Friday, May 12, 2017

Jacob Carter Interviews Judge John R. Tunheim

Judge John R. Tunheim

For his book Before History Dies - Jacob Carter interviewed a number of important JFK assassination researchers and writers, including Judge John R. Tunheim, the chairman of the Assassinations Records Review Board (ARRB). 

Judge John R. Tunheim is a United States District Court Judge. In 1994, after the release of Oliver Stone’s hit movie JFK, the public wanted our government to immediately release all remaining reports relating to the assassination. This demand for transparency helped birth the Assassination Records Review Board, which was created for the collection of all records relating to the assassination of President Kennedy.

Judge Tunheim was the chairman of this board. He was personally involved in the release of around five million pages of documents, and has seen the inner workings of what the government knew about JFK’s murder. I loved interviewing Judge Tunheim because he brings a legal viewpoint to this case. He likes to shape his views on this case through the evidence that can stick in court, and this provides the reader with a good foundation to spring from.

I chose to place this interview in the Lone Assassin section because I would not call Mr. Tunheim a conspiracy theorist. However, he does admit that there are gaping holes in previous investigations of the president’s murder, and he calls for our government to be more transparent about what they have hidden away. Let’s take an inside look at what a judge’s verdict would look like in this case.

JC: Could you please explain how you were involved with the Assassination Records Review Board?

Certainly. I was nominated by President Clinton to serve on the Board, which was a five member decision-making board. We were confirmed by the Senate and took office in the spring of 1994 and we wrapped up our work at the end of September, 1998. We oversaw the review of records that agencies still wanted classified. We made decisions as to what should remain classified and what should be released. We gathered as many records as we could get access to that might even be remotely related to the Kennedy assassination.

Do you feel that it was an overall success?

I think it was a great success, due in part to the manner in which the statute was written. It was written with an eye to open as many records as possible. It was also due in part to the time in which we were able to work. The Cold War was over, so there was less concern about protecting old information, and it was before 9/11, so that the concern for protecting information to fight terrorism hadn’t yet become a frontal assault on everyone like it did in 2001.

I felt it was a good time to release records. The way the statue was written was helpful because we were really the only outside group ever given authority to declassify records. That typically is reserved for the agency itself under presidential policies. Another factor in our success was very strong support from President Clinton. He had the ability to reverse any of our decisions to release information. He chose never to reverse any of our decisions. In fact, he affirmed our decision-making throughout the process.

And I think we had a fairly strong staff, and a good board that focused really on getting as much open as we possibly could. So, all those factors are why I think the work was relatively successful. I think somewhere between five and six million pages are now available to anyone at the National Archives.

Why do you think people have such a hard time either believing in a conspiracy or believing that Oswald did it alone?

It’s a really good question. I think there are a number of different answers. One is the fact that this was in 1963. Investigations, at least initially, were not very professionally done. You know, we would almost laugh today at the thought that someone accused of killing the president would be paraded out in front of the press for short news conferences, or that the accused person would sit in a jail cell that was readily accessible by reporters wandering around the police station.

This was a different time in America, and I think that for starters we don’t trust the investigations of that era, and secondly, frankly speaking, the investigations of that era weren’t as thorough as they should have been in light of the gravity of the crime that had been charged. I think the fact that the Dallas police couldn’t keep Oswald alive for more than 44 hours after the assassination only supports this idea of conspiracy.

As we look back at those black and white footages from the time, we think they just weren’t very good back then. Even 20, 25 years later, investigatory standards had improved so much that when we looked backed we thought the local investigation must have been real shoddy. So, that’s one reason. The second reason is people are prone to believe a plausible conspiracy theory. They’re not going to believe wacky conspiracy theories that don’t make any sense. No one is going to believe that the aliens came down to kill Kennedy. But, if there’s a plausible theory, and plausibility goes along with the poor investigation at the time, people are willing to believe it.

President Kennedy was the most powerful person in the world, and the thought that he could be killed by a 24 year old misfit during a parade is not very believable to people. Therefore, the idea that there was a conspiracy behind it appeals to the mind and especially to people who want to learn more about the assassination. They want to look behind everything and see if they can see more.

Thirdly, I think there’s another reason which probably lends more support to the idea of a conspiracy of some sort, and that is the fact Oswald had a fairly murky life in the several years before the assassination. He was in New Orleans and was associating with some unsavory characters there. He was involved in a pro-Castro effort at a time when our government was trying to kill Castro. He made a strange trip to Mexico City, where he went to the Soviet embassy and also the Cuban embassy. He had associations with people there. I think that there are tentacles there that lead people to believe that Oswald had connections with people who might have wanted Kennedy killed.

That being said, there’s no hard evidence for that at all; all we have is the murky lifestyle of a misfit who wanted the world to think he was an important person. And so, I think those connections lead people to think he must have had some kind of tie in with organized crime via Jack Ruby, or maybe there’s something to this Cuba connection, or maybe there’s a connection with the Soviet Embassy in Mexico City. So, there are a lot of these tentacles going out from Oswald, and his life that caused people to believe that he must have been involved in a conspiracy.

I’ve said, you know, I’m a judge. I look at hard evidence. I look at what’s provable in court, and the only evidence that’s provable in court is that Oswald fired the rifle and killed him that day and that he had no involvement with anyone else That doesn’t mean it’s entirely true, but it does mean that is what is provable in court today, and that’s why I say that about the evidence…because there isn’t any direct evidence, at least that is admissible in a court of law, that would suggest any involvement with anybody else.

I have heard it speculated that if a group like the Mafia or the CIA wanted to commit a murder and applied a conspiracy to do it, that it’s next to impossible to prove that conspiracy in court. Could you shed some light on that because of your legal expertise?

Well, I think contrary to what most people believe, it is not all that difficult to prove that someone engaged in a conspiracy. The legal standards in federal court, and in most states make it relatively easy to prove a conspiracy. You have to prove that the person that you’re accusing of conspiracy joined in on an agreement, even if it wasn’t really clear to everybody and even if it wasn’t written down. There must be a meeting of the minds to do something and if you have evidence of that a conspiracy can be proven.

A conspiracy does not even need to be successful in order to be proven. For example, had Oswald lived and testified that he talked about assassinating the president with Jack Ruby ahead of time, and Jack Ruby seemed to agree that this was a good idea, then you’ve got a conspiracy. You could charge Ruby with murder of President Kennedy, even though obviously he was not there in Dealey Plaza that day. So, it’s not too difficult to prove conspiracy. You have to prove a meeting of the minds, but it can be very informal. It can be merely through reactions of people or the discussions that they might have had.

So, it can be proven in court?

It can. If someone had actually come up with evidence of Oswald sitting down with one of the mob guys, one of Trafficante’s guys or Rosselli’s guys or something like that, and the subject of the assassination was discussed in advance, you at least would have the basis for a conspiracy charge, and maybe enough for a conviction depending on how persuasive the evidence was. You might even be able to connect the conspiracy to the mob leader if there’s testimony that that person was aware of the conversation.

So, it’s relatively easy to prove, but in this case you have no such evidence so we cannot even begin to try and prove it.

In light of that, is someone logical for believing in a conspiracy or for saying Oswald did it alone? Does it work both ways?

I think I probably fall somewhere in the middle, although obviously I believe, at least what the evidence shows right now, that Oswald did it alone. But, I never ruled out the possibility or the idea of a conspiracy. I just haven’t seen sufficient evidence to prove that conspiracy yet. And, I say yet because there’s still research being done that’s solid, good research.

There’s also sloppy research being done of course, that happens all the time, but there’s good research being done too. The good research is trying to explore Oswald’s connections to see if there were any that can be linked to the assassination.

Now, is it likely that 51 years after the fact we’re going to uncover something major? 

Probably not. But, there are little pieces here and there that fill out the historical record. I would never discourage people from looking. My answer is it’s always possible to uncover a fact which in light of later review proves something that you couldn’t prove at the time, so I’ve never been discouraging to anyone who thinks there’s a conspiracy and is hunting for it.

Having said that, I haven’t seen the evidence yet that would prove that anyone but Oswald was directly involved.

On that note, the way the CIA has lied in this case and even obstructed justice in some investigations, can you see how people would think the CIA is suspicious, if not complicit in the assassination? Especially in light of the fact that they still have files related to Oswald in 2015?

I agree that the CIA’s actions in refusing to release more records so many years after the fact is unfortunate. I mean, it violates not only the spirit of the law, but also the letter of this law, which is still in force. It requires agencies to declassify and release this information, and if we were still around they wouldn’t be able to do that because we were able to exercise the power granted under the law to release a lot of material that the agency didn’t want released.

I mean, I understand their thinking. They release something voluntarily and in their view that’s precedent for some other issue down the line, so they’re not going to release anything of significance. They do voluntarily through their historical review process routinely review old records from time to time to see what can be released.

Surely at the time the CIA was very much powerful, but also, as the Church Committee found, a somewhat rogue organization that acted above the law. The CIA didn’t share anything with the Warren Commission. The Warren Commission was apparently not fully aware of Operation Mongoose, which was our effort to kill Castro, and destabilize Cuba, so I think it’s understandable why people would be suspicious of the CIA.

But, you’ve got to look at the way the CIA operated at the time. They were rivals with the FBI in many respects. They just didn’t feel that they had to follow restrictions. Today’s CIA is much more subject to governmental control, of course, but they still do what they can to be secretive. One of these ways is to not release information that should have been released a long time ago. Even information about which they misled us back at the time when we should have known and we would have released it had we known the true story.

Why do you think they won’t release those remaining files? What could possibly be the excuse for withholding those files now?

Well, there are two answers to those questions. The first one is embarrassment. They would be acknowledging that they flat out lied to the House Select Committee on Assassinations about George Joannides’ role within the agency in the 1960s. And the second reason is about this precedent concern. If they release these files without being compelled to through years of litigation, then their view is that they will have 200 researchers at their door step saying, ‘we want this information; release them just like this those files were just released,’ and that would establish a precedent.
I think all situations can be distinguished. I don’t think they would have the flood gates open like they think they would. But, I think it’s shameful that they’re not releasing it, and I can’t believe that something so directly related to the assassination should still be protected today.

Is this type of behavior by the CIA not unconstitutional, and almost totalitarian state like?

They weren’t exempt from the President John F. Kennedy Records Collection Act of 1992 which is what governed our work and which still remains on the books and requires agencies to identify assassination records and release them. The difference now is you don’t have an aggressive board to force them to do it. We were there to force them to do it. The National Archives could try to exercise that authority and has chosen not to, so we don’t have an agency pushing the CIA to release information and apparently the White House has decided this is beneath them and they’re not going to push the CIA to do this either.

So, they’re not above the law. There’s no real enforcing mechanisms, so those who have been trying to sue for information are forced to use the Freedom of Information Act which is a traditional way to try and get government records. Under that law, it is difficult to get classified records from a federal agency. You know, it’s not hard to get records from, for example, the Agriculture Department, but when you’re going after intelligence records it’s a lot harder to use the Freedom of Information Act to get to them. If you have a judge who is going to look at these issues carefully, you should be fine, but the CIA can be persuasive with its arguments concerning national security, especially in an age of terrorism.

The agency is not above the law; they have to follow the requirements for assassination records, but there’s no one to force them to do it, and the Freedom of Information Act has been relatively ineffective.

What do you think of the work the Warren Commission did?

The Warren Commission did an exhaustive investigation. They had a good legal team and their investigators did a decent job. The FBI did some of the investigations for them, and history’s judgment is that FBI investigators must have been tainted somewhat by Hoover’s announcement the day after the assassination that Oswald had done it himself. Hoover was still running the FBI at that time with an iron hand of course.

The Warren Commission investigators did not have access to CIA intelligence information; that’s fairly well proven, despite the fact that the former CIA Chief was a member of the Commission, Allen Dulles. Dulles apparently didn’t reveal much that he knew about the CIA to the rest of the Commission. And Chief Justice Warren did not feel it was appropriate for anyone else to look at autopsy photos and X rays because they were relatively gruesome. So, those factors may have suggested an investigation that was not entirely complete.

You also have the Commission’s single bullet theory, which is troubling to a lot of people, but certainly explained the evidence of what they found on the sixth floor and what they found from the timing of the shots and everything else from the Zapruder film.

I think, given the resources and information they had available to them at the time, it was a good investigation. It wasn’t as complete as it should have been. And one thing we have to keep in mind about the Warren Commission is, it wasn’t a special prosecutor, it wasn’t a Watergate grand jury, it wasn’t any of those things. It was a group of politicians chosen to oversee this investigation. And the reason why you have groups of politicians overseeing an investigation is to keep it under control.
I suspect part of the thinking was that if the evidence pointed to a foreign power, President Johnson wouldn’t want the American people to know that because it would require retaliation and no one wanted that provocation at the height of the Cold War. So, by putting politicians in charge of this was a way to control it if it did come to the point being needed to be controlled. I don’t think there was any need of control at the end.

I don’t think anyone told the Warren Commission what to do. In theory it was a group that could have kept secrets that needed to be kept. So, overall they certainly don’t get an A plus for their overall effort, but it was relatively exhaustive; maybe a B, I don’t know. It’s hard to say. 26 volumes and a lot of detail are fairly impressive when you look at the body of work that they created. I think the chief complaint about the Warren Commission over the years was that they were a group of politicians and they reached a result that a lot of people fundamentally disagreed with, and because they disagreed with their result that must mean they didn’t do a good job, and I don’t think that’s a correlation you could make.

One of the most disturbing things about my generation and the way the law of the land is unfolding is that emotion seems to trump the law. I have run into this type of thinking a lot of the time while investigating this case. If you say Oswald has evidence against him, people will turn around and say that that evidence was planted. So, as someone who deals with evidence all the time, what would happen to these types of theories once they were in court?

The theories of someone putting a palm print on the gun and that sort of thing?

Yes, that Oswald was set up and that sort of thing.

Unless you had someone who directly testified that they were involved with doing that, there’s not enough of an evidentiary basis or foundation to those theories to allow them to be admissible in court. I mean they’re admissible in books written about the assassination, everything is, and it’s an interesting theory and some people believe in it, but it’s surely not admissible in court at this point, unless you find someone who was a part of the group and testified that they did this, and this is who we did it with, and this is where we did it and who had this role. No one has been able to find anyone like that, so although such evidence is not admissible in a legal proceeding, it is surely not inadmissible in the court of public opinion.

What about circumstantial evidence? Is there anything in this case that is circumstantial that would sway a jury towards conspiracy?

I hate to say never, because you never know. Juries can sometimes be swayed by outstanding lawyers and certain aspects of the evidence that’s so persuasive to them that it overwhelms other evidence. I just don’t see any evidence of a conspiracy that would be persuasive with a jury today.

Not to say that it doesn’t exist out there, and that’s why I always encourage people who are interested in the subject to look and to read and to think and to use their good sense to evaluate. And if you have the time and money to do investigations, then do it, because that’s how we ultimately get to the bottom of the great questions of history. But, right now I don’t see it.

I mean, civil court is different than criminal court. In criminal court you have to prove a defendant to be guilty beyond a reasonable doubt, which is a very high standard. In civil court you just have to prove a preponderance of evidence, which means it’s more likely true than not. So, you’re getting a little closer. If the evidence sways a jury 51 percent to 49 percent you’ve proven your case in civil court, so it’s not out of the question, but from all of the stuff that I’ve seen it’s hard to find evidence that’s going to be persuasive to a randomly selected jury.

Do you think the American public will ever come to a conclusion on this case?

I think that the controversy will continue on probably forever in the annals of history. I don’t think that you’re going to firmly convince a majority of the American people that Oswald did it by himself. There’s too much controversy about it. There are too many parts of the initial investigation that had gaps in it that can be filled with very plausible and interesting arguments that people can believe.

But maybe the controversy will diminish more at some point in time. You know, you still have people who are out there trying to prove that it wasn’t John Wilkes Booth who killed Lincoln. They have other theories. So, you’re going to find people who have a contrary view and this is especially true when they have been given their answers from the government, and that’s their right as citizens.

Generally speaking, I applaud them. Go do it yourself. Figure out what you want to believe. But, there’s so much here, so many books written that are contrary to the official conclusion, that I don’t think that this controversy will diminish much in the next 100-150 years.

Do you have any advice for future researchers?

I think the most interesting part of research is to study Oswald. I think there are things we don’t know about him. Assess him. Could he have pulled this off? Could he have met with people that made this suggestion to him? Did he come at this idea by chance because the parade route was going by the building where he worked and he was anxious to be a famous person in history? I mean, who knows? That’s a place to look.

I would like to see more research done in the future on the Soviet Union’s reaction to the assassination. Not that I think the Soviets had any role, but Oswald lived there for two and a half years before he came back in 1962, so who was he in touch with over there? What formulated his opinions over there? The KGB did an extensive investigation into the assassination. What did they find out? What’s in their files? We haven’t had much access into the KGB files or the Oswald surveillance files which are immense. Cuban intelligence. What did they know? Oswald supposedly had connections with Cuban intelligence officials when they were training in Minsk while he lived there. 

What about Mexico City? 

Mexico City has been looked at in some detail, but there is probably more to find there.

These are the kinds of in-depth research that I think have the possibility of shining a greater light on what happened, rather than continuing to debate over the single bullet or the sound wave analysis from the police motorcade tapes. Those areas have been tread over so many times, I’m not really sure we’re going to gain any more information at this point in time. Let’s look at Oswald. Let’s look at his life and see what more we can find out.

So, start with Oswald and work your way out from him?

That’s most interesting to me because you have all this evidence that he fired the shots on November 22, 1963, but the issue of why he would do something like this, what motivated him or who he was connected to, these are the issues that I find to be interesting and compelling, and still present open questions.

Excerpted from the book Before History Dies - Interviews with JFK Assassination Writers 

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