Electronic Assassinations Newsletter

Issue #1 "Case Closed or Posner Exposed?"



NOVEMBER 17, 1993

Mr. CONYERS. Thank you very much, Dr. Peterson, Mr. Tilley. You are doing good work. Maybe the President in his wisdom will nominate you. Thank you very much.

Our first panel, is attorney Gerald Posner and attorney James Johnston. Attorney Posner authored the book "Case Closed." Attorney Johnston is a former counsel to the Church Committee, the Senate Select Committee on Intelligence, and has done so much very important work.

We have your statements. We have your book. We saw you on television last night. You weren't wearing glasses then.

Mr. POSNER. My eyes are failing, Mr. Chairman, for reading.

Mr. CONYERS. And we are delighted that you are both here. Mr. Posner, why don't you begin.


Mr. POSNER. Thank you, Mr. Chairman, Mr. McCandless, members of the subcommittee.

I am pleased to have this opportunity to testify about the effectiveness and the implementations of what I referred to as the Records Act, Public Law 102-526, the John F. Kennedy Assassination Records Collection Act of 1992, and how that act in its initial implementation since August 23 of this year has helped resolve some of the issues in the Kennedy assassination and some of the controversy and baseless speculation that has plagued this case for the past three decades.

Allow me just very briefly to tell you that I am both an attorney, having spent several years in Cravath, Swain and Moore, the New York firm, as well as in private practice in my own firm.

This is my fifth book. I have also been an independent researcher and investigator on subjects and have looked at this specific case, the Kennedy assassination, now for a number of years, including the available record in terms of both the Warren Commission and House Select Committee on Assassinations, the tens of thousands of documents that have been released by freedom of information requests and lawsuits over the past 25 years since the implementation of the Freedom of Information Act. And during the course of this project, in researching this case, I went beyond what was on the available record. I conducted nearly 200 interviews with primary witnesses to get back to original sources on this case.

In addition, I went to documents in private hands and third parties, looked at documentation available for the first time from the KGB files, some of which we saw available also last night in the program done by Frontline, and some-

Mr. CONYERS. By the way, that was an excellent program. I want to commend those that produced it.

Mr. POSNER. I agree with you, Mr. Chairman, that I think that program helps to bring us closer to understanding this case in many ways.

And the KGB files, which were included in interviews with KGB agents last night, are extremely important in understanding not only Oswald but whether there were intelligence connections in this case. I had the first ever interview with Yuriy Nosenko, the KGB agent involved with Oswald's case in Russia. I found lost files of Jim Garrison, the New Orleans district attorney; memorandums from his investigators; affadavits; summary memorandums that expose the travesty of justice that took place in New Orleans.

And finally, a new analysis of the Zapruder film, the result of that work, as you mentioned, was published by Random House in November of this year, "Case Closed: Lee Harvey Oswald and the Assassination of JFK."

I am enthusiastic about the passing of the Records Act, because I happen to believe that many government agencies in this case have been their own worst enemies. They have sealed documents for a period of years, based on confidentiality or what they viewed as hiding sources and means of obtaining information. At a point when the majority of people in this country happen to believe that their own government may have had a hand in the murder of the President, public opinion polls show this, and to the extent that the Records Act was not in existence, it perpetuated the belief that government agencies were in fact holding onto documents because there was something to hide.

I think the initial implementation of this act in the massive release of documents that took place on August 23, and the excellent access that has been made available by the National Archives, and I have heard this from both sides of the issues, individuals who believe in a conspiracy in the case and those who believe it was Oswald alone, have all complimented the National Archives in their implementation of the act you put forth, in providing documents, making them very accessible, and providing a great deal of information.

I commend this committee for having balanced the competing concerns for privacy and confidentiality in drafting the act, together with the public's absolute right to know what happened in this case in terms of all the documents.

Since August 23, when the documents were released, U.S. News and World Report ran a cover story that day on my book, and I have been busy since that day. And that surprised me, since I did not realize saying that Oswald acted alone was the most controversial position in this case, But I have made myself familiar with the documents that have been released. I have had individual researchers on my behalf, going through those files. They have provided me with photocopies of specific documents I have been interested in, including material about Oswald's time Mexico City, and I have started to see the benefit of what those documents show and have made myself, to the extent possible, familiar with the substance of the release.

It should be noted that I believe, although there are some very interesting materials in the initial release of documents that are now available at the National Archives, that government agencies will be holding some of their most sensitive material, and therefore maybe some of the most controversial material, for eventually the Review Board to look at. And that is why I believe it is very important that this committee fully empower that Review Board.

I suggest first of all that the Review Board on its own adopt a very liberal policy in allowing almost everything that comes before it to be released in its entirety without any redaction.

In addition, I hope this committee, even if it needs to amend the act in any way, should consider giving the Review Board as much time as possible. This is a very important point. The impression in the public is that the government has somehow either hidden documents or has something to hide, and therefore has created a impression which may appear open but then may not be.

The Review Board's time is diminished under this law, because the original law, it is my understanding from my reading of it says that the Review Board shall operate for 2 years from the passing of the enactment of the Records Act. We have lost a great deal of time, already because of the slowness of the President, unfortunately, in appointing members. The fifth member was only named recently and hasn't even been confirmed yet.

If there is an amendment needed, it should say, and it goes to Mr. McCandless's question a moment ago, that maybe we should say the Review Board should have 2 full years to operate from the date of its first meeting, or from the dates of its implementation. And I think it is important to give that Review Board the fullest opportunity to look at these documents in detail.

I am sometimes asked how I can so confidently call my book "Case Closed," when hundreds of thousands of documents still exist on the Kennedy assassination, and the very purpose of what I am talking about is to release these files fully to the public.

The question here is, can we draw an overall conclusion about who killed Jack Kennedy, and whether that individual was acting on his own or as part of a conspiracy based on the available evidence on the record today? If the answer to that is yes, then we can also review what the files are going to help us discover.

My belief is we can draw a conclusion based upon the available evidence today. The analogy I often think of in this case is if we were told tomorrow that a milllion records were going to be released from the German high command in World War II, it would be fascinating for historians. We would discover all the details about the inner rivalries in the Nazi regime and how they planned the war and what went on inside the Third Reich. But we are not going to believe, after looking at those million documents from the Nazi high command, that the fundamentals of the war are different. We won't believe, for instance, that Poland attacked Nazi Germany to start the war. And that is the same here. We have enough information on the record today in terms of both eyewitnesses and documents and technology, to draw the conclusion that Lee Harvey Oswald acted alone in this assassination.

And the review of the documents that still are to be released, both in terms of the files from the assassinations comittee, the House Select Asssassinations Committee, which did very, very good work, Congressman Stokes, and the other files that will still come out from Federal agencies, I think will help fill in the details of what has happened in this case.

It is not going to change our fundamental conclusion. But it will help us fill in for the historians the record of what took place. And I think what is very important here, it may answer some questions for us, for instance, we may learn more details about exactly what the intelligence agencies knew, and when they knew it, about Lee Harvey Oswald in Mexico City in 1963 in late September and early October of that year, a subject in my book that I say we still have unresolved questions on.

We will find out, I hope, from the release of these documents we have not yet discovered, is there a copy of the Army intelligence file on Oswald which was routinely destroyed in 1973? I would certainly hope so.

We may find out if Garrison concocted photos of Oswald and New Orleans adventurer David Ferrie in order to boost his uraveling case, as we know happened in two seperate previous cases.

More importantly, I think we have seen the result of what information we are going to be finding out from the documents. We don't find out in fact that there was a second gunman on the grassy knoll or there was a high-level plot involving Lee Harvey Oswald. Look at some of the materials. Sure, the subcommittee can utilize the files that the National Archives has already made available.

Newsweek had a cover story, 28 pages in depth, an inside look at those files. The Nation, reporting also on its review independently of the files, sitting down there for weeks at a time. The Washington Post, as you are well aware. And what do we find out about this case? Not that there is new information that suddenly makes us believe that Lee Harvey Oswald was not in fact Jack Kennedy's murderer. But we discover a coverup in the assassination. Not a coverup of the murder, but unfortunately a coverup by Federal agencies who were runnning for cover after the assassination.

The bureaucratic infighting that took place between the CIA and Hoover and individuals within the agency, even within the CIA, the infighting that took place, the people at the Dallas field office at the FBI headquarters, petrified that Hoover was going to come down there and say, "you had Oswald down there and were interrrogating him and didn't know he was a nut who was going to kill the President." And these files that are being released are absolutely critical, because they do show and they will continue to show the extent to which these Federal agencies not only did not serve the truth, they served their own interests after the assassination. But they set the groundwork for much of the baseless speculation that later took place when individuals looked at these acts and said, "My God, they must have been covering up the murder of the President," in fact when it was the bureaucratic mishandling we have seen so many times before.

I suggest that what everybody, including this subcommmittee, and researchers who utilize these files keep in mind, when they go through the documents that are now available at the National Archives, is, we have to apply the same standards for determining credible evidence in this case, Mr. Chairman, as we do in every other case, and that includes determining the credibility of witnesses.

The caveat on that is there are more witnesses, as I am sure you are aware, who today claim that they were in Dealey Plaza than could have fit in Dealey Plaza. The Kennedy assassination has attracted all types of charlatans. Unfortunately, you have to test their credibility.

I think in the end the documents being released will control over the eyewitness testimony, because the documents are credible as primary sources.

In concluding, just a few final points I would like to make. One of the great fallacies that I think is repeated time and time again in this case is that we will never know the truth. And I don't think that is the case at all. You look at any other complex historical area, whether it is the Holocaust or Pearl Harbor or Vietnam policy or Watergate, in the end what are historians, politicians, investigators, required to do? We are required to sit down with the credible evidence, weigh that evidence, and come to a conclusion about what we think happened in that specific issue.

To say that we won't know what happened in the Kennedy assasination is to dodge the issue. I must tell you that most of these things, if I tell this subcommittee that it was 60 degrees in Washington yesterday, it is not a matter of gray interpretation. It is a black and white statement. You can figure out whether I am telling the truth. You can go to the weather service and it either hit 60 degrees or it did not.

Things in the Kennedy assassination are the same. The autopsy and X-ray pictures prove the President was only hit by two bullets from the rear. Some conspiracy theorists say they are fake. They are either real or fake. We can determine that. Oswald walked into the depository with a rifle, or he didn't. These are yes or no issues here.

People should use documents released through the Records Act to help determine whether there is anything in those documents that contradicts the conclusion that the overwhelming evidence says that Lee Harvey Oswald in fact acted alone.

My conclusion does not in any way, in saying "Case Closed," mean to denigrate the great accomplishment that this subcommittee has made in passing the Records Act. I look forward with great interest to the rapid disclosure of these documents because I am convinced that they will help once and for all to end the debate. They will also expose the myth in Oliver Stone's $50 million propaganda film that the government has something to hide in this case.

With this law, the public mistrust of government that has remained the central tenet for the past 20 years may start to disappear, at least in the Kennedy assassination. And I believe from the early operation of this law that it is doing exactly what you intended on this committee.

As we approach Monday, the 30th anniversary of John F. Kennedy's death, I think it is time to stop denigrating his memory by turning the assassination into a board game of "who done it." That is what has happened too often in this Nation. It is time for us to approach this subject in a scholarly manner, protect the legacy of the Presidency, pay tribute to Jack Kennedy, and also with time and technology, to really put the blame on the man who has blood on his hands, Lee Harvey Oswald. And I believe adamantly that the documents being released pursuant to the work you have accomplished will confirm that for the history books.

Thank you.

[The prepared statement of Mr. Posner follows:]

NOVEMBER 17, 1993

Mr. Chairman, Members of the Subcommittee, I am pleased to have the opportunity to testify on my impressions regarding the effectiveness of Public law 102-526, the President John F. Kennedy Assassination Records Collection Act of 1992, in helping to both resolve issues in the Kennedy assassination, as well as to dispel some of the baseless speculation that has been associated with the case. I appear before you today both as an attorney and investigative reporter who is completely familiar with the public record in the case. On September 1, 1993, Random house published the result of several years of my research into the assassination, a book titled CASE CLOSED: Lee Harvey Oswald and the Assassination of JFK.

My research included not only a review of the body of work generated by both the Warren Commisssion and the House Select Committee on Assassinations, but also the several hundred thousand pages of documents released through Freedom of Information requests and lawsuits over the past twenty five years as well as relevant documents still in the possession of private individuals. Additionally, I conducted nearly 200 interviews with primary witnesses (some, like KGB agent Yuriy Nosenko, who was responsible for Oswald's file in the USSR in 1959, spoke publicly about Oswald for the first time); discovered primary documents that had been overlooked by the two previous government investigations; retrieved information from still secret archives maintained by the KGB; and utilized the latest computer enhancements and animation studies, technology unavailable to the previous government investigations. In CASE CLOSED, I conclude that the extant credible evidence establishes beyond a reasonable doubt, that Lee Harvey Oswald, alone and not as part of any conspiracy, killed President John F. Kennedy, and moreover, that Jack Ruby, also acting alone and not as part of any plot, murdered Oswald two days after the president's assassination.

I enthusiastically welcomed the recent passing of Public Law 102-526. I have long been convinced that many government agencies were their own worst public relations enemies by sealing many documents in this case. The normal rules for sealing documents by both government agencies and congressional investigations should no longer apply in the Kennedy assassination. Public opinion polls reveal that many Americans suspect that their own government may have been involved in a plot to kill the president. Only full and complete disclosure can start to alleviate the tremendous doubt that has been created in a three decade onslaught of hundreds of conspiracy books, documentaries, and Oliver Stone's slick $50 million propaganda film. Even then, of course, some people will never be satisfied unless the release of files produces a document that is a smoking gun for conspiracy. Without such a document, there are some who will charge that key papers are still being withheld, or that they were destroyed long ago. However, just because it will impossible to satisfy all of the critics in this case, there is no reason to hesitate in pursuing the most rapid and complete disclosure of all government paperwork on the assassination. Public Law 102-526 is the first necessary step in that direction, and I commend the Committee for having done an excellent task of balancing the many competing concerns for privacy and security versus the public's absolute need to know what is contained in the files.

Since Monday, August 23, 1993, when the first batch of files were released in response to PL 102-526, I have been so busy with the national furor created by CASE CLOSED (after thirty years, advocating the lone assassin has become the most controversial position in the case), that I have not had the opportunity to personally review the newly released files available at the Archives. However, that does not mean that I have not begun to familiarize myself with those files. Private researchers have examined the files at my request, and they have not only reported the results of their review, but have provided me copies of the materials in which I am interested. Moreover, I have interviewed individuals who had been responsible for the creation of some of the sealed material, and I was familiar therefore with the content of some documents even before the August 23, 1993 release.

It should be noted that although there has been a massive first release of documents in response to Public Law 102-526, many of the potentially most interesting documents may be withheld until the Review Board, provided for under the law, is ready to perform its duties. I strongly urge this Committee to take whatever action is necessary, including but not limited to amendment of the Act, to insure that the Review Board has adequate time to perform its work in a dilligent and comprehensive manner. I also urge the Review Board to adopt a policy of open and complete disclosure. I have interviewed both David Belin, Esq., and G. Robert Blakey, Esq., who served respectively as counsel to the Warren Commission and the House Select Committee on Assassinations, and who between them, are familiar with most, if not all, of the sealed government files on this case. They have both assured me that there is "no smoking gun" in those files. Only by releasing all the documents can the American people be convinced this is true.

I am sometimes asked how I can so confidently call my book CASE CLOSED when there are hundreds of thousands of document pages about the assassination still to be released by the federal government? The relevant question is whether there is enough credible information available on the record to draw an overall conclusion about what happened in the assassination. If the answer is yes, then the documents will fill particulars about the event, but will not alter that conclusion.

For instance, historians are in complete agreement that Nazi Germany attacked Poland to begin World War II. If tomorrow it was announced that a million documents from the German High Command were about to be released to the public, that would be a treasure trove for historians. Those previously undisclosed documents would perhaps help fill information about the personalities of Nazi leaders, or give insights into their decision making process, and provide fresh details about the infighting inside the Third Reich. However, after those million documents from the German High Command are reviewed, they would not alter the historical truth that Nazi Germany started the war by attacking Poland. The same is true in the assassination of President Kennedy. There is more than enough information on the record to conclude that Oswald, acting alone, killed JFK. While the documents which will be released by Public Law 102-526 will not contradict that conclusion, they will help fill in many of the details for historians about the extent of the somewhat bungled investigations that were conducted by Federal agencies after the murder. Full disclosure may also help to fill in many of the now missing details (i.e., what exactly did the CIA, in 1963, know about Oswald's visit to Mexico City; is there a copy of the original Army Intelligence file on Oswald which was routinely destroyed in 1973; did Garrison concoct photos of Oswald with New Orleans adventurer David Ferrie in order to boost his unravelling case?)

The key to determing the truth in the assassination of John F. Kennedy is the same as in any other area of historical inquiry, determining what evidence is credible in the seemingly intractable morass of information that has flooded the case. Certain rules are constant, such as the use of the most contemporaneous witness statements, unless there is a valid reason for accepting a witness's subsequent revision; documents and physical evidence usually control over witness testimony. For instance, no matter how many witnesses give various opinions as to where the bullet holes were located on Kennedy's body, the autopsy x-rays and photographs are the best evidence.

One of the major problems with the Kennedy assassination is that the field is cluttered with so many spurious sources, that if their credibility is ignored, it is possible to "prove" almost any thesis. Many of the conspiracy theories are dependent on either speculation or the testimony of people of highly questionable credibility. There are more people today who claim to have been at Dealey Plaza than could have physically fit there. Many have turned up decades after the event with elaborate stories of seeing second gunmen, phony Secret Service agents, and fleeing cars. While these tales are entertaining and help to sell books, they bring us further away from the truth by clouding the case. Many of the conspiracy theorists, especially those who propose that the mafia killed JFK cite, raw intelligence from FBI files as though it were fact. They also concentrate on proving that the mafia hated JFK and had therefore developed a plot to kill him. Forgotten is Oswald, who has almost become a side-note to many of these assassination theories. Quite possibly there could have been a plot, or several different plots, afoot against President Kennedy during the early 1960s. However, after thirty years of having this case examined by hundreds of private researchers, as well as two full government investigations, there is stil not a shred of credible evidence that ties Oswald into any of the possible plots. Oswald beat the plotters to JFK.

The public is often told by conspiracy advocates that the truth in the Kennedy assassination will never be known. This is also false. If I tell this Committee that it was 60 degrees fahrenheit yesterday in Washington D.C. my statement is not open to interpretation. By referring to the National Weather Service records for that date in Washington D.C. it is possible to determine whether I am right or wrong. The same level of certainty is possible in almost all questions in the assassination. For instance, some conspiracy theorists claim that the autopsy photographs and x-rays of President Kennedy are fakes. This is an issue with no middle ground. The autopsy x-rays and photos either are real or they are fake. By having experts test them it is possible to determine what the answer is - yet some writers still falsely claim that this is another murky issue which may never be resolved.

Most issues in the case have yes or no answers. Either Oswald did or did not enter the Book Depository with a rifle on the day of the assassination. The same is true as to whether or not he shot Dallas police officer J. D. Tippit on November 22, 1963, and whether he had tried to assassinate General Edwin Walker earlier that April. However, while many issues can be resolved definitively, the American public will be disappointed if they expect 100% confidence in resolving each and every sub-issue in the assassination. Determining the historical truth in any area filled with many inconsistencies amongst a welter of changing information - whether it be Pearl Harbor, U.S. policy in Vietnam, or Watergate, to name but a few - is a difficult undertaking. However, the basic issues in each of these investigations can be settled, and that is certainly true in the Kennedy assassination. that some issues may never be resolved is not only to be expected in a case of such complexity, but it would not diminish the accuracy of drawing overall conclusions about who killed JFK.

The fact that I have concluded that Oswald acted alone in assassinating John F. Kennedy, from a review of the public record, is not intended to slight the importrance of what this Committee has accomplished by generating Public Law 102-526. I look forward with great interest to the full and rapid disclosure of all the documents, so that some semblance of sanity can return to a discussion of the Kennedy assassination. In this way, Public Law 102-526, will help to end once and for all the debate of who killed JFK. Without this law, the public mistrust of government will remain a central tenet of American life. It is possible that once the files are released, and fully examined by responsible historians, that some measure of confidence can be restored in the public's opinion of government and its officials (although I unfortunately have little doubt that some writers will exploit the documents to raise a host of spurious questions that will probably result in many new books during the next few years).

I believe that from what I have seen of the operation of Public Law 102-526, as well as what I have learned from discussions with others who have been integrally involved in the production of documents pursuant to the statute, the law is accomplishing exactly what it intended to do. It is removing the specter raised in Oliver Stone's fantasy JFK that the government agencies sworn to protect this nation, actually killed President Kennedy, and that a massive coverup of that murder continued to this date. As the government's assassination files see the clear light of day, the sinister implications raised in JFK will be unmasked.

As we approach the 30th anniversary of John F. Kennedy's untimely death in Dallas, it is time to stop denigrating his memory by turning the case into a pop culture board game of "who did it?" Let us allow Jack Kennedy to rest in peace, and thereby protect the legacy of his presidency and his life. Let us not allow Lee Harvey Oswald, the man with blood on his hands, to be exonerated by the history books because we are afraid to draw the firm conclusions mandated by the evidence. The release of all federal documents maintained on this case can only help close the case on this national tragedy.

Mr. CONYERS. Thank you, attorney Posner, for a very thoughtful and effective statement that reflects a great deal of work and effort over the years that you have put into this subject matter. We on the committee, and I believe the country, owe you a debt of gratitude for the work that you have done over the years.

Mr. POSNER. Thank you, Mr. Chairman.

Mr. CONYERS. We now have the former counsel to the Church Committee in the Senate, who was on the front lines and in the trenches doing a valiant job examining this tragic part of our American history. We are very pleased to welcome James Johnston. Also, I have been joined by Congressman Lou Stokes of Ohio, who was of course chairman of the House Select Committee on Assassinations. We are delighted that he is with us today.


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