WHY THE WARREN COMMISSION GOT IT RIGHT # 1.
cdddraftsman
The Warren Commission
By Maurice Rosenberg
The Nation, 14 September 1964, pages 110–112
Maurice Rosenberg, professor of law at Columbia University, was
director of the Columbia University Project for Effective Justice
(1956–64). Submitting his piece, Mr. Rosenberg noted that it falls
into the dilemma it poses, for it must make assumptions about Lee
Harvey Oswald's part in the assassination which can never be decided
in a court of law. In a later issue, Herbert Packer, of the Stanford
University law faculty, will analyze the substance of the Warren
report.
Soon the select commission probing the assassination of John F.
Kennedy will deliver its findings to the world and to history. One
inevitable result when the Warren Commission's report comes in will
be
to evoke anew the heavy flavor of irony which has tinged the tragedy
from the start. In part, that is to be expected, for it is the habit
of terrible events to reveal one bitter twist after another as their
details unfold. Unhappily, in its quest for "truth," the Warren
Commission itself seems destined to compound the irony, even though
its purpose is high and its members honorable.
A week after John F. Kennedy was shot dead in the Dallas
motorcade, his successor named the special commission to study the
assassination and report back its conclusions. The key instruction
from President Johnson was that the commission "satisfy itself that
the truth is known so far as it can be discovered." To assure the
whole world that the commission's report would carry the utmost
authority, responsibility and credibility, the Chief Justice of the
United States was made head of the group and it was rounded out by
six
other distinguished men from public life.
There was no mystery about what the new President meant or wanted
when he charged the commission to bring back "the truth." The shots
that killed Kennedy had ricocheted around the world, raising deep
fears and doubts. A public-opinion poll taken at about the time the
commission was named reported that a majority of the American people
believed that some group or element had worked with the presumed
assassin. Many other people reported themselves uncertain as to what
to believe. Abroad, there was disquiet and foreboding over the
possibility that the act was a step in a right-wing Putsch. President
Johnson wanted to still the fears and doubts for all time by
obtaining
indisputable facts about what had happened in Dallas on November 22,
1963, in the days that led up to it, and in the days following. He
wanted the commission to write a report that schoolboys would read as
truth in their history books, accepting it forever after as the
authentic account of the most calamitous American death since
Lincoln's.
And so the Warren Commission began life as the servant of
history,
dedicated to recording the historical truth about the people and
deeds
that intersected on November 22–24, 1963, in Dallas, Texas. This was
not an event that needed the perspective of time; history in this
case
could be served up piping hot, for nothing was wanted except the
blunt, simple truth about a relatively few stark questions: Did Lee
Harvey Oswald kill John F. Kennedy? Did he act alone or were there
confederates? Was the assassination a product of political
motivation?
Was there a plot or conspiracy? When Jack Ruby killed Oswald, was it
a
mad act of isolated malevolence or again part of a plot?
At the start, the commission thought it had only to "investigate"
to establish the truth about these questions. Then coming generations
of schoolboys would know the name of the man who shot John F. Kennedy
as certainly as they knew that Booth had killed Lincoln.
The lawyers on the commission and its staff must have reflected
that this time, at least, truth was going to be an uncomplicated
business. Their job of truth-finding, as they first viewed it, had a
plain definition and a vivid model. By building on the FBI's work,
and
by amassing more photography, taking more statements, and sifting all
the proof, they were to reconstruct the events of November 22 until
the picture of what had occurred on that day emerged as clear as the
television image of Jack Ruby shooting Lee Oswald. Cameras do not
deal
in legal judgments and neither would the commission's report.
Regarding the manner as well as the object of the probe, the
commission was entirely clear at the start: it was to be an
investigation, not a trial. There was no problem of protecting the
rights of any person living or dead, for the commission was
unconcerned with accusing or with finding anyone "guilty." In short,
there was no call to bring in the elaborate trappings of a jury
trial,
or the clash of adversary lawyers, or the punctilious legal rules
about presumed innocence, improper evidence, confrontation or cross-
examination. The commission was to record, in words and
retroactively,
the truth that a stereophonic sound camera would have reported if it
had followed the moves of the President and his killer up to their
fatal convergence.
Under its "investigation" concept, the commission had no trouble at
all in dealing with the New York lawyer, Mark Lane, when he came
forward early in the inquiry with an offer to "protect" the interests
of Lee Oswald—presumably, as a trial advocate would. There could be
no
intention to appoint a lawyer to act on Oswald's behalf, since, as
was
pointed out by chief counsel J. Lee Rankin: "The commission is not
engaged in determining the guilt of anybody. It is a fact-finding
body."
Mr. Rankin made that statement on January 10. A few weeks later,
in early February, the Warren Commission took the testimony of
Oswald's widow as the first witness, followed by testimony from his
mother and brother. Then suddenly, on February 24, the commission did
a turnabout and appointed lawyer Walter E. Craig of Phoenix, Arizona,
the president of the American Bar Association and a designee for the
federal district bench, as an "independent lawyer" to protect
Oswald's
interests.
Mark Lane now protested that Mr. Rankin had written him on
January
23:
…the commission does not believe that it would be useful or desirable
to permit an attorney representing Lee Harvey Oswald to have access
to
the investigatory materials within the possession of the commission
or
to participate in any hearings to be conducted by the commission.
Lane also said that in a personal conversation the Chief Justice had
told him that "Oswald was not on trial and…counsel would not be
permitted to represent him" Whether or not the Lane version is
completely accurate, there is no doubt that the decision to appoint a
lawyer to protect Oswald's interests signaled a drastic change of
view
by the commission. It must also be true that the shift came in
response to some very powerful force, for it was a serious matter for
the commission to alter its position after weeks of investigations.
Mr. Craig himself played down the partisan quality of his
representation by issuing a statement on March 18, in which he denied
he was Oswald's legal protector in the probe. "We are representing
the
interests of the American people," he said, rather than Lee Oswald's.
He added that his function was to "review" the commission's actions
against the possibility of error. Despite Mr. Craig's disclaimer—
which
may have been prompted in part by sensitivity to his ambiguous role
as
chief pursuer of Melvin Belli for outbursts in connection with
Belli's
ill-starred efforts to defend Jack Ruby—the record is clear that the
commission did a partial if not a full somersault on the question.
The
intriguing question is: Why?
The answer is not that the commission changed its purpose from
neutral probing to prosecuting. Rather, in my opinion, the force that
caused the reversal was the subtle but potent pressure of the
tradition of adversary trial and due process on the commission's
conscience. For the tradition that certain decencies are due a man
before he is convicted of a crime, even implied or indirectly, is
deeply ingrained in American thought. The eminent lawyers who man the
commission and its staff are particularly sensitive to the tradition,
for they were well schooled in it. As dozens of witnesses took the
stand, and as the evidence pointing to Oswald's responsibility
mounted
higher and higher, the lawyers must have become increasingly aware
that "truth" was emerging in a way that to them was at once
unaccustomed and uncomfortable. They may well have asked themselves:
"Shouldn't there be an advocate for Oswald's innocence? Might he not
be able to shake a damaging witness by a searching cross-
examination?"
Certainly the staff could not be expected to wield the cudgels for
Oswald at the same time that it was busy interrogating potential
witnesses, checking their statements, and deciding whether to use
them
as proof. The commission members could not forsake their places as
judges in order to object to improper evidence or to try to punch
holes in a witness's story. One day last February there must have
been
a deep, resigned sigh around the commission's table as the idea took
hold that the truth was not to be a simple matter after all; that not
only had the inquiry turned up some bits and pieces that didn't quite
fit, but that no pieces would really fit unless the commission
shifted
its course away from investigation and closer to trial.
Perhaps in February the commission came to believe that world-
wide
concern over the assassination would best be quieted if, as Dean
Eugene Rostow of the Yale Law School said, the commission's hearings
were conducted "as nearly as possible in the familiar pattern of a
trial." This would mean modifying the commission's approach to
searching for "legal truth" instead of for historical truth. The
shift
was a major one.
The truth the law seeks and that lawyers battle for in the
courtroom is a very different thing from the reporter's idea of
truth.
Newsmen try to capture and record the information that would be
reported by an all-seeing, all-hearing witness of events. The law
would like it if it could to recapture "truth" in that basic sense,
but it wants more. In a criminal case it wants to protect the accused
in a variety of ways, some of which are constitutional imperatives
and
others of which are merely well-established common-law procedures.
Unlike the camera, the law recognizes diverse social values, some of
which it at times regards as more important than getting the naked
truth. That is why it does not compel the accused to testify. That it
why it bars confessions if they are tainted by force or coercion.
The Warren Commission may have thought at the beginning that it
could avoid grappling with these other values and social interests of
the law if it resolved that it was not bent on accusing anyone or
seeking to prove anyone guilty. However, it soon became apparent that
the whole venture was instinct with accusation, try as one might to
be
neutral, impartial or merely "fact-finding." As the inquiry went on,
the commission realized that the dividing line between fact-finding
and accusation was nonexistent when the facts alone might both accuse
and pronounce guilt. With that realization, it seems, came the
decision to appoint Walter Craig as "independent" counsel to protect
Oswald's interests. And so came the shift in direction—from the
search
for investigator's truth to the search for courtroom truth.
To President Johnson the commission might now say it had come to
recognize that there might be essential unfairness in trying to write
the truth for the schoolboys' history books without observing the
legal rules and safeguards for getting truth. At the same time the
members of the commission were aware that in this case legal truth is
forever beyond reach. Jack Ruby arranged that when he gunned Lee
Oswald down.
The great irony which the Warren Commission's report appears
destined to add to the Dallas tragedy is that President Johnson's
command to his eminent appointees—root out the "truth" about
Kennedy's assassination—became in essence impossible five days before
he appointed them. It became impossible when Oswald was killed, for a
trial is imperative before guilt for murder can be heaped on a man;
and a dead man cannot be made to stand trial. Yes, there can be an
Investigation of the Assassination of President John F. Kennedy, as
the FBI entitled one of the five volumes it delivered to the Warren
Commission last December. But the commissioners seem to have found
that under American traditions "investigation" by them cannot serve
as
a satisfactory predicate for pinning guilt on even the most wretched
of men. Ruby's trigger finger robbed Oswald of life—and history of
justice and truth.
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