CHAPTER 6
AFTER HIS APPREHENSION FOR KILLING TIPPIT, OSWALD WAS QUESTIONED at the Dallas Police Department. FBI agent James Hosty joined the meeting shortly after it began. Immediately on learning his name, Oswald snarled at him, “Oh, so you are Hosty. I’ve heard about you,” and started swearing, ranting, and raving about the FBI. His abusive reaction to Hosty startled the assembled group and caused them to wonder why Oswald was directing such vehemence at Hosty and the FBI. The commission wanted to get the full story of the FBI’s relationship with Oswald from Hosty when he testified on May 5.
The FBI Lies to the Commission
An eleven-year veteran with the FBI at the time of the assassination, Hosty had been in the Dallas office since 1953. Hosty told the commission that in March 1963 the FBI had what was called a “pending inactive case” on Marina Oswald because of her status as an immigrant from behind the Iron Curtain. He wanted to locate her for the purpose of interviewing her. At the time the bureau had closed its case involving Lee Harvey Oswald, but the FBI reopened it in late March when they discovered that Oswald was on the mailing list of the Daily Worker, a newspaper published in New York by the Communist Party USA since 1924. When the Oswalds moved to New Orleans in June 1963, the couple became the responsibility of the FBI office in that city. Hosty had no further connection with the Oswald investigations until October 1963, when the New Orleans office informed him that both Lee and Marina Oswald had left that city a few days earlier. Marina and her daughter departed in a station wagon with a Texas license plate driven by a Russian-speaking woman, and Oswald left a day later.1
Later in October, Hosty learned that Oswald had been in contact with the Soviet embassy in Mexico City and that the Oswalds were now residing in Irving, Texas. Hosty was now more interested in Oswald. He heard from a neighbor that Ruth Paine lived at the same address in Irving that he had for the Oswalds, that her husband Michael did not reside there, that a Russian-speaking woman had just given birth to a baby, and that the husband involved did not reside at this address. Hosty made some background inquiries about the Paines and confirmed that Michael worked at the Bell Helicopter Company and Ruth was a part-time Russian teacher at St. Marks School in Dallas.2
Hosty told the commission that he interviewed Ruth Paine for about twenty to twenty-five minutes on November 1. He described her as “cordial and friendly.” She told him that Marina Oswald and her two daughters were living with her and that Lee Oswald was living in Dallas, but she did not know exactly where. She said Oswald worked at the Texas School Book Depository and they both looked up the address in her phone book. Hosty recalled that Ruth Paine was “a little bit reluctant” to give him Oswald’s place of employment because she told him that Oswald “had alleged that the FBI had had him fired from every job he ever had.” Hosty replied that this was not true, and that he wanted the place of employment “for the purpose of determining whether or not he was employed in a sensitive industry, and when I found out that he was working in a warehouse as a laborer, I realized this was not a sensitive industry.”3
Ruth Paine told Hosty that she was willing to have Marina Oswald and her children live with her, but didn’t want Lee Oswald residing there. He was allowed to visit, and he did so primarily on weekends. Near the end of the interview, Hosty said, Marina Oswald, who had been sleeping, entered the room and Ruth Paine identified Hosty as an FBI agent. According to Hosty,
I could tell from her eyes and her expression that she became quite alarmed, quite upset. I had had previous experiences with people who came from Communist-controlled countries that they get excited when they see the police. They must think that we are like the Gestapo or something like that. She became quite alarmed, and, like I say, I knew that she just had a baby the week before. So I didn’t want to leave her in that state, so rather than just walking out and leaving her and not saying anything to her, I told Mrs. Paine to relate to her in the Russian language that I was not there for the purpose of harming her, harassing her, and that it wasn’t the job of the FBI to harm people. It was our job to protect people.
After Mrs. Paine spoke to Marina, she “seemed to calm down a little bit, and when I left she was smiling.” Hosty continued in his testimony. “I left her in a relaxed mood. I didn’t want to leave her alarmed and upset, a woman with a new baby.” Before he left, Hosty gave Mrs. Paine his name and telephone number—the information that later found its way into Oswald’s address book and generated the controversy between the commission and the FBI back in February. He was very certain that he did not leave either his address or his car license number—information that was also included in Oswald’s address book.4
Hosty testified that he next saw Ruth Paine on November 5. She had said that she would attempt to learn where Lee Oswald was living, so Hosty dropped by to see if she had done so. She told him that Oswald had visited over the weekend, but she still hadn’t managed to find out where he was living. She added that she considered Oswald “a very illogical person” and that he had mentioned over the weekend that he was a “Trotskyite communist.” When asked by commission members if her reference to “Trotskyite communist” signified anything to him, Hosty responded: “Well, yes. The Socialist Workers party is the Trotskyite party in the United States, and they are supposedly the key element in the Fair Play for Cuba Committee …” So, Hosty testified, it “would follow” from Oswald’s membership in the Fair Play for Cuba Committee that he would claim to be a Trotskyite. Hosty testified he was aware that Oswald had lied to a New Orleans–based FBI agent when he said that he had married a girl in Fort Worth. The FBI knew that he had married a Russian woman while he was in the Soviet Union.5
Hosty took no further action on the Oswald case before the assassination. He explained that he had between twenty-five and forty cases to handle at any one time, and he had satisfied his primary concern—that Oswald was not employed in a sensitive industry. So he told the commission that he felt he could afford to wait until the New Orleans office forwarded the relevant case files to him. “It was then my plan to interview Marina Oswald in detail concerning both herself and her husband’s background.” Only after that interview, Hosty said, would he make a decision what further steps, if any, would be needed.6
The commission members then moved to the crux of the matter: Did the FBI’s information on Oswald at that time require alerting the Secret Service about him because of President Kennedy’s impending trip to Dallas on November 22? When asked what his reaction was to learning that Oswald was the alleged assassin, Hosty replied: “Shock, complete surprise.” He said: “I had no reason prior to this time to believe that he was capable or potentially an assassin of the President of the United States.”7
Hosty then described his encounter with Lieutenant Revill when they both arrived at police headquarters in the early afternoon of November 22. Hosty testified he told Revill “that Lee Harvey Oswald had been arrested about an hour ago, that he was an employee of the Texas School Book Depository, and that he was the man who had defected to Russia and had returned to the United States in 1962.” Hosty was then shown the letter dated April 27, from Hoover to the commission, enclosing the Dallas Morning News story of April 24 and Hosty’s own affidavit. Hosty said he prepared the affidavit to “refute the story that appeared in the Dallas Morning News on April 24, 1964, to set the record straight as to what actually did take place in my conversation with Lieutenant Revill.” Hosty testified:
I want to state for the record at this time that I unequivocally deny ever having made the statement to Lieutenant Revill or to anyone else that, ‘We knew Lee Harvey Oswald was capable of assassinating the President of the United States, we didn’t dream he would do it.’ I also want to state at this time that I made no statement to Lieutenant Revill or to any other individual at any time that I or anyone else in the FBI knew that Lee Harvey Oswald was capable of assassinating the President of the United States or possessed any potential for violence. Prior to the assassination of the President of the United States, I had no information indicating violence on the part of Lee Harvey Oswald.8
Hosty testified that he attended Oswald’s interrogation at the department and that Oswald became very hostile when Hosty entered the room. According to Hosty, “He reacted to the fact that we were FBI, and he made the remark to me, ‘Oh, so you are Hosty. I’ve heard about you.’ He then started to cuss at us, and so forth, and I tried to talk to him to calm him down. The more I talked to him the worse he got, so I just stopped talking to him, just sat back in the corner and pretty soon he stopped ranting and raving.” But, Hosty said, Oswald wasn’t done ragging on the FBI. “He said, ‘I am going to fix you FBI,’ and he made some derogatory remarks about the Director and about FBI agents in general. … He was highly excited. He was very surly, I think would be about the best way to describe him, very surly; and he was curt in his answers to us, snarled at us.” When asked by McCloy whether Oswald had complained about Hosty abusing his wife, Hosty replied: “He made the statement, ‘If you want to talk to me don’t bother my wife. Come and see me.’ He didn’t say that I had abused his wife in any manner, and I hadn’t. He did criticize me for talking to her. He said, ‘Come talk to me if you want to talk to me.’”9
McCloy and Cooper pressed Hosty as to why he had not considered Oswald a candidate for referral to the Secret Service. They emphasized what was known at the time by the FBI: Oswald was a defector; he had an association with the Fair Play for Cuba Committee; he had engaged in a demonstration in New Orleans; he had lied to the FBI about his wife and the place of their marriage; he had contacted the Soviet embassy in Mexico City; and he had proclaimed himself to be a Trotskyite communist. Hosty firmly stated that under the existing criteria Oswald had not qualified as a person who was capable of violence and had not given any indication that he “planned to take some action against the safety” of the president.10
Because Hosty’s account of his conversation with Revill differed so dramatically from Revill’s, the commission summoned Revill to testify on May 13. Revill told the commission that he had been a lieutenant in the Dallas police force since 1958 and on November 22, 1963, was in charge of the criminal intelligence section. He had known Hosty since 1959, when Revill took charge of the intelligence section. He said that on November 22 he and Hosty had arrived at the same time in the basement of the municipal building where the Dallas police had their headquarters. He recalled:
And Mr. Hosty ran over to me and he says, “Jack”—now as I recall these words—“a Communist killed President Kennedy.” I said “What?” He said “Lee Oswald killed President Kennedy.” I said “Who is Lee Oswald?” He said: “He is in our Communist file. We knew he was here in Dallas.” At that time Hosty and I started walking off, and Brian [another Dallas policeman], as well as I recall, sort of stayed back, and as we got onto the elevator or just prior to getting on the elevator Mr. Hosty related that they had information that this man was capable of this, and at this I blew up at him, and I said, “Jim”—
Lee Rankin interrupted Revill to ask: “What did he say in regard to his being capable?” Revill replied that Hosty said that
“We had information that this man was capable”—
“Of what?” Rankin asked.
“Of committing the assassination.”
When asked whether these were Hosty’s exact words, Revill told the commission he wanted to
give him the benefit of the doubt; I might have misunderstood him. But I don’t believe I did, because the part about him being in Dallas, and the fact that he was a suspected Communist, I understand by the rules of the Attorney General they cannot tell us this, but the information about him being capable, I felt that we had taken a part in the security measures for Mr. Kennedy, and if such, if such information was available to another law enforcement agency, I felt they should have made it known to all of us, and I asked Hosty where he was going at that time.
Hosty told Revill that he was going up to the department’s homicide and robbery bureau “to tell Captain Fritz the same thing.” There’s no evidence that Hosty repeated what Revill attributed to him to Fritz or anyone in the Dallas Police Department.11
Revill told the commission that he was sorry to give this testimony, saying that he and Hosty were friends “and this has hurt me that I have involved Hosty into this thing, because he is a good agent, he is one of the agents there that we can work with; that has been most cooperative in the past, and I worked with him just like he is one of us.” Revill said that he immediately reported the details of his conversation with Hosty to Captain Gannaway, who instructed him to write a report about the conversation, which Gannaway told him he would give to Chief Curry. Revill said he prepared the report within an hour of this conversation.12
Revill had a copy with him when he testified. He stated that the original went to Curry, who later asked Revill to swear that the report was true and correct and he did so in April. Revill said he didn’t know why his report had not previously been given to the commission, but acknowledged that he had hoped that the information would not get out for fear it would impair the existing good relations between the department and the FBI.13
Revill denied giving the report to the press. “This would have been the last thing I would have done,” he said, adding that he didn’t know who had. He noted that one of the stories about the report had quoted “the last paragraph of the report verbatim,” from which he concluded that at least one reporter had an actual copy. But Revill did repudiate the part of the published stories claiming that Hosty had also told him that the FBI did not believe that Oswald would actually assassinate the president.14
Despite the conflicting statements of Hosty and Revill, the commission did not undertake any investigation in an effort to make an informed judgment which of these two witnesses to believe. The commission did ask Chief Curry to explain why a copy of Revill’s report of his conversation with Hosty, which Revill had directed be placed in the official department file on Oswald, had not been provided to the commission before Curry’s appearance to testify on April 22. Curry never provided a satisfactory explanation. The commission appears to have concluded that, having heard from the two participants in the conversation and determined that no one else heard the conversation, further inquiries were likely useless. In its report the commission summarized the testimony of both Hosty and Revill regarding the conversation, but expressed no view as to who was the more credible. This seemed reasonable at the time.15
Using Hosty’s testimony and our review of the FBI files on Oswald, the commission was creating the record on which it would determine whether the FBI should have notified the Secret Service of Oswald’s whereabouts in Dallas before the president’s trip. In later testimony, Hoover supported Hosty’s conclusion that “There was nothing up to the time of the assassination that gave any indication that this man was a dangerous character who might do harm to the President or to the Vice-President.” On the other hand, the commission now was aware of the breadth of the information about Oswald possessed by the FBI’s Dallas and New Orleans field offices, as had been stressed by the members in their questioning of Hosty. It turned out, however, that the FBI knew much more than it ever told the commission.16
As discussed previously, in December 1963 Hoover had ordered disciplinary actions against seventeen FBI agents for their failure to identify Oswald as a security risk who should have been reported to the Secret Service. Hosty was one of those disciplined for his failure to conduct further investigation of the Oswalds based on information in FBI files supplemented by what he learned from Ruth Paine in early November 1963. Disclosure of Hoover’s own assessment of his bureau’s performance to the commission would have enabled it to probe more critically the FBI’s handling of the Oswalds before the assassination. The commission did not necessarily have to agree with Hoover whether the criteria then in effect required notification of the Secret Service, but his inexcusable dishonesty denied the commission the opportunity to reach its own conclusion based on all the relevant information.
Congressional inquiries after Hoover’s death in 1972 revealed further evidence of the FBI’s failure to be truthful with the commission. The Church Committee in 1976 examined the handling by the FBI of the Oswald security case. Sworn testimony from FBI agents and others demonstrated that the FBI failed to give the commission the administrative cover page of Special Agent John Fain’s report on July 10, 1962, of his interview with Oswald after his return to the United States, which discussed Oswald’s refusal to be polygraphed. The FBI also did not tell us that it learned on October 22 of Oswald’s activities in Mexico City and his contact at the Soviet embassy there with Vice Consul Valeriy Kostikov. The FBI’s Soviet experts believed that Kostikov was an agent in the KGB department that carried out assassination and sabotage. Hosty, who was aware of this information, remained content to wait until the complete files arrived from New Orleans before he did anything further regarding Oswald.17
An even more significant revelation was the FBI’s destruction of a critical preassassination document resulting from Hosty’s interviews of Ruth Paine on November 1 and 5. An unidentified source informed the FBI in 1975 that Oswald had delivered a note to Hosty in November 1963 referring to these interviews. The Church Committee investigated and confirmed that Oswald visited the FBI field office in Dallas in November and left a note for Hosty. The note was no longer available because Hosty destroyed it right after the assassination.
The Church Committee developed conflicting evidence on two key issues: whether the note was threatening in nature and at whose instruction it was destroyed. On the first point, the FBI receptionist who received the note in an unsealed envelope from Oswald told the committee that it read as follows:
Let this be a warning. I will blow up the FBI and the Dallas Police Department if you don’t stop bothering my wife. Signed—Lee Harvey Oswald.
Hosty testified before the committee that the note’s wording was:
If you have anything you want to learn about me, come talk to me directly. If you don’t cease bothering my wife, I will take appropriate action and report this to proper authorities.
Given what we knew about Oswald’s character and the lack of self-interest on the part of the receptionist, it seems very likely that her recollection of the note’s content is closer to the truth than Hosty’s. Although efforts were made to impeach the credibility of the receptionist in subsequent proceedings, there seems to be no doubt that the note was definitely threatening.18
The note rested in Hosty’s workbox until the day of the assassination, when his supervisor and Gordon Shanklin, the head of the FBI’s Dallas field office, asked him about it. Hosty testified that he prepared a memorandum at Shanklin’s request about the note and his recent interview of Marina Oswald at the Paine residence. He gave the memorandum to Shanklin on the evening of November 22. Before the Church Committee, Hosty testified that after Oswald’s murder Shanklin told him to destroy both the note and the memo, and he did so. Shanklin, however, testified that he had no knowledge of the note until July 1975. The officials at FBI headquarters denied that they had any knowledge of the note or its destruction.19
If Hoover or other FBI officials in Washington had known about the destroyed note at the time of the Warren Commission’s investigation, two conclusions seem likely. First, Hoover would have more severely disciplined Hosty and his superiors in the Dallas office and, second, the FBI would not have advised the commission of the note’s existence. If the commission had been given all of the relevant information about the FBI’s investigation of Oswald in 1964, including the Oswald note to Hosty, it could have conducted a more thorough investigation of the FBI’s performance in handling the Oswald case, including detailed examination of the FBI receptionist and many of the agents who were disciplined by Hoover. The result would certainly have produced a more detailed and critical assessment of the FBI’s failure to report Oswald to the Secret Service before the assassination. If Hosty had responded to the note (and the most recent information in his file about Oswald’s activities) by interviewing Oswald before November 22, it is unlikely that Oswald would have assassinated President Kennedy.
Knowledge of the Hosty note might also have persuaded the commission to conclude that Revill, rather than Hosty, was telling the truth about their conversation on the afternoon of November 22. As Hosty approached Revill in the basement of the municipal building, he knew about the note that Oswald had left with his office some ten days earlier threatening violence if Hosty did not stop bothering his wife. Hosty told the commission that he was shocked and surprised when he heard that Oswald was the likely assassin. He probably was experiencing other feelings as well when he approached his friend Jack Revill in the basement—panic, fear, shame, and guilt all come to mind. In the midst of the chaos surrounding the assassination and his own complicated and intense emotional state, Hosty most likely blurted out the truth about his knowledge of Oswald to Revill without intending to do so and without realizing the full consequences of what he was saying. The American legal system assigns a high level of credibility to such “spontaneous declarations”—defined as “an excited utterance that is made without time for fabrication”—because of the special circumstances and human instincts that give rise to them.20
Burt Griffin has identified another important way in which knowledge of this note would have assisted the commission. He suggests that the commission’s knowledge of this incident certainly would have supported the proposition that, at least about ten days before November 22, Oswald was unlikely to have been contemplating the assassination of the president. As Griffin has written: “A rational, calculating person considering an assassination would not want to subject himself to heightened scrutiny from the FBI by contacting the agency and leaving a caustic note for the individual assigned to watch him.” This conclusion seems persuasive whether the individual was contemplating an attack on the president by himself or as part of a conspiracy.21
In 1975 the Department of Justice conducted an investigation of the destruction of the note. After interviewing the FBI officials with some knowledge of the incident, the criminal division concluded that Shanklin had committed perjury when he denied knowing about the note before 1975. Although the department considered prosecuting Shanklin, it decided not to proceed more than a decade after the event. In 2003, the new FBI building in Dallas was named the J. Gordon Shanklin Building.
Continued Work on the Report
While the FBI story was unfolding in early May, I was involved in the usual mix of duties—including a short visit with Katzenbach on May 4. I told him about my interview at his request of Buchanan, the Paris-based journalist who had just published his book. I also asked him whether he wanted someone else in the department to examine the commission’s principal documents. I thought he might believe the department would be required to endorse the commission’s report when it came out because of my presence on the staff. After “a moment’s reflection,” Katzenbach said that he did not want to see the report before its publication and that my position at the commission “would not prejudice the Department or the Attorney General so far as their response to the report was concerned.”22
I can’t imagine what prompted me to ask this question. His response was consistent with his view of the department’s relationship with the commission from its inception—namely, that the department would not interfere in any way with the commission’s investigation or conclusions. His comment that my commission role would not inhibit the department’s (or the attorney general’s) freedom to criticize the commission’s report was neither comforting nor surprising. We all knew that the quality and public reception of the commission’s report would mark our professional reputations for decades to come.
Al Goldberg, our historian, continued work on the report outline that had been approved by the commission at its April 30 meeting. Warren and Rankin wanted the report to have an appropriate historical context and it was Goldberg’s responsibility to provide it. Goldberg thought that historical material of particular interest would include the role of the president, previous assassinations, and presidential protection over the years. He also wanted to have a narrative of the events leading to the president’s visit to Dallas—the decision to make the trip, the president’s arrival, advance publicity, and the planned visits to other Texas cities. He pointed out that the outline did not include any discussion of the conduct of the press and TV in the Dallas police headquarters from November 22 to 24. He thought that the relationship between the police and the press and the effect of the press on security arrangements were of considerable historical significance and should be assessed in the report.23
One of the most challenging issues raised by Goldberg was how to address the public reaction worldwide to the president’s assassination. As Goldberg correctly observed, “It was this public reaction—disturbed, confused, suspicious, uncertain of the truth—that apparently helped President Johnson decide to appoint this Commission.” He recommended that the report include a section “with particular reference to the suspicions, allegations, rumors, and theories that came into existence immediately after the event and have persisted until now.” He thought that: “These public fears and rumors should be dispelled positively by considering and disposing of them rather than negatively by ignoring them. They are a part of the historical context of the event just as the century of myth-making since Lincoln’s assassination is a part of that event. Failure of the Commission to destroy these myths while they are still in their infancy may permit them to persist as long as have the Lincoln myths.”24
After Rankin and I discussed Goldberg’s suggestions, Rankin asked him to start drafting sections dealing with the role of the president, previous assassinations, and presidential protection, using the materials prepared by Richard Mosk and the Secret Service on these subjects. We also asked him to draft a section discussing the role played by the press and TV in the Dallas police station, and to analyze newspaper reports and other media coverage of the assassination. Goldberg accepted the assignment in good humor, saying that he had “learned his lesson” and “would never write another memorandum.”25
Rankin and I discussed whether the commission report should address right-wing extremism in the United States as a possible contributing factor to the assassination. I do not remember whether Rankin or I raised this subject, although I do recall discussing the general subject with him on more than one occasion. I had opposed any testimony from an official of the Birch Society, which continued to claim that the Soviet Union was responsible for the assassination. In addition to the fact that the Birch Society did not have any knowledge of facts relating to the assassination, I thought that calling as witnesses representatives of any right-wing group would be viewed as an effort by the commission to assign responsibility for the assassination, at least in part, to an atmosphere of extremism in Dallas. I considered this to be a particularly troublesome question and believed that the commission in its report “should not wander into this swamp unless it was absolutely essential.”
I believe that these reservations were generally shared by other members of the staff, and also within the commission. Rankin recognized this problem and told Goldberg that he would like this to be handled without in any way suggesting that the climate in Dallas was more inclined toward extremist movements than any other metropolitan area of the United States. I did not think any of us knew enough about extreme political activity in any US city to make a judgment about Dallas. We certainly were aware of General Walker’s right-wing activities, including his involvement in the attack on Adlai Stevenson in October 1963, and how much Oswald hated Walker. What we did not find was any personal involvement by Oswald with specific people and organizations in Dallas pursuing extremist goals, which might have motivated him to kill the president.27
In early May, Rankin was exhorting the lawyers to draft sections of the report in their areas. He had personally set a goal of May 20 for a draft of the entire report. I told him in mid-May that this was impossible and “that it was very unlikely that he would have a workable draft of the entire report for several weeks.” By the end of May, we had only a few draft sections for the commission’s review—a foreword, description of the events of November 22, and a brief history of presidential protection. We didn’t yet have anything on Oswald or Ruby, and I remained pessimistic that we would see anything soon, based on recent meetings with Liebeler and Griffin. The senior lawyers working on these projects had less and less time to spend in Washington, and the junior lawyers were generating a flow of investigative requests to the FBI or other agencies seeking facts needed before shaping their conclusions.28
A Right-Wing Attack on the Staff’s Integrity
By May, another issue that had been simmering below the surface for three months came abruptly into the open. The commission had asked the FBI in January to determine if its staff could receive security clearances, and the FBI probably dug a bit more assiduously into our backgrounds than they ordinarily did for temporary government employees.
Some time later, a few congressmen and others began raising questions about Norman Redlich’s associations, including his membership in the Emergency Civil Liberties Council, which had criticized the work of the House Committee on Un-American Activities. Created in 1938, this congressional committee was charged with investigating alleged disloyalty and subversive activities on the part of private citizens, public employees, and organizations suspected of having communist ties. Although this committee (and its Senate counterpart) had labeled the Emergency Civil Liberties Council to be a “Communist-front” organization, the Justice Department had not included it on its list of such organizations. Beyond that organizational connection, Redlich had co-authored an article with someone who allegedly had “far-left” views. Critics seized on these facts to argue that Redlich never should have been hired by the commission.29
Rankin was worried about what the FBI was likely to report after finishing its full field investigation. Redlich was Rankin’s friend, but more important, over these first four months Redlich had become an integral part of our operation. His commitment to high standards, his analytical skills, and excellent judgment were of enormous help to everyone. Rankin persuaded the commission members to withhold judgment until the FBI investigation was completed.
Rankin raised this subject with me on at least two occasions early in the commission’s work. I told him that these associations had nothing to do with Redlich’s character or his ability to contribute substantially to our work. But it seems in retrospect that Rankin was not as interested in my views on the subject, which were undoubtedly similar to his, as he was in determining whether any of my superiors at the Justice Department had expressed concerns about Redlich. I had not discussed the criticisms against Redlich with anyone at the department, and I had no intention of doing so. I was confident that Katzenbach and Miller would regard this as a matter for the commission to resolve—with the expectation that Warren was most unlikely to be swayed by the allegations against Redlich.30
The commission met on May 19 to consider the results of the FBI’s investigation of its staff. The first issue wasn’t about Redlich, but about Joe Ball. The FBI reported that Ball had been a member of the National Lawyers Guild many years earlier and had signed a petition criticizing the House Committee on Un-American Activities. The House Committee achieved considerable notoriety and influence in the late 1940s and early 1950s, but had declined significantly by the late 1950s when it was widely criticized for its unsupportable accusations of disloyalty. In 1959, the committee was denounced by former President Truman as the “most un-American thing in the country today.”31 Warren, who had known Ball for years, defended him, and without debate the commission approved his retention on the staff.
Now it was Redlich’s turn. Rankin began the discussion by describing how he had met him as a result of teaching an evening course at the NYU Law School, where Redlich was on the faculty. He knew of Redlich’s academic standing and his credentials from the Yale Law School, but said he had not known of his membership in the Emergency Civil Liberties Council when he hired him. He reported that the NYU faculty had written a letter testifying to Redlich’s loyalty, competence, and integrity.32
Each of the first five commission members to speak (Russell, Boggs, Ford, Cooper, and Dulles) expressed serious reservations about Redlich’s past associations and activities. They all praised Redlich’s work on the staff and didn’t doubt his loyalty to the United States. But each said Redlich should never have been hired because of his “extreme” views and the likelihood that his presence would taint the commission’s report. Notwithstanding the decline in the House Committee’s reputation, it was still active in the early 1960s and certainly (surprisingly to me) influenced the views of these commission members.33
Warren wasn’t having it. Speaking last, which was his practice at meetings of the Supreme Court, he admonished his fellow members that we do not judge people by their views. He reminded them that lots of people had opposed the House Committee. He also said that he thought that Redlich and his family had already suffered because of the unanswered attacks on his loyalty. “I think that should we decide that if there is any question of his loyalty,” Warren intoned, “that the least we could do would be to give him a trial, where he can defend himself, and where he can show that he is a good American citizen and is not disloyal. That is the American way of doing things.”34
There were only two courses of action he told his commission colleagues: either accept Redlich as a loyal member of the staff or give him a hearing to answer the charge of disloyalty. He rejected out of hand the suggestion of letting him resign and depart along with a few other staff members who were returning to their law firms. “The idea of just dropping him now and letting him go off quietly would serve no purpose except to make a great many people despise us for not being willing to face an issue,” Warren concluded.35
McCloy, who arrived at the meeting during Warren’s remarks, threw his support to Redlich, although he couched his position as a matter of expediency rather than principle. The commission, he said, “would be better advised to carry on with him than to ask him to step down.” Cooper observed that cutting Redlich loose now wouldn’t spare the commission criticism in any case. Redlich had been on the staff for five months and had already seen all the classified materials in the commission’s possession. Rankin weighed in to agree with Warren’s point that the staff would “feel deeply offended … that one with whom they have worked so closely and so fraternally in this important work going on six months should be so unjustly accused.”36
When the vote was finally taken, the commission unanimously agreed to approve Redlich’s continued employment. There was some discussion off and on the record about what kind of statement the commission, or individual members, might make about this resolution of the matter. Both Ford and Boggs were under considerable pressure by some of their colleagues in the House of Representatives to take a tough stand regarding Redlich. Ford admitted as much three decades later, when he told then Senator Specter that his reservations about Redlich were prompted by three or four members of his Republican caucus—“extreme right-wing Republicans … who used to give me a hard time on the floor of the House” for employing “left wing people” on the commission.37
Rankin never discussed the commission’s deliberations with me. Knowing him as well as I did at this time, I have no doubt that he and Warren had agreed in advance on a strategy (a mix of principle, expediency, and potential staff revolt) that was so successful in persuading the other members to do the right thing.
The Dallas Reenactment Project Supports the Single-Bullet Theory
One of the commission’s critical decisions came in May, when, after lengthy discussion, it approved a reenactment of the assassination on-site in Dallas. This project, completed on May 24, was independent of anything the FBI, CIA, or Secret Service had done. Our lawyers designed, developed, and supervised every detail. The project was invaluable in supporting key commission conclusions.
The reenactment project arose initially from February discussions, when an informal group of our lawyers—Ball, Belin, Eisenberg, Redlich, and Specter—were studying the Zapruder film of the assassination. Both the FBI and the Secret Service concluded that there were three shots, all fired from the depository, and that the first shot hit the president, the second hit Connally, and the third killed Kennedy. Our lawyers thought those conclusions might be wrong, and were considering the possibility that the first bullet that hit the president also caused Connally’s wounds. But this alternative hypothesis needed to be tested.
In March and early April, most of our lawyers were handling depositions in Dallas, New York, and New Orleans. By late April, we were ready to focus again on the course of the bullets and the cause of the injuries suffered by Kennedy and Connally. We all recognized that the commission members were likely to find the single-bullet theory “implausible” at best. Three decades later, Liebeler characterized the staff’s challenge in these terms:
Plausibility has no innate qualities. It depends on what alternative hypotheses are available. The question must always be: “Plausible as compared to what?” Explanations dubious at first look better if all other possibilities are even more unlikely. The staff opted for the single bullet theory because all the alternatives were more implausible. They opted for it, in other words, because they believed it best explained what actually happened.38
Redlich, Specter, and Belin had been considering how to reconstruct the path of the bullets fired from the depository. I had not been involved in this planning, but I fully supported the project. Now, five months into the investigation, I was troubled that we had still not come to a definite conclusion regarding the trajectory and points of impact of the bullets that was supported by the available medical, ballistics, and photographic evidence. To the extent possible, certainty on these issues was essential to our report’s conclusions about the number and identity of the assassin(s).
On the afternoon of April 29, 1964, we met with FBI and Secret Service representatives to discuss work in Dallas to ascertain with greater precision the range of probabilities about the location and time of the three shots fired by the assassin. Rankin and I were joined by Belin, Redlich, Eisenberg, and Specter. Before the meeting, both the FBI and Secret Service had advised Warren and Rankin of “their reluctance to go down to Dallas with any sort of further reenactment of the assassination.” Although the lawyers sponsoring this project were convinced that it was essential, Rankin was not fully persuaded.39
Before the meeting, Redlich presented Rankin with a strong statement of why the reenactment was necessary. “Our report presumably will state that the President was hit by the first bullet, Governor Connally by the second, and the President by the third and fatal bullet,” Redlich wrote. He went on to say:
The report will also conclude that the bullets were fired by one person located in the sixth floor southeast corner window of the TSBD building. As our investigation now stands, however, we have not shown that these events could possibly have occurred in the manner suggested above. All we have is a reasonable hypothesis which appears to be supported by the medical evidence but which has not been checked out against the physical facts at the scene of the assassination.
Redlich explained the need to evaluate the medical testimony, Connally’s testimony, and the Zapruder film against the facts on the ground. He pointed out some significant gaps, and possible inconsistencies, in the commission’s record. Redlich said that he had always assumed that the report would indicate the approximate location of the vehicle at the time of each shot, but now he advised Rankin that such a conclusion cannot be reached “without establishing that we are describing an occurrence which is physically possible.” He emphasized:
Our failure to do this will, in my opinion, place this Report in jeopardy since it is a certainty that others will examine the Zapruder films and raise the same questions which have been raised by our examination of the films. If we do not attempt to answer them with observable facts, others may answer them with facts which challenge our most basic assumptions, or with fanciful theories based on our unwillingness to test our assumptions by the investigatory methods available to us.
Redlich ended his memo with this cautionary reminder:
I should add that the facts which we now have in our possession, submitted to us in separate reports from the FBI and Secret Service, are totally incorrect and, if left uncorrected, will present a completely misleading picture. It may well be that this project should be undertaken by the FBI and Secret Service with our assistance instead of being done as a staff project. The important thing is that the project be undertaken expeditiously.
Redlich had delivered to Rankin one of the most important questions he had to address during his service as general counsel of the Warren Commission.40
The April 29 meeting lasted for more than two hours. Each time Rankin emphasized the inability of the commission to make “precise judgments” regarding the location and timing of the shots, FBI Inspector Malley “confirmed this and generally expressed skepticism about the entire project.” At the end of the meeting Malley stated that the FBI “was opposed to such further investigation” but that if the commission were to request it, the bureau would consider doing the work. Rankin ended the meeting with a decision that the staff should draft such a letter to the FBI requesting the work to be done on the project, which Rankin would then present to Warren for his approval.41
Although his lawyers were passionately in favor of the reenactment project, Rankin had to consider why it might not be a good idea. I believed he was concerned by the opposition of the FBI and the Secret Service, the difficulty of explaining the need for the project to certain commission members, the possible critical reaction in Dallas, and the expense and delay involved in such an undertaking. It may also have been the case that he was simply looking for the best opportunity to get the chief justice to focus on the question. During the next week, we continued to urge Rankin to get Warren’s approval for the reenactment. After the commission heard testimony on May 6, Rankin advised the staff that he had obtained Warren’s approval. The chief justice instructed that Rankin was to personally supervise the project.42
After the necessary arrangements were made by the FBI and Secret Service, Rankin decided that he, Redlich, and Specter would oversee the reenactment project on May 24. I had great confidence in the commission lawyers who advocated and developed this project. To the critics who later complained that the commission’s overall investigation was constrained by its excessive dependence on the FBI, the commission’s defenders have many persuasive responses. But the Dallas reenactment provides a singular and dramatic response; it emerged solely from the commission staff and was strongly opposed by the FBI and the Secret Service until the commission made clear that the project was necessary. FBI officials were well aware by this time that the bureau’s initial reports regarding the assassination were in error on some significant issues, and the proposed reenactment had the potential to expose those errors in graphic detail.
Rankin wrote the FBI asking for its assessment on three aspects of the reenactment: (1) probable time range within which the first two shots occurred, (2) the timing of the third shot and the location of the car at that time, and (3) plotting trajectories from the railroad overpass.43
The first line of inquiry started with the estimate that Connally was shot sometime between frames 230 and 240 of the Zapruder film. This determination was based on his testimony, the medical testimony regarding the nature of his wounds, and the opinions of those lawyers who had most carefully examined the film. Both Connally and his wife believed that he was hit by the second shot. Acknowledging that it was impossible to determine “the exact point at which the first two shots were fired,” Rankin wanted “to determine whether it was possible for a person located in the sixth floor southeast corner window of the TSBD building to fire two shots at the Presidential car, the second of which occurred no later than frame 240.” The staff lawyers had planned the reenactment in great detail, involving the placement of the vehicle, and the taking of photographs (including some from the Zapruder camera, which was now in the commission’s possession) from the road to fix the vehicle’s location on the Zapruder film and from the assassination window. Their goal was to demonstrate when the assassin had a clear view of the vehicle and when his view was obscured by the large oak tree in full foliage that stood between the depository and Elm Street. They also wanted to determine whether a gunman could fire Oswald’s rifle twice in 2.25 seconds.
The second and third lines of inquiry were not as complicated. The timing of the third shot was fixed at particular frames of the Zapruder and two other available films. The goal was to identify the location of the president’s vehicle at that moment. To do that, the investigators planned to place a vehicle at the approximate location corresponding to these films, and to take photographs from the three places where the moviemakers were when they filmed the assassination so as to establish the accuracy of the location of the vehicle when the third shot was fired. Finally, the investigators planned to explore whether a second assassin could have fired bullets from either end of the overpass that could have reached the rear seat of the presidential vehicle without hitting the windshield. This inquiry required accurate and precise determination of the location of the car at the moment of each shot. At Rankin’s request, the Secret Service had furnished us with photographs, surveys, and measurements, which we had used in our examination of the films. We sent these along to the FBI for use in the reenactment.44
On May 24, everyone involved in the reenactment was assembled in Dallas. Because the presidential limousine was not available, the Secret Service follow-up car, similar in design, was used. Two FBI agents with approximately the same physical characteristics as Kennedy and Connally assumed the positions in the car that their real-life counterparts had on November 22. Each had a mark on his back where a bullet had hit Kennedy or Connally. On the sixth floor of the depository building, the conditions present on November 22 were replicated as exactly as possible. The assassination rifle used by Oswald—we had use of the actual one—had a camera mounted on it that recorded the view as seen by the shooter. The three cameras that had photographed portions of the motorcade were available so that their locations on November 22 could be determined more precisely.
FBI special agent Robert Frazier sat at the window of the depository with Oswald’s rifle pointed out the window. At a signal, the substitute limousine with its two simulated victims set out on the precise route taken six months earlier by the original, down Houston Street and left on Elm Street, at the same speed the driver had maintained for Kennedy’s motorcade. Frazier drew a bead on the X mark on the back of the stand-in for President Kennedy. As the car moved along, Frazier, looking down the telescopic sight on the rifle, could see the two men “both in direct alignment” with “the Governor … immediately behind the President in the field of view.”
That alignment proved the plausibility of the single-bullet theory, which sent ripples of excitement from Dealey Plaza back to Washington, where we received their calls. Everyone understood immediately the impact of the reenactment. The bullet that passed through the president then either struck the automobile or someone else in the car. But there was no damage in the car that could have resulted from a bullet exiting Kennedy at its known velocity. If the bullet with that velocity had hit the car it would have penetrated any other metal or upholstery surface of the automobile. But nothing like that was found.47
Where that bullet had gone was into Connally. And it wasn’t simply the alignment of the two victims that strongly suggested it. The angle of the bullet’s trajectory was also consistent with the bullet exiting Kennedy’s neck and striking Connally’s back.48
Although the reenactment had produced convincing evidence, the commission recognized that the “alignment of the points of entry was only indicative and not conclusive that one bullet hit both men.” Additional experiments conducted by the Army Wound Ballistics Branch gave us more evidence that the same bullet passed through both Kennedy and Connally. These experiments replicated Connally’s wounds and supported the proposition that those wounds would have been different (and more serious) if the bullet had not already hit and exited the president. Based on the medical evidence of the wounds of the two men and the wound ballistic tests, the experts from the Army Wound Ballistics Branch testified that it was probable that the same bullet struck both.49
The reenactment also enabled us to approximate the point at which the president was struck by that bullet—as reflected in part by his reaction recorded on the Zapruder film.
Neither the reenactment nor other evidence before the commission enabled it to conclude whether it was the first or the second shot that hit both men.50
The sense of accomplishment after the reenactment project buoyed our staff greatly. We had all been through five months of chasing down detail after detail, questioning witness after witness, and writing memo after memo. We now had some solid results that supported much of what we were drawing out of the sworn testimony.
Not surprisingly, the appearance of a presidential-looking vehicle and numerous law enforcement officials in Dealey Plaza did not go unnoticed. The following week KRLD-TV in Dallas reported on the conclusions from the reenactment based on the proverbial “highly placed source close to the Warren Commission.” Published in newspapers across the country, the report stated that the reenactment had demonstrated that the previous thinking about the three shots was incorrect and that the commission now believed that the first shot hit both the president and Connally, the second shot fatally wounded the president, and the third shot missed completely. The story also reported that unidentified medical testimony to be discussed in the commission’s report “will show that chances for the President’s recovery from the first wound would have been excellent” if the shot had struck Kennedy a fraction of an inch lower. The suggestion in the KRLD-TV report that the commission’s report would be released “in a few weeks” came as news to all of us.51
Presidential Protection Still a Problem
Two key witnesses from the Secret Service testified in late April: Robert Bouck, the agent in charge of the Protective Research Section, and Winston Lawson, the agent who did the advance planning for the president’s trip to Dallas. These two witnesses were the best equipped to describe in detail how the Secret Service performed critical functions on the president’s trip, and the commission members actively questioned them. They were accompanied by the Treasury Department’s deputy general counsel, Fred Smith, who intervened occasionally to ensure that these agents did not answer questions (or volunteer information) about proposed changes in the service’s policies and practices.
Bouck explained that the Protective Research Section had many functions other than the assessment of information regarding people who might threaten the president or vice president. When Bouck testified that he had only five agents processing threat information and a total of twelve agents in his section, McCloy was quick to express doubt that he had enough people to do the job. Bouck said that in the two years before the assassination the service had investigated 1,372 potential threats (another 7,337 did not meet the service’s criteria). Bouck said that the Secret Service’s criterion for determining whether anyone was a potential danger to the president “is broad in general. It consists of desiring any information that would indicate any degree of harm or potential harm to the President, either at the present time or in the future.” He added that the Secret Service had not developed any more specific guidance about applying this broad criterion and did not know how the FBI or other federal agencies decided what information to provide his agency.52
The commission members questioned whether Oswald should have been referred to the Secret Service based on the derogatory information about him possessed by several federal agencies. Although Bouck was not ready to indict the FBI for its failure to tell his agency about Oswald, he stressed—in addition to the general criterion—the importance of access to the president, or an unusual vantage point (as in the depository building), which would have warranted precautionary action by the Secret Service.53
Bouck was followed by Winston Lawson, the agent responsible for advance work on Kennedy’s trip. Lawson had joined the Secret Service in 1959, in the Syracuse office. He testified that the Protective Research Section had informed him that there were no individuals in its files who required his attention. He explained that the agent in charge of the local Secret Service office played a major role in assisting the advance agent, especially in consulting local law enforcement officials about their involvement in an upcoming visit by the president. It was Lawson’s responsibility to choose the motorcade route and, after consulting local and federal officials, he chose the most expeditious way to the Trade Mart, where Kennedy was to speak at a luncheon. The motorcade route initially proposed by Lawson and Sorrels on November 14 was approved without change by local police officials and published in the November 19 newspapers. Lawson also described his discussions with the local police about their role, which he defined as principally to control the traffic and prevent spectators from interfering with the motorcade.54
Commission members were keen to hear exactly what advance precautions had been taken regarding possible threats along the motorcade route. Lawson told the commission that his agency had been aware of the demonstration against Ambassador Stevenson a few weeks before the president’s visit. He obtained photographs from the Dallas police department of some of the demonstrators, which were to be used by Secret Service agents and local police officers in screening persons who would attend the Trade Mart luncheon.55
In response to Ford’s question, Lawson said local police had the responsibility to check the windows and the crowd, but that the Secret Service agents in the motorcade also had that duty. He said he had discussed this with the Dallas Police Department before the motorcade but, in response to another question from Ford, said he had not followed up to see if these instructions were put in writing for the officers accompanying the motorcade.56
When McCloy questioned whether the Secret Service agents in the motorcade could be relied upon to observe carefully all the windows in the buildings passed by the motorcade, Lawson conceded the difficulty of the assignment. “[A]gents,” he said, “are supposed to watch as they go along.” Lawson also said that no arrangements had been made to inspect buildings along the route and that no list of specific responsibilities for the local police had been provided by the Secret Service. On this last point, Ford’s comment suggested a future commission recommendation:
But I would think for every Presidential visit there would be certain mandatory things that would have to be done, areas of responsibility of federal officials, areas of responsibility for local officials.…
Such a memorandum or checklist I should think would be helpful in defining the areas of responsibility, being certain that there is no misunderstanding as to whose responsibility it is for A, B, C, or D operations.
Lawson had little choice but to say, “I agree.”57
The serious deficiencies confirmed by this testimony had a decided impact on the commission members. They were even more insistent that their report had to recommend improvements in presidential protection because of the obvious failures in Dallas. It also whetted their desire to get their hands on the still-withheld Rowley report, which they understood contained recommendations from Rowley to Secretary Dillon of changes in Secret Service policies and practices resulting from the assassination. At their April 30 meeting, the commission members decided to go further into the presidential protection area than had been previously contemplated by the chief justice. They decided to request the Rowley study and other studies under way, with the understanding that these materials would be made available only to Rankin—not to the commission members themselves or other staff. In his letter to Dillon implementing these commission decisions, Rankin also assured him that the commission would not publish any information furnished by Treasury without that department’s approval.58
Stern had already obtained considerable information about the supervision of the Secret Service within Treasury, preventive intelligence, Treasury’s liaison with other intelligence and law enforcement agencies, Secret Service procedures and resources, manpower assistance from other agencies, and improved protective measures. He believed that Treasury had receded from its original position that nothing should be published by the commission regarding presidential protection. Based on his conversations with Carswell, Stern told us that the Rowley report and other studies might be available to the commission, although it was unclear whether Treasury would still insist that presidential approval was required. During the past few months, Stern had been doing what he always did very well—to look for some reasonable basis on which the parties to a dispute could find middle ground.59
Unfortunately, Secretary Dillon took a different course. Shortly after receiving Rankin’s most recent letter, Dillon advised us that President Johnson had instructed him not to supply the requested material to the commission until the president had discussed the matter with the commission. I never heard who in the White House might have participated in this decision by the president or whether the president (or someone on his behalf) consulted with the chief justice or Rankin regarding the commission’s purpose in seeking to review such materials. In light of Warren’s strongly held view that the president should not be involved in any aspect of the commission’s deliberations, I concluded at the time that Dillon’s success in securing the president’s endorsement of Treasury’s position effectively barred any further commission inquiries into Treasury’s plans for improving the Secret Service.60
In light of these developments, Rankin put the issue back before the commission on May 14. He reviewed the staff’s efforts to negotiate a solution with Treasury, and acknowledged that the executive order establishing the commission did not specifically instruct it to review arrangements for presidential protection. He argued, however, that there were good reasons for supporting a broader construction of the executive order. The commission’s analysis of presidential protection arrangements might lead to constructive suggestions that could help avoid another assassination. The commission, he observed, had the political clout to get those improvements implemented. Noting the serious lapses the commission had already discovered, he concluded that he did “not believe the Commission could conscientiously remain silent.”61
If the additional material requested (including the Rowley report) was provided, and Rowley testified, Rankin believed that the commission would be equipped to make significant recommendations. Even if the commission did not propose recommendations, Rankin emphasized that the commission could perform an important public service by identifying questions about the Secret Service and recommending that some other institution undertake an authoritative examination of its policies and practices. The commission deferred any further debate on this subject until after they heard from Chief Rowley.62
Integrating the Work of Commission and Staff
The commission members worked harder in May. As the staff prepared drafts reflecting their investigative work, Warren and Rankin wanted the members to assess the drafts promptly and comment on the report’s ultimate content, tone, and recommendations. The flow of paperwork from the staff to the commission was primarily my responsibility. Commission members in May were getting relatively noncontroversial sections of the report, such as the proposed foreword and memoranda reflecting the staff’s research and analysis on issues that might be discussed in the report. So long as the drafts were readable and useful, I did not spend any time editing them. Rankin’s objectives, which I fully shared, were to maintain pressure on the staff to produce drafts based on their current investigative results and to make certain that the commission had as much to read as we could generate.
Rankin had decided early in April that the commission needed to be informed of the evidence being developed by the staff in their depositions, so that the members could suggest further lines of inquiry and be better equipped to evaluate draft sections of the report. Several lawyers complained about Rankin’s directive to prepare summaries of their depositions. They thought that the summaries were unnecessary because the commission would have access to the full transcripts and supporting exhibits when they reviewed draft sections of the report. Redlich and I shared these views. But Rankin was adamant on this point. As a result, I spent two days in early May assembling the summaries of deposition testimony prepared by our lawyers and incorporating them into a memo for the commission members. Rankin also asked me to revise the introductory chapter of the report dealing with the formation and operation of the commission and incorporate some of the material contained in a draft section of the report apparently written by the chief justice, although Rankin “did not want this known.”63
The memorandum summarizing the depositions went to the commission on May 12. Rankin told the members that this “is just a brief statement regarding each witness” and offered to provide the full testimony of any witness if any member wanted that. The fifty-two page memorandum listed the 288 witnesses deposed by the staff through May 7. Every one of these depositions required long hours of preparation—reading documents, consulting the testimony of other witnesses, assessing expert opinions and physical evidence—so that the questions put to the witness would seek to elicit everything the witness knew pertinent to our investigation. The summaries of the testimony were succinct, but provided the commission members with what we hoped was a useful overview of the investigation to date.64
Rankin also gave the members a list of tape recordings of various radio and television programs that the commission had acquired. We provided a tape recorder in the commission hearing room for use by the members and staff. Sam Stern had alerted Rankin in late March about the need to organize a commission effort to obtain and examine the tapes of television and radio programs broadcast in the days following the assassination. He reported that the Secret Service at his request had made the necessary inquiries in Dallas and had provided a list of the materials available in Dallas and the cost of reproducing them. Stern also advised Rankin that the Library of Congress had formally requested all tapes from the networks soon after the assassination and that the Kennedy Library had a parallel effort under way.65
Later in the month, our historian emphasized the importance of these tapes to the commission’s investigation. Al Goldberg pointed out that these materials represent an important primary source for what happened during November 22, 23, and 24. He urged that these sources should be exploited to the fullest extent possible and, based on his own viewing, suggested a few examples where the tapes might be used in verifying certain allegations involving Ruby’s activities at the police station or elsewhere. Looking to the future, he warned that “these sources will undoubtedly be used in the preparation of future books and TV-documentation, and if they reveal new or substantiating information that we also could have found, it would be most embarrassing for the Commission.”66
Some of the most important witnesses were still to come. The directors of the FBI and the CIA were scheduled to appear on May 14. Jacqueline Kennedy and Robert Kennedy were still on the list of possible witnesses, as well as Chief Rowley of the Secret Service and experts from the FBI who could discuss the results of the Dallas reenactment. We were still considering the Russian defector Nosenko and Jack Ruby as possible witnesses, although we knew that both raised special problems. I did not believe that the commission wanted to hear testimony from Nosenko, based on the CIA’s current disinclination to vouch for his credibility. As for Ruby, we did not know if his lawyers would allow him to testify.
At this point, we had about forty witnesses remaining to be deposed by staff lawyers. Six of the forty witnesses were already scheduled—four in Dallas to be deposed by Joe Ball and two in Chicago to be taken by David Belin.67 The remaining thirty-six potential witnesses were on the list because of some connection to Oswald’s background and activities before November 22, his trip to Mexico, or to Ruby’s background and activities during the period November 22–24. We also wanted Abraham Zapruder to testify about his filming of the presidential motorcade on November 22.68
Before the commission decided whether or not to ask Jacqueline Kennedy to testify, we wanted to get a clearer sense of what her potential testimony might offer. An unexpected opportunity to pursue this question arose when Rankin and I were asked by the attorney general’s secretary to meet with William Manchester, the author retained by the Kennedy family to write the “authorized” book of the assassination.
In 1962, Manchester had written an admiring book about John Kennedy entitled Portrait of a President. He had interviewed the president on several occasions in writing that book and enjoyed the experience. Both men were ex-servicemen, with families in Massachusetts, and had World War II experiences in the Pacific. Manchester later wrote that the president “was brighter than I was, braver, better-read, handsomer, wittier, and more incisive. The only thing I could do better was write.”69
Manchester and I had lunch together before his afternoon appointment with Rankin. He impressed me as a quiet, competent, and thorough writer. We discussed at great length the scope of his responsibilities and the extent to which they overlapped the work of the commission. He emphasized that his interest went far beyond the events in Dallas and that he had just begun work on that particular phase of his assignment. He told me that he had met with high officials in Washington about the assassination and the following few days when the control of government transferred from President Kennedy to President Johnson. “Without divulging any details he indicated that the feelings of many people ran very high regarding some other people and as a result he did not feel free to publish ever some of the information which he now had recorded.” One of these interviewees was Jacqueline Kennedy, who, during the course of his lengthy interviews, “made a variety of very frank accounts about people in the course of her recollection.” Substantively, he said, “she really had very little to contribute.” He told me that he could not publish his work until five years from the date of the assassination unless Mrs. Kennedy and she alone allowed him to publish at an earlier date.70
In the later discussion with Rankin, it became clear that both Rankin and Manchester had concerns about his relationship with the commission that had to be clarified. Manchester, for example, had the impression from a conversation with the chief justice that he might be asked to review the work of the commission to determine whether it satisfied the Kennedy family. Rankin and I assured him that this would not be appropriate. Rankin, on the other hand, was concerned that Manchester might seek access to all our investigative materials before our report was published. Manchester told us that he was not seeking immediate access to our materials and was content to wait until we had completed our assignment.71
Although I spoke to Manchester on a few occasions after this initial meeting, he pursued his research independently of the commission. His book The Death of a President was published in April 1967 “after more than a year of bitter, relentless, headline-making controversy over the manuscript [which] nearly destroyed its author and pitted him against two of the most popular and charismatic people in the nation: the slain president’s beautiful grieving widow, Jacqueline Kennedy, and his brother Robert F. Kennedy.” Manchester refused to make all the deletions in his book desired by Mrs. Kennedy, whose ten hours of recorded interviews with him were full of intimate details and commentary that she did not wish to share with the public. The litigation was eventually settled with compromises by both sides and an agreement that her full interviews would not be disclosed until 2067—one hundred years after the book’s publication.72
The Investigation Continues
One of my primary goals in May was to start wrapping up the investigative work and highlighting what remained. Meanwhile, the three IRS agents completed their assignments with painstaking care. Edward A. Conroy and John J. O’Brien finished the task of reviewing all the investigative reports received by the commission and preparing a chronology of the activities of Oswald, Ruby, and other principal figures in the investigation. Philip Barson completed an extensive memorandum reporting on Oswald’s income and expenditures from his return to the United States on June 13, 1962, until the day of the assassination.
During May, Slawson followed up on several aspects of Oswald’s trip to Mexico. At his request, Rankin asked the State Department to obtain affidavits or sworn testimony from Mr. and Mrs. John B. McFarland of Liverpool, England, before an official of the US Consular Service. In an earlier interview, the McFarlands said they had traveled to Mexico in September 1963 and that a man later identified as Oswald got on their bus at Houston in the early morning of September 26. Oswald told them that he was the secretary of the Fair Play for Cuba Committee in New Orleans and that he was traveling to Mexico City so that he could go from there to Cuba to meet Castro. In his letter Rankin suggested several questions that might be asked of the McFarlands, including the nature of Oswald’s clothing, the number of suitcases he was carrying, and names or places in Mexico that Oswald might have mentioned.73
The commission had not yet received the official report of the Mexican government on its investigation of Oswald’s activities in Mexico City, so Rankin sent a follow-up letter to legal adviser Abram Chayes at the State Department. Echevarria had assured us that he could deliver the report to us within forty-eight hours after the request was made, but here we were four weeks later, and still no report. Rankin asked State to ascertain the status of the request and, if possible, to quickly obtain the promised report from the Mexicans.74
The speed with which Oswald obtained his passport from State in June 1963 warranted further investigation by the FBI. The record showed that Oswald had applied on June 24 for a passport at the New Orleans Passport Office and it was issued one day later. State reported that the authority to issue passports, at least from the New Orleans office, was routinely granted by Washington approximately twenty-four hours after the application was filed. Slawson prepared a letter for the FBI asking that an investigation be undertaken to test the accuracy of this information, including the review by the bureau of a random sampling of passport applications from the New Orleans office between the dates of June 17 and July 1, 1963, to determine how long it took for the necessary authorization to reach the New Orleans office.75
Coleman and Slawson also examined the State Department’s report that the initials “NO” found on Oswald’s passport application were routinely placed on all applications from the New Orleans office. Rather than request the FBI to conduct this inquiry, Slawson decided to visit the State Department. On May 20, without advance warning, Slawson showed up at the passport office accompanied by Richard Frank, a State Department lawyer assisting the commission. Slawson looked at the telegrams that had arrived from the New Orleans office dproximately fifty to sixty telegrams examined had the letters “NO” written on them in red pencil, which appeared approximately two-thirds of the way down the page on the right-hand side, the same place the letters appeared on the message referring to Oswald.76
By the end of May, nothing further had been done to obtain information from the Cuban government about its response to Oswald’s visit to its Mexico City embassy. Although I do not recall what prompted this delay, it may be that Coleman, Slawson, and I might have dropped the ball and not informed Rankin that our strategy involved a possible letter from Warren to the Swiss government asking for its assistance in making a request on our behalf to the Cubans. We were waiting for advice from State whether this approach was acceptable.77
Slawson later recalled that Warren didn’t want to make such a request of the Cuban government because “he did not want to rely upon any information from a government which was itself one of the principal suspects.” Slawson disagreed:
The CIA and I nevertheless came to the conclusion that any information that we could get we ought to get. We would worry about trying to authenticate it after we got it. As I told you, I simply disobeyed orders and went ahead and made the request through the State Department—it had to come from Dean Rusk, I remember we got his signature—to the Swiss Government and we got the information. Then of course I had to tell the Chief Justice that we got it and I pretended that I had misunderstood his previous statement. I think that is the only time I disobeyed orders.
When the information did arrive from Cuba, Slawson discussed the issue of authentication with Ray Rocca of the CIA. Rocca asked Slawson whether he wanted the CIA to authenticate the Cuban documents through a “top-secret” method that involved some risks. Slawson authorized the CIA to proceed and Rocca subsequently advised him that the Cuban documents dealing with Oswald’s request for a visa were what they purported to be.78
On May 14, I reviewed a memo from the Hubert/Griffin team regarding additional investigation in the Ruby area. I disagreed with many of their suggestions, which resulted in a very spirited discussion with Griffin in the morning and Hubert in the afternoon. I didn’t lack respect for Hubert or Griffin. I admired them both for their tenacity in pursuing the investigation relating to Ruby. They were determined to examine every contact Ruby made before the Oswald murder to see if we could detect any signs of conspiracy. They were in complete command of the facts in their area, gave no ground in debate, and almost always succeeded in getting what they wanted. But Griffin and Hubert didn’t believe they had adequate help in achieving our shared goal of a complete and thoughtful investigation. It was my job to solve the problem.79
When I read their memo, I was initially troubled by three aspects. First, I had hoped that by now we would be near the end of the Ruby investigation. Back in February and March, Charlie Shaffer (my Justice Department colleague) and I had reviewed certain investigative requests made by the Hubert/Griffin team and had advised Rankin that they seemed excessively broad in scope. I did not recall, however, to what extent (if any) these earlier requests had been modified before being sent to the FBI. I would have appreciated some warning from them in April that they would be seeking Rankin’s approval of further investigation. When I raised this concern, Hubert and Griffin stated that their earlier memoranda had outlined the scope of the necessary investigation and that their new memo simply reaffirmed their early judgment.80
My second problem was their definition of the assignment. They wanted to answer three questions: Why did Ruby kill Oswald? Was Ruby associated with the assassin of President Kennedy? Did Ruby have any confederates in the murder of Oswald? But in their memo, Hubert and Griffin said that “although the evidence gathered so far does not clearly show a conspiratorial link between Ruby and Oswald, or between Ruby and others, the evidence also does not clearly exclude the possibilities [emphasis added] that (a) Ruby was indirectly linked through others to Oswald; (b) Ruby killed Oswald, because of fear; or (c) Ruby killed Oswald at the suggestion of others.”
I had no objections to the questions posed, but their view that the evidence in the commission’s possession had to “clearly exclude” any and all possibilities struck me then and now as unreasonable and unachievable. I said so. Ironically, the next time I saw something like this “clearly exclude” standard was in the final report of the House Select Committee in 1979, which used the equally unacceptable phrase “evidence does not preclude,” in its misguided denunciation of our work.
Either because they agreed with me on the merits, or to placate me, Hubert and Griffin produced a second version of the May 14 memo, in which the offending sentence was modified to read that “evidence should be secured, if possible, to affirmatively exclude [the same three possibilities].” Either version of the investigative goal, of course, would support an aggressive investigation of leads bearing on these questions. But the second formulation suggested that, at some point, the investigation of these (or similar) questions would permit reasoned judgments as to whether such conspiratorial relationships existed even if they had not been “clearly excluded.” The question of “what is enough” is raised regularly in the practice of law, and it was becoming of paramount importance to the commission as our staff moved from the investigative stage to drafting the report.81
My third problem was their vigorous complaint that Rankin had focused staff resources on investigating Oswald while neglecting the Ruby area. They said, “Depositions have been taken from less than one-seventh of the persons who are known to have talked to or seen Ruby on November 22 and 23. Had such an omission occurred in connection with the Oswald investigation, we believe the Commission would consider the work of the staff inadequate both by investigative and historical standards.” This paragraph was deleted from the second version of their May 14 memo.82
Once we had discussed these issues, however, we needed to move forward. Hubert and Griffin wanted further investigation on seven subjects that illustrate just how complicated it is to try to prove another negative—Ruby was not part of a conspiracy in killing Oswald:
1. Although the FBI had thoroughly investigated Ruby’s nightclub operations, it did not appear to have explored in detail his other business or social activities.
2. Ruby was a person who looked for moneymaking activities and his promotion of a device known as a “twist board” had not been investigated fully to see if it was a front for an illegal enterprise.82
3. Ruby had long been close to people pursuing illegal activities and a reasonable possibility existed that he maintained a close interest in Cuban affairs to the extent necessary to participate in gun sales or smuggling.
4. Bits of evidence linking Ruby to others who may have been interested in Cuban affairs had not been pursued.
5. Although Ruby did not witness the motorcade, he may have had a prior interest in the president’s visit as suggested by the two newspapers dated November 20, 1963, found in his automobile.
6. Neither Oswald’s Cuban interests in Dallas nor Ruby’s Cuban activities had been explored adequately, in particular possible links through Earlene Roberts, manager of the rooming house where Oswald lived.
7. Background checks had not been made on possible co-conspirators with whom Ruby made, or attempted to make, contacts on November 22 and 23.84
Hubert and Griffin said, “In short, we believe that the possibility exists, based on evidence already available, that Ruby was involved in illegal dealings with Cuban elements who might have had contact with Oswald. The existence of such dealings can only be surmised since the present investigation has not focused on that area.”85
Hubert and Griffin worried about other deficiencies in the Ruby investigation. They did not think they had a sufficient understanding of who Jack Ruby was and what motivated him. They thought that substantial periods in Ruby’s daily routine from September 26 to November 22 had not been accounted for; and they estimated that forty-six people who saw Ruby from November 22 to November 24 had not been questioned by commission lawyers, although there were FBI reports of interviews with them. People who had been interviewed because of known associations with Ruby generally had not been investigated themselves so that their truthfulness could be evaluated. Much of our knowledge of Ruby had come from his friends, but no investigations had been undertaken to corroborate their information.86
Hubert and Griffin persuaded me that these matters needed to be investigated. I suggested that the broader requests not directly related to these aspects of the investigation be deferred, and they agreed. As a result of these discussions, over a ten-day period, Rankin sent to the FBI numerous specific requests for investigation addressed to the areas of concern identified by Hubert and Griffin. It ranged from such minutiae as an effort to determine why the November 20 newspaper of one J. E. Bradshaw was found in Ruby’s car on November 24 to a more extensive review of long-distance telephone calls of a list of persons who may have had contact with Ruby during recent months based on information found in Ruby’s possession or disclosed in previous FBI reports. It is to the credit of Hubert and Griffin’s thoroughness and tenacity that once we had the results from the FBI in response to these (and later) requests, we were able to shape our conclusions about Ruby with more precision and a higher level of confidence.87
At Rankin’s request, Hubert took the depositions of seven witnesses in Dallas on May 28 and May 29. He also took three depositions in Washington during early June of two brothers of Jack Ruby (Hyman Rubenstein and Earl Ruby) and Nancy Perrin, who had been employed by Ruby for a few months in 1961 and whose previous husband, Robert Perrin, had had some kind of altercation with Ruby. This was a very substantial load of new work for Hubert in light of his commitment to return to his law firm by June 8.88
Both Rankin and I hoped that these investigative efforts would produce valuable information. There was no question that both Hubert and Griffin had worked very hard and had produced good results. I now recognized that we had earlier underestimated the need of the Ruby team to cover more ground than any of the other five areas of the commission’s investigation. But of equal importance, we wanted Hubert and Griffin to be satisfied that Rankin supported the investigative effort that they thought was necessary. The commission depended on Rankin, and he depended on the rest of us to be fully committed to the commission’s work so that our report would have the unanimous support of the staff. The events of June would test that desired unity more than we could have expected.