Th E Pr O B L E M O F Se C R E C Y a N D T H E So L U T I O N O F T H E J F K Ac T

CH A P T E R 1 TH E PR O B L E M O F SE C R E C Y A N D T H E SO L U T I O N O F T H E J F K AC T

A. THE PROBLEM OF SECRECY cancer three months later before his new trial began.) Ruby maintained that he was not Uncage the documents. involved in the assassination of the President Let them see light. 1 and that he had not known Oswald prior to hearing his name in connection with the The Pr esident John F. Kennedy Assassination assassination. Ruby claimed that his fury Records Collection Act of 1992 was a unique over the assassination led him to kill Oswald. solution to the problem of secrec y . The prob - lem was that 30 years of government secrec y Aside from the assassination investigations relating to the assassination of President John that the Dallas police, the FBI, and the Secret F. Kennedy led the American public to believe Service conducted, President Lyndon B. John- that the government had something to hide. son immediately established the Pres i d e n t ’ s The solution was legislation that req u i r ed the Commission to Investigate the As s a s s i n a t i o n government to disclose whatever information of President Kennedy. Chief Justice of the U.S. it had concerning the assassination. S u p reme Court Earl Wa r ren headed the e fforts of the Wa r ren Commission. Te n The American public is well aware of the months later, the War r en Commission Report facts of this particular case: at approximately concluded that Lee Harvey Oswald acted 12:30 p.m. on November 22, 1963, as Presi- alone and shot the President from a sniper’s dent Kennedy traveled in a motorc a d e nest on the sixth floor of his workplace, the through Dealey Plaza in downtown Dallas, Texas School Book Depository. For a variety Texas, he was shot and suffered a massive of reasons, not the least of which was that the head wound. Doctors at Parkland Memorial War r en Commission conducted some of its Hospital in Dallas pronounced the President investigations in secret and sealed many of its dead shortly thereafter—at 1:00 p.m. rec o r ds, the American public never trus t e d the Commission’s conclusion. Subsequently, Later that day, Dallas police officers arrested other federal entities conducted partial or Lee Harvey Oswald as a suspect in the Presi- complete reinvestigations of the assassina- dent’s murder. Oswald was also a suspect in tion. The most significant of these rei n v e s t i - the murder of a Dallas patrolman that had gations was the House Select Committee on occurred that afternoon. By 1:30 p.m. on Assassinations (HSCA), which concluded in November 23, the Dallas police had charged 1979 that President Kennedy’s death was the Oswald with assassinating the Pre s i d e n t . result of a probable conspiracy. Less than 24 hours later, Lee Harvey Oswald was shot and killed by Jack Ruby during the In 1991, Oliver Stone’s JFK popularized a ver- Dallas Police Department’s transfer of sion of President Kennedy’s assassination Oswald from the city jail to the county jail. that featured U.S. government agents from Television cameras captured the scene of the Federal Bureau of Investigation (FBI), the Ruby shooting Oswald. Central Intelligence Agency (CIA), and the military as conspirators. While the movie Dallas police officers arrested Jack Ruby. He was largely fictional, the information that was tried and convicted of Oswald’s murder Stone conveyed in the movie’s closing trailer in March 1964. (In October 1966, the Texas was true: the HSCA had reinvestigated the Court of Criminal Appeals reversed the ver- murder and issued a provocative report, but dict and ordered a new trial. Ruby died of their records were sealed until the year 2029.

1 Stone suggested at the end of JFK that Amer- ual—Lee Harvey Oswald—as the lone assas- icans could not trust official public conclu- sin of President Kennedy. sions when those conclusions had been made in secret. Congress passed legislation—the The Wa r ren Commission did not, however, JFK Act—that released the secret records that reach its conclusion before conducting an prior investigations gathered and created. extensive investigation.3 During its tenure , the Wa r ren Commission deposed or inter- Nu m e r ous rec o r ds of previous investigative viewed 552 witnesses and generated or bodies such as the War r en Commission, the g a t h e red approximately 360 cubic feet of C h u rch Committee, and the HSCA w e re re c o rds, including some artifacts and se c r et. Yet members of these commissions exhibits. The Wa r ren Commission’s Sep- reached conclusions based on these investiga- tember 1964, 888-page report came with 26 tive rec o r ds. The American public lost faith volumes—over 16,000 pages—of testimony when it could not see the very documents and exhibits. whose contents led to these conclusions. President Johnson recognized the high public B. PRIOR INVESTIGATIVE EFFORTS interest in the Warren Commission’s unpub- T h e re exists widespread suspicion lished records and initiated a plan for release about the government’s disposition of the material. The Johnson plan resulted in of the Kennedy assassination records the release of 98% of the Warren Commis- stemming from the beliefs that Fed- sion’s records by 1992. Thus, at the time that eral officials (1) have not made avail- C o n g ress passed the JFK Act, only 3,000 able all Government assassination pages of Wa r ren Commission material records (even to the Warren Commis- remained for the agencies and the Review sion, Church Committee, House Board to release. Assassination Committee) and (2) have heavily redacted the re c o rd s All Wa r ren Commission re c o rds, except released under FOIAin order to cover those records that contain tax return informa- up sinister conspiracies.2 tion, are available to the public with only minor redactions. The American public has expressed its dissatisfaction with both the work and the conclu- 2. The President’s Commission on sions of the official investigations of the assas- Central Intelligence Agency Activities sination and it was this dissatisfaction that Within the United States was primarily responsible for Congress’ ini- (Rockefeller Commission) tiative to establish the Assassination Records Review Board (Review Board). Section 3(2) of The 1975 Rockefeller Commission investi- the JFK Act defines the rec o r ds of each of gated the CIA’s illegal domestic activities.4 In these official investigative entities as assassi- the course of its work, the Commission nation rec o r ds. As such, the Review Board touched on several assassination-related top- worked to review and release al l rec o r ds that ics, including the identity of the “thre e these investigative entities used in rea c h i n g their conclusions about the assassination. tramps,” the possibility of CIA involvement in the assassination, and ballistics issues.5 At the same time, a brief description of each The Commission concluded that the CIAwas entity and the records it generated is useful not involved in the assassination, and that for understanding the enormity of the the President had not been hit by a shot fired Review Board’s task. from in front of the Presidential limousine.

1. President’s Commission to Investigate As of 1992, the Commission’s assassination- the Assassination of President John F. related files consisted of approximately 2,500 Kennedy (Warren Commission) to 4,000 pages, 95% of which were still secret and in the custody of the Gerald Ford Presi- The Warren Commission was the only inves- dential Library when Congress passed the tigative body to identify a specific individ- JFK Act.6

2 3. The Senate Select Committee to Study the JFK Act, the number of Pike Committee Governmental Operations with Respect re c o rds that contained information that to Intelligence Activities might be related to President Kennedy’s (Church Committee) assassination was unknown.

In 1975 and 1976, the Senate investigated ille- 5. The Select Committee on gal domestic activities of government intelli- Assassinations of the House of gence agencies.7 The Church Committee’s Representatives (HSCA) investigation uncovered allegations such as CIA assassination plots against Cuban Pre- In 1976, the House of Representatives estab- mier Fidel Castro in the 1960–1963 period. lished its Select Committee on Assassina- The CIA did not communicate the existence tions. The HSCA reinvestigated Pre s i d e n t of the plots to the Warren Commission, even Kennedy’s assassination and the assassina- though former CIA Director Allen Dulles (a tion of Dr. Martin Luther King, Jr. The HSCA Warren Commission member) was aware of concluded that President Kennedy was prob- them. ably murdered as a result of a conspiracy and suggested that organized crime may have The Church Committee’s initial findings led played a role in the conspiracy. At the same Committee member Senator Richard time, the HSCA concurred with the Warren Schweiker to call for a reinvestigation of the Commission’s findings that Lee Harvey assassination. Through Senator Schweiker’s Oswald fired the two bullets that hit the Pres- efforts, the Church Committee formed a sub- ident, and that one of those bullets struck committee to evaluate the intelligence agen- both President Kennedy and Governor John cies’ handling of the JFK assassination inves- Connally of Texas (the so-called “single-bul- tigation. The subcommittee interviewed or let theory”). deposed over 50 witnesses, acquired over 5,000 pages of evidence from intelligence During its tenure, the HSCA took testimony agencies, and reviewed thousands of addi- from 335 witnesses and held 38 days of pub- tional pages.8 lic hearings. The HSCA generated approximately 414,000 pages of records relating to As of 1992, the Senate Select Committee on the assassination.11 In 1992, the HSCA’ s Intelligence possessed approximately 5,000 unpublished records resided with the House pages of assassination-related material from Administration Committee (now the House the Church Committee’s investigations.9 Oversight Committee). Although the Church Committee published some material in its reports, the bulk of the Because the HSCA investigated so many dif- Committee’s records remained closed. ferent possibilities in its investigation into possible conspiracies, its records, and federal 4. The Select Committee on Intelligence agency records that the HSCA used, have of the House of Representatives been among the most important records that (Pike Committee) the Review Board processed.

In 1975, the House of Representatives also 6. Additional Congressional established a committee to investigate illegal Investigations domestic activities of government intelligence agencies. The Pike Committee devoted In addition to investigations of the above-ref - less time to issues related to Pre s i d e n t er enced special committees and commissions, Kennedy’s assassination than did the Church various congressional committees have Committee, but it completed some relevant examined aspects of the assassination story. work. However, due to the Pike Committee’s internal conflicts, as well as conflicts that it The House Un-American Activities Commit- had with the executive branch over access to tee, for instance, compiled a small number of records, the Committee never issued a report. pr e-assassination rec o r ds relating to Lee Har- The Committee did touch on some issues vey Oswald’s activities in New Orleans. At the related to the assassination of Pre s i d e n t time of the assassination, the Senate Internal Kennedy. At the time that Congress passed Security Subcommittee, had ongoing investi-

3 gations into the political situation in Cuba and, same point in time, the CIA had rel e a s e d when the President was killed, it conducted a ap p r oximately 11,000 pages of an estimated limited inquiry into the assassination. 250,000 to 300,000 pages of assassination rec o rd s . 13 Other agencies with smaller caches To the extent that these two committees pro- of assassination rec o r ds had released varying vided materials to the Warren Commission, pe r centages of their holdings by 1992. their records remained under the control of succeeding congressional committees and 8. Investigative Records in the Custody had not been released prior to consideration of Non-Federal Sources of the JFK Act. The JFK Act also provided the Review Board La t e r , in 1975, two House subcommittees held with authority to seek assassination records public hearings on issues relating to the trea t - from non-federal sources. Various local law ment of assassination rec o r ds. These were the e n f o rcement agencies assisted the War re n House Judiciary Committee’s Civil and Con- Commission and the FBI in their post-assas- stitutional Rights Subcommittee (Edward s sination investigation. Some local authorities Committee) that investigated the destruc t i o n also possessed relevant pre - a s s a s s i n a t i o n of the so-called “Hosty note” which Lee Har- records. New Orleans District Attorney Jim vey Oswald had left at the FBI Dallas field Garrison’s investigation and trial of Clay o ffice for Special Agent James Hosty on Shaw for complicity in the assassination is a November 6, 1963. After the assassination, prominent example of a non-federal inves- Hosty destroyed the note on the instruc t i o n s tigative effort that generated extensive assas- of his superior, Special Agent in Charge J. sination records. Other potential assassina- G o rdon Shanklin. Its existence re m a i n e d tion records, however generated, exist in the unknown outside the FBI for 12 years. The custody of private citizens and foreign gov- Government Information and Individual ernments. Subject to time and resource con- Rights Subcommittee of the Government straints, the Review Board also identified and Operations Committee (Abzug Committee) secured as much of this indeterminate group examined issues of access and openness rel a t - of records as possible. ing to War r en Commission rec o r ds. C. SKEPTICISM CONCERNING THE While the latter two hearings were pub- GOVERNMENT’S CONCLUSIONS lished, it was not known during consideration of the JFK Act whether additional and The circumstances of President Kennedy’s unpublished records remained in the com- assassination invited public skepticism from mittees’ files. the start. His death raised profound doubts in the minds of many Americans who could 7. Records Held by Executive not understand the apparently confused and Branch Agencies obscure motives of the alleged assassin, Lee Harvey Oswald. The murder of Oswald by All of the major investigative efforts rec e i v e d Jack Ruby caused further skepticism as it assistance from the FBI and the CIA. Other suggested both a conspiracy and a cover-up. agencies, such as the Secret Service, the Department of State, and the Department of When President Johnson established the Justice, were also involved in official investi- Warren Commission in an apparent effort to gations. Federal agencies generated rec o rd s prevent parallel investigations, calm domes- for the investigative entities they worked tic fears, and defuse any potential interna- with, but they also retained a vast body of tional re p e rcussions of the assassination, rec o r ds. At the time of legislative considera- many Americans welcomed a simple expla- tion of the JFK Act, for instance, the FBI had nation of this event. Others, however, al r eady released some 220,000 pages of assas- observed incongruities in the Warren Com- si n a t i o n - r elated material under the Free d o m mission’s investigation. of Information Act (FOIA). Nonetheless, the Bu r eau estimated that approximately 260,000 War r en Commission member and future Pres - pages of additional assassination re c o rd s ident Gerald Ford declared early on that “the remained withheld or unproc e s s e d . 12 At the monumental rec o r d of the President’s Com-

4 mission will stand like a Gibraltar of factual believed that the unpublished evidence li t e r a t u r e through the ages to come.”14 Th re e would further undermine the report’s con- decades later, an American author likened the clusions. Once additional Warren Commis- Commission’s work to “a dead whale decom- sion records dribbled out to the public at the posing on a beach.”15 The juxtaposition of National Archives in the mid-1960s, critics these similes, as well as their temporal dis- such as Mark Lane and Edward Epstein tance from one another, tells a story about the began to publish books that questioned the changing perception of the War r en Commis- Commission’s conclusions. sion’s work over time. And while neither is fully accurate, they concur, at least, on the In 1967, New Orleans District Attorney Jim issue of size. The War r en Commission’s work Garrison’s indictment and trial of Clay Shaw pr oduct was massive. The size and scope of for conspiracy to murder the President pro- the published material provided critics with vided a credible platform and new momen- “a species of Talmudic text begging for com- tum for Wa r ren Commission critics. Flam- mentary and further elucidation.”16 boyant and articulate, Garrison was a media sensation. Although the American public Critics found ammunition with which to had differing opinions concerning Garrison, attack the Commission’s work. First, the his investigation altered the assassination Commission’s time and resource constraints debate. The investigation popularized a rad- forced it to rely mainly on the FBI to conduct ical critique of the official version of the the day-to-day investigation of the murder. assassination. In addition to generating Second, the Commission failed to examine assassination re c o rds, the Clay Shaw trial some of the most critical evidence in the case: was also the venue for an important assassi- the photographs and x-rays from President nation re c o rd milestone: the first public Kennedy’s autopsy. showing of Abraham Zapru d e r’s film footage of the assassination. Chairman Earl Warren felt that these materials were too gruesome to allow into the pub- When President Gerald Ford established the lic record. He thought that it “would make a Rockefeller Commission, he started a trend morbid thing for all time.” The Commission to examine U.S. government intelligence relied instead on artistic renderings of the actions during the 1960s and early 1970s. As photographs pre p a red by an illustrator part of its forensic review of the assassina- working from verbal descriptions provided tion, the Rockefeller Commission viewed the by the chief autopsy prosector. Some critics Z a p ruder film in February 1975. Shortly viewed the Commission’s failure to view the thereafter, the television program Goodnight photographs and x-rays as gross negligence. America showed the film. When the Ameri- can public saw the film, many concluded that Doubts about the medical evidence were President Kennedy’s fatal head wound had compounded for critics by the Commission’s been caused by a shot from the front. forensic conclusion that the President’s back and neck wounds, and Governor Connally’s At the same time, the Church Committee back, chest, wrist, and thigh wounds, were u n c o v e red U.S. government assassination all caused by the same bullet. Nothing the plots against foreign leaders, including Commission wrote or subsequently said Cuba’s Fidel Castro, during the 1960–1963 could convince critics that Commission period. Some of these plots involved orga- Exhibit 399, the so-called “magic bullet” nized crime figures. The Committee found (usually described as “pristine”), could have the intelligence agencies (primarily the CIA caused so many wounds while sustaining so and the FBI) deficient in their investigation of little damage itself. Critics argued that if the President Kennedy’s death, and critics called Commission was incorrect about the single- for a reinvestigation. bullet theory, then the Commission’s conclusion that Oswald acted alone could not stand. In September 1976, the HSCA began its work. By this time, skepticism concerning Critics found a number of inconsistencies the official explanation of the assassination when they measured the report against the had hardened in the minds of millions of 26 volumes of published evidence. Critics A m e r i c a n s .1 7 This skepticism was fueled by a

5 small cottage industry of authors, lecture r s , D. THE SOLUTION: THE JFK ACT and assassination re s e a rchers who noted that the government had not released ger- This resolution was introduced because mane re c o rds and had even lied to itself of the renewed public interest and con- about the case. cern over the records pertaining to the assassination of President John F. Initially critic-friendly, the Committee eventu- Kennedy.... There has been considerable ally sought to establish some distance between debate about these records, including its inquiry and that of War r en Commission accusations that these re c o rds, if critics. In the end, the Committee’s rep o r t released, would contain evidence of a reflected an interesting mix of conclusions government coverup or complicity of which only whetted res e a r chers’ appetites for government agencies in the assassina- the Committee’s re c o rds. Although the tion of President Kennedy.20 HS C A ’s report stated that it believed the Pres - ident’s death was the result of a conspiracy, it By 1992, the American public had expressed could not conclusively identify any conspira- its desire for legislative action. Even execu- tors other than Lee Harvey Oswald. tive branch agencies, who were more insu- lated than Congress from public outrage, The HSCA criticized the performance of the were anxious to put the issue of assassination Warren Commission and investigative agen- records behind them. The Senate report ulti- cies like the FBI and the CIA for their initial mately stated that “records related to the assassination investigations, but it concluded assassination of President John F. Kennedy that Lee Harvey Oswald had killed the Pres- a re the most publicly sought-after, unre- ident and that the single-bullet theory was leased records of our government.”21 sound. Despite these conclusions, however, the HSCA did validate some of the criticisms E. LEGISLATIVE HISTORY OF JFK ACT of the Warren Commission by concluding that there was a “high probability” that two When the second session of Congress opened gunmen fired at President Kennedy.18 in January 1992, members of Congress began to introduce bills and resolutions that would Under House rules, the HSCA’s unpublished mandate the release of assassination records were sealed for 50 years, until 2029. records.22 While none of these early proposals Because the HSCA investigation was marked enjoyed support from the Congre s s i o n a l by internal squabbling and disillusioned leadership, they did start a discussion in staffers, the Committee’s records were the Congress about secrecy and the assassination subject of ongoing contro v e r s y. Some ex- that resulted in passage of the JFK Act. Mean- staffers claimed the HSCA report did not while, influential voices joined the call to reflect their investigative work, and that open the government’s assassination records, information that did not conform with the perhaps most notably former President Ger- Committee leadership’s preconceived con- ald Ford, the last surviving member of the clusions was ignored or left out of the report Warren Commission.23 and supporting volumes. On March 26, 1992, Congressman Louis Four years after the HSCAissued its report, a Stokes introduced H.J. Res. 454 in the House former member of the Committee introduced of Representatives with 40 co-sponsors.24 On legislation to open the Committee’s records.19 the same day, Senator David Boren intro- The House Administration Committee held duced S.J. Res. 282 in the Senate with nine co- hearings, but the House never voted on the sponsors.25 Within weeks, both the House resolution and the HSCA records remained and Senate held hearings on the legislation.26 closed until Congress passed the JFK Act. In the hearings, members of Congress, representatives from government agencies, and When Congress did finally vote to open the public agreed on the need to open assas- HSCAand other assassination records, it had sination records. The CIAand the FBI, in par- less to do with the ameliorative effect of ticular, committed themselves to full cooper- time’s passage than it did with a popular if ation with Congress. Only the Department of controversial film, JFK. Justice, on behalf of the White House, raised

6 serious concerns about the legislation. These information about this tragic event. had to do, first, with constitutional issues relating to the appointment process and sta- The JFK Act established a neutral and inde- tus of the proposed Review Board and, sec- pendent body—the Review Board — t h a t ond, the proposed criteria for the continued could ensure maximum disclosure of federal withholding of certain types of information. government records on the Kennedy assassination and, in the process, restore the pub- The hearings established that existing mecha- lic’s confidence that their government was nisms for the release of assassination rec o rd s not keeping secret any relevant information. we r e not working and the only way to rel e a s e The JFK Act envisioned that government assassination rec o r ds was legislation. agencies and the Review Board could achieve c o m p rehensive and rapid disclosure of During the summer of 1992, committees in records, unimpeded by the usual obstacles to both the House and Senate reported favor- release. Congress crafted each of the JFK ably on the legislation.2 7 The full Senate passed the legislation on July 27, 1992. The Act’s statutory provisions to accomplish House of Representatives passed a some- these objectives. what different version on August 12, 1992. Differences between the House and Senate F. KEY PROVISIONS OF JFK ACT bills were unresolved as the end of the legislative session drew near, so the House of Congress stated that records relating to the Representatives passed the Senate version on assassination would “carry a presumption of September 30, 1992, the date of enactment of immediate disclosure.” Since most assassina- what was Public Law 102–526, The President tion records were more than 30 years old, John F. Kennedy Assassination Records Collec - Congress stipulated that, “only in the rarest tion Act of 1992. of cases is there any legitimate need for continued protection.” President George W. Bush signed the bill into law on October 26, 1992, just days before the Accordingly, Congress declared that the gov- 1992 federal election, but left the appoint- ernment would establish a collection of ment of the Review Board to his successor, re c o rds on the assassination of Pre s i d e n t President William J. Clinton. President Clin- Kennedy at the National A rchives and ton nominated the five members of the Records Administration (NARA). The JFK Review Board in the latter half of 1993 and, Collection’s purpose would be to make after Senate review and confirmation, they records available to the public. were sworn in on April 11, 1994. The JFK Act included a specific sunset date (two years C o n g ress defined the term “assassination from the date of the statute’s enactment) with record” broadly to encompass all relevant an option for a one-year extension. This time- records. In the JFK Act’s legislative history, frame proved unrealistic, mainly due to the members of Congress specifically stated that long delay between the date of enactment they expected the Review Board to further and the actual appointment, confirmation, define the term “assassination record.” and swearing in of the Review Board. Con- gress therefore decided to reset the time clock in 1994, passing the President John F. Kennedy The JFK Act obligated all government offices Assassination Records Collection Extension Act to identify, review, process, and transfer to of 1994.28 In 1997, Congress extended the life NARA all assassination records within their of the Review Board one final time, until Sep- possession. The Act directed agencies not to tember 30, 1998, through enactment of Public destroy or alter assassination records in their Law 105–25.29 c u s t o d y. The Act prohibited government offices from withholding or redacting any The JFK Act is a unique statute. Its intent is to assassination records if those records had secure the public release of records relating to previously been disclosed to the public. And President Kennedy’s assassination and, in government offices could not withhold or doing so, assure the public that the federal redact any assassination records created out- government was not withholding material side the government.

7 To the extent that a government office had in an assassination record only if the agency “any uncertainty” as to whether its records could demonstrate—by providing “clear and were “assassination record[s] governed by” convincing evidence” to the Review Board— the JFK Act, the Act directed the government a compelling need for postponement. office to transmit the records to the Review Board, which would determine whether the Section 7 of the JFK Act was perhaps the records were, indeed, assassination records. Act’s cornerstone in that it created a truly independent board that would oversee the The Act empowered the Review Board to federal government’s implementation of the obtain physical custody of federal rec o rd s Act. The Act instructed the President to nom- “for purposes of conducting an independent inate five citizens “to serve as members of the and impartial review” or “for an administra- Review Board to ensure and facilitate the tive hearing or other Review Board function.” review, transmission to the Archivist, and In addition, this section req u i r ed government public disclosure of government re c o rd s o ffices to “make available to the Review related to the assassination of President John B o a rd any additional information and F. Kennedy.” The Act required members of rec o r ds” that the Review Board had reason to the Board to be “impartial private citizens” believe it req u i r ed for conducting a rev i e w . who were not presently employed by the federal government and had not “had any pre- Once government offices identified assassi- vious involvement with any official investi- nation re c o rds, the Act re q u i red them to gation or inquiry conducted by a federal, transmit the records to the Archivist, and state, or local government, relating to the make the records immediately available to assassination of President John F. Kennedy.” the public to the extent possible. If government offices believed that release of certain The Act further instructed the President to assassination records should be postponed, nominate “distinguished persons of high in full or in part, the Act instructed the offices national reputation in their respective fields to transmit the original record to NARAto be who are capable of exercising...independent included in a “protected collection,” which and objective judgment.” The Act envisioned would not be publicly available. a board consisting of at least one professional historian and one attorney, and it stated that H o w e v e r, the JFK Act mandated that all the President should consider recommenda- postponed assassination re c o rds be opened tions from the following professional associ- to the public no later than the year 2017 (25 ations: the American Historical Association, years from the date of enactment of the JFK the Organization of American Historians, the Act). Government offices could continue to Society of American A rchivists, and the postpone public release of material in assas- American Bar Association. sination re c o rds after the year 2017 if “the P resident certifies” that (1) “continued post- The Act called for the President to appoint the ponement is made necessary by an identifi- Bo a r d members and the Senate to confirm able harm to the military, defense, intelli- them. To ensure independence, the Act stipu- gence operations, law enforcement, or lated that the President could not rem o v e conduct of foreign relations” and (2) “the Bo a r d members except by “impeachment and identifiable harm is of such gravity that it conviction” or for specific cause. It also outweighs the public interest in disclosure . ” req u i r ed that the President issue a report to Without such certification, NARA w i l l Co n g r ess specifying the reason for rem o v a l . release all postponed re c o rds or portions of re c o rds in 2017.3 0 Having set out the parameters for establish- ing an independent board, the Act delineated The JFK Act established standards for post- the Board’s responsibilities and powers. The ponement to ensure that the JFK Act would Act gave the Review Board the power to release more information than was released identify, secure, and release records relating under the FOIA and Executive Orders gov- to President Kennedy’s assassination. erning declassification. Thus, government Ac c o rd i n g l y , the Review Board possessed offices could request the Review Board to authority to “render decisions” on (1) agree to postpone the release of information “whether a record constitutes an assassina-

8 tion record” and (2) “whether an assassina- authority to req u i r e the disclosure or post- tion record or particular information in an ponement of such re c o rd or information assassination record qualifies for postpone- under the standards set forth in section 6 [of ment of disclosure under this Act.” the JFK Act]....” Thus, if agencies disagree d with a Review Board determination to rel e a s e In addition, the JFK Act gave the Review information in a rec o r d, the affected agency Board power to obtain additional records could “appeal” to the President and req u e s t and information from government offices. that he overturn the Review Board’s decision. Further, the Act authorized the Review Board to issue “interpretive regulations.” Finally, the Act required the Review Board to submit, to the President and Congre s s , The Act gave the Review Board certain annual reports regarding its work. responsibilities to fulfill upon completion of its work. Thus, “[u]pon termination,” the Act The Act addressed public release of certain required the Review Board to submit a final special categories of records that may relate report to the President and Congress. In to the assassination, including records under addition, the “Review Board shall transfer all seal of a court and foreign records. The law of its records to the Archivist for inclusion in expressed the “sense of Congress” that the the collection, and no records of the Review Secretary of State should contact Russia to Board shall be destroyed.” secure public release of records of the former Soviet Union that may relate to the assassina- The JFK Act directed the Review Board to tion. Congress also urged the Secretary of appoint an Executive Director and staff to State to contact other foreign governments perform the work of, and report to, members that might have relevant records. of the Review Board. To ensure independence, staff members could not be present Congress clearly emphasized the supremacy employees of the federal government, nor of the JFK Act over other laws that might pre- could the Executive Director be affiliated clude disclosure of assassination-re l a t e d with any prior official investigation of the records. Thus, where the JFK Act required Kennedy assassination. public disclosure of a record, the Act would “take precedence over any other law..., judi- The Act directed the Board to provide, if pos- cial decision construing such law, or common sible, a summary of the redacted information law doctrine that would otherwise prohibit or a substitute record explaining the redacted such transmission or disclosure....” The only information. The Act further instructed the re c o rds that the Act exempted from its Review Board to release parts of records that “supremacy clause” were (1) IRS tax-related could not be released in full. records in which Section 6103 of the IRS Code p recluded disclosure, and (2) re c o rd s In addition to notifying NARA of its deci- donated to the United States under a deed of sions to release or postpone assassination gift whose terms precluded disclosure. records, the Act also required the Review Board to notify the originating agency as well The Act provided that provisions of the JFK as the public of any Board determination to Act pertaining to the operation of the Review designate a record as an assassination record. Board ceased to be effective when the term of the Review Board expired. However, all While the JFK Act authorized the Review remaining provisions of the JFK Act continue Bo a r d to make final and binding determina- in force: “The remaining provisions of this tions concerning the release or postponement Act shall continue in effect until such time as of a rec o r d, it provided that the Pres i d e n t the Archivist certifies to the President and the could reconsider any Board determination: Congress that all assassination records have “After the Review Board has made a formal been made available to the public in accor- determination concerning the public disclo- dance with this Act.” This provision is signif- su r e or postponement of disclosure of an icant because it underscores the continuing executive branch assassination re c o rd or obligation of federal agencies to re l e a s e information within such a rec o r d,...the Pres i - records on the assassination after the Review dent shall have the sole and nondelegable Board’s term expires.

9 F i n a l l y, Congress recognized that the Review Board would need power to re q u e s t materials that the agencies themselves would not have identified as assassination- related. The Act guaranteed that the Review B o a rd could enforce its authority through its use of the subpoena power and the power to grant immunity.

In sum, the JFK Act pro- The American public believes vided a new and unusual the truth has been hidden from legislative remedy to the them for over three decades. If problem of government there is truly nothing to hide, secrecy. It required fed- then there is no better reason for eral agencies to disclose, any and all classified docu- forthwith, their re c o rd s ments to be herewith declassi- on the assassination and fied. Only then can the people’s it empaneled an inde- trust be restored. pendent board to ensure —Stephen Tyl e r , June 28, 19 9 5 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.

10 CHAPTER 1 ENDNOTES 1 House Judiciary Committee, Subcommittee on Economic and Commercial Law, Assassina - tion 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: Hear - ings 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 Com- mission released its report on June 16, 1975 and terminated that same month). 5 Pr esident’s Commission on Central Intelligence Activities Within the United States, Fi n a l Report of the Pres i d e n t ’ s Commission on Central Intelligence Activities Within the United States (Wa s h - ington, D.C.: GPO, 1975), 251–269. 6 In accordance with practice at the time, President Ford retained Rockefeller Co m m i s s i o n rec o r ds as part of his personal papers when he left office. This practice was ended by the Pres i - dential Records Act of 1978, 44 U.S.C. §§ 2201–2207 (1994). President Ford subsequently donated these and other rec o r ds to his presidential library in Ann Ar b o r , 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 Intelli- gence Ac t i v i t i e s , 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 dis- cover, 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 Ameri- cans. 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.

11 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 Jan- uary 24. 23 George Lardner, Jr., “Ford Urges House Leaders to Seek Release Of All Records on Kennedy Assassination,” Washington Post, 30 January 1992, A–12. 24 Congressional Record, 102d Cong., 2d sess., 1992, 138, daily ed. (26 March 1992): H1984– 86. 25 Co n g r essional Record, 102d Cong., 2d sess., 1992, 138, daily ed. (26 March 1992): S4392–97. 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 Gov- ernmental Affairs Committee held a hearing on May 12th. 27 The House Government Operations Committee approved the legislation in June (Report 102–625 I, June 29, 1992) and the House Judiciary Committee in August (Report 102–625 II, August 11, 1992). The Senate Governmental Af fairs Committee approved legislation in July (Report 102–328, 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 theref o r e had a new desig- nation, S. 3006. This was the bill the full House eventually voted on in September. 28 Public Law 103–345 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 Com- mittee, 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.