission sent its own representatives to Mexico rather than depend on the State Department. We proposed exploring with State “any unofficial means of sounding out the Soviet Union as to information which they might be willing to give to the Commission”—for example, whether it applied customary procedures in permitting Marina Oswald to leave the country. We also were curious as to what action was taken by the Soviet embassy in Washington, DC, when it received a letter from Oswald a few weeks before the assassination.50
The Soviet Union provided the commission with all the letters it had received from the Oswalds, including the last letter written by Oswald to the Soviet embassy in Washington on November 9, 1963. It began by stating that the writer wanted “to inform you of recent events since my meetings” with Soviet officials in Mexico City. The commission learned that Oswald had spent the weekend at the Paine house working on this letter, and investigators found an earlier draft among his effects after his arrest. Comparison of the draft with the letter actually sent indicates that Oswald was trying to make his trip to Mexico sound as mysterious and important as possible. For example, whereas the draft characterized his trip to Mexico as “useless,” this word did not appear in the final version. Instead, he wrote that he was unable to remain in Mexico because his Mexican visa was about to expire, which was not true.51
Redlich and I next turned to the memorandum produced by Bert Jenner and Jim Liebeler, which was disappointing. The Jenner/Liebeler draft lacked an overall plan setting forth their ultimate objectives and detailing how their investigative recommendations would get us there. My requirements for them were straightforward. I wanted to see a complete, well-written assessment of the known facts; a critical analysis of their investigative needs; and a proposed course of action, including a list of witnesses, which would address these needs and enable the lawyers to produce an acceptable first draft discussing the issues in their area.
The questions Liebeler and Jenner grappled with—the existence of a domestic conspiracy and Oswald’s motive—were intertwined in a way that required their investigation to proceed in multiple directions. These questions were central to the commission’s mission. If we could not get this part of the investigation analyzed in a thoughtful manner, we would fall far short of what the commission needed to fulfill its mandate. Redlich agreed with my assessment and my recommendation to Rankin “that these two lawyers should be given two weeks in which to fully analyze and appraise all the investigative material and that their time should not be diverted to the taking of testimony until they demonstrated complete familiarity with the basic materials.”52
Jenner did prove to be as “indefatigable” as Warren had been told a few months earlier. Although he continued to have client commitments back in Chicago, he worked long hours when in Washington. By this point in his career, Jenner was accustomed to being in charge of any matter on which he was working, so the commission’s structure was somewhat challenging for him. He brought to the investigation a trial lawyer’s very practical outlook—what is the evidence on our side, what is the evidence on their side, and what is most persuasive. His assignment, however, dealing with Oswald’s background, associates, and motive turned out to be more elusive than the typical antitrust case.
Liebeler was a burly, muscular man with a flaming red beard. Originally from North Dakota, he retained a prairie directness and enthusiasm that had been modulated only slightly by his years at college and law school. He worked as hard as any lawyer on the staff from his start in late January until the final days in September. As advertised, he was very combative and very smart. With Liebeler, conversation was never far from debate. Few things gave him more pleasure than decimating a colleague’s reasoning or written work. Years later, when Liebeler stayed at my house for an extended period, he engaged my wife in a lively debate about what materials could or could not properly be put down the kitchen garbage disposal. One day while we were at work, he put a sign over the sink reminding her to mend her errant ways in this regard. Liebeler’s challenging and argumentative approach did not mesh well with Jenner’s more refined and deliberative style. I think they would agree that each did his best work when proceeding independently.
Arlen Specter and Frank Adams had the task of developing all the facts related to the assassination itself. Adams appeared on the scene late in December before any of the other senior lawyers and helped shape some of our early thinking about how the commission’s lawyers should do their jobs. Although Specter liked Adams and enjoyed working with him, Adams’s commitment to his law firm’s work left relatively little time to help Specter. He had a major antitrust trial scheduled for mid-February, which took him away from the commission’s work for long periods of time. As a result, the burden in this area fell on Specter, who took on whatever needed to be done calmly and competently. True to his collegial spirit, Specter submitted the analytical memorandum on Area 1 bearing both his and Adams’s signatures.53
The work in this area offers a good example of the investigation’s progress in February. After review of their long memo, Redlich and I suggested to Rankin that he ask Specter and Adams what specific information they expected from the witnesses identified in the memo. We expected to take detailed, sworn testimony from the most sensitive witnesses with firsthand knowledge: Mrs. Kennedy, President and Mrs. Johnson, and the Connallys. Specter and Adams were responsible also for the testimony of four key Secret Service agents who were closest to Kennedy in the motorcade, the five eye witnesses who said they saw a rifle protruding from the depository building, and the three doctors at the Parkland Hospital who treated Kennedy.
Specter responded immediately to our request. He prepared a list for the commission summarizing the topics to be developed with these witnesses, as well as those who were near the intersection of Elm and Houston Streets when the motorcade went by. Specter wanted to get depositions started in Texas as quickly as possible, but we were slowed down by various circumstances, not least of which was that Texas authorities did not want us digging around in Dallas while the Ruby trial was going on. They expected to be done by mid-March. In addition, we did not yet have the go-ahead from the commission for the extensive investigation we had planned.54
I had asked Charlie Shaffer to take an initial look at the work being done in Area 5, where the Hubert/Griffin team was wrestling with the factual issues about Ruby’s actions and associates. After reviewing the many investigative requests proposed by Hubert and Griffin in late February, Shaffer reported to me that the matters had been resolved to everyone’s satisfaction.55
Leon Hubert had a quiet Southern manner and was less pretentious than the other senior lawyers. Of moderate height and slim build, he was a committed chain smoker (outdoors even then) and always chased his cigarette with a Coke. He may not have exuded the self-confidence and charisma of the other senior lawyers, but he was thoughtful and thorough. Hubert worked long hours for us until early June, when his law-firm responsibilities in New Orleans and military obligations limited his availability in Washington.
Burt Griffin was a determined, hardworking young trial lawyer with a few years’ experience in the US Attorney’s office in Cleveland. He became an imaginative and persistent advocate for his area’s investigative needs and explored relentlessly any possibility that Ruby participated in a conspiracy. Griffin had moved to Washington from Cleveland with his family, including two young sons, for the duration of the commission’s work. Hubert and Griffin made a good team and early on established the challenging objective of determining as exactly as possible what Ruby had done every single day, and every single hour, in the two months or so before the assassination. If Ruby had contacts with any co-conspirators, these two were going to find them.56
As was our practice, Redlich and I reported to Rankin about our meetings with the lawyers and their initial memoranda. Our criticism of these basic memos was often reduced to writing. For example, my five-page memorandum to Ball and Belin raised thirty-five questions and suggestions regarding additional requests to the FBI and witnesses that should be deposed. I thought at the time that all the lawyers accepted the idea that there had to be some general oversight of their efforts and that Rankin had asked Redlich and me to help provide it. The other lawyers, both senior and junior, could always consult further with Rankin about their work and did so on many occasions. From what I observed, Rankin resolved the differences among us in a way that left everyone feeling that he had had his day in court. Some of the lawyers would have preferred that Rankin got out of his office more often and visited informally with them about their work, but that simply was not his style.57
After more than a month of working closely together, our lawyers—young and old—seemed to be enjoying not only the challenges of the assignment but also the collegiality that characterized our relationships. The distinction among “senior,” “junior,” and “associate” lawyers completely faded when debating the issues or eating a meal together. I had a wife and three young children at home in Washington who required my presence most weekdays for dinner, but I know that the lawyers from out of town often worked into the evening and frequently had dinner together. I heard that there was no shortage of gossip and jokes at these meals about “missing” senior counsel, the foibles of the commission members, and the unreasonable demands of “management” (i.e., Rankin, Redlich, and me). The strong sense of brotherhood among the commission lawyers (including even management) has persisted over the decades.
My liaison efforts to keep the Justice Department’s leadership informed about the commission proceeded at my own pace. No one ever called me and demanded a report or told me to send along some memo. When I had time, I would drop by the department’s main building at Ninth Street and Pennsylvania Avenue. My office at the VFW building, located near the Supreme Court, gave me a chance to walk the nine blocks or so and get some fresh air. I could almost always find Miller or Katzenbach with time to spare for me. I would report on events and issues that I thought might be useful background for them.
The results of our work in late February was a memo for the commission setting forth a tentative work schedule for the next six or seven weeks. This included the witnesses proposed for examination by the commission and by the lawyers. Before the February 24 meeting of the commission, Redlich and I asked Rankin to place before the commission the specific proposal that staff lawyers be authorized to take depositions in Dallas beginning as soon as possible after the Ruby trial ended. We gave him a rough estimate of the likely number of witnesses—thirty for the commission and seventy-five for the lawyers—which seriously underestimated the amount of sworn testimony ultimately considered by the commission. The commission readily approved this course of action by the staff.58
Meanwhile, the press worried about the slow pace of the commission’s investigation. One story in late February reported that there were “complaints within the commission itself over the slow progress of the investigation.” This Los Angeles reporter expressed concern that the commission was engaged in dealing with peripheral issues, such as “allegedly erroneous newspaper accounts of testimony which presumably have been leaked by staff members.” He exhorted the commission not to let such extraneous issues divert its attention from its serious mission. That, he said, “would be tragic” because of the importance of the commission’s investigation to the “preservation of the integrity of the Republic.” He emphasized: “For it is the task of the Warren Commission to tell the world the truth—as far as it is discernible—about what happened that somber afternoon in Dallas last November. It is this truth, and this truth alone, which can put to rest the malicious rumors and deliberate lies about Mr. Kennedy’s murder which groups within and without the United States are using for their own propaganda purposes.”59
The Genesis of the Single-Bullet Theory
One of the most significant developments in the commission’s work started to take shape in late February. Although working conscientiously on their analytical memoranda in order to meet the deadline, the commission’s staff—like most lawyers—greatly preferred to confer and debate the issues. One of the important problems we faced was determining which of the bullets hit whom and when. The Zapruder film gave us a key to solving this problem. Both the FBI and the Secret Service had separately (and repeatedly) examined the film. A group of our lawyers –Ball, Belin, Eisenberg, Redlich, and Specter—did the same, often joined by FBI agent Lyndal Shaneyfelt, a photography expert who provided valuable assistance to the commission.
The first day that he reported to the commission in late January, Liebeler recalls joining “a group of staff members [who] watched the Zapruder film over and over again as well as examining individual frames. It was my first meeting with Norman Redlich, who was generally in charge of the viewing. I asked him once I had caught the drift of the meeting whether he thought more than one person had been shooting at the motorcade. His reply: ‘That’s what we’re trying to find out.’”60
At this stage of the investigation, the lawyers questioned the conclusion reached by both the FBI and the Secret Service regarding the three shots believed to have been fired from the depository. Although witnesses at the scene recalled hearing between two and six shots, the largest number heard three shots, and three cartridges had been discovered on the sixth floor of the depository, so three shots became our working hypothesis.
Initially most of us thought that the first shot hit the president, the second hit Connally, and the third shot killed the president. Connally firmly believed that he had been hit by the second shot, after he heard the first shot, and that he was not hit by the same shot that first hit Kennedy. However, remnants of only two bullets were found in the presidential vehicle. Close examination of the Zapruder film gave us one way to help determine roughly when Kennedy was first hit and when Connally was hit. If the interval between the first and the second shots covered a span of less than 2.25 seconds, the time estimated to be necessary for the assassin to fire two shots, it might suggest that a second rifle was involved.
Belin worked hard in these early days to prove that a second gunman had participated in the assassination. He requested the Secret Service to ask the three physicians who attended to Connally’s three wounds (back, hand, and leg) to reconstruct the position of the governor “as it must have been to receive the wounds he received.” Belin received a set of drawings portraying the reconstructed position of Connally from five different viewpoints. Belin then gave these drawings to the FBI asking the bureau to compare these drawings with the Zapruder film and advise when, according to the Zapruder film, Connally could not have been hit. The FBI advised that “Governor Connally was not in the position reconstructed by his doctors at any time after frame 240.” The commission’s lawyers working on the problem agreed with this determination.61
As additional information became available, this small group analyzed, evaluated, and rejected theories. But there was one basic question that now seems very simple: Where did the bullet go after it exited the president’s neck? There was no evidence on the inside of the presidential car that reflected the damage that a bullet would have caused had it followed the trajectory and had the assumed velocity of the bullet that exited the president’s neck. So at some point in these collegial sessions someone, probably Specter, suggested out loud what all in the group were thinking—that the first bullet that hit the president also created Connally’s wounds.
This possibility of a single bullet hitting both men, which contradicted Connally’s statements (and later testimony before the commission), was also of startling simplicity. It became the much-maligned single-bullet theory. Although we were all intrigued by this new explanation, we immediately recognized its potential and controversial significance. Before this theory could be accepted by the staff and presented to the commission, it needed to be challenged and tested in a variety of ways. That, in turn, led to the reenactment of the assassination that the commission conducted three months later.
March promised to be our most momentous month yet. Not only were we looking to further testing of the single-bullet theory, but with the conclusion of the Ruby trial we anticipated depositions in Dallas at the scene of the crime. And although we didn’t know it, we would soon face a showdown with yet another formidable federal entity—the Central Intelligence Agency.