I visited her there the summer before she died. She was up and dressed when I arrived, and she knew exactly who I was. She was lucid and able to have simple conversations, and even if it was difficult for her to remember the details of her days, she was as abundantly affectionate as she had always been. Since this was her great ability in life, it was a relief to all of us that Alzheimer’s could not touch that indomitable core of her persona. I remember sitting with her by a window and showing her that I was wearing the exquisite art deco rose-gold watch that my grandfather had given to her on the occasion of their tenth wedding anniversary in 1943. On the inside it was engraved with Lillian’s and Abe’s initials and the date of their anniversary. She touched it lightly and said, in a wondering tone, “I remember that watch. Was that mine?” I told her it was and asked her if I could keep it. “Of course!” she said, in the emphatic, almost indignant way she always had whenever she was asked for anything by her family. “What do I need it for? You should have it! You wear it. You enjoy it!” We sat for a while, our heads bent together, and I was again, for one last time, Lil Zapruder’s adored only granddaughter, trying on her jewelry and basking in her beauty, generosity, and boundless love.
CHAPTER 12
TO TAKE OR NOT TO TAKE THE FILM
In September 1993, President Bill Clinton appointed the five members of the Assassination Records Review Board. It was headed by Judge John R. Tunheim, the chairman, and included Henry F. Graff, Kermit L. Hall, William L. Joyce, and Anna K. Nelson. Their work began in earnest in April 1994. Two months later, Jamie wrote to the chairman to ask for clarification on whether the JFK Act constituted a taking of the Zapruder film. In the letter, Jamie argued that the government should not take the film, articulating for the first time Henry’s position on the issue. First of all, he wrote, according to the JFK Act the “‘Collection’ is to ‘consist of record copies’ of government records so that information can be preserved, essentially for public examination and study.’” According to this language, a high-quality copy of the Zapruder film, made available to researchers, would fulfill the terms of the law. Nowhere was it stated in the JFK Act that the government had to collect original documents.
In his letter, Jamie also made a related point, which was that the law did not provide for the gathering of material via eminent domain, nor did Congress provide for the “fixing of just compensation” for the seizure of private property. In other words, there was no money set aside by Congress to compensate individuals whose property was taken by the terms of the JFK Act. Jamie argued this was because Congress never intended to use the law for this purpose. Its purpose was to collect and gather “record copies” and make those available to the public. NARA already had not only multiple reproductions of the film that had been used for researchers but also some of the material that had been at LIFE. In fact, just to thoroughly complicate matters, there was an argument to be made that the terms of the JFK Act could not be fulfilled by taking the original film, since the original was far too fragile to be run through a projector and would not, under any circumstances, be made available to researchers.
It might seem counterintuitive that my father would not want the government to take the film. After all, our family’s best chance of making money on the original would be if the government took it and then had to pay us for it. But this presupposes that it was our intention to make money from the original film. It wasn’t, and the best evidence of that is that the film had been sitting in the National Archives, undisturbed, for sixteen years. If our family had, at any point, wanted to capitalize on the film as a financial asset, we could have pulled it out of the Archives and put it on the auction block at Sotheby’s or Christie’s.
The reality was that my father, more than any of us, understood the long-term implications of the government taking the film under eminent domain. This action would require the fixing of just compensation, and the American taxpayers were going to have to pay that amount of money. There was no telling what the figure would be, and from his point of view, it just didn’t make sense. Why pay for something whose ownership was largely academic, as long as we didn’t remove it or try to sell it, which we had no intention of doing? There had to be another way to resolve the problem.
In the late summer of 1994, David Marwell was hired as the executive director of the ARRB. He would remain there until September 1997, leaving shortly after the question of the ownership of the film was resolved once and for all. He was, metaphorically and sometimes literally, on the other side of the table from my father, representing the government’s interests with respect to the film. When he left the Review Board in 1997, he took a senior position at the United States Holocaust Memorial Museum, where I was working in 1996 after getting my master’s degree in Education. We crossed paths briefly, but it wasn’t until the 2000s, after I published my first book, Salvaged Pages, that David and I became friends. He was then the director of the Museum of Jewish Heritage, where I spoke just weeks before Salvaged Pages was published and then visited with some regularity to work with teachers and to speak at the museum’s distinguished programs.
Early in my thinking about this book, I wrote to David to ask him if he’d let me interview him about his work for the ARRB. I recall feeling a little like I was falling off a cliff. I had not yet spoken to anyone outside our trusted circle of family and friends about the book, much less dared to talk to anyone who was in a somewhat oppositional role. What if he had a negative view of my father or our family? What if he said something that made me defensive? It was possible that he knew something I didn’t, that he had some information that would cause me to doubt my faith in my own perspective. I might find that it was too difficult to discuss this topic with equanimity, or that I was unable to tolerate new perspectives in the way I knew this book would require. David wrote back immediately to say he’d be glad to meet and talk.
In time, I would become comfortable making cold calls, sending e-mails, and conducting interviews with Washington power brokers and lawyers, leaders in government, novelists, filmmakers, journalists, artists, scholars, and assassination researchers. Eventually, I learned that most people didn’t have an ax to grind with our family, and the bunker mentality we had adopted—the sense that it was best to avoid any conversation about the film for fear of what might be said—was not really necessary. In fact, nearly everyone I wanted to talk to was not only willing to talk with me but also remarkably kind, generous, and encouraging. For those who had reason to be critical of our family, I gradually learned the difference between hearing their views and being threatened by them.
Still, this first interview required an internal shift, a readiness to open a part of my life that had always been closed in order to encounter a genuinely different point of view, hoping that I would begin to get to the deeper currents of the story that I was just beginning to explore. It helped that I knew and trusted David. It also helped that David has always reminded me a little of my father. But most of all, it helped that David is who he is. He is immensely generous, likable, and kind, with an understated but irreverent sense of humor. He has a big smile and a hearty laugh. He is exceedingly smart but never condescending. He is soft-spoken and unassuming, with a gentle manner that is most unusual for someone who has had such a distinguished career.
We met in his office at the Museum of Jewish Heritage in Battery Park City in May 2011. From his window, we had a breathtaking, sweeping view of New York Harbor and the Statue of Liberty. As we sat down to talk about the Zapruder film, I briefly thought of my grandfather as a fifteen-year-old boy, jammed in steerage on the SS Rotterdam, steaming into that very harbor ninety-one years earlier. Origins and legacies, choices and twists of fate, and accidents and consequences—there was so much to untangle and to try to understand.
We began by talking about the JFK Act and the purpose of the law, about his own memories of the assassination when he was eleven years old, and about what had drawn him to this politically complicated job. Eventually, we go
t around to the film. David remembered that by the time the ARRB was established, it was clear that there was going to be a problem with the Zapruder film. There had been several years of correspondence between LMH and the National Archives on the matter of the film’s ownership by this point, and no one was sure whether the government had or hadn’t taken the film. “I think we all realized that this was the prime, archetypal assassination record,” David said. “I think it was in our minds all along, that this was an issue we had to address.”
Although it felt like an obvious question to ask, I wanted to know why the board felt it was necessary to have the original film rather than a record copy. Part of David’s answer had to do with questions around the authenticity of the film, a point of contention that had gained considerable currency at the time (and that would continue to occupy some researchers’ attention long after the matter was settled to most reasonable scholars’ satisfaction). As David explained it, “If in fact it was altered in some way, then the original was the best evidence. So it wasn’t just the information on it… There was forensic evidence to be derived from the examination of the film itself.”
At the same time, David acknowledged that the analysis could have been done on the film without taking it. It was clear from our conversation that although members of the board could list the practical, concrete reasons why it was important for the federal government to take possession of the original film, and someone like my father could argue point for point all the ways in which taking the original was not necessary to satisfy their requirements, there was an imperative that went beyond specific, practical reasons. David described it as a “philosophical certainty” in the film’s importance not only as evidence but as a symbol, the quintessential assassination record. “It was not a debatable point for the board,” David told me.
When I later pored through the correspondence between LMH, the National Archives, the ARRB, and the Justice Department between 1994 and 1997, it struck me that, from our family’s point of view, the government seemed utterly undecided about what to do with the film. Of course, I believe David when he says that it was a “philosophical certainty” for the board, but their actions telegraphed paralysis rather than certainty. Every time Jamie wrote a letter, he received one back saying that the decision about what to do with the film would have to be further deferred. First, NARA could not make a decision until the ARRB was in place, which happened in the spring of 1994. Then, in January 1995, the ARRB designated NARA as the “lead agency” on the matter and announced that they would be “handling correspondence and inquiries” on the issue. In July 1995, NARA wrote to Jamie to say that they could not resolve the issue of the film until it was determined whether the government had, in fact, taken it. This decision would be made by the ARRB.
Jamie wrote back in frustration at the confusing bureaucratic structure that stymied efforts to resolve the issue. He also rearticulated the offer that LMH had repeatedly made by this point: In order to satisfy the requirements of the JFK Act while avoiding a taking, Henry had proposed that the Zapruder family make, at its own expense, the highest possible quality reproduction of the film. This print could be used as the “record copy” for the government, which would have a royalty-free license in perpetuity. The original would stay exactly where it was, and the government would have the right of first refusal in the unlikely event that the family ever decided to sell it. As Jamie put it in his letter of August 2, 1995, “It seems senseless for the government to take the Film rather than to simply use a CD or the other record copies which we have repeatedly offered to develop for free… It is my client’s principal objective to assure that the government does not make wasteful expenditures relative to the ‘takings’ claim.” Jamie, acting on behalf of LMH, would continue to make this offer right up until the last possible moment, five weeks before the ARRB reached its final decision.
Since it seems clear from David’s recollection that the ARRB wanted the original film all along, why did they entertain all these alternative offers, and why did it take so long to resolve the matter? One answer is that while the Zapruder film was the most public and famous assassination record—and as such drew an enormous amount of press attention—it was only one of a great many issues that the ARRB was trying to resolve in a very short period of time. The process of deciding this matter should be seen not in isolation but in the context of the whole effort of the ARRB to coordinate a great many agencies and other organizations that were being asked to sort, categorize, and deliver material to NARA.
There were other reasons why the government hesitated, however. These touch on the monumental nature of the decision and its unpredictable consequences. The ARRB might have known that it wanted to have the film for the JFK Collection, but deciding to exercise the government’s constitutional right to take it by eminent domain was no small matter, especially as the agency was being asked to make this decision without congressional or executive approval. They had no budget to purchase the film, and exercising a taking meant committing American taxpayers to paying an uncertain sum of money. Then again, letting the film slip through the ARRB’s fingers and remain in the custody of our family seemed like a failure to secure one of the most important records of the assassination for the American people. Either way, this was a monumental decision with the potential to attract criticism—for getting the film and spending too much on it or for not getting it at all.
Henry’s position was not particularly enviable, either. He earnestly wished that the government would accept the offer of a record copy rather than the original, because he did not want to appraise its value. Dealing with the financial value of the film always meant grappling with a moral problem. If the film’s value were assessed by an appraiser to be very high and then the government took it, he was going to face a higher-stakes, more public, and costlier version of his father’s dilemma from thirty years before. He would have to weigh the interests of his own family against the public interest regarding the film. He would have to explicitly address its financial value while adhering to his own moral imperative not to exploit it. Like his father, he had not asked for this problem. He had been minding his own business, with the film responsibly stored at the National Archives, when the passage of the JFK Act raised an issue of ownership to which he had no choice but to react.
As so often happens with the Zapruder film, there were now genuine differing interests that simply could not coexist without conflict. The ARRB felt that having the film was nonnegotiable, though they could hold out hope that our family would donate it to the federal government, thus freeing them of the responsibility of committing to just compensation. Henry felt that allowing the film to be taken without just compensation was nonnegotiable (though he repeatedly made it clear that he was willing to accept far less than “fair market value” for the film), and he could hold out hope that the government would accept his offer of compromise, thus freeing him of the responsibility of fighting for compensation. But, as the years went by, the ARRB could see that our family was not going to give the film to the government, and Henry could see the ARRB was not going to give the film back to our family. And so, nothing happened.
When I sat with David, he recalled how he felt about the situation and his very few memories of my father. “I have an image in my mind of sitting across the table from him, but I don’t remember what the subject of the meeting was. I had, before I met you, some sympathy for him, in a way, because he seemed uncomfortable in that role.” He recalled that there were members of the staff and the board who interpreted Henry’s position in the worst possible light. Later, when I corresponded with Judge Tunheim about this, he agreed, explaining that some members of the board were “militant” and that they didn’t even want to meet with the family. As David put it, “Some… thought this was just greed talking here. And I didn’t feel that way… I would say to them, ‘You can’t expect someone to give up something that is of such great value. Would you do that?’ And everyone had this cavalier attitude. Q
uite frankly, after I met your father, I became sympathetic to his quandary in all this.”
The situation between the ARRB and our family inched forward incrementally over the course of 1995 to 1997. During this time, both sides worked with appraisers to value the film and proposed settlement offers that failed to satisfy the other side. Finally, in March 1997, the board announced that it would hold a public hearing on the subject of the Zapruder film, inviting comment and debate on the subject of whether the board should initiate a taking of the film or accept a negotiated settlement with the Zapruder family. It was scheduled for April 2, 1997.
At the same time, and not by coincidence, a company called McCrone Associates was preparing to produce a highly specialized color reproduction of the original Zapruder film at the National Archives. Jamie had originally proposed the creation of a reliable record copy with two related thoughts in mind. First, it was an integral part of LMH’s offer to provide the government with the best possible duplicate of the film—one that would be clearer and more readily useful to researchers than the original—in hopes of avoiding the taking. Second, there was the possibility that the government would take the original film but not the copyright, in which case LMH might well have to continue managing license requests. In this case, a high-quality version of the film would allow LMH to better meet researchers’ needs and streamline the process for access.
Jamie had learned about McCrone Associates, recognized for decades as industry leaders in microscopy and materials analysis, through his own personal interest in philately. Long before the company was actually hired, Jamie contacted Joseph Barabe, McCrone’s director of scientific imaging, on behalf of LMH to discuss the delicate and complex project of duplicating the film from the original.
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