by Jim Newton
Those were long-term consequences, none of them salutary. But in the context of early 1964, the ruling achieved all that Warren and Brennan had hoped: it removed the threat to the civil rights movement, and it kept public attention focused on Southern racism. Sullivan was greeted with relief and exultation by the press. The point of New York Times v. Sullivan was the same as the point of the stall in the sit-in cases—it was to keep civil rights alive, and it succeeded.
Legislative reapportionment would stand as one of Warren’s most significant contributions to the Court and the nation. The deft handling of the sit-in cases would help Congress along its bumpy path toward enactment of civil rights legislation that Warren saw as vital to the nation’s development. The protection of speech extended in New York Times v. Sullivan would expand the role of an assertive American press, for better and for worse. And yet those monuments of 1964 were, for Warren, backdrops to the excruciating work of determining who killed President Kennedy and how.
ON JANUARY 20, Warren and Rankin addressed the staff of the assassination commission for the first time. Summoning the majesty of his office and the weight of his own reputation, Warren explained to the lawyers gathered that day at the office that he had reservations about the job, that he had resisted Johnson’s entreaties until he felt he had to agree. Warren warned that the nation needed certainty about Kennedy’s death, that rumors were dangerous, and that the truth, only the truth, would satisfy the public’s need for closure. Truth, he said, “is our only client.”80
Warren meant that gravely, and no one worked harder than he did to direct the Commission’s work. Over the coming nine months, Warren often would begin his day reading at home before dawn. He arrived at eight A.M. at the offices of the Commission, where he would work until just before ten A.M. He would then walk down the block to the Court, gavel it to order at ten, and preside over its business for the day. At its conclusion, he would then return to the Commission, often working into the evening or even the early hours of the following morning. He was, one staff member recalled later, a “constant presence,” his devotion to the work nothing less than “heroic.”81 For nearly a year, Warren supervised a nationally scrutinized investigation into the murder of a president without ever missing a scheduled session of the United States Supreme Court. His health paid the price of his diligence. Early that winter, Warren contracted a bronchial infection. It depleted the chief justice for much of the year, leaving him rheumy, congested, and tired.82
Rarely during that entire time was there a break from the pace of the Commission’s work. Just two days after Warren met with the staff, Texas officials warned the Commission that they had stumbled upon an explosive rumor—that Oswald had been an undercover FBI agent. In support of that report were tantalizing “facts,” including the monthly payments that Oswald was said to have received and the FBI’s identifying number, 179, allegedly attached to him. Warren urgently summoned the Commissioners into a special session of the panel that evening to brief them about, as he told them, “something you shouldn’t hear from the public before you had an opportunity to think about it.”83 Commissioners then listened as Rankin laid before them the frightening possibility that the assassin of the president might have been an agent of the government.
The commissioners took the matter seriously. As a group, they conceived a plan to investigate it, both by approaching the FBI directly and by checking it through sources independent of the Bureau. They soon discovered that it amounted to less than it seemed. The source, it turned out, was not one with any special access to classified information but rather a reporter for the Houston Post, who had passed it along to a Secret Service agent. By February 24, the Commission had interviewed the reporter and checked the rumor against records and sources and had concluded that it was false.84 To those who believe to this day that the Commission participated in a cover-up, its response to that early rumor is telling. It is true that the Commission had two motives in chasing that report: Commissioners wanted to discover any hidden allegiance between Oswald and the FBI, but they also recognized the implications of such a rumor and they were eager to dispel it. That tension—between the Commission’s role in finding the truth and its responsibility for mollifying a frightened public—is what causes some to question whether the Commission would sacrifice truth for peace. In fact, however, that tension proved more hypothetical than real, and in its quest to discover whether Oswald worked for the FBI, the Commission at no time gave any hint that any member was willing to cover up the truth if the rumor proved correct.
That is not to say that Warren or the Commission pursued every lead or disclosed every piece of evidence. Warren made pivotal decisions to circumscribe the inquiry, and he had no qualms about doing so, then or later. Some commissioners and members of the staff wanted to take Jacqueline Kennedy’s testimony early and to subject her to questions about the president’s wounds and the shots fired. She was, after all, the person sitting closest to Kennedy when he died. Warren resisted. His affection for the First Lady—and his paternalism toward those most closely affected by the assassination—inclined him to a gentler approach. When Jackie Kennedy eventually was questioned, it was only briefly, and it took place at her Georgetown home, with only Warren, Rankin, and Bobby Kennedy present. Similarly, Bobby Kennedy, though the nation’s attorney general, would be questioned only in writing, and his evasive responses about his lack of knowledge, particularly with respect to potential motive by Castro, would be accepted without challenge. Each of those concessions had consequences, but far more serious was Warren’s decision not to admit autopsy photographs taken of the dead president. Unwilling to allow ghoulish exploitation of those photographs, Warren instead viewed them himself. “ [T] hey were horrible,” he recalled.85 Concerned that the pictures might be exploited “for sordid commercial purposes, and perhaps for spite purposes,” Warren arranged to keep them out of the official record.86 Warren’s solicitousness was in one sense predictable. He was moved by the suffering of Jackie and Bobby Kennedy, protective of them and the president’s children; he thought of Kennedy as nearly a son, after all, and thus as family. That was understandable but naïve. His solicitousness of the Kennedy family deprived the public of a complete record, and offered doubters a vacuum into which to pour their worst suspicions.
The Warren Commission called its first witness, Marina Oswald, on February 3, 1964. Marina Oswald was the third woman widowed by the events of that November weekend, and she too received the benefit of Warren’s sympathy. The chief justice welcomed her and her lawyer to the hearing, informed her of her rights, and let her know the Commission was mindful that she had recently had a baby and would want a break to be with her. “If at any time you should feel tired or feel that you need a rest, you may feel free to say so, and we will take care of it,” he said.87 During her testimony, when Marina Oswald testified that she had seen a gun owned by her husband, she said she could not tell whether it was a rifle or a shotgun. “You men. That is your business,” she testified. Warren was understanding. “My wife wouldn’t know the difference, so it’s all right,” he assured her.88
For four days, Marina Oswald, accompanied by a lawyer, painted a damning portrait of her deceased husband. She identified his rifle, which he had denied owning. (Shown Exhibit 139 and asked to describe it, she replied, “That is the fateful rifle of Lee Oswald.”89) She described in detail his seething anger, his tendency to violence, his admission to her that he tried to kill General Walker, his alienation from all those around him, and his final, telling act on the morning of the Kennedy assassination, when, for the first time in their marriage, he slipped off his wedding ring and left it behind as he departed for work.90 Lee Harvey Oswald’s widow had little doubt about who had killed President Kennedy or why: “From everything that I know about my husband, and of the events that transpired, I can conclude that he wanted in any way, whether good or bad, to do something that would make him outstanding, that he would be known in history.”91 Warren had sized up
witnesses before, and he believed Marina Oswald. “I was convinced,” he told Drew Pearson four years later, “she was telling [the] truth.”92
Marina Oswald’s testimony, like that of all but one Commission witness, took place in a closed room. Though the transcripts of all testimony would later be released, Warren and the rest of the Commission believed public hearings would encourage some witnesses to grandstand and would intimidate others. Warren urged that approach from the outset, and it reflected his lifelong belief in a sort of limited open government—in a government whose actions were subject to scrutiny but not at the mercy of the mob. Like so many of his important decisions over the years, this one was informed by his old Progressive instincts, in the idea that enlightened leadership was preferable to unfettered majority rule. In this case, as with Warren’s decision to withhold the autopsy photographs, that instinct would expose the Commission to later criticism, but he showed no hesitation in pushing the panel toward the limited openness that it practiced.
Although the hearings themselves were closed, the Commission was subjected to intense daily coverage. In the jostling press area outside the hearing room, Warren made a mistake early on that would cast a pall over the Commission. Marina Oswald was appearing for her first day on the stand when the press corps caught Warren and asked him if or when the Commission would release all the testimony it gathered. “Yes, there will come a time,” he answered. “But it might not be in your lifetime. I am not referring to anything especially, but there may be some things that would involve security. This would be preserved but not made public.”
Warren had barely uttered the words before realizing he had made a mistake. He tried the next day to clear up what the New York Times charitably said had “appeared to be a misunderstanding.”93 Addressing the same reporters, Warren emphasized that the Commission so far had heard nothing that would be withheld—it was, after all, hearing from only its first witness—and that he expected the public would receive a full report. Even Warren realized that was too late. The idea of the Warren Commission as an agent of cover-up had found purchase.
Over the next eight months, the Commission heard from 552 witnesses, 94 of whom testified before the Commission itself, and 395 of whom were questioned by staff members. Sixty-one people supplied affidavits.94 Two gave statements. Because the Commission determined early on to avoid extensive pretestimonial interviews, the accounts that appeared in its official record—the report itself and twenty-six accompanying volumes of transcripts and exhibits—were subject to all the vagaries of lapsed memory and differing vantage points that are common to any criminal investigation of a violent crime, exacerbated in this case by the enormity of that crime. Throughout the Commission’s long testimonial sessions, Warren was a patient and gentle chairman.
On some occasions he was even more than that, displaying a depth of human compassion that astounded his staff and colleagues. One such moment occurred during the testimony of a young man, Arthur Rowland, who had been standing outside the Texas Book Depository Building waiting for the president’s motorcade to pass by that day in Dallas. As Rowland waited with his wife—they were just eighteen, and had recently married—he glanced upward and saw a man in a window holding a rifle. A police officer was just a few feet away, but it did not occur to Rowland to point out the man to the officer. By the time Rowland appeared before the Warren Commission, he had replayed that scene time and again in his mind, asking himself if he might have changed history had he merely called out to the officer. Rowland brought that self-inflicted agony with him to the Commission, and when Senator Cooper asked him about it, he could contain himself no more. “This is a recurring dream of mine, sir, all the time, what if I had told someone about it,” Rowland said. “I knew about it enough in advance and perhaps it could have been prevented. I mean this is something which shakes me up at times.”95
With that, Rowland collapsed into tears. Warren then called for a brief recess, and took the boy under his arm, speaking quietly as Rowland sobbed, the chief’s voice low and comforting. The Chief Justice of the United States was a father and a grandfather, and he understood something about young people and anguish. He told Rowland that he needed to stop blaming himself, that no bystander was responsible for President Kennedy’s death, that no person deserved to carry such guilt. Gradually, Rowland calmed down. It was, Commission lawyer David Belin recalled, “an unforgettable experience” to see Warren comfort the troubled young man.96 When Rowland was quiet enough to speak again, Warren asked whether he had been able to see the sights in Washington during his visit. “I’ve tried,” Rowland answered, “but walked my feet off.” When Rowland completed his testimony a few minutes later, Warren’s car was waiting for him.97
Through the spring, other members of the President’s Commission began to waver in their attention to its proceedings. Ford was a fairly regular participant, and McCloy attended most of the significant hearings, but Russell became less and less engaged, and Boggs was often called away by congressional duties. Only Warren remained fully dedicated, attending almost every one of its scores of sessions, though often ducking in and out. Tough on himself, he was equally demanding of his staff. His temper could flare, and he was unyielding in his insistence that the staff work as hard as necessary in order to finish by his proposed deadline of June 1. Few excuses were tolerated. When Richard Mosk slipped off to Massachusetts one Saturday to get married, he postponed his honeymoon and was back at work on Monday morning. His mother, an old friend of Warren’s, made sure Warren knew of her son’s dedication. Warren’s response, “Why wasn’t he here Sunday?” had a bit of edge.98
But Warren was respected, even revered, by Mosk and the rest of his staff. He gave the lawyers wide latitude to develop their areas as they saw fit, and he trusted their judgments. There were times when they disagreed with his decisions—Belin and Specter, among others, were furious at Warren’s decision not to include autopsy photos of President Kennedy; they and others also objected to Warren’s decisions to question Jackie Kennedy privately and to accept a statement from President Johnson rather than present questions to him.99 Those disagreements, however, were overshadowed by a wider admiration for the chief justice, and that admiration was sealed for many by the way Warren single-handedly fended off an attack on one of the staff’s most admired members, Norman Redlich.
Redlich was a young law professor at NYU when Rankin recruited him for the Commission. In the months since, Redlich had established himself as the Commission’s leading intellectual and one of its hardest workers. He reported directly to Rankin and assisted lawyers in each of the Commission’s working groups. By May, no lawyer on the staff, with the possible exception of Rankin, understood the work of the Commission or its investigative findings more clearly than Redlich.100
Because the Commission had set to work so quickly, its staff members had proceeded without full background checks by the FBI. Notwithstanding that, most were reading highly sensitive, sometimes classified material even as the FBI probed them for loyalty. In May, the FBI’s field reports were completed and forwarded to the Commission. Included in those reports were entries on the leftist affiliations of two staff members, Joe Ball and Redlich. Ball’s affiliation was glancing—he joined with other members of the California Bar Association in approving a resolution denouncing the House Un-American Activities Committee. The Commission decided with little discussion that it did not merit concern. Redlich was another matter. A passionate activist for many liberal causes, Redlich drew particular notice for his work with a group known as the Emergency Civil Liberties Council. It too had actively opposed HUAC, and HUAC had treated it as an enemy, listing it as a Communist front organization.
The disclosure of Redlich’s affiliations, which he had made no attempt to hide, came at a particularly embarrassing juncture for the Commission. It already had placed him in a position of influence and allowed him to read classified government material. To find now that he was a security risk would thus raise questions about t
he Commission’s judgment. Moreover, the FBI material about Redlich found fertile minds among some members of Congress, including Ford. The congressman knew that to challenge Redlich on the basis of the FBI’s assessment of his liberal associations was to invite a confrontation with Warren, so Ford prepared meticulously for their showdown.101 It came on May 19, 1964.
As was his usual practice, Warren opened the session by asking Rankin to summarize the issue. He then heard from commissioners. Russell, though apologizing for having missed so much Commission business, nevertheless said he worried about taint to the panel if Redlich stayed. Boggs was less strident, but he too voiced reservations. Then Ford spoke at greater length. After praising Redlich’s ability and intellect—“I think he is a brilliant man,” Ford said—and after stressing that he did not question Redlich’s loyalty, Ford nonetheless concluded that Redlich’s activities were such that Ford would have objected to his hiring had he known of them. “That being the case,” he added, “. . . it is hard for me to say now that we should continue the employment of any [such] person.”102 Cooper was noncommittal but clearly concerned about the Commission’s reputation if it kept Redlich; Dulles argued for letting him go.