Justice for All (91 page)

Lost in much of the response to the Select Committee was the fact that it supported the Warren Commission in nearly every major conclusion. It agreed that Oswald was the gunman, that he fired three shots from the Book Depository, missing once, striking Kennedy and Connally with one bullet, and killing Kennedy with his final shot. It concluded that Oswald also was the murderer of Officer Tippit. The only evidence of conspiracy was that of a fourth shot, a miss, and that evidence would eventually be discredited. Nevertheless, the die was cast for a new generation of conspiracy theorists, as the committee provided government support for the notion of government deception.

The determination to find conspiracy behind Kennedy's assassination reached its cultural zenith in 1991 with the release of Oliver Stone's
JFK
. The movie was a technologically adventurous web of distortions and dramatizations woven together in visually arresting fashion. Stone spliced actual footage of Kennedy and the assassination with dramatic renderings, moving back and forth between them in such a way as to dramatize and deliberately deceive. Along the way, Stone managed to ridicule the scientific evidence supporting the single-bullet theory and insist that Kennedy was shot from the front, notwithstanding proof to the contrary. His principal premise was that the CIA, with the help of Lyndon Johnson, killed Kennedy in order to prevent Kennedy from withdrawing American forces from Vietnam. For Stone, the troubles with that theory might have included the facts that Kennedy was an ardent Cold Warrior, with a proven disinclination to shrink from conflict with Communism, and more important, that not one scintilla of evidence has ever pointed to Johnson as a conspirator. Neither fact was enough to deter the moviemaker. Meanwhile, Jim Garrison, whose shameless prosecution of Clay Shaw had been brought in disregard of Garrison's duties as a prosecutor, was elevated into a hero. Garrison lived to see this resurrection of his reputation, by then in tatters even within the community of conspiracy theorists. Conscienceless to the end, he appeared in a cameo in the film—in the role of Earl Warren.
JFK
was the venal work of a self-aggrandizing charlatan, but for those too young or too busy to compare it with the actual record, it substituted for history.

The Stone movie was, in fact, useless as history but helpful in one regard. It provoked Congress to order a further release of theretofore sealed Warren Commission records. With their release came further bolstering for the Commission. Ardent conspiracy theorists refused to be disabused, but their work took on an increasingly frantic or incoherent tone, exemplified by the 1993 publication of
Deep Politics and the Death of JFK
. In it, author Peter Dale Scott offered the novel notion that the Kennedy assassination was best understood by focusing not on the murder itself but rather on the “structural defects in governance and society that allowed this huge crime to be so badly investigated. . . . In simpler words, how could American institutions harbor and protect such evil?”
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In clearer words, Scott assumed the existence of a conspiracy, then asked why no one found it, then assumed, from the failure to find it, a broader conspiracy.

The new century brought a new entry into the conspiracy field, with the 2005 publication of
Breach of Trust,
by Gerald D. McKnight. McKnight's work avoids many of the hyperbolic pitfalls of Lane, Stone, and Scott, none of whom is cited in McKnight's work or even appears in his bibliography. McKnight's book builds a case for investigative failings. It is less convincing when it attempts to pin blame on the Commission, however, and it is burdened by small factual errors and more serious lapses of logic. Among the former, House Speaker John McCormack is presented as “McCormick,” and the delegation that visited Warren to ask him to chair the Commission is said to have been headed by Robert Kennedy, when it actually consisted of Nicholas Katzenbach and Archibald Cox. On page 120 of McKnight's book, the weight of a bullet grain is said to equal the weight of a postage stamp; on page 182 he writes that a postage stamp weighs two grains; by page 222, the same stamp weighs 2.5 grains. Those are trivial errors, but when others err, McKnight sees conspiracy. His own book is a reminder that mistakes often are just mistakes.
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In McKnight's work, as in so much of that produced by conspiracy theorists, the Commission and those involved in the investigation can do no right: McKnight sees the Commission as beholden to the FBI, but gives it no credit for the single-bullet theory, which defied the FBI analysis and angered Hoover, nor does he acknowledge that one result of the Commission's work was that it severed a thirty-year relationship between Warren and Hoover—hardly consistent with the idea that the Commission deferred to the FBI. Beyond that, McKnight portrays the Commission as a single-headed representative of the American political elite but brushes away its many internal disagreements and antagonisms; he makes much of Russell's skepticism of the single-bullet theory but pays little note that Russell's woeful attendance record meant that he missed much of the evidence that supported it. Throughout, McKnight attributes to individuals the knowledge and motives of their organizations—CIA agents in Mexico are assumed to know all that Washington knows; the FBI's agents, with the exception of Hosty, are portrayed as in lockstep compliance with Hoover. In real life, the FBI, like any bureaucracy, has its miscreants along with its organizational loyalists, but because acknowledging such complexity would threaten the conclusions of conspiracy theorists, many, McKnight included, simply overlook those complexities. McKnight's work is a far cry from that of its disreputable predecessors, and he deserves credit for acknowledging that he has produced no “smoking gun,” but in the end he proves only that many people may have wanted Kennedy dead and that the investigation of that crime was not perfect.

To those inclined to think more clearly, the Commission's initial findings grew more solid over time. Today those findings are beyond reasonable doubt. Lee Harvey Oswald, a lifelong misfit desperate to secure a place for himself in history and preoccupied by the Kennedy administration's challenges to Cuba, fired three shots from the Texas Book Depository. One missed, one hit Kennedy and Connally, one exploded the president's skull. The weapon he used was a mail-order Italian military rifle with a four-power scope, purchased using a money order in the amount of $21.45 and delivered to a post office box held under the name A. Hidell, an alias that Oswald used. Oswald's palm print was found on the rifle; his fingerprints were on the boxes in the Depository window from which the shots were fired. After shooting Kennedy and Connally, Oswald left the Book Depository, boarded a bus, then got off when it became stuck in traffic, taking a cab from there to the area near his boardinghouse. He changed clothes and picked up a handgun—ordered to the same post office box—then took off on foot, only to be stopped by Officer Tippit. Eyewitnesses watched Oswald shoot Tippit to death. Oswald took off at a fast walk, breaking into a jog. Police responded to the scene, and Oswald ducked inside a store to avoid them. The manager spotted his suspicious behavior and then watched him enter the Texas Theatre without paying. He informed the ticket taker and they called the police. When the police arrived to search the theater, Oswald pulled the gun on them. They wrestled it from him and arrested him for carrying a concealed weapon. At the station, they discovered that their suspect in the Tippit killing bore the same name as that of a Book Depository employee unaccounted for after the shooting. When he was questioned by police and others on the night of November 22 and the day and night of November 23, Oswald lied repeatedly as the evidence against him mounted.

The rifle recovered in the Book Depository was owned by Lee Harvey Oswald, and it fired the bullets that killed President Kennedy. The gun in Oswald's hand when he was arrested was his, and it fired the bullets that killed Officer Tippit; handgun shells were still in Oswald's pocket when he was arrested. Five witnesses picked Oswald out of a police lineup on the evening of November 22 as the man they saw shoot Tippit; a sixth identified him the following day.

None of those facts is seriously disputed today. Together, they amount to proof beyond any reasonable doubt on the question of who killed President Kennedy and Officer Tippit.

They are only strengthened by the questions that those who seek to refute them cannot convincingly answer. If Oswald did not kill Kennedy, why did he kill Tippit? If Oswald was innocent, why did he lie to police about owning a rifle? Why did he tell them he had brought curtain rods with him to the Depository that morning? Why did he deny that a picture of him holding a rifle in one hand and the
Daily Worker
in the other was real, when his wife clearly remembered taking it, others remembered seeing it, and scientific evidence confirmed it was taken by his camera? If a conspiracy killed President Kennedy, why has no evidence of such a conspiracy ever surfaced, and why have those who believe in that conspiracy been forced to resort to deceit and obfuscation in order to argue for it?

There was no reasonable evidence in 1964 that anyone helped Oswald carry out those murders or covered up for them afterward. There is no such evidence today.

For many, Earl Warren's chairmanship of the Warren Commission would stand as the most momentous act of his large life. And for those inclined to see conspiracy in the Kennedy assassination, the Commission's report has marked Warren as a dupe or even a fraud. Even some of his admiring biographers have tended to view the Warren Commission as an aberration from a grand career, a blemish standing alongside Warren's advocacy of the Japanese internment. The criticism of Warren for abrogating the rights of those Japanese and Japanese-Americans is more than upheld by history. But the attack on his Warren Commission service is manifestly unfair, as time and sober reflection have made clear.

The Warren Commission was not perfect, nor was its chairman. But they were right.

Chapter 23

AN ENFORCED CODE OF DECENCY

Once loosed, the idea of Equality is not easily cabined.
ARCHIBALD COX, WRITING OF THE WARREN COURT
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EARL WARREN

 

 

 

 

WARREN SET OUT in the fall of 1964 a weathered and tired man, but he cast off his problems and strode into the epic that would define the Warren Court as history remembers it. He had his votes inside the Court and his protection outside it. A Democratic president occupied the White House and used it to advance the principles that Warren trumpeted from the Court; a Democratic Congress occasionally balked but often, in the end, acquiesced. Over that time, the Court would stake out and clarify its revolutionary principles of jurisprudence and of American society, only rarely in the face of serious opposition. What emerged from the years of the middle 1960s was the clearest expression of Warren's America, the America that he had spent his life fashioning and that he now had the license and authority to recast in his terms.

In those years, Warren's insistence on racial equality evolved into a sweeping commitment to egalitarianism. His faith in voting rights grew from a belief in the franchise to a conviction that the ballot was the device by which Americans secured not just their political identity but their access to the swelling benefits of a generous government. And Warren's experiences as a prosecutor, governor, and justice now crested in a conviction that fairness required a redesigned criminal justice system. In all those areas, the Warren Court from 1964 to 1969 would forge a new America, and in every one, Warren led the way forward.

Only in one of the Court's pioneering fields of that period did it move without Warren's leadership. When it came to speech and expression, Warren's thinking was dominated by his lifelong discomfort with obscenity—an artifact of his Progressive-era deprecation of vice. Moreover, after nearly a half century of public life, Warren had seen plenty of bad, intrusive reporting, and he could not bring himself to sanction it any more than he could stomach the actions of pornographers. In the area of expression, Brennan would lead the Court, and not always well. In all others, the Warren Court was in fact Warren's Court.

No sooner had Warren gaveled the Court back into session for its 1964 term than it turned to the familiar area of racial segregation. This time, however, the Court's allies had made its burden far easier to carry. Johnson's successful pursuit of the Civil Rights Act of 1964 barred racial discrimination in places of public accommodation, and now this act, not the Court, had the lead role in striking discrimination. There would not be the confusing and bitter debate over sit-ins as in the previous term; the Court now had merely to assess the constitutionality of the act. Two cases,
Atlanta Motel v. United States
and
Katzenbach v. McClung,
came before the Court on October 5 and framed the issues. The Heart of Atlanta was a 216-room hotel along an interstate highway, and its owners preferred to serve whites. McClung was the owner of Ollie's Barbecue in Birmingham, which had sit-down dining for white customers but only take-out for Negroes. McClung too liked running a segregated establishment, even though most of his employees were black. Clark wrote for a unanimous Court in both cases and concluded that Congress's right to regulate interstate commerce gave it authority to desegregate even a Birmingham rib shack. Ollie's got forty-six percent of its meat from a local supplier who got it from out of state. That was enough.
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The Court dispensed with those cases easily, but the first term of Warren's post-Warren Commission service would forever be marked by one case and, at its conclusion, by a change in personnel. The case that would define the term—and that would set the rules for one of the twentieth century's most contentious Supreme Court decisions—was launched with a bit of mischief on Warren's part.