Judge John Tunheim addressing a COPA conference
The Workings of the Assassinations Records Review Board
John
R. Tunheim (Gave this talk after the ARRB dissolved)
"...when the Secret
Service destroyed a group of records that we were seeking, which they said were
destroyed inadvertently—they were the threat assessment records before the
November 1963 period, we found copies of those records in the FBI files." - John Tunheim
Good afternoon, everyone. I’m
going to stick to my time limits today. I want to leave time for your
questions. That is one of the most important parts of these events.
Although I am a federal judge
right now, four years in the 1990’s, for four years, I served as chairman of
the federal agency that was charged with finding what were then still secret records
from the Kennedy assassination and getting as many of them released as quickly
as possible to the public.
The law that Congress passed,
The President John F. Kennedy Records
Collection Act of 1992, was a reaction not only to the movie by Oliver
Stone which brought the issue to the fore, but also due to the years of dedicated work done by researchers who felt they
were trying to research this important subject with one arm tied behind their
back, because so many government records from the 1960’s were still classified.
It doesn’t take much to classify a record. That is still a problem that exists
in Washington today.
You put “Top Secret” on a document and perhaps 30 or 40 years later it might
get released.
The
bill was passed in 1992 by Congress, President Bush was empowered to make the
appointment; he did not make an appointment. He opposed the bill, thinking it
was unconstitutional, and
therefore he ignored the impact of the law and it fell to President Clinton
to make the appointment.
I was nominated by President
Clinton in September of 1993, and we were all confirmed, a five member board,
consisting of myself, the one required lawyer on the board, and four academics,
one of whom was a professional archivist, and three who were presidential
historians. This Act put control of declassification of federal records, albeit
in a single category, in the hands of an outside independent body for the first
time. We were an independent agency within the executive branch which meant
that we were handling executive branch records, which got around the
constitutional issue.
We were independent and
couldn’t be simply fired by the president. All
government records on the Kennedy assassination were to carry a presumption of
openness, and agencies were required to organize their files and present them
to us, along with any argument as to why a particular record should remain
sealed. When we made our decision about releasing a document, the agency
could appeal our decision to the president. There was no part of this effort
that was to go before the courts, the president being ultimately in control of
executive branch records.
We were also to do our best to search for state, local, and private
records to be part of the collection, and we were empowered to try to clear up,
as best we could, some of the evidence. What we were not supposed to do, and
we did not do, was to try to decide what happened. The whole goal of this effort was to find all of the records and
release them to the extent possible.
We released just about everything that we got our hands on; then let
the public decide: open the records to researchers, let them look through them,
and let the public decide what happened.
We made several important
decisions at the beginning. All of the documents were considered on a word-by-word
basis, which means that no entire document was ever sealed or kept under wraps
by our efforts. We occasionally would redact information—not very much. We did
not redact any information that was central to the assassination story. We
did redact names of certain intelligence agents who were still alive; we felt
that their lives might be endangered if it was known that they were CIA
agents. We used their pseudonyms instead. But for every piece of information we redacted, we set a release date.
All of those release dates have now passed.
The only records that have not been released are records that will be released
in 2017. These non-released
documents were not considered central to the assassination story, but they
contain national security information.
The standard we applied was
very interesting. We had to weigh interests.
We weighed interests such as public interests and interests like
national security, intelligence gathering methods, personal privacy, and presidential
security. But with the great interest in the Kennedy assassination records, we
released just about everything. We found that just about everything satisfied
that standard. We had a staff of about 30 people; we held hearings around the
country. We defined expansively what an assassination record was. There are
those who would argue that President Kennedy was killed, for example, because
he was going to withdraw advisors from Vietnam .
That’s a theory that some people expressed. We didn’t take a position on that,
but we went and found all of President Kennedy’s administration’s records on Vietnam
policies, and released them. That’s the
way we did our work—not taking sides on any particular place, but just getting
everything out.
We issued in the four years over
27,000 decisions. There were an
additional 33,000 decisions that were called “consent releases:, which is a
fancy way of saying the agency wanted the information protected, but the agency
knew we weren’t going to protect the information, so the agency just gave up.
There were no successful agency appeals at the White House, President Clinton signaled
early on that we were going to do this work and he wasn’t going to interfere
with it.
The collection includes all
the evidentiary material from the Warren Commission, and includes the
voluminous collection of The House Committee on Assassinations. We have about
1.6 million pages of material from the Central Intelligence Agency that was
shipped over and declassified and archived.
The total collection today is over 6 million pages. It is the
largest single collection at the National Archives. It has an index at www.nara.gov . We had very
interesting relationships with the federal agencies who were involved, and in
the end we knew their files better than they did, because we were looking at
their files and we were examining everything.
Now, one question that people
ask is: “Weren’t there records that were destroyed over the years?” Well yes
there were. I’m sure there were records
that were destroyed before we got into the action, 30 years after the
assassination. The voluminous collection maintained by James Angleton at the CIA was largely destroyed when he was fired
from his job as Chief of Counterintelligence in 1975. The files of J. Edgar
Hoover were burned upon his death. So there are records that disappeared.
But if a record was destroyed at the CIA , the State Department likely may have a
copy of the record, or it may be at the FBI, or at the National Security
Agency. There are copies of records galore throughout the federal government,
so when the Secret Service destroyed a group of records that we were
seeking, which they said were destroyed inadvertently—they were the threat
assessment records before the November 1963 period, we found copies of those
records in the FBI files.
The FBI, fortunately, kept all
their records in a very organized fashion. The CIA , on
the other hand had no clue where records were with their filing systems. They
were off in warehouses, they were misfiled; we had a hard time finding records
within the CIA .
Just to inform you of some of
the efforts we made, we hunted for a lot of extra records, such as in New
Orleans . Professor Fetzer mentioned
the Garrison investigation and prosecution of Clay Shaw. We went to New Orleans
to get as many records as we could. A cousin of one of Clay Shaw’s former
partners came forward with the diary that Clay Shaw had written during the
trial, which is now a pretty interesting part of the collection.
We held a public hearing in New
Orleans , and the District Attorney
said, “I will help you with whatever you want. All of our records are yours.
Nothing’s been destroyed.” Watching that hearing at the time was an
investigator that the District Attorney had fired. This man was fired shortly
after the new District Attorney came on board. The investigator was fired because he refused to destroy the Grand Jury
records that Garrison had used in the prosecution of Clay Shaw. About three
or four days later, he showed up in Washington with all the Grand Jury records from
the investigation by Jim Garrison on Clay Shaw. They were wonderful records,
including testimony by Marina Oswald and others. The District Attorney fought us on that all the way to the Supreme
Court, on the basis of whether our power or the states secrecy law trumped the
other side. So that is an example of some of the fights we had.
Professor Fetzer discussed
some of the changes Gerald Ford made in the Warren Commission narrative. This
was a significant change even though he denied it was significant. We found that because the chief counsel of the Warren Commission had taken all of the edited
early versions of the Warren Report home with him. His son came to us and said
that they had been in his dad’s basement for years. He’s
dead now, and the son didn’t know what to do with them and asked if we wanted
them. Of course we wanted them. Of course we did. All 18 early versions of the
Warren Report were included in our records. Gerald Ford’s was right there in
plain sight, so we had to address that.
We tried to do our best with
the photographic record. We were 30 years after the fact. We established there were probably between 80-100 photographs taken in
the autopsy room in the Bethesda Naval facility. There are 15 of these photographs
that exist today. They have passed through Kennedy’s
physician, George Burkley’s hands, through Robert Kennedy’s hands, eventually
back to the National Archives, where they are held through a deed of gift,
where permission needs to be received from the Kennedy family to view them. Many photographs were destroyed.
That
raises the question as to why the photographs were destroyed, and why other
photographs were not destroyed.
We had these 15 original
photographs from the 60’s that were fading. We had them digitalized. They’re
very precise now; they will be preserved for history in this precise way. We
brought in experts one day to look at them and look at the x-rays. They looked
at everything we had. Now, some have argued that some of these photographs are
fraudulent documents, but we took what we had. We brought in a group of
experts, pathologists who had a great deal of experience, and we asked them to
tell us what they thought. They spent a lot of time looking at these documents,
and they came to a conclusion that the shot was a head shot that hit in the top
of the back of the skull in what they called a trenching wound, meaning that it
trenched along, breaking open the flap that is visible in the pictures. In
their view, at least in the pictures we had, we collected everything that was
available at this time; - they didn’t
think that the bullet hit brain tissue, but the shock waves was enough to
kill him instantly when the bullet hit.
The Zapruder film was
something we spent time on. This film has an interesting history. It was taken
the day of the assassination and made into the film. It was processed right
away. Three first day copies were made. The government kept each of the first
day copies; one of them went to the secret service. The original was sold
almost immediately to the Time/Life Corporation. They had exclusive control
over the images.
These are things that would
not happen today. These things happened in 1963. Part of the original film had
some damage to it while Time/Life held it. As a result, they became
increasingly concerned about holding this important piece of evidence. They
sold it back to Henry Zapruder, who was the son of Abraham Zapruder. Henry was
a Washington lawyer
who died several years ago. The film then went directly to the National Archives.
Whatever you think of the Zapruder film, we had the film, and it should be
maintained. We had it analyzed by experts at Kodak. They did not feel it had
been altered, at least that particular copy that they had tested. And we took
it, in the Constitutional sense, from the Zapruder family. So the original film
is maintained under perfect conditions, at the National Archives, where it is
stored. And it has been digitalized, which of course means it is much easier to
see. So we did what we could with the Zapruder film. We had some issues dealing
with the Zapruder family. We tried to
get them to donate the original film to the United
States . We came close at times, but
in the end, there was a lawsuit trying to establish the value of the film.
We spent a lot of time trying to get records out of the former Soviet Union . Oswald spent two and a half
years there under very close supervision and observation by the KGB. There is a file about eight feet high in Minsk , which includes everything he
said and did. It is in remarkable detail; the KGB did its job very well. They
kept tabs on him at all times; they were very concerned about him. I’ve seen a
lot of the files out of that series of documents, but we haven’t been able to get more than 400-500 pages of that file.
We have a horrible relationship with the government of Belarus . It
just keeps getting worse over time. In
Soviet files in Moscow , there are also files that we haven’t got
access to yet. The KGB did an investigation into the assassination. It is an important set of documents. For
the future, will we get them? I don’t
know.
Things don’t seem to be going
too well with Russia these
days, so at some point in time, if they
need something from us, if we are smart enough, we’ll ask them to share their
archives on the assassination of President Kennedy with us. Maybe we’ll get
something out of them then. So there is more work to be done, there are files
in Mexico
City that
still haven’t seen the light of day; those files are important
because Oswald spent some crucial time there. These are just some of the
projects that should be pursued.
It was a remarkable experience to work with
all of these documents; we tried very hard to review everything that someone
might have seen as relevant. This was a one time opportunity to open up
classified documents and government files. There
are upward of 100-150 researchers a day looking at these files. That was the
whole idea behind this effort; it was to open it up and finally trust the
people to review the records themselves and decide what happened, rather than
have the government tell them what to do.
I want to recall, in closing,
this was 1963—it was a very different world then. The Dallas police force was a relatively small town
police force, and, in my opinion, a corrupt police force. They
were corrupt in a small sort of way, in accordance with the standards of that
era. A person like Jack Ruby could spend a weekend in the police station,
probably carrying a gun the whole time, and not attract any attention. That is
why Lee Harvey Oswald was paraded out twice for press conferences during the 44
hours he was held by the Dallas Police. But security standards were very
different in that day and age.
The
Secret Service, on the day of the assassination, the blackest day in the
history of that organization, which dates back to within
months of Lincoln ’s
assassination, their procedures and practices were completely changed because
of that day in Dallas . A lot of the things we look at today looks
like almost criminal negligence on their part and the part of the other
agencies that were following Oswald at the time. But the fact of the matter
is, it was standard practice in 1963.We didn’t protect our presidents very
well. We had a remarkably lax set of standards at that time.
Just go forward another 30
years and look at Timothy McVey. Imagine when Timothy McVey was arrested in the
Oklahoma City
bombing in 1965. Did the authorities parade him out to two press conferences?
Did they attempt to transfer him in an unsecured facility? Absolutely not.
Those things never happen today. When
you think back to 1963, and look at these investigations that were poorly done —
they were poorly done, partly because they were done by the standard of the
times. The Warren Commission reflected that as well.
I’ll quit now, so we’ll have
time to talk.
[Note:
The presentation by Judge Tunheim was not the COPA conference where the above photo was taken, but was recorded by Sean Windingland and along
with many of the other presentations, placed on youTube. Using the recording
preserved by Windingland on YouTube, John Delane Williams transcribed Judge
Tunheim’s presentation. Tunheim, J.R., (Chair) and others (1998). Final report of the Assassination Records
Review Board. Washington , DC : US
Government Printing Office.]
1 comment:
Either a typo or a mis-speak that should be [sic]ed: Timothy McVeigh arrest in 1965.
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