September, 1998
Transmittal Letter 1
Transmittal Letter 2
Transmittal Letter 3
Assassination Records Review Board
The Honorable John R. Tunheim
Chairman
Henry F. Graff
Kermit L. Hall
William L. Joyce
Anna K. Nelson
Assassination Records Review Board Staff
Laura A. Denk, Esq.
Executive Director
Tracy J. Shycoff
Deputy Director
Ronald G. Haron, Esq.
General Counsel
K. Michelle Combs
Associate Director for Research and Analysis
Eileen A. Sullivan Douglas P. Horne Press and Public Affairs Officer Chief Analyst for Military Records
Robert J. Skwirot Kevin G. Tiernan Chief Analyst for CIA Records Chief Analyst for FBI Records
Irene F. Marr, Senior Analyst
Sarah Ahmed, Analyst
Marie Fagnant, Analyst
James C. Goslee, II, Analyst
Benjamin A. Rockwell, Analyst
Peter H. Voth, Analyst/Assistant Computer Specialist
Charles C. Rhodes, Computer Specialist
Jerrie Olson, Executive Secretary
Catherine M. Rodriguez, Technical Assistant for Research and Analysis Janice Spells, Administrative Assistant
Table of Contents
Preface xxi
Executive Summary xxiii
Chapter 1:
The Problem of Secrecy and the Solution of the JFK Act 1
A. The Problem of Secrecy 1
B. Prior Investigative Efforts 2
1. The President's Commission to Investigate the Assassination of President John F. Kennedy (Warren Commission) 2 2. The President's Commission on Central Intelligence Agency Activities Within the United States (Rockefeller Commission) 2 3. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee) 3 4. The Select Committee on Intelligence of the House of Representatives (Pike Committee) 3
5. The Select Committee on Assassinations of the House of Representatives (HSCA) 3 6. Additional Congressional Investigations 3 7. Records Held by Executive Branch Agencies 4 8. Investigative Records in the Custody of Non-Federal Sources 4 C. Skepticism Concerning the Government's Conclusions 4 D. The Solution: The JFK Act 6
E. Legislative History of JFK Act 6
F. Key Provisions of JFK Act 7
Chapter 2:
Establishment of the Review Board and Definition of "Assassination Record" 13
A. Introduction 13
B. Delay in Start Up 13
1. JFK Act Deadlines 13
a. Ninety days for President to appoint Review Board members. b. 300 days for government offices to review, identify, and organize assassination records.
c. 300 days for NARA to establish JFK Collection. d. Three years for Board to complete work.
2. Passage of H.R. 1553 15
C. Defining "Assassination Record" 15
1. Statutory Definition of "Assassination Record" 16 2. Congressional Intent Concerning Definition 16 3. Review Board's Early Deliberations and Draft Definition 17 4. Comments from Public 17
a. Notice and Comment.
b. Public Hearings.
5. Definition 18
a. Scope of assassination records.
b. Scope of additional records and information. c. Sources of assassination records and additional records and information. d. Types of materials included in scope of assassination records and additional records and information. e. Assassination records released in their entirety. f. Originals and copies.
D. Conclusion 20
Chapter 3:
Public Activities of the Assassination Records Review Board 23
A. Introduction 23
B. Public Hearings 23
C. Public Meetings 24
D. Experts Conferences 24
E. Outreach 25
1. Outreach to Academics 25
2. Outreach to Students 26
3. Outreach to Assassination Researchers 26 4. Media 26
F. Conclusion 27
Chapter 4:
Developing the Review Process 29
A. Introduction 29
B. JFK Act Requirements for Processing Documents 29 C. Basic Elements of the Review Process 30
D. Electronic Identification Aids 31
E. Tracking the Review of Assassination Records 32 1. Review Track Database 32
2. Fast Track Database 33
F. Consent Releases 34
G. Board Procedures 34
H. Miscellaneous Bottlenecks and Problems in the Review Process 35 1. Duplicates 35
2. Equities and Referrals 35
a. Managing referrals.
b. Dunning letters.
c. Review Board joint declassification sessions. I. Document Processing After Review Board Votes 37 J. Conclusion 38
Chapter 5:
The Standards for Review: Review Board "Common Law" 41
A. Introduction and Background 41
1. Current Guidelines for Release of Assassination-Related Information 41 2. Key Distinctions Between Standards of Release Under the FOIA, the Executive Order, and the JFK Act 42
a. JFK Act presumes disclosure of assassination records. 43 b. JFK Act requires agencies to provide clear and convincing evidence. 43 c. JFK Act requires the Review Board to balance evidence for postponement against public interest in release. 44 d. Segregability and substitute language. 44 3. Federal Agency Record Groups and the Standards Applied to Them 44 a. The FBI's "core and related" files. 44 b. The CIA's Lee Harvey Oswald "201" file. 45 c. The FBI's "House Select Committee on Assassinations" (HSCA) subject files. 45 d. The CIA's "segregated collection" files. 45 e. FBI records on the congressional committees that investigated the assassination. 45 f. Requests for additional information. 45 B. Declassification Standards 45
1. Standard of Proof: Clear and Convincing Evidence 45 a. Review Board guidelines. 46
b. Commentary. 46
i. "Rule of Reason."
A. "NBR" Guidelines: Records that Review Board judged were "not believed relevant" to the assassination 47
B. Segregated Collection Guidelines 47 2. Intelligence Agents 48
a. CIA officers. 48
i. Review Board guidelines.
ii. Commentary.
b. "John Scelso" (pseudonym). 49
i. Review Board guidelines.
ii. Commentary.
c. Information that identifies CIA officers. 50 i. Review Board guidelines.
ii. Commentary.
d. Names of National Security Agency employees. 50 i. Review Board guidelines.
ii. Commentary.
3. Intelligence Sources and Methods and Other Matters Relating to the National Security of the United States 50 a. CIA sources. 51
i. Review Board guidelines.
ii. Commentary.
b. CIA pseudonyms. 51
i. Review Board guidelines.
ii. Commentary.
c. CIA crypts. 52
i. Review Board guidelines.
ii. Commentary.
d. CIA sluglines. 52
i. Review Board guidelines.
ii. Commentary.
e. CIA surveillance methods. 53
i. Review Board guidelines.
ii. Commentary.
f. CIA installations. 53
i. Review Board guidelines.
ii. Commentary.
g. CIA prefixes (cable, dispatch, field report). 55 i. Review Board guidelines.
ii. Commentary.
h. CIA job titles. 55
i. Review Board guidelines.
ii. Commentary.
i. CIA file numbers. 55
i. Review Board guidelines.
ii. Commentary.
j. CIA domestic facilities. 55
i. Review Board guidelines.
ii. Commentary.
k. CIA official cover. 56
i. Review Board guidelines.
ii. Commentary.
l. Alias documentation. 56
i. Review Board guidelines.
ii. Commentary.
m. Foreign intelligence cooperation. 56 i. Review Board guidelines.
ii. Commentary.
n. Human sources in FBI foreign counterintelligence (assets). 56 i. Review Board guidelines.
ii. Commentary.
o. FBI foreign counterintelligence activities. 57 i. Review Board guidelines.
ii. Commentary and overview of foreign counterintelligence appeals. A. The FBI's May 1996 Appeals to the President B. Post-appeal decisionmaking
p. Information that reveals the FBI's investigative interest in a diplomatic establishment or diplomatic personnel. 59
i. Review Board guidelines.
ii. Commentary.
q. Technical sources in FBI foreign counterintelligence. 59 i. Review Board guidelines.
ii. Commentary.
r. Other classified file numbers relating to FBI foreign counterintelligence. 60 i. Review Board guidelines.
ii. Commentary
s. FBI mail cover in foreign counterintelligence investigations 60 i. Review Board guidelines
ii. Commentary
t. FBI tracing of funds in foreign counterintelligence investigations 61 i. Review Board guidelines
ii. Commentary.
u. FBI physical surveillance. 61
i. Review Board guidelines.
ii. Commentary.
v. Operational details concerning Department of Defense operations. 62 i. Review Board guidelines.
ii. Commentary.
w. National Security Agency sources and methods. 62 i. Review Board guidelines.
ii. Commentary
x. National Security Agency intercept traffic 63 i. Review Board guidelines
ii. Commentary
4. Personal Privacy 63
a. Personal privacy generally 63
i. Review Board guidelines
ii. Commentary.
b. Prisoner of War issues. 64
i. Review Board guidelines.
ii. Commentary.
c. Names of individuals in Secret Service "threat sheets." 64 i. Review Board guidelines.
ii. Commentary.
5. Informant Postponements 65
a. Informant postponements generally. 65 i. Review Board guidelines.
ii. Commentary.
A. A note on the statutory framework for review of FBI informant postponements
B. History of Review Board's decisionmaking on informant postponements C. Effect of prior disclosures
b. Individuals who provided information to the FBI, but who did not have an ongoing confidential relationship with the FBI. 67 i. Review Board guidelines.
ii. Commentary.
c. Individuals who gave the FBI information to which they had access by virtue of their employment. 67
i. Review Board guidelines.
ii. Commentary.
d. Deceased informants. 68
i. Review Board guidelines.
ii. Commentary.
e. "Negative Contacts": Informants who provided no assassination-related information to the FBI. 68
i. Review Board guidelines.
ii. Commentary.
f. "Positive Contacts": Informants who provided at least some assassination-related information to the FBI. 69
i. Review Board guidelines.
ii. Commentary.
g. FBI informant symbol numbers and file numbers. 70 i. Review Board guidelines.
ii. Commentary.
6. Confidential Relationships Between Government Agents and Cooperating Foreign Governments 71
a. Foreign liaison postponements in FBI files. 71 i. Review Board guidelines.
ii. Commentary.
7. Presidential Protection 74
C. JFK Act Exemptions 74
1. Tax Return Information 74
2. Records Under Seal 75
D. Appeals to the President Pending as of September 30, 1998 75 E. Conclusion 75
Chapter 6, Part I:
The Quest for Additional Information and Records in Federal Government Offices 81
A. Records Related To Lee Harvey Oswald 82
1. Pre-assassination records 82
a. CIA. 82
i. Security file.
ii. Records in the defector file.
iii. HTLINGUAL records.
b. FBI. 83
c. Secret Service. 83
d. IRS/Social Security Administration. 83 e. INS records on Lee and Marina Oswald. 84 f. House Un-American Activities Committee. 84 2. Military records 84
a. U.S. Marine Corps records. 84
i. U.S. Marine Headquarters copy of enlisted personnel file and medical file. ii. Additional relevant U.S. Marine Corps unit diaries. b. Military identification card. 84 c. Possible ONI post-defection investigation. 85 3. In the U.S.S.R. 85
a. CIA operations in Moscow. 85
b. American Embassy personnel. 85
c. Search for American Embassy records. 86 d. DCD/OO alleged debriefing of Lee Harvey Oswald. 86 4. In Mexico City 86
a. Technical surveillance. 87
i. Audio and photographic.
ii. Tapes, transcripts, and photographs in existence. b. Cable traffic. 88
c. Win Scott files. 90
d. Sylvia Duran. 90
e. Legat administrative files. 90
f. Anne Goodpasture deposition. 91 B. Records On Cuba 91
1. CIA Record. 91
2. Military Records. 91
a. Joint Staff Secretariat. 91
b. Army. 92
c. Office of the Secretary of Defense. 92 d. Joint Chiefs of Staff history. 92 3. Presidential Library collections 92 a. JFK Library records. 92
b. LBJ Library records. 93
4. Church Committee Records 93
C. Records On Vietnam 93
1. CIA Records 93
2. Military records 93
a. Joint Staff Secretariat. 94
b. Office of the Secretary of Defense. 94 c. Joint Chiefs of Staff history. 94 3. Presidential Library collections 94 a. JFK Library. 94
b. LBJ Library. 94
4. Church Committee Testimony 94
D. Records of Senior Agency Officials 95
1. CIA 95
a. Allen Dulles. 95
b. John McCone. 95
c. Charles Cabell and Marshall Carter. 95 d. Richard Bissell, William Colby, and Richard Helms. 95 e. James J. Angleton. 96
f . Lawrence Houston. 96
g . William Harvey. 96
2. FBI 96
a. Hoover and Tolson records, including "Official and Confidential" files, chronological files, and phone logs. 96
b. Miscellaneous administrative files from the Director's Office. 97 c. John P. Mohr Records. 97
3. Secret Service 97
4. Office of the Secretary of Defense 98 5. Office of Naval Intelligence 98
6. Army 98
7. National Security Agency 99
8. Department of State 99
9. Department of Justice 99
a. Office of Information and Privacy. 99 b. Criminal Division. 99
10. Department of the Treasury 99
11. IRS 100
E. Pro and Anti-Castro Cuban Matters 100
1. Fair Play for Cuba Committee 100
a. FBI field office files. 100
b. CIA records on Richard Gibson. 101 c. Department of Justice Criminal Division files on FPCC. 101 2. Cuban COINTELPRO 101
3. Anti-Castro Activities 101
4. Cuban Intelligence Activities in the U.S.; Cuban Situation 102 5. Anti-Castro Cuban Groups, Including DRE, Alpha 66, SFNE, JURE, FRD, CRC, and Commandos-L 102
6. Threats Against the Life of Fidel Castro 102 a. CIA DS&T records. 102
b. FBI file captioned "Threats Against the Life of Fidel Castro." 102 7. American Gambling Interests in Cuba 103 8. Sergio Arcacha-Smith, Antonio Veciana, and Bernardo de Torres 103 F. Records on Organized Crime 103
1. Sam Giancana 103
2. FBI Electronic Surveillance of Carlos Marcello: BriLab 104 3. Department of Justice Criminal Division Records 104 G. Warren Commission Staff and Critics 104
1. FBI Files on Warren Commission Staff 105 2. CIA and FBI Files on Warren Commission Critics 105 a. Mark Lane. 105
b. Harold Weisberg. 106
c. Josiah Thompson. 106
d. Edward J. Epstein. 106
e. Paul Hoch. 106
f. David S. Lifton. 106
g. Sylvia Meagher. 106
H. Name Searches 107
1. John Abt 107
2. Edward Becker 107
3. Carlos Bringuier 107
4. George Bush 108
5. Ed Butler and Information Council of the Americas 108 6. Claude Barnes Capehart 108
7. Lawrence Cusack 109
8. Adele Edisen, Winston de Monsabert, Jose Rivera 109 9. Billie Sol Estes 109
10. Judith Campbell Exner 109
11. H.L. Hunt and Family and Clint Murchison and Family 110 12. Joseph P. Kennedy 110
13. Oswald LeWinter 110
14. Marita Lorenz 110
15. John Thomas Masen 111
16. John Anthony McVickar 111
17. Elizabeth Catlett Mora 111
18. Gordon Duane Novel 111
19. Orest Pena 111
20. Carlos Quiroga 111
21. Charles Small 112 22. Clarence Daniel Smelley 112 23. Richard Snyder 112
24. Marty Underwood 112
25. General Edwin Walker/Minutemen 112 I. Miscellaneous 113
1. CIA 113
a. The U-2 connection and the fake manuals. 113 b. The "Family Jewels." 113
2. FBI 114
a. "Research Matters" file on John F. Kennedy. 114 b. Liaison with other federal agencies. 114 i. Secret Service/Protection of the President. ii. CIA.
iii. NSA.
iv. Customs.
v. ATF.
3. Secret Service 115
a. Protective survey reports. 115
b. Shift reports. 115
c. Eileen Dinneen memoranda. 115
4. Department of State 115
5. Army 115
a. U.S. Army's Investigative Records Repository 115 b. Army Security Agency records and files 116 c. Army Inspector General 1973 report on domestic surveillance abuses in the U.S. 116 6. White House Communications Agency 116 7. Presidential Library Materials 116 a. William Manchester interviews. 117 b. Jacqueline B. Kennedy tapes at the LBJ Library. 118 J. Conclusion 118
Chapter 6, Part II:
Clarifing the Federal Record on the Zapruder Film and the Medical and Ballistics Evidence 121
A. Introduction 121
B. Medical Evidence 121
1. Medical issues 121
C. Zapruder Film 124
1. Ownership of the Zapruder film 124
2. Staff examination of films designated as "in-camera" original, and first-generation copies, by NARA 125
3. Eastman Kodak's Pro Bono Work for the Review Board Related to the Zapruder Film (and Autopsy Photographs) 125
4. The Review Board Staff's Study and Clarification of Paul Hoch's FOIA Lead "CIA Document 450" 126
D. Ballistics 127
Chapter 7:
Pursuit of Records and Information from Non-Federal Sources 131
A. Pursuit of Records and Papers from Private Citizens and Organizations 131 1. Gary Aguilar: Interviews with Drs. Humes and Boswell 131 2. Richard Barnes: AP Wire Copy 131
3. Dr. George Burkley 131
4. Edward Scannell Butler: Materials from the Information Council of the Americas 132 5. Mrs. Marion Ebersole: Records of Dr. John J. Ebersole 132 6. President Gerald Ford: Desk Diaries 132 7. Justice Abe Fortas 132
8. Captain J.W. "Will" Fritz 132
9. Jim Garrison 132
10. James P. Hosty, Jr. 132
11. Wesley Liebeler 132
12. David Lifton: Medical Evidence 133
13. Holland McCombs 133
14. Richard Case Nagell 133
15. New Orleans Metropolitan Crime Commission 134 16. Gerald Posner 134
17. Frank Ragano 134
18. J. Lee Rankin: Warren Commission Papers 134 19. Clay Shaw: Personal Papers and Diary 135 20. Walter Sheridan 135
21. Sixth Floor Museum Records 135
22. Martin Underwood 135
23. Edward Wegmann 136
24. Thomas W. Wilson 136
B. Pursuit of Audio-Visual Material from Private Citizens and Organizations 137 1. Tom Alyea: Film from Inside the Texas School Book Depository 137 2. Charles Bronson: Film of Dealey Plaza 137 3. CBS Outtakes 137
4. Robert Groden 137
5. Lt. Everett Kay: Audio Surveillance Tape 137 6. Vincent Palamara: Interviews with Secret Service Personnel 138 7. David Powers: Film of Motorcade 132
8. David Taplin: November 24, 1963, Coverage of Dallas Police Department 132 9. Stephen Tyler 132
10. Janet Veazey: KTVT Outtakes 132
11. Moses Weitzman 138
12. Robert White: Evelyn Lincoln Materials 139 C. Pursuit of State and Local Government Records 139 1. New Orleans District Attorney Files 139 2. Dallas City and County Records 140
D. Pursuit of Records from Foreign Governments 140 1. Russia 141
2. Belarus 141
3. Cuba 141
4. Mexico 142
5. Other Governments 142
E. Conclusion 142
Chapter 8:
Compliance with JFK Act by Government Offices 145
A. Introduction 145
B. Federal Agency Compliance with the JFK Act 145 1. Central Intelligence Agency 145
2. Federal Bureau of Investigation 147
3. Secret Service 149
4. National Security Agency 149
5. Department of State 150
6. Department of Justice 151
a. Office of Information & Privacy.
b. Criminal Division.
c. Civil Division.
d. Civil Rights Division.
e. Office of Legal Counsel.
7. Department of the Treasury 153
a. Main Treasury.
b. Bureau of Alcohol, Tobacco, & Firearms.
c. Customs Service.
d. Internal Revenue Service.
8. National Security Council 155
9. The President's Foreign Intelligence Advisory Board 155 10. Immigration & Naturalization Service 155 11. Office of the Secretary of Defense 156 12. Defense Intelligence Agency 156
13. Department of the Army 156
a. Investigative Records Repository.
14. Department of the Navy 157
a. Office of Naval Intelligence.
b. National Naval Medical Center at Bethesda. 15. Armed Forces Institute of Pathology 158 16. Department of the Air Force 158
17. Joint Staff 159
18. White House Communications Agency 159 19. U.S. Postal Service 159
20. Social Security Administration 159
21. Drug Enforcement Administration 160 22. NARA, including Presidential Libraries 160 a. NARA, Washington, D.C.
b. NARA, Southwest Region, Fort Worth, Texas. c. Gerald R. Ford Library.
d. John F. Kennedy Library.
e. Lyndon B. Johnson Library.
23. General Services Administration 163 C. Congressional Records 163
1. House Select Committee on Assassinations 163 2. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee) 164 3. House Select Committee on Intelligence (the Pike Committee) 164 4. House Judiciary Subcommittee on Civil & Constitutional Rights (the Edwards Committee) 1655
5. House Government Operations Subcommittee on Government Information and Individual Rights (the Abzug Committee) 165
6. House Committee on Un-American Activities 165 7. Library of Congress 165
8. Other Congressional Records 166
D. Conclusion 166
Review Board Recommendations 169
Appendices
Appendix A: The Members of the Assassination Records Review Board 177
Appendix B: The Staff of the Assassination Records Review Board 179
Appendix C: President John F. Kennedy Assassination Records Collection Act of 1992 183
Appendix D: Assassination Records Review Board Guidance for Interpretation and Implementation of the President John F. Kennedy
Assassination Records Collection Act of 1992 197
Appendix E: Meetings of the Review Board 201
Appendix F: Summary of Review Board Votes on Records 203
Acknowledgements 205
Preface
This Final Report of the Assassination Records Review Board details the Board's extensive work in fulfilling its statutory mandate. The JFK Act, however, necessitates that the Review Board's report be different from reports of other assassination-related commissions and committees. Previous assassination-related commissions and committees were established for the purpose of issuing final reports that would draw conclusions about the assassination. Congress did not, however, direct the Review Board to draw conclusions about the assassination, but to release assassination records so that the public could draw its own conclusions. Thus, this Final Report does not offer conclusions about what the assassination records released did or did not prove. Rather, it identifies records that the Board released and describes the processes and standards that the Board used to release them. The Board believes that its most substantial contribution has been to enhance, broaden, and deepen the historical record relating to the assassination. The American public ultimately will be the beneficiaries of the JFK Act and the Review Board's work in ensuring access to the extensive reach of the JFK Collection.
The first two chapters of the Report describe the Review Board and its establishment. Chapter one describes the context in which Congress passed the JFK Act and briefly introduces some of the records that Congress directed the Review Board to examine and release if appropriate. Chapter two describes how the JFK Act both enabled and delayed the Review Board's start-up. Chapter two also explains the Review Board's first challengedefining the statutory term "assassination record"so that its search for records would be broad enough to ensure public confidence in the Board's work but narrow enough not to consume Board time and resources on unrelated documents. Chapter three explains how the Review Board interacted with a very interested American public. Chapter three outlines the ways in which Review Board members and staff worked with members of the public to develop policy and seek records.
Chapters four through eight of the Report describe the heart of the Review Board's workthe identification and release of assassination records. Chapter four explains how the Review Board developed a review process that would ensure consistent review of an enormous volume of records. Chapter five describes in detail the standards that the Review Board established for the release or, in some cases, protection of federal records. Chapter six lists the numerous requests for additional information and records that the Review Board made to federal agencies to ensure that it did not leave important stones unturned. Throughout its brief history, countless individuals and groups made requests of the Board for specific information. The Board had to respond to these by asking whether meeting these requests would yield additional documents. Chapter seven describes the Board's quest for additional information and records, albeit from non-federal sources, and thus expands upon chapter six. Chapter seven also describes the types of assassination records that the Review Board sought from state and local governments as well as foreign governments. Chapter eight provides details about the cooperation, or lack thereof, that the Review Board received from each federal agency with which it dealt, outlining in detail the Review Board's "compliance program."
The last part of this report consists of the Review Board members' conclusions and their recommendations to the President, to Congress, and to existing and future federal agencies. The Board recognizes that for decades to come the federal government will continue to face the challenge of finding the most efficient way to declassify its records, an activity the Board believes is essential to maintaining our freedom. Although the problems caused by government secrecy are magnified in the context of an assassination of a President in which there is great public interest, these problems are indeed present throughout the federal government. The remedies for excessive secrecy can be universally applied with positive results. Executive Summary
The Assassination Records Review Board was a unique solution to a unique problem. Although the tragic assassination of President John F. Kennedy was the subject of lengthy official investigations, beginning with the Warren Commission in 1964, and continuing through the House Select Committee on Assassinations, in 1978-79, the American public has continued to seek answers to nagging questions raised by this inexplicable act. These questions were compounded by the government penchant for secrecy. Fears sparked by the Cold War discouraged the release of documents, particularly those of the intelligence and security agencies. Even the records created by the investigative commissions and committees were withheld from public view and sealed. As a result, the official record on the assassination of President Kennedy remained shrouded in secrecy and mystery.
The suspicions created by government secrecy eroded confidence in the truthfulness of federal agencies in general and damaged their credibility. Finally, frustrated by the lack of access and disturbed by the conclusions of Oliver Stone's JFK, Congress passed the President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act), mandating the gathering and opening of all records concerned with the death of the President.
The major purpose of the Review Board was to re-examine for release the records that the agencies still regarded as too sensitive to open to the public. In addition, Congress established the Review Board to help restore government credibility. To achieve these lofty goals, Congress designed an entity that was unprecedented.
Three provisions of the Act were at the heart of the design. First, Congress established the Review Board as an independent agency. Second, the Board consisted of five citizens, trained in history, archives, and the law, who were not government employees but who had the ability to order agencies to declassify government documentsthe first time in history that an outside group has had such power. Third, once the Board made the decision that a document should be declassified, only the President could overrule its decision. Fortunately, Congress also gave the Board a staff whose work was critical to its success.
The JFK Act required all government agencies to search for the records in their possession concerning the assassination and place them in the National Archives. The Act provided for the appointment of the members of the Review Board within ninety days, but the transition between the Bush and Clinton administrations caused an 18-month delay between passage of the Act and the swearing-in of the Board members. Only then could the Board hire staff and arrange for office space. This delay had two ramifications. First, the Act stated that the work of the Board was to be completed in three years, an unrealistic goal since more than 18 months had already elapsed. (The Board's work was eventually extended to four years.) Second, agencies were sending documents to the National Archives before the Board established its guidelines for their release. Consequently and unfortunately, once the Review Board did provide guidance to the agencies, much of their initial work had to be revised, further slowing the processing and re-reviewing by the Board and its staff.
The Board's first task was to define the term "assassination record" in order to frame the search for relevant records. The statutory definition, a record "related to the assassination of President John F. Kennedy," specifically included any record from the investigating agencies, and records in the possession of the federal government, and any local or state government that assisted in the inquiry into the assassination. But, as noted in the Senate report, "it is intended and emphasized that the search and disclosure of records under this Act must go beyond those records." Congress empowered the Board to determine whether a document was an assassination record and to cast a broad net for such records. Board members engaged in extensive discussion and sought advice from the public before finally issuing its broad definition. The definition enabled the Board to look beyond the narrower confines of the assassination to find and release valuable documents from the early 1960s that enhance the historical understanding of that era, and the political and diplomatic context in which the assassination occurred.
The Review Board overcame its early challenges and, with the help of its able staff, developed guidelines for the release of documents. These served as the yardstick for both its staff and the federal agencies.
The Board's most important task was to review the information the agencies wished to postpone rather than release and then to vote either to sustain the postponement or release the information. Since the Board was working in uncharted territory, it developed creative methods. Three review stages evolved over the four years of the Board's existence. At first, the Board scrutinized each document with infinite care, and by choosing to meet often, made decisions on a document-by-document basis working to understand both the body of information at issue and the balance required by the JFK Act. It eschewed the more generic issue approach which was preferred by the agencies.
During the second stage, the Board delegated some routine decisionmaking to its Board staff, which proceeded with such care that even the slightest question about a document brought it to the Board's attention. Finally, agencies recognized the voting pattern of the Board and for purposes of efficiency began bypassing the review process on their own initiative and releasing records under the Board's guidelines. The Board's review process ultimately ensured that the Review Board scrutinized each piece of withheld information so that the American public would be confident that assassination records were open to the fullest extent possible.
The JFK Act established a stringent standard for postponing the opening of a record. Its minimal list of required postponements and emphasis on the bias toward disclosure separated it from either the Freedom of Information Act (FOIA) or the Executive Order that provides for disclosure of national security information. The Board proceeded cautiously as it examined its first documents under the provisions of postponement in Section 6 of the JFK Act. In particular, the Board balanced evidence for postponement against the public interest in release, bearing in mind the Act's "presumption of immediate disclosure." Before agreeing to postponement, the Board applied the stringent requirements for the "clear and convincing evidence" required by the Act. Decisions had to be made on names, dates, places, crypts, pseudonyms, file numbers, sources of information and the method by which it was obtained. Ultimately, the Board created a set of principles, a kind of "common law," that could be applied to many of the documents. Although the agencies often objected to the Board's decisions, they accepted both the statute and the Board's interpretation of it and, for the most part, cooperated.
The JFK Act specifically instructed the Review Board to go beyond the scope of previous inquiries. Since both the Board and its staff had high level security clearances, no agency could prevent a search through every file. After locating files designated by the agencies, the Review Board staff members pursued new sources of assassination records. Most of the Review Board's additional requests for records went to the CIA and FBI, but there were also requests to the Secret Service, the Departments of State snd Defense, the National Security Agency, and The President's Foreign Intelligence Advisory Board.
Given the massive volume of federal records, the search for additional records was time consuming and often frustrating. For every assassination record located and included in the collection, the staff literally reviewed hundreds of documents. The documents located through this search for additional records are among the most important in the collectionmany were never reviewed by the prior investigations.
The Review Board, in its effort to make the JFK Collection valuable to historians, encouraged private citizens and organizations that possessed records of their own to donate them to the JFK Collection. The collection was significantly enriched by these donations. They included, for example, the desk diaries of former President and Warren Commission member Gerald Ford, the personal files of Jim Garrison, the New Orleans prosecuting attorney, notes taken during interviews with Lee Harvey Oswald by both a Dallas Police Captain and a former FBI agent, and films from individuals in Dallas and President Kennedy's aide, Dave Powers. They also include a donation of papers from the son of J. Lee Rankin, General Counsel of the Warren Commission, and the diary of Clay Shaw, the only person tried for the murder of John F. Kennedy (and subsequently acquitted). The Review Board added to the collection, too, information from state and local offices and officials who were tied to the Oswald investigation.
The JFK Act also encouraged the Review Board to work with the Department of State to include documents from foreign governments. The Board sought records from Russia, Belarus, Cuba and Mexico. For the most part, these attempts proved frustrating and fruitless owing to political and diplomatic constraints. Although many leads were pursued, only a few new records were obtained. Although this is a genuine loss to the historical completeness of the assassination records, work continues on these attempts and the Board is hopeful that eventually these records, particularly the voluminous KGB surveillance records on Oswald, will be added to the JFK Collection.
In the spirit of openness embodied in the JFK Act, the Review Board devoted a significant amount of time and resources listening to and corresponding with its various constituencies. It held a total of seven public hearings, one each in Dallas, Boston, New Orleans, and Los Angeles and three in Washington, DC. In addition, Board members participated in meetings of historical associations, spoke to countless public groups, and cooperated with assassination researchers and the Coalition on Political Assassinations. Over 100 press releases were issued, and Board members made themselves available for many media interviews.
Twice, the Review Board called together a group of invited guests who are "experts" in their fields. The first conference was held in May 1995. It provided the Review Board and the staff with the opportunity to discuss prior investigative efforts that were thwarted due to lack of access to records. The participants provided the Board staff with recommendations for further searches. The second conference, held in April 1998, focused narrowly on the issue of document declassification. This informative meeting helped Board members to formulate recommendations for this final report.
From time to time the frequent and sustained contact with the public diverted the staff from its primary responsibilitiesidentifying and releasing records. However, the benefits far outweighed the costs. The Review Board received valuable leads from the public about the existence of other assassination records and, more important, received donations that enhanced the collection at the National Archives.
Finally, the Review Board staff implemented a program to ensure, to the fullest extent possible, that each agency complied with the JFK Act. A signed declaration was required from each agency, under penalty of perjury. This compliance statement described the record searches that the agency completed, records that it located, and other actions it took to comply with the law.
Before agencies submitted their Final Declarations of Compliance, the staff worked with them to resolve outstanding problems. In the compliance statement, each agency addressed the scope and adequacy of its search, the adequacy of its response to the requests for additional information, and the timeliness with which it processed its records for release. The Board and staff also decided to depose officials of agencies with poor records systems and those that failed to comply with the spirit of the Act.
The legacy of the JFK Review Board lies in the more than four million pages of records now in the National Archives and available to the public with remarkably few redactions. These records include critical documentation on the events in Dallas, Lee Harvey Oswald, and the reactions of government agencies to the assassination. They also include documents that enhance the historical understanding of that traumatic event in recent American history by placing it in the broader context of political and diplomatic events. Major Accomplishments of the Assassination Records Review Board
Ñ Reviewed and voted on over 27,000 previously redacted assassination records;
Ñ Obtained agencies' consent to release an additional 33,000+ assassination records;
Ñ Ensured that the famous "Zapruder Film" of the assassination belonged to the American people and arranged for the first known authenticity study of the Zapruder Film;
Ñ Opened previously redacted CIA records from the Directorate of Operations;
Ñ Released 99% of the "Hardway/Lopez Report" documenting the CIA's records on Lee Harvey Oswald's trip to Mexico City before the assassination;
Ñ Conducted a three-day audiotaped interview of former FBI Special Agent James P. Hosty, one of two agents who were responsible for the FBI's cases on Lee and Marina Oswald prior to the assassination;
Ñ Acquired for public release two sets of original notes from Lee Harvey Oswald's interrogation in the Dallas Police Department taken by FBI Agent James Hosty and Dallas Homicide Division Captain "Will" Fritz (prior to the Board's existence, it was thought that no original notes existed);
Ñ Clarified the controversial medical record of President Kennedy's autopsy and his treatment at Parkland Hospital by deposing 10 Bethesda autopsy participants, five Parkland Hospital treating physicians, and conducting numerous unsworn interviews of Parkland and Bethesda personnel;
Ñ Secured records relating to District Attorney Jim Garrison's prosecution of Clay Shaw for conspiracy to assassinate President Kennedy, including Shaw's diaries, records from Shaw's defense attorneys, investigative records from the District Attorney's office, and grand jury records;
Ñ Obtained the full release of FBI documents that describe the FBI's attempts to track Oswald's activities in Europe prior to the assassination;
Ñ Made available to the public all FBI and CIA documents from previous official investigations;
Ñ Acquired for the American people film footage depicting events surrounding the assassination, portions of which had never been seen before, including the Dallas television station KTVT outtakes of President and Mrs. Kennedy in Dallas and the aftermath of the assassination;
Ñ Sponsored ballistics and forensic testing of Warren Commission Exhibit 567, the bullet "nose fragment" from the front seat of the Presidential limousine, (the HSCA Firearms Panel first recommended the testing in 1978, but the testing was not conducted until the Review Board existed); Ñ Permanently preserved all the autopsy photographs of President Kennedy in digitized form, and conducted sophisticated digital enhancement of selected, representative images;
Ñ Reviewed IRS and Social Security tax, employment, and earnings records on Lee Harvey Oswald, the authenticity of which has been questioned by researchers who have not been allowed access to such material. Required IRS to prepare a releasable report without releasing tax return information, the disclosure of which is prohibited by Federal law. Review Board Recommendations
With the passage of the JFK Act and the creation of the independent Review Board, Congress took a large step toward rebuilding public confidence in the federal government, confidence lost through years of excessive secrecy. The Review Board urges the Congress, government agencies, and the public to continue the effort to open documents under the provisions of the JFK Act and to build on the foundation created by the Board. To that end, the Review Board makes the following recommendations:
Recommendation 1:
The Review Board recommends that future declassification boards be genuinely independent, both in the structure of the organization and in the qualifications of the appointments.
Recommendation 2:
The Review Board recommends that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task.
Recommendation 3:
The Review Board recommends that its "common law" of decision, formed in the context of a "presumption of disclosure" and the "clear and convincing evidence of harm" criteria, be utilized for similar information in future declassification efforts as a way to simplify and speed up releases.
Recommendation 4:
The Review Board recommends that future declassification efforts avoid the major shortcomings of the JFK Act: (a) unreasonable time limits, (b) employee restrictions, (c) application of the law after the Board terminates, and (d) problems inherent with rapid sunset provisions. Recommendation 5:
The Review Board recommends that the cumbersome, time-consuming, and expensive problem of referrals for "third party equities" (classified information of one agency appearing in a document of another) be streamlined by (a) requiring representatives of all agencies with interests in selected groups of records meet for joint declassification sessions, or (b) uniform substitute language be devised to deal with certain categories of recurring sensitive equities.
Recommendation 6:
The Review Board recommends that a compliance program be used in future declassification efforts as an effective means of eliciting full cooperation in the search for records.
Recommendation 7:
The Review Board recommends the following to ensure that NARA can exercise the provisions of the JFK Act after the Review Board terminates: (a) that NARA has the authority and means to continue to implement Board decisions, (b) that an appeals procedure be developed that places the burden for preventing access on the agencies, and (c) that a joint oversight group composed of representatives of the four organizations that originally nominated individuals to serve on the Review Board be created to facilitate the continuing execution of the access provisions of the JFK Act.
Recommendation 8:
The Review Board recommends that the Review Board model could be adopted and applied whenever there are extraordinary circumstances in which continuing controversy concerning government actions has been most acute and where an aggressive effort to release all "reasonably related" federal records would serve usefully to enhance historical understanding of the event.
Recommendation 9:
The Review Board recommends that both the Freedom of Information Act and Executive Order 12958 be strengthened, the former to narrow the categories of information automatically excluded from disclosure, the latter to add "independent oversight" to the process of "review" when heads of agencies decide that records in their units should be excluded from release.
Recommendation 10:
The Review Board recommends the adoption of a federal classification policy that substantially (a) limits the number of those in government who can actually classify federal documents, (b) restricts the number of categories by which documents might be classified, (c) reduces the time period for which the document(s) might be classified, (d) encourages the use of substitute language to immediately open material which might otherwise be classified, and (e) increases the resources available to the agencies and NARA for declassifying federal records. Chapter 1
The Problem of Secrecy and the Solution of the JFK Act
A. The Problem of Secrecy
Uncage the documents.
Let them see light.1
The President John F. Kennedy Assassination Records Collection Act of 1992 was a unique solution to the problem of secrecy. The problem was that 30 years of government secrecy relating to the assassination of President John F. Kennedy led the American public to believe that the government had something to hide. The solution was legislation that required the government to disclose whatever information it had concerning the assassination.
The American public is well aware of the facts of this particular case: at approximately 12:30 p.m. on November 22, 1963, as President Kennedy traveled in a motorcade through Dealey Plaza in downtown Dallas, Texas, he was shot and suffered a massive head wound. Doctors at Parkland Memorial Hospital in Dallas pronounced the President dead shortly thereafterat 1:00 p.m.
Later that day, Dallas police officers arrested Lee Harvey Oswald as a suspect in the President's murder. Oswald was also a suspect in the murder of a Dallas patrolman that had occurred that afternoon. By 1:30 p.m. on November 23, the Dallas police had charged Oswald with assassinating the President. Less than 24 hours later, Lee Harvey Oswald was shot and killed by Jack Ruby during the Dallas Police Department's transfer of Oswald from the city jail to the county jail. Television cameras captured the scene of Ruby shooting Oswald.
Dallas police officers arrested Jack Ruby. He was tried and convicted of Oswald's murder in March 1964. (In October 1966, the Texas Court of Criminal Appeals reversed the verdict and ordered a new trial. Ruby died of cancer three months later before his new trial began.) Ruby maintained that he was not involved in the assassination of the President and that he had not known Oswald prior to hearing his name in connection with the assassination. Ruby claimed that his fury over the assassination led him to kill Oswald.
Aside from the assassination investigations that the Dallas police, the FBI, and the Secret Service conducted, President Lyndon B. Johnson immediately established the President's Commission to Investigate the Assassination of President Kennedy. Chief Justice of the U.S. Supreme Court Earl Warren headed the efforts of the Warren Commission. Ten months later, the Warren Commission Report concluded that Lee Harvey Oswald acted alone and shot the President from a sniper's nest on the sixth floor of his workplace, the Texas School Book Depository. For a variety of reasons, not the least of which was that the Warren Commission conducted some of its investigations in secret and sealed many of its records, the American public never trusted the Commission's conclusion. Subsequently, other federal entities conducted partial or complete reinvestigations of the assassination. The most significant of these reinvestigations was the House Select Committee on Assassinations (HSCA), which concluded in 1979 that President Kennedy's death was the result of a probable conspiracy.
In 1991, Oliver Stone's JFK popularized a version of President Kennedy's assassination that featured U.S. government agents from the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and the military as conspirators. While the movie was largely fictional, the information that Stone conveyed in the movie's closing trailer was true: the HSCA had reinvestigated the murder and issued a provocative report, but their records were sealed until the year 2029. Stone suggested at the end of JFK that Americans could not trust official public conclusions when those conclusions had been made in secret. Congress passed legislationthe JFK Actthat released the secret records that prior investigations gathered and created.
Numerous records of previous investigative bodies such as the Warren Commission, the Church Committee, and the HSCA were secret. Yet members of these commissions reached conclusions based on these investigative records. The American public lost faith when it could not see the very documents whose contents led to these conclusions.
B. Prior Investigative Efforts
There exists widespread suspicion about the government's disposition of the Kennedy assassination records stemming from the beliefs that Federal officials (1) have not made available all Government assassination records (even to the Warren Commission, Church Committee, House Assassination Committee) and (2) have heavily redacted the records released under FOIA in order to cover up sinister conspiracies.2
The American public has expressed its dissatisfaction with both the work and the conclusions of the official investigations of the assassination and it was this dissatisfaction that was primarily responsible for Congress' initiative to establish the Assassination Records Review Board (Review Board). Section 3(2) of the JFK Act defines the records of each of these official investigative entities as assassination records. As such, the Review Board worked to review and release all records that these investigative entities used in reaching their conclusions about the assassination.
At the same time, a brief description of each entity and the records it generated is useful for understanding the enormity of the Review Board's task.
1. President's Commission to Investigate the Assassination of President John F. Kennedy (Warren Commission)
The Warren Commission was the only investigative body to identify a specific individualLee Harvey Oswaldas the lone assassin of President Kennedy.
The Warren Commission did not, however, reach its conclusion before conducting an extensive investigation.3 During its tenure, the Warren Commission deposed or interviewed 552 witnesses and generated or gathered approximately 360 cubic feet of records, including some artifacts and exhibits. The Warren Commission's September 1964, 888-page report came with 26 volumesover 16,000 pagesof testimony and exhibits.
President Johnson recognized the high public interest in the Warren Commission's unpublished records and initiated a plan for release of the material. The Johnson plan resulted in the release of 98% of the Warren Commission's records by 1992. Thus, at the time that Congress passed the JFK Act, only 3,000 pages of Warren Commission material remained for the agencies and the Review Board to release.
All Warren Commission records, except those records that contain tax return information, are available to the public with only minor redactions.
2. The President's Commission on
Central Intelligence Agency Activities
Within the United States
(Rockefeller Commission)
The 1975 Rockefeller Commission investigated the CIA's illegal domestic activities.4 In the course of its work, the Commission touched on several assassination-related topics, including the identity of the "three tramps," the possibility of CIA involvement in the assassination, and ballistics issues.5 The Commission concluded that the CIA was not involved in the assassination, and that the President had not been hit by a shot fired from in front of the Presidential limousine.
As of 1992, the Commission's assassination-related files consisted of approximately 2,500 to 4,000 pages, 95% of which were still secret and in the custody of the Gerald Ford Presidential Library when Congress passed the JFK Act.6 3. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee)
In 1975 and 1976, the Senate investigated illegal domestic activities of government intelligence agencies.7 The Church Committee's investigation uncovered allegations such as CIA assassination plots against Cuban Premier Fidel Castro in the 19601963 period. The CIA did not communicate the existence of the plots to the Warren Commission, even though former CIA Director Allen Dulles (a Warren Commission member) was aware of them.
The Church Committee's initial findings led Committee member Senator Richard Schweiker to call for a reinvestigation of the assassination. Through Senator Schweiker's efforts, the Church Committee formed a subcommittee to evaluate the intelligence agencies' handling of the JFK assassination investigation. The subcommittee interviewed or deposed over 50 witnesses, acquired over 5,000 pages of evidence from intelligence agencies, and reviewed thousands of additional pages.8
As of 1992, the Senate Select Committee on Intelligence possessed approximately 5,000 pages of assassination-related material from the Church Committee's investigations.9 Although the Church Committee published some material in its reports, the bulk of the Committee's records remained closed.
4. The Select Committee on Intelligence of the House of Representatives (Pike Committee)
In 1975, the House of Representatives also established a committee to investigate illegal domestic activities of government intelligence agencies. The Pike Committee devoted less time to issues related to President Kennedy's assassination than did the Church Committee, but it completed some relevant work. However, due to the Pike Committee's internal conflicts, as well as conflicts that it had with the executive branch over access to records, the Committee never issued a report. The Committee did touch on some issues related to the assassination of President Kennedy. At the time that Congress passed the JFK Act, the number of Pike Committee records that contained information that might be related to President Kennedy's assassination was unknown.
5. The Select Committee on
Assassinations of the House of
Representatives (HSCA)
In 1976, the House of Representatives established its Select Committee on Assassinations. The HSCA reinvestigated President Kennedy's assassination and the assassination of Dr. Martin Luther King, Jr. The HSCA concluded that President Kennedy was probably murdered as a result of a conspiracy and suggested that organized crime may have played a role in the conspiracy. At the same time, the HSCA concurred with the Warren Commission's findings that Lee Harvey Oswald fired the two bullets that hit the President, and that one of those bullets struck both President Kennedy and Governor John Connally of Texas (the so-called "single-bullet theory").
During its tenure, the HSCA took testimony from 335 witnesses and held 38 days of public hearings. The HSCA generated approximately 414,000 pages of records relating to the assassination.11 In 1992, the HSCA's unpublished records resided with the House Administration Committee (now the House Oversight Committee).
Because the HSCA investigated so many different possibilities in its investigation into possible conspiracies, its records, and federal agency records that the HSCA used, have been among the most important records that the Review Board processed.
6. Additional Congressional
Investigations
In addition to investigations of the above-referenced special committees and commissions, various congressional committees have examined aspects of the assassination story.
The House Un-American Activities Committee, for instance, compiled a small number of pre-assassination records relating to Lee Harvey Oswald's activities in New Orleans. At the time of the assassination, the Senate Internal Security Subcommittee, had ongoing investigations into the political situation in Cuba and, when the President was killed, it conducted a limited inquiry into the assassination.
To the extent that these two committees provided materials to the Warren Commission, their records remained under the control of succeeding congressional committees and had not been released prior to consideration of the JFK Act.
Later, in 1975, two House subcommittees held public hearings on issues relating to the treatment of assassination records. These were the House Judiciary Committee's Civil and Constitutional Rights Subcommittee (Edwards Committee) that investigated the destruction of the so-called "Hosty note" which Lee Harvey Oswald had left at the FBI Dallas field office for Special Agent James Hosty on November 6, 1963. After the assassination, Hosty destroyed the note on the instructions of his superior, Special Agent in Charge J. Gordon Shanklin. Its existence remained unknown outside the FBI for 12 years. The Government Information and Individual Rights Subcommittee of the Government Operations Committee (Abzug Committee) examined issues of access and openness relating to Warren Commission records.
While the latter two hearings were published, it was not known during consideration of the JFK Act whether additional and unpublished records remained in the committees' files.
7. Records Held by Executive
Branch Agencies
All of the major investigative efforts received assistance from the FBI and the CIA. Other agencies, such as the Secret Service, the Department of State, and the Department of Justice, were also involved in official investigations. Federal agencies generated records for the investigative entities they worked with, but they also retained a vast body of records. At the time of legislative consideration of the JFK Act, for instance, the FBI had already released some 220,000 pages of assassination-related material under the Freedom of Information Act (FOIA). Nonetheless, the Bureau estimated that approximately 260,000 pages of additional assassination records remained withheld or unprocessed.12 At the same point in time, the CIA had released approximately 11,000 pages of an estimated 250,000 to 300,000 pages of assassination records.13 Other agencies with smaller caches of assassination records had released varying percentages of their holdings by 1992.
8. Investigative Records in the Custody of Non-Federal Sources
The JFK Act also provided the Review Board with authority to seek assassination records from non-federal sources. Various local law enforcement agencies assisted the Warren Commission and the FBI in their post-assassination investigation. Some local authorities also possessed relevant pre-assassination records. New Orleans District Attorney Jim Garrison's investigation and trial of Clay Shaw for complicity in the assassination is a prominent example of a non-federal investigative effort that generated extensive assassination records. Other potential assassination records, however generated, exist in the custody of private citizens and foreign governments. Subject to time and resource constraints, the Review Board also identified and secured as much of this indeterminate group of records as possible.
C. Skepticism concerning the
Government's Conclusions
The circumstances of President Kennedy's assassination invited public skepticism from the start. His death raised profound doubts in the minds of many Americans who could not understand the apparently confused and obscure motives of the alleged assassin, Lee Harvey Oswald. The murder of Oswald by Jack Ruby caused further skepticism as it suggested both a conspiracy and a cover-up.
When President Johnson established the Warren Commission in an apparent effort to prevent parallel investigations, calm domestic fears, and defuse any potential international repercussions of the assassination, many Americans welcomed a simple explanation of this event. Others, however, observed incongruities in the Warren Commission's investigation.
Warren Commission member and future President Gerald Ford declared early on that "the monumental record of the President's Commission will stand like a Gibraltar of factual literature through the ages to come."14 Three decades later, an American author likened the Commission's work to "a dead whale decomposing on a beach."15 The juxtaposition of these similes, as well as their temporal distance from one another, tells a story about the changing perception of the Warren Commission's work over time. And while neither is fully accurate, they concur, at least, on the issue of size. The Warren Commission's work product was massive. The size and scope of the published material provided critics with "a species of Talmudic text begging for commentary and further elucidation."16
Critics found ammunition with which to attack the Commission's work. First, the Commission's time and resource constraints forced it to rely mainly on the FBI to conduct the day-to-day investigation of the murder. Second, the Commission failed to examine some of the most critical evidence in the case: the photographs and x-rays from President Kennedy's autopsy.
Chairman Earl Warren felt that these materials were too gruesome to allow into the public record. He thought that it "would make a morbid thing for all time." The Commission relied instead on artistic renderings of the photographs prepared by an illustrator working from verbal descriptions provided by the chief autopsy prosector. Some critics viewed the Commission's failure to view the photographs and x-rays as gross negligence.
Doubts about the medical evidence were compounded for critics by the Commission's forensic conclusion that the President's back and neck wounds, and Governor Connally's back, chest, wrist, and thigh wounds, were all caused by the same bullet. Nothing the Commission wrote or subsequently said could convince critics that Commission Exhibit 399, the so-called "magic bullet" (usually described as "pristine"), could have caused so many wounds while sustaining so little damage itself. Critics argued that if the Commission was incorrect about the single-bullet theory, then the Commission's conclusion that Oswald acted alone could not stand.
Critics found a number of inconsistencies when they measured the report against the 26 volumes of published evidence. Critics believed that the unpublished evidence would further undermine the report's conclusions. Once additional Warren Commission records dribbled out to the public at the National Archives in the mid-1960s, critics such as Mark Lane and Edward Epstein began to publish books that questioned the Commission's conclusions.
In 1967, New Orleans District Attorney Jim Garrison's indictment and trial of Clay Shaw for conspiracy to murder the President provided a credible platform and new momentum for Warren Commission critics. Flamboyant and articulate, Garrison was a media sensation. Although the American public had differing opinions concerning Garrison, his investigation altered the assassination debate. The investigation popularized a radical critique of the official version of the assassination. In addition to generating assassination records, the Clay Shaw trial was also the venue for an important assassination record milestone: the first public showing of Abraham Zapruder's film footage of the assassination.
When President Gerald Ford established the Rockefeller Commission, he started a trend to examine U.S. government intelligence actions during the 1960s and early 1970s. As part of its forensic review of the assassination, the Rockefeller Commission viewed the Zapruder film in February 1975. Shortly thereafter, the television program Goodnight America showed the film. When the American public saw the film, many concluded that President Kennedy's fatal head wound had been caused by a shot from the front.
At the same time, the Church Committee uncovered U.S. government assassination plots against foreign leaders, including Cuba's Fidel Castro, during the 19601963 period. Some of these plots involved organized crime figures. The Committee found the intelligence agencies (primarily the CIA and the FBI) deficient in their investigation of President Kennedy's death, and critics called for a reinvestigation.
In September 1976, the HSCA began its work. By this time, skepticism concerning the official explanation of the assassination had hardened in the minds of millions of Americans.17 This skepticism was fueled by a small cottage industry of authors, lecturers, and assassination researchers who noted that the government had not released germane records and had even lied to itself about the case.
Initially critic-friendly, the Committee eventually sought to establish some distance between its inquiry and that of Warren Commission critics. In the end, the Committee's report reflected an interesting mix of conclusions which only whetted researchers' appetites for the Committee's records. Although the HSCA's report stated that it believed the President's death was the result of a conspiracy, it could not conclusively identify any conspirators other than Lee Harvey Oswald.
The HSCA criticized the performance of the Warren Commission and investigative agencies like the FBI and the CIA for their initial assassination investigations, but it concluded that Lee Harvey Oswald had killed the President and that the single-bullet theory was sound. Despite these conclusions, however, the HSCA did validate some of the criticisms of the Warren Commission by concluding that there was a "high probability" that two gunmen fired at President Kennedy.18
Under House rules, the HSCA's unpublished records were sealed for 50 years, until 2029. Because the HSCA investigation was marked by internal squabbling and disillusioned staffers, the Committee's records were the subject of ongoing controversy. Some ex-staffers claimed the HSCA report did not reflect their investigative work, and that information that did not conform with the Committee leadership's preconceived conclusions was ignored or left out of the report and supporting volumes.
Four years after the HSCA issued its report, a former member of the Committee introduced legislation to open the Committee's records.19 The House Administration Committee held hearings, but the House never voted on the resolution and the HSCA records remained closed until Congress passed the JFK Act.
When Congress did finally vote to open HSCA and other assassination records, it had less to do with the ameliorative effect of time's passage than it did with a popular if controversial film, JFK. D. The Solution: the JFK Act
This resolution was introduced because of the renewed public interest and concern over the records pertaining to the assassination of President John F. Kennedy.... There has been considerable debate about these records, including accusations that these records, if released, would contain evidence of a government coverup or complicity of government agencies in the assassination of President Kennedy.20
By 1992, the American public had expressed its desire for legislative action. Even executive branch agencies, who were more insulated than Congress from public outrage, were anxious to put the issue of assassination records behind them. The Senate report ultimately stated that "records related to the assassination of President John F. Kennedy are the most publicly sought-after, unreleased records of our government."21
E. Legislative History of JFK Act
When the second session of Congress opened in January 1992, members of Congress began to introduce bills and resolutions that would mandate the release of assassination records.22 While none of these early proposals enjoyed support from the Congressional leadership, they did start a discussion in Congress about secrecy and the assassination that resulted in passage of the JFK Act. Meanwhile, influential voices joined the call to open the government's assassination records, perhaps most notably former President Gerald Ford, the last surviving member of the Warren Commission.23
On March 26, 1992, Congressman Louis Stokes introduced H.J. Res. 454 in the House of Representatives with 40 co-sponsors.24 On the same day, Senator David Boren introduced S.J. Res. 282 in the Senate with nine co-sponsors.25 Within weeks, both the House and Senate held hearings on the legislation.26 In the hearings, members of Congress, representatives from government agencies, and the public agreed on the need to open assassination records. The CIA and the FBI, in particular, committed themselves to full cooperation with Congress. Only the Department of Justice, on behalf of the White House, raised serious concerns about the legislation. These had to do, first, with constitutional issues relating to the appointment process and status of the proposed Review Board and, second, the proposed criteria for the continued withholding of certain types of information.
The hearings established that existing mechanisms for the release of assassination records were not working and the only way to release assassination records was legislation.
During the summer of 1992, committees in both the House and Senate reported favorably on the legislation.27 The full Senate passed the legislation on July 27, 1992. The House of Representatives passed a somewhat different version on August 12, 1992. Differences between the House and Senate bills were unresolved as the end of the legislative session drew near, so the House of Representatives passed the Senate version on September 30, 1992, the date of enactment of what was Public Law 102526, The President John F. Kennedy Assassination Records Collection Act of 1992.
President George W. Bush signed the bill into law on October 26, 1992, just days before the 1992 federal election, but left the appointment of the Review Board to his successor, President William J. Clinton. President Clinton nominated the five members of the Review Board in the latter half of 1993 and, after Senate review and confirmation, they were sworn in on April 11, 1994. The JFK Act included a specific sunset date (two years from the date of the statute's enactment) with an option for a one-year extension. This time-frame proved unrealistic, mainly due to the long delay between the date of enactment and the actual appointment, confirmation, and swearing in of the Review Board. Congress therefore decided to reset the time clock in 1994, passing the President John F. Kennedy Assassination Records Collection Extension Act of 1994.28 In 1997, Congress extended the life of the Review Board one final time, until September 30, 1998, through enactment of Public Law 10525.29
The JFK Act is a unique statute. Its intent is to secure the public release of records relating to President Kennedy's assassination and, in doing so, assure the public that the federal government was not withholding material information about this tragic event.
The JFK Act established a neutral and independent bodythe Review Boardthat could ensure maximum disclosure of federal government records on the Kennedy assassination and, in the process, restore the public's confidence that their government was not keeping secret any relevant information. The JFK Act envisioned that government agencies and the Review Board could achieve comprehensive and rapid disclosure of records, unimpeded by the usual obstacles to release. Congress crafted each of the JFK Act's statutory provisions to accomplish these objectives.
F. Key Provisions of JFK Act
Congress stated that records relating to the assassination would "carry a presumption of immediate disclosure." Since most assassination records were more than 30 years old, Congress stipulated that, "only in the rarest of cases is there any legitimate need for continued protection."
Accordingly, Congress declared that the government would establish a collection of records on the assassination of President Kennedy at the National Archives and Records Administration (NARA). The JFK Collection's purpose would be to make records available to the public.
Congress defined the term "assassination record" broadly to encompass all relevant records. In the JFK Act's legislative history, members of Congress specifically stated that they expected the Review Board to further define the term "assassination record."
The JFK Act obligated all government offices to identify, review, process, and transfer to NARA all assassination records within their possession. The Act directed agencies not to destroy or alter assassination records in their custody. The Act prohibited government offices from withholding or redacting any assassination records if those records had previously been disclosed to the public. And government offices could not withhold or redact any assassination records created outside the government. To the extent that a government office had "any uncertainty" as to whether its records were "assassination record[s] governed by" the JFK Act, the Act directed the government office to transmit the records to the Review Board, which would determine whether the records were, indeed, assassination records.
The Act empowered the Review Board to obtain physical custody of federal records "for purposes of conducting an independent and impartial review" or "for an administrative hearing or other Review Board function." In addition, this section required government offices to "make available to the Review Board any additional information and records" that the Review Board had reason to believe it required for conducting a review.
Once government offices identified assassination records, the Act required them to transmit the records to the Archivist, and make the records immediately available to the public to the extent possible. If government offices believed that release of certain assassination records should be postponed, in full or in part, the Act instructed the offices to transmit the original record to NARA to be included in a "protected collection," which would not be publicly available.
However, the JFK Act mandated that all postponed assassination records be opened to the public no later than the year 2017 (25 years from the date of enactment of the JFK Act). Government offices could continue to postpone public release of material in assassination records after the year 2017 if "the President certifies" that (1) "continued postponement is made necessary by an identifiable harm to the military, defense, intelligence operations, law enforcement, or conduct of foreign relations" and (2) "the identifiable harm is of such gravity that it outweighs the public interest in disclosure." Without such certification, NARA will release all postponed records or portions of records in 2017.30
The JFK Act established standards for postponement to ensure that the JFK Act would release more information than was released under the FOIA and Executive Orders governing declassification. Thus, government offices could request the Review Board to agree to postpone the release of information in an assassination record only if the agency could demonstrateby providing "clear and convincing evidence" to the Review Boarda compelling need for postponement.
Section 7 of the JFK Act was perhaps the Act's cornerstone in that it created a truly independent board that would oversee the federal government's implementation of the Act. The Act instructed the President to nominate five citizens "to serve as members of the Review Board to ensure and facilitate the review, transmission to the Archivist, and public disclosure of government records related to the assassination of President John F. Kennedy." The Act required members of the Board to be "impartial private citizens" who were not presently employed by the federal government and had not "had any previous involvement with any official investigation or inquiry conducted by a federal, state, or local government, relating to the assassination of President John F. Kennedy."
The Act further instructed the President to nominate "distinguished persons of high national reputation in their respective fields who are capable of exercising...independent and objective judgment." The Act envisioned a board consisting of at least one professional historian and one attorney, and it stated that the President should consider recommendations from the following professional associations: the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Bar Association.
The Act called for the President to appoint the Board members and the Senate to confirm them. To ensure independence, the Act stipulated that the President could not remove Board members except by "impeachment and conviction" or for specific cause. It also required that the President issue a report to Congress specifying the reason for removal.
Having set out the parameters for establishing an independent board, the Act delineated the Board's responsibilities and powers. The Act gave the Review Board the power to identify, secure, and release records relating to President Kennedy's assassination. Accordingly, the Review Board possessed authority to "render decisions" on (1) "whether a record constitutes an assassination record" and (2) "whether an assassination record or particular information in an assassination record qualifies for postponement of disclosure under this Act."
In addition, the JFK Act gave the Review Board power to obtain additional records and information from government offices. Further, the Act authorized the Review Board to issue "interpretive regulations."
The Act gave the Review Board certain responsibilities to fulfill upon completion of its work. Thus, "[u]pon termination," the Act required the Review Board to submit a final report to the President and Congress. In addition, the "Review Board shall transfer all of its records to the Archivist for inclusion in the collection, and no records of the Review Board shall be destroyed."
The JFK Act directed the Review Board to appoint an Executive Director and staff to perform the work of, and report to, members of the Review Board. To ensure independence, staff members could not be present employees of the federal government, nor could the Executive Director be affiliated with any prior official investigation of the Kennedy assassination.
The Act directed the Board to provide, if possible, a summary of the redacted information or a substitute record explaining the redacted information. The Act further instructed the Review Board to release parts of records that could not be released in full.
In addition to notifying NARA of its decisions to release or postpone assassination records, the Act also required the Review Board to notify the originating agency as well as the public of any Board determination to designate a record as an assassination record.
While the JFK Act authorized the Review Board to make final and binding determinations concerning the release or postponement of a record, it provided that the President could reconsider any Board determination: "After the Review Board has made a formal determination concerning the public disclosure or postponement of disclosure of an executive branch assassination record or information within such a record,...the President shall have the sole and nondelegable authority to require the disclosure or postponement of such record or information under the standards set forth in section 6 [of the JFK Act]...." Thus, if agencies disagreed with a Review Board determination to release information in a record, the affected agency could "appeal" to the President and request that he overturn the Review Board's decision.
Finally, the Act required the Review Board to submit, to the President and Congress, annual reports regarding its work.
The Act addressed public release of certain special categories of records that may relate to the assassination, including records under seal of a court and foreign records. The law expressed the "sense of Congress" that the Secretary of State should contact Russia to secure public release of records of the former Soviet Union that may relate to the assassination. Congress also urged the Secretary of State to contact other foreign governments that might have relevant records.
Congress clearly emphasized the supremacy of the JFK Act over other laws that might preclude disclosure of assassination-related records. Thus, where the JFK Act required public disclosure of a record, the Act would "take precedence over any other law..., judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure...." The only records that the Act exempted from its "supremacy clause" were (1) IRS tax-related records in which Section 6103 of the IRS Code precluded disclosure, and (2) records donated to the United States under a deed of gift whose terms precluded disclosure.
The Act provided that provisions of the JFK Act pertaining to the operation of the Review Board ceased to be effective when the term of the Review Board expired. However, all remaining provisions of the JFK Act continue in force: "The remaining provisions of this Act shall continue in effect until such time as the Archivist certifies to the President and the Congress that all assassination records have been made available to the public in accordance with this Act." This provision is significant because it underscores the continuing obligation of federal agencies to release records on the assassination after the Review Board's term expires. Finally, Congress recognized that the Review Board would need power to request materials that the agencies themselves would not have identified as assassination-related. The Act guaranteed that the Review Board could enforce its authority through its use of the subpoena power and the power to grant immunity.
In sum, the JFK Act provided a new and unusual legislative remedy to the problem of government secrecy. It required federal agencies to disclose, forthwith, their records on the assassination and it empaneled an independent board to ensure the full identification and release of those records. Years of secrecy about the Kennedy assassination investigations finally fell with the passage of this unique new law guaranteeing a presumption of openness and independent review of the records.
Chapter 1
Endnotes
1 House Judiciary Committee, Subcommittee on Economic and Commercial Law, Assassination Materials Disclosure Act of 1992: Hearings on H.J. Res. 454, 102d Cong., 2d sess., 1992, 96. (Prepared Statement of Jack Valenti, Special Assistant to President Johnson from November 1963 to June 1966). 2 Senate Comm. on Governmental Affairs, Assassination Materials Disclosure Act of 1992: Hearings on S.J. Res. 282, 102d Cong., 2d Sess., 1992, 96. (Prepared Statement of Athan G. Theoharis, Professor, Department of History, Marquette University). 3 Exec. Order No. 11,130 (1963) (Issued by President Lyndon B. Johnson). 4 Exec. Order No. 11,828 (1975) (Issued by President Gerald R. Ford. The Rockefeller Commission released its report on June 16, 1975 and terminated that same month). 5 President's Commission on Central Intelligence Activities Within the United States, Final Report of the President's Commission on Central Intelligence Activities Within the United States (Washington, D.C.: GPO, 1975), 251269. 6 In accordance with practice at the time, President Ford retained Rockefeller Commission records as part of his personal papers when he left office. This practice was ended by the Presidential Records Act of 1978, 44 U.S.C. ññ 22012207 (1994). President Ford subsequently donated these and other records to his presidential library in Ann Arbor, Michigan. 7 The United States Senate established the Church Committee with S. Res. 21 on January 27, 1975. The Committee formally terminated on May 31, 1976. 8 U.S. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities, The Investigation of the Assassination of President John F. Kennedy: Performance of the Intelligence Agencies, 94th Cong., 2nd sess., 1976. S. Rept. 755, 1 (Book V). 9 House Judiciary Committee, Assassination Materials Disclosure Act of 1992, 102d Cong., 2d sess., 1992, H. Rept. 625, 15. This was the House Judiciary's report on H.J. Res. 454. 10 Report of the Select Committee on Assassinations 19 (July 17, 1979). 11 House Judiciary Committee, Assassination Materials Disclosure Act of 1992, 102d Cong., 2d sess., 1992, H. Rept. 625, Part 1. 12 Ibid., 12.
13 House Judiciary Committee, Assassination Materials Disclosure Act of 1992, 102d Cong., 2d sess., 1992, H. Rept. 625, 13. 14 Quoted in Summers, Anthony and Robbyn Summers, "The Ghosts of November," Vanity Fair, December 1994, 88. 15 Mailer, Norman. Oswald's Tale: An American Mystery. New York: Random House, 1995, 351. 16 Ibid. Author Norman Mailer, like many before and after him, would find it "startling to discover, as one pans these government volumes for bits of gold, how much does gleam in the sludge" (352). 17 Doubts about the Warren Commission's findings were not restricted to ordinary Americans. Well before 1978, President Johnson, Robert Kennedy, and four of the seven members of the Warren Commission all articulated, if sometimes off the record, some level of skepticism about the Commission's basic findings. 18 House Select Committee on Assassinations, Findings and Recommendations, 95th Cong., 2d sess., 1979, H. Rept. 1828, 65. 19 H. Res. 160 was introduced by Congressman Stewart McKinney of Connecticut. It was co-sponsored by four additional former members of the HSCA: Representatives Robert Edgar, Harold Sawyer, Harold Ford, and Walter Fauntroy. 20 House Judiciary Committee, Assassination Materials Disclosure Act of 1992, 102d Cong., 2d sess., 1992, H. Rept. 625, 33. (Statement of Representative Louis Stokes). 21 Senate Governmental Affairs Committee, Report to Accompany S. 3006, The President John F. Kennedy Assassination Records Collection Act of 1992, 102d Cong., 2d sess., 1992, S. Rept. 328. 22 These early proposals were H.R. 4090, introduced by Congressman Trafficant of Ohio on January 3, 1992, H. Res. 325, introduced by Congressman Gonzalez of Texas on January 22, 1992; H. Res. 326 and H.R. 4108, both introduced by Congressman DeFazio of Oregon on January 24. 23 George Lardner, Jr., "Ford Urges House Leaders to Seek Release Of All Records on Kennedy Assassination," Washington Post, 30 January 1992, A12. 24 Congressional Record, 102d Cong., 2d sess., 1992, 138, daily ed. (26 March 1992): H1984 86. 25 Congressional Record, 102d Cong., 2d sess., 1992, 138, daily ed. (26 March 1992): S439297. 26 The House Government Operations Committee held hearings on April 28th, May 15th and July 22nd. The House Judiciary Committee held a hearing on May 20th. In the Senate, the Governmental Affairs Committee held a hearing on May 12th. 27 The House Government Operations Committee approved the legislation in June (Report 102625 I, June 29, 1992) and the House Judiciary Committee in August (Report 102625 II, August 11, 1992). The Senate Governmental Affairs Committee approved legislation in July (Report 102328, July 22, 1992). The Senate committee approved an amendment in the nature of a substitute; the bill forwarded to the full Senate for its consideration therefore had a new designation, S. 3006. This was the bill the full House eventually voted on in September. 28 Public Law 103345 was enacted October 6, 1994. The Extension Act had been introduced as H.R. 4569. 29 Introduced as H.R. 1553 by the Chairman of the Government Reform and Oversight Committee, Congressman Dan Burton of Indiana, the bill was approved by the House on June 23, 1997 and by the Senate two days later. President Clinton signed the bill into law on July 3, 1997. 30 Many of the postponements agreed to by the Review Board in fact have release dates that are much earlier than 2017. Chapter 2
Establishment of the Review Board and Definition of "Assination Record"
A. Introduction
The John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act) provided optimistic deadlines by which Congress believed that government offices, the National Archives and Records Administration (NARA), and the Assassination Records Review Board should complete particular activities. This chapter describes the actions taken by the Review Board to begin its work. Initially, it was clear that the Review Board needed to provide critical guidance by defining the term "assassination record." The Board's definition of that term was the foundation that enabled the Board to begin the critical task of reviewing records.
B. Delay in Start Up
When Congress drafted the JFK Act, it estimated that the Review Board would require a maximum of three years to accomplish its work. There were, however, a number of delays in the early phase of the Board's operation that affected the ability of the Board to meet the deadline set by Congress.
Although President Bush signed the JFK Act into law on October 26, 1992, and although the act required the President to make nominations within ninety days, President Bush made no nominations. President Clinton did not nominate the members of the Review Board until September 1993, well after he took office in January 1993, and the Board was not confirmed and sworn in until April 1994. During the 18 month period between the passage of the JFK Act and swearing-in of the Review Board members, some government agencies proceeded with independent reviews of their assassination-related files, as the JFK Act required, but without the Review Board's guidance. Unfortunately, once the Review Board began work, it became apparent that government offices realized that they would need to re-review files under the Review Board's strict standards. Thus, while Congress passed the JFK Extension Act in 19941 to reset the clock and to give the Board a full three-year mandate, it did not foresee the additional delays that occurred as a result of government offices' early attempts to comply with the JFK Act without the Review Board's guidance.
1. JFK Act Deadlines
a. Ninety days for President to appoint Review Board members. Section 7(a)(2) of the JFK Act stated that the President would appoint Review Board members within ninety days after enactment of the statute. The statute envisioned that the Board members would start work by the end of January 1993. Of course, the Review Board members could not begin work until after they were sworn in on April 11, 1994, 15 months later than Congress had intended. During the original ninety day period set out by the JFK Act, the Bush administration was replaced by the Clinton administration, and although the delay caused by the change in administration was fully understandable, it significantly affected the schedule originally contemplated by Congress. The Review Board's early progress was also slowed by the fact that the Congress did not appropriate funds for the Board's operation until October 1, 1994. The early months were funded solely by a small transfer of funds from the White House budget.
b. 300 days for government offices to review, identify, and organize assassination records. Section 5 of the JFK Act required each government office to review, identify and organize assassination records within its custody.2 No government office completed its work within 300 days as the statute directed, and as the Review Board terminated its operations in September 1998, some government offices still had not reviewed, identified, and organized all assassination records within their custody. For example, the Review Board entered into memoranda of understanding with the FBI and the CIA to allow them to process selected groups of records such as duplicate documents and newly discovered CIA audiotapes from its Mexico City Station after the Review Board terminated its operations.
The Act specifically required each government office to: (1) determine which of its records fit within the statutory definition of assassination records, (2) determine which of its assassination records contained information from another government office and consult with the other government office concerning the information in the record, (3) determine which of its assassination records it could release, unredacted, to the public, and (4) determine which of its assassination records were eligible for withholding under Section 6 of the Act, and then prepare those records for review by the Review Board.3 To the extent that a government office had "any uncertainty" as to whether its records were "assassination record[s] governed by" the JFK Act, the Act directed the government office to transmit the records to the Review Board for a determination as to whether the records were, indeed, assassination records.4
Federal agencies, particularly the CIA and FBI, did not review and process the statutorily defined "assassination records" in the time allotted and make them available for Review Board action. Moreover, even if government offices had been able to meet the 300-day deadline, the delay in the appointment of the Review Board prohibited federal agencies from obtaining early guidance on the questions of the definition of "assassination record" and the standards for postponements under Section 6 of the JFK Act.
Congress realized that agencies would begin their JFK Act compliance before the Review Board began to operate, but as the Senate Report on the JFK Act states, they trusted that the pre-Review Board compliance would not cause additional delays. There is a sufficient volume of known assassination records [for the agencies] to organize and review at the outset. However, it is intended that the Review Board issue guidance to assist in articulating the scope or universe of assassination records as government offices and the Review Board undertake their responsibilities. Such guidance will be valuable notwithstanding the fact that government offices will begin to organize and review their records before the Review Board is established. Government offices are required to begin the review and disclosure of records upon enactment to expedite public access to the many records which do not require additional review or postponement. However, the ultimate work of the Review Board will involve not only the review of records recommended for postponement, but requiring government offices to provide additional information and records, where appropriate. Guidance, especially that developed in consultation with the public, scholars, and affected government offices, will prove valuable to ensure the fullest possible disclosure and create public confidence in a working definition that was developed in an independent and open manner.5
Unfortunately, once the Review Board provided guidance to the agencies, much of the initial work of the agencies needed to be revised, which, in turn, slowed down their processing and reviewing of assassination records. For example, after Congress passed the JFK Act in 1992, the FBI began to review and release to NARA the records that it made available to the HSCA. Once the Review Board came into existence and established strict standards for release, the FBI re-reviewed every page of its HSCA files using the Board's standards. The FBI then made "supplemental" releases to NARA.
In summary, the agencies, for different reasons, had not completed the work assigned to them by the JFK Act. The Review Board attributed such delays by the CIA and the FBI both to the manner in which the agencies declassified material and to the enormous volume of work that they had not been able to complete within the short deadlines provided by Congress. c. 300 days for NARA to establish JFK Collection. Section 4 of the JFK Act instructed NARA to establish the JFK Collection within 300 days after Congress enacted the Act. On August 23, 1993, exactly 300 days after the enactment of the JFK Act, NARA officially opened the JFK Collection.
d. Three years for Board to complete work. The JFK Act envisioned that the Review Board could start up, complete its work, and close down within three years. The Act, however, contained certain provisions that considerably slowed the early phase of the Review Board's operation and delayed the point at which it could operate effectively in its review of records. As an independent agency, the Board had to locate and construct office space that was suitable for the storage of classified material. At the same time, the Board had to hire a staff and obtain clearances for the staff at the Top Secret level. In an effort to ensure the independence of the Board, the JFK Act provided that the Review Board could not hire (or detail) individuals employed by other federal agencies. The Review Board did not have enough staff members to begin to review and process government records until the beginning of 1995two and one-half years after President Bush signed the JFK Act.
Finally, federal agencies submitted to the Review Board more requests for postponements than the framers of the statute anticipated. While the JFK Act states that "only in the rarest cases" would agencies have a "legitimate need for continued protection" of assassination records, agencies submitted tens of thousands of pages of records to the Board with requests for postponements. Thus, Congress' three-year timeline for the Review Board to fulfill its mandate was based on a view of agency records that the agencies did not share.
By the spring of 1996, the Review Board believed that in order for it to be faithful to its historical responsibility and commitment to release to the public all known assassination records, it required an additional year. Therefore, it recommended to Congress that the JFK Act be extended for one year.
2. Passage of H.R. 1553
On May 8, 1997, Congressman Dan Burton introduced H.R. 1553, a bill that would amend the JFK Act to provide one additional year for the Review Board to complete its work. Congressman Louis Stokes and Congressman Henry Waxman co-sponsored the bill.
On June 4, 1997, the National Security, International Affairs, and Criminal Justice Subcommittee of the House Government Reform and Oversight Committee held a hearing on H.R. 1553. The Honorable Louis Stokes, Review Board Chair John Tunheim, writer Max Holland, and teacher Bruce Hitchcock all testified in support of H.R. 1553. On July 3, 1997, President Clinton signed H.R. 1553 into law, thus extending the authorization of the Review Board for one additional year, to September 30, 1998.
Following the passage of H.R. 1553, the Committee on Government Reform and Oversight required the Review Board to provide monthly status reports regarding the projected completion of the Board's mandate. Beginning in August 1997, the Review Board sent monthly letters to the Committee Chairman, Congressman Burton.
The Review Board used its additional year to complete its work and terminated its operations, as promised, on September 30, 1998.
C. Defining "Assassination Record"
In order for the Review Board to begin the declassification of records related to the assassination of President Kennedy, it first had the task of establishing the definition of an "assassination record."
The Review Board was aware that prior commissions and committees that examined the assassination operated in secret, and that the problems caused by such secrecy had ultimately led Congress to pass the JFK Act and establish the Review Board. Thus, the Board determined that its deliberations on how to define the term "assassination record" must be conducted in the public eye. In an effort to receive as much comment as possible from members of the public, the Review Board held public hearings devoted to its definition of the term. In addition, the Board published its proposed definition in the Federal Register to attract additional public comments.
Through its solicitation of public opinion, the Review Board received affirmation of its position in favor of a broad definition, as members of the public supported a broad definition of the term "assassination record." Given the wide range of assassination theories that existed, the Board members believed that the definition could not exclude records that would enhance the historical understanding of the event, even if those records did not mention the assassination.
As their definition reflects, the Review Board members ultimately concluded that the term "assassination record" had to encompass records beyond those that mentioned central topics such as one of the assassination investigations, Lee Harvey Oswald, his wife Marina, his mother Marguerite, or Jack Ruby. The Review Board, four of whom were trained historians, recognized that the definition had to encompass records that would enhance the historical understanding of the event. Although the Review Board intended to search for any "smoking gun" documents that might still exist, the Board knew that its greatest contribution would likely be to provide to the public those records that would frame the tragic event.
1. Statutory Definition of
"Assassination Record"
The JFK Act defined "assassination record" as a record "related to the assassination of President John F. Kennedy, that was created or made available for use by, obtained by, or otherwise came into possession of" the federal government (or state or local law enforcement offices that assisted in an investigation of President Kennedy's assassination).6 Congress noted specifically that "assassination records" encompassed records relating to the Kennedy assassination among the files of the Warren Commission, the Rockefeller Commission, the Pike Committee, the House Select Committee on Assassinations (the "HSCA"), the Library of Congress, the National Archives, "any Presidential Library," "any Executive agency," "any independent agency," and "any other office of the federal government," as well as "any state or local law enforcement office" that assisted in an inquiry into the assassination of President Kennedy.7
The Senate Report on the JFK Act explains that Congress carefully crafted its definition but expected that the Review Board would need to further define the term.
The definition of assassination records is a threshold consideration for the successful implementation of the Act. Its scope will be the barometer of public confidence in the release of assassination records. While the records of past presidential commissions and congressional committees established to investigate the assassination of President Kennedy are included as assassination records under this Act, it is intended and emphasized that the search and disclosure of records under this Act must go beyond those records. While such records are valuable, they reflect the views, theories, political constraints and prejudices of past inquiries. Proper implementation of this Act and providing the American public with the opportunity to judge the surrounding history of the assassination for themselves, requires including not only, but going beyond, the records of the Warren and Rockefeller Commissions, and the Church and House Select Assassination Committees.8
The JFK Act explicitly empowered the Review Board to decide "whether a record constitutes an assassination record."9 The Review Board took seriously its obligation to locate assassination records that fell outside the scope of previous inquiries. Before the Review Board could embark on its search for such records, however, it had to grapple with the question of how extensive its search should be.
2. Congressional Intent Concerning
Definition
Having directed the Review Board to further define the term "assassination record," Congress specifically gave the Review Board the power to issue interpretive regulations.10 The legislative history of the Act explains why Congress thought that the Review Boardand not the Congresshad to define the term.
The term "assassination record" was not more specifically defined by the Committee because to do so before more is known about the universe of records would have been premature, and would have further injected the government between the records and the American public.11
Congress was so interested in how the Review Board would define "assassination record" that it requested each Board member to provide written answers to the following question as part of the confirmation process:
The definition of "assassination records" contained in the Records Review Act establishing this Board was intentionally left very broad. What kinds of criteria and factors will you use in determining whether or not a document or other item will fall within the definition?
All of the Review Board members answered that they favored a broad definition of the term, but each recognized that the Board members would, in Judge Tunheim's words, have to "more fully understand the scope of the potential records before attempting to define the term."12 Congress also asked the Review Board members to respond to questions concerning assassination records in the possession of private citizens, as well as questions concerning the Board's authority to administer oaths and subpoenas and grant immunity to witnesses in furtherance of compelling disclosure of assassination records from private and foreign sources.13
3. Review Board's Early Deliberations and Draft Definition
On July 12, 1994, at one of the Review Board's first meetings, it began to consider the scope of its definition of "assassination record." At that meeting, the Board members agreed that they would need to conduct more research before they would be able to craft a definition as Congress intended. The purpose of the Review Board's October 11, 1994, public hearing was to gather public input on how to define the term. At that hearing, members of the public encouraged the Board to define the term broadly. By mid-November 1994, only weeks after the Board's senior staff had begun work, those staff members were circulating draft definitions of this crucial statutory term. The Review Board and its senior staff spent the month of December 1994 discussing the most important sections of the definition, including provisions about whether certain types of records were relevant to the assassination, whether assassination artifacts should become part of the JFK Collection, and whether the Collection could include copies of original documents.
The Review Board members ultimately decided on a proposed definition and published the draft in the Federal Register in an attempt to solicit public comment. The January 8, 1995, Federal Register contains the Board's proposed definition.
4. Comments from Public
With their proposed definition complete, the Board members began to solicit comments from members of the public and from government agencies about the definition.
a. Notice and Comment
The Review Board sought public comment on a proposed definition and set a 30-day period for the purpose of receiving written comments.14 The Review Board received written comments on its proposed definition from numerous federal agencies, state and local government entities, and individuals.
Nearly all of the commentators supported the comprehensiveness and flexibility of the Board's definition. Respondents made both substantive and technical suggestions, many of which the Board adopted into the final definition. Commentators addressed a broad range of concerns, such as whether the Board's proposed definition was too broad or too vague, and whether the Board should provide a list of names and subjects that, to the extent they appeared in documents, would presumptively be assassination records. The Board also received comments about whether the definition should cover state and local government records, private records, and assassination artifacts.
b. Public Hearings. The Review Board also heard testimony at public hearings on aspects of the proposed interpretive regulations. In these public hearings, the Review Board received testimony from NARA and the FBI on the scope of the definition. Members of the public also offered comments on the Board's proposed definition.
The Review Board considered all comments and created its final draft of the definition. The Board discussed its final draft at a public meeting, and explained how it had incorporated many of the comments received by the Review Board on the proposed definition.
The Review Board's Federal Register notice establishing the final definition of the term "assassination record" summarized the principal substantive comments received and the Review Board's responses to those comments.15
5. Definition
The Review Board's final definition of an "assassination record" was published in the Federal Register on June 28, 1995.
As the Supplementary Information accompanying the proposed definition stated, the Review Board's goal in issuing the guidance was:
to implement congressional intent that the JFK Collection contain the most comprehensive disclosure of records related to the assassination of President Kennedy.'16 The Board is also mindful of Congress's instruction that the Board apply a broad and encompassing' working definition of "assassination record" in order to achieve the goal of assembling the fullest historical record on this tragic event in American history and on the investigations that were undertaken in the assassination's aftermath. The Board recognizes that many agencies have already begun to organize and review records responsive to the [JFK Act] even before the Board was appointed and began its work. Nevertheless, the Board's aim is that this guidance will aid in the ultimate assembly and public disclosure of the fullest possible historical record on this tragedy and on subsequent investigations and inquiries into it.17
The Review Board's definition intended "to identify comprehensively the range of records reasonably related to the assassination of President Kennedy and investigations undertaken in its aftermath," and "to aid in the consistent, effective, and efficient implementation of the JFK Act and to establish procedures for including assassination records in the JFK Assassination Records Collection established by Congress and housed at NARA's facility in College Park, Maryland."18
a. Scope of assassination records.19 The Board ultimately determined that any records that were "reasonably related" to the assassination would be assassination records. The Review Board believed that its mandate from Congress was to assemble all materials reasonably related to the assassination in the JFK Collection.
Section 1400.1 of the Board's final definition of "assassination record" reads:
(a) An assassination record includes, but is not limited to, all records, public and private, regardless of how labeled or identified, that document, describe, report on, analyze, or interpret activities, persons, or events reasonably related to the assassination of President John F. Kennedy and investigations of or inquiries into the assassination.
(b) An assassination record further includes, without limitation:
(1) All records as defined in Sec. 3(2) of the JFK Act;
(2) All records collected by or segregated by all federal, state, and local government agencies in conjunction with any investigation or analysis of or inquiry into the assassination of President Kennedy (for example, any intra-agency investigation or analysis of or inquiry into the assassination; any inter-agency communication regarding the assassination; any request by the House Select Committee on Assassinations to collect documents and other materials; or any inter- or intra-agency collection or segregation of documents and other materials);
(3) Other records or groups of records listed in the Notice of Assassination Record Designation, as described in ñ1400.8 of this chapter.
In its work, the Review Board often turned back to the breadth of its definition of the term "assassination record." Indeed, in the Board's last weeks of work, a representative from one government office told the Review Board that he did not believe that his office's records were assassination records because the records did not mention the assassination, or any of the central assassination figures. When it was defining the term "assassination record," the Board anticipated that federal agencies and others who possessed relevant records would challenge the Board's judgment.
b. Scope of additional records and information.20 The Review Board determined that it would request additional records and information when necessary for identifying, evaluating, or interpreting assassination records, including assassination records that agencies may not have initially located or identified. The Review Board's regulatory definition included a description of some items the Review Board might request from government agencies that included background information about how the agencies operate and, in particular, how agencies performed their declassification review.
The work of the Review Board staff hinged on the breadth of the Board's definition of "additional records and information." Often, the staff located a particular code name or number in a federal agency record and needed the authority to require the federal agency to provide information that would reveal the underlying information. For example, in CIA documents, the Review Board staff encountered pseudonyms and needed to know the true name of the individual in the record. Similarly, in FBI records, the Review Board staff often reviewed records that contained "symbol number informants" where the FBI had substituted a number in place of an informant's name. In part because of the Review Board's regulation, the staff could request the FBI to reveal the informant's true name and review the informant's file.
c. Sources of assassination records and additional records and information.21 The Review Board sought to cast a wide net in terms of where it might locate assassination records. The Board's regulation, therefore, allowed it to seek assassination records in the possession of all federal government entities, all state and local government entities, private individuals, private institutions, all courts, and all foreign governments.
When the Review Board later sought to obtain records from non-federal sources, their regulatory definition proved useful. Over the objection of New Orleans District Attorney Harry Connick, Sr., the Review Board was able to obtain for the JFK Collection records that had been in the possession of the New Orleans District Attorney's office since the 1960s when former New Orleans District Attorney Jim Garrison prosecuted Clay Shaw for conspiring to murder President Kennedy. In litigation over the records, the Review Board relied in part on its regulation defining the term "assassination record."
The regulation also proved helpful in the Review Board's efforts to secure assassination records from former government officials. For example, the Board sought the records of Walter Sheridan, former investigator for Robert F. Kennedy, whom the Review Board had reason to believe might possess assassination records. Although Sheridan was deceased, he owned such records "by virtue of [his] service with a government agency, office, or entity" and thus, the Review Board was able to subpoena Mrs. Sheridan to determine whether he retained any assassination records.
d. Types of materials included in scope of assassination records and additional records and information.22 The Review Board tried to be as inclusive as possible in identifying the type of material it could seek for inclusion in the JFK Collection, and it included papers, maps, and other documentary material, photographs, motion pictures, sound and video recordings, machine- readable information in any form, and artifacts.
NARA wanted the Review Board to exclude the term "artifacts" from its definition of "assassination record." NARA believed that extensive public access to assassination artifacts would undermine NARA's ability to preserve them. The Board members concluded that the term must become part of the definition, but agreed to establish procedures for placing artifacts in the JFK Collection.23 The Board agreed to allow NARA to make judgments about when and to whom it would allow access to artifacts. To the extent that NARA could not allow access to members of the public who wished to view particular artifacts, the Board's regulation allowed NARA to provide the public with photographs, drawings, or similar materials depicting the artifact.
The Review Board did act on its inclusion of the term "artifacts" in the definition when it requested that NARA become involved in the testing of Warren Commission Exhibit 567, a bullet fragment found in President Kennedy's limousine on November 22, 1963, and stored at NARA in the intervening years. The Review Board oversaw testing of tiny strands of fiber on that bullet fragment as well as testing of other material on the bullet fragment. NARA was hesitant to approve testing of the fragment, but had the Review Board not included the term "artifact" in its definition, the Board almost certainly could not have played a role in the testing.
e. Assassination records released in their entirety.24 The Review Board further required that, in accordance with the JFK Act, assassination records be released in their entirety unless the Board sustained agency postponements. Practically, the Board meant that agencies could not object to the disclosure of all or part of an assassination record "solely on grounds of non-relevance." The Board specifically wrote that it, not the agencies, would make determinations about whether particular records were relevant.
This section of the Board's 1995 Guidance specifically affected the FBI. From early 1993 until the Board issued its definition in 1995, the FBI designated large parts of FBI files as "NAR," or "not assassination related." Indeed, with regard to the majority of the records to which the FBI assigned the "NAR" acronym, the Review Board agreed that the records were not relevant to the assassination. For example, the FBI designated as "NAR" those sections of their HSCA administrative file that related to the HSCA's investigation into the assassination of Martin Luther King, Jr. However, the Board's regulation mandated that the Board, and not the FBI, make determinations as to relevance, so the FBI abolished the "NAR" designation and made all such records available to Board staff for review.
On the other hand, in several of the FBI's appeals to the President, the FBI argued that the information that the Review Board had voted to release was not relevant to the assassination. In those cases, the Review Board was able to argue effectively that the Board should determine whether information was relevant to the assassination and the appeals were withdrawn.
f. Originals and copies. The Review Board defined when it would be willing to accept copies of assassination records in lieu of original assassination records for the JFK Collection.25
With regard to motion pictures, the Review Board stated that "the camera original, whenever available,...may be placed in the JFK Collection." The regulation quietly expressed the Review Board's preference for original motion pictures, but when the Review Board resolved that the JFK Act worked a "taking" of the Zapruder film such that the film belonged to the U.S. government and not the Zapruder family, the Board believed that a copy of the camera original Zapruder film could not substitute for the camera original.
Finally, the Board's regulation established a procedure by which it would designate records as assassination records.26
D. Conclusion
Congressional and presidential delays, combined with unrealistic statutory deadlines, unfortunately contributed to a delay in the commencement of the Board's work. Once the Review Board began to meet, however, its careful determination, following full public debate, of the scope of the term "assassination record" laid the foundation for later review of thousands of important records.
Chapter 2
Endnotes
1 44 U.S.C. ñ 2107 (Supp. 1998).
2 JFK Act at ñ 5(c)(1).
3 JFK Act at ñ