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Testimony of Mark Zaid and Charles Sanders

Before the ARRB, October 11, 1994 - Washington, D.C.

Our next scheduled witness this morning is Mark S. Zaid from Washington, D.C.

Mr. Zaid will be joined by the following witness, Mr. Charles J. Sanders of New York, and they will testify together.

Good morning, gentlemen.

MR. ZAID: Thank you, Mr. Chairman, members of the Review Board. We appreciate the opportunity to make comments on what the definition of assassination records might be.

A brief introduction, Charles and I are both attorneys, I being here in Washington, D.C., and Mr. Sanders in New York City, and we are the co-authors of the only Law Review article, in fact the first, on the Kennedy assassination in almost 30 years. The article dealt exclusively with the legislation that you are operating under, analyzing its provisions, and offering specific suggestions as to witnesses who might possess or could lead to the discovery of assassination records as well as specific documents that the Board might want to consider giving priority to its release. I am happy to say that some of the documents we listed have already been released under the provisions of the act.

According to the Senate report, the definition of assassination record is: "A threshold consideration for the successful implementation of the act. Its scope will be the barometer of public confidence in the release of assassination records."

The term or definition of the term "assassination records" is likely to be the most important administrative decision that the Board will make.

The goal of full disclosure has been highlighted throughout the legislative findings of ARCA, as we term your legislation, and one of the primary purposes of the act, as stated within, is to enable the public to become fully informed about the history surrounding the assassination. I would highlight that they term it, the history surrounding the assassination, not just the assassination itself.

The term assassination record is given a starting definition in the legislation, they term it, means a record that is related to the assassination of President John F. Kennedy that was created or made available for use by, obtained by or otherwise came into the possession of, and then it lists various organizations and government entities under Section 3.

The breadth of the records that will be covered by that definition will turn on how that Review Board defines two key phrases, "related to the assassination" and "created or made available for use by, obtained by, or otherwise came into the possession of," and those government agencies.

I will address the first part of that with "related to the assassination" and Mr. Sanders will address the second part.

The congressional intent we see as extremely appropriate and a great deal within the legislative history has addressed or guidance as far as how you might be able to or might determine to use this definition.

I will quote from the Senate report: "The term assassination record was not more specifically defined by the Committee" -- meaning the Senate Committee -- "because to do so before more is known about the universe of records would have been premature and would have further injected the government between the records and the American public."

That being clear that Congress intended that the Board adopt an expansive definition, obviously we then must decide how broad that interpretation would be. The Senate report provides some guidance in indicating that relatedness does not depend upon whether a particular record was part of a prior government investigation. In a sense, they indicated it is intended to emphasize that the research and disclosure of records under the act must go beyond those records.

It later presents a reasonability standard as the standard in which to guide the Board in making its request for additional records, indicating should act on a reasonable basis, or that it expected that in conducting such requests for additional information and records the Review Board consider whether records are reasonably related to this history surrounding the assassination.

The adoption of a reasonability standard, we would submit, is most likely the prudent course, but obviously runs into some problem that an objective application of what is relevant is a subjective term. What is relevant to one person is clearly not relevant to another, or vice versa.

We would suggest that the Board refrain from attempting to define a very static definition for reasonably related or relevant, at least until it has the opportunity to gauge the scope of records that might be affected by any decisions and that you, therefore, expand or constrict your definition as you become more knowledgeable.

In fact, as we realize that, we would inform you that nearly a century ago a very esteemed legal commentator observed that the law furnishes no test of relevance and relies, instead, upon logic and general experience. In law, this has been utilized throughout, that approach. Under the Federal Rules of Evidence dealing with criminal matters in which they allowed elastic specifications for gauging relevance, evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable. Added to that, in civil matters, the Federal Rules of Civil Procedure permit discovery even though such documents may be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Therefore, it seems appropriate that the Board proceed under those expansive definitions for records related to the assassination, utilizing a liberal standard of reasonability which could be expanded or contracted as the Board gains experience.

We would suggest that in the early and middle stages of the Board's life, the Board be predisposed toward the presumption that a record suggested for inclusion in the collection is an assassination record unless the evidence submitted in support of that premise is so unreasonable as to be frivolous. As the Board progresses towards the expiration of its term of life, additional factors such as time and expense would begin to weigh on its determinations. At that point, a balancing test should be employed to prioritize searches, taking into consideration the relative cost and time and effort that would be required to locate particular documents, balanced with the contribution to the public understanding of the case that those documents are likely to make.

Although we recognize that the Board is not empowered to conduct an investigation, nor is it even required or suggested to submit its findings on what it believes to have happened in the assassination. We would note that the official view of Congress as of 1979 and still remains to this day under the House of Representatives Select Committee on Assassinations, was that they concluded on the basis of evidence available to it, President Kennedy was "probably assassination as a result of a conspiracy."

Thus, the test for relevance to the assassination as applied by the Board should not be, as it has been in some past investigations or review bodies, a question of whether a particular record is reasonably related to the activities of the alleged sole assassin, Lee Harvey Oswald.

In our article, we went to great lengths to provide a comprehensive but, by no means, conclusive or exhaustive list of groups and individuals whose activities prior to, during and after the assassination reasonably should have subjected them to some form of scrutiny. Those are all listed in our testimony and in our article, I won't relate to them now.

Although these persons or groups may have no factual connection to the assassination, the available evidence indicates that at least a reasonable person could suspect their activities might have been related in some way to the assassination or at least to the history of the assassination. Therefore, we would urge that the definition of assassination record be broad enough to, at the very least, include all of these individuals and groups, as well as to other subjects brought to the attention of the Board by the research community, the relevance of which is supported by nonfrivolous evidence.

With that, I will turn to my co-author, Mr. Sanders, to conclude our portion of the testimony.

CHAIRMAN TUNHEIM: Mr. Sanders, go ahead.

MR. SANDERS: I would also like to thank the Board for the opportunity to speak, and it is always nice to have a good reason to leave New York.

I am going to be brief and talk about two points that have already been mentioned, and one that has not. The first one that has already been alluded to is, what do we do about the question of relevance in terms of documents and records that already exist in the records of agencies or groups that have done investigations, government groups that have done investigations into the assassination, and I would certainly argue that there should be an irrebuttable presumption of relevance in regard to those records.

I would go further and say that in terms of records that were requested, for example, by the HSCA, or by the Warren Commission, or by any other investigative body which were not eventually turned over to them and do not appear in their records, I would also say that there should be an irrebuttable presumption of relevancy in that regard. I think it is not a huge leap to concluded that that is part of what Congress intended, those records should be made available to the public.

The second point I would like to amplify on was the question of those records which are not yet called assassination records which are held by private persons. I believe Ms. Miller alluded to members of the Labor Department who may or may not have conducted a study on behalf of Robert Kennedy, that, I believe, would include Senator Daniel Moynihan from my State.

The Board, I believe, under 7J(c)(3) has the right to subpoena records and private persons or individuals in the course of attempting to find records in the files. I do not think, and perhaps somebody wants to debate this point with me, but I do not think that the Board was given the authority to subpoena records from private individuals and take them for inclusion in the collection without falling under the rubric of having been in the course of looking for other records. There may be a Fifth Amendment due process problem there, and I am not going to get into that in great detail.

But the Board does have the right to grant immunity, and certainly the Board does have the obligation, I think, to remind private citizens that they should cooperate in making the record as full as possible, and that their copyright protection and other protections of a financial nature can be extended to them if they so desire through the deeds of gift sections that I can cite you to rather than taking the time of doing that now.

But I think that that is an important consideration, that the Board can contact many individuals. In our Law Review article, we tried to make an extensive list, although certainly not exhaustive, and we certainly invite you to refer to that, and we will discuss anything you would like in that regard.

The final point I want to make is something that I think is extremely important and relevant, and that is Section 10 of the legislation which refers to the records of foreign governments. I think that the particular mention of Russia and the sense of Congress that the Secretary of State should contact the government of Russia for records is a very important request and should be done as soon as possible, but there are other nations who also may have very important contributions to make to the record of the assassination.

The French government, because of the activities of OAS and some of the things that they may have been doing at that point may be relevant and may be something that you want to take a look at, and that would include, of course, the governments of Algeria and Morocco as well. I would also suggest, because of Lee Harvey Oswald being stationed in Japan, that perhaps the Japanese government may have certain records that might be of interest, certainly the Cuban government which had been contacted by HSCA would be important.

I do not think that it would be an outlandish suggestion that the governments of the U.K. and Israel be contacted for a number of specific reasons, which I don't have time to go into, but the fact that these two governments were so closely aligned with the policies of the United States and had their intelligence services watching carefully the world situation, it is very possible that in their records they have undisturbed documentation of their observations of what may have gone on in 1963.

So with that, on behalf of Mark and myself, we believe that the Board has an enormous opportunity here to restore some of the faith in government that seems to have been lacking over the entire Kennedy assassination issue, and I am very, very heartened by Mr. Graff's comment that this is not an adversarial hearing and that we are all in this together. I believe that, and I think that we can accomplish the job together.


CHAIRMAN TUNHEIM: Thank you both, Mr. Zaid and Mr. Sanders.

Questions for our witnesses?

Go ahead, Dr. Hall.

DR. HALL: Mr. Zaid, I want to thank you for being so very helpful and, Mr. Sanders, as well, very, very thoughtful and clearly articulated and such.

What is the standard to be applied? Your analysis of these issues falls along clearly legal lines, you appeal to James Bradley Thayer and to the Federal Rules of Evidence. I want to pose to you the question of whether the appropriate standard to be applied in defining an assassination record is a legal standard or whether it is a professional historical standard?

MR. ZAID: Well, in many ways sometimes those types of standards are compatible with one another. The two that we gave as guidance under, obviously criminal matters and civil matters, are meant to allow the parties to obtain a broad range of documents as possible in order to prove their causes.

Obviously an historical standard would most likely perhaps be of a broader nature. In that sense, I would not necessarily delineate that one standard should be utilized above the other, but rather a combination of the two. Our suggestion, of course, was along the lines of reasonability which, in some way, I think, I will echo Mr. Lesar, my background of that of a historian as well in university, in which you could utilize both of the definitions.

As we said, because the definition in and of itself is going to be an impossible term to put together, we would not suggest that a static definition is put on paper and that is applied to each instance. You will need to utilize that definition, as you said, on the run, so to speak, and apply it to different situations. In that, you will be approached by members from the community whose standards will vary, and obviously need to give some sort of an objective opinion.

Given that you have a set life, our approach is to remain as open as possible in the beginning, weighing the costs and benefits that would be allowed with tracking down individual witnesses, or approaching governments. It is no surprise, I think, that you will note, especially from an historical background, that in the past where government entities have had a set life, it is the nature of the Federal agencies to attempt to wait out those agencies, that set life.

It has nothing to do in this nature with the assassination, it frequently happens in Washington, if the agency could somewhat delay or overburden the authority as far as amount of documents, they will do so. In that sense, you will need to prioritize material. That is what we attempted to do in some way in the Law Review article to at least give you a starting scope of individuals and documents to go for. But I would really use a combination of the two.

DR. HALL: I am appreciative of your wish to balance the two. I would observe that the last 30 years suggest an inherent tension between what it is that historians view as an appropriate matter for an assassination record and what agencies of the Federal government have deemed to be an appropriate record.

In considering the overall question of what is an assassination record, I do think that the Board, composed as it is of a mixture of lawyers and historians, has some responsibility to puzzle through the issue of what is a assassination record in the context of what is required for the pursuit of truth under a historical as opposed to legal standard.

MR. ZAID: The legislative history, in fact, the makeup of the Board when Congress was going to determine, that was on its mind, of course. It was mandated that at least one historian and one attorney sit on the Board for that very purpose. It also acknowledged that, of course, a lot of initial decisions may, in fact, be of a legal nature in coming to their definitions, but they wish the balance from the historical community.

DR. HALL: One final question, Mr. Chairman, if I may?

CHAIRMAN TUNHEIM: Go right ahead.

DR. HALL: Not to carry on here at great length, but there is a question of some fascination to me, and that is, the definition that we develop, is it a case that we are making law or is it a case that we are providing a definition that has to work within the standard of the act? There is a difference.

MR. SANDERS: I think that Congress made clear that in promulgating rules that there was going to be a certain amount of latitude. Going back to Mark's statement, the recognition that a strict legal standard applied to kind of an amorphus of records was not going to be work without a blend of common sense, the law being an ass.

DR. HALL: Is it fair to say that this is an area that has not benefitted heavily from common sense, though?

MR. SANDERS: I think we can come to unanimous agreement.

MR. ZAID: But I think that as far as a definition having precedent, in some ways the Board will be establishing precedent for future boards of this nature. Clearly the definition you give to assassination records will be contained in the context of only the JFK assassination to begin with, but as you will be aware of, if you are not already, there are obviously movements for disclosure of other political assassinations or policies that may well in fact benefit from your analysis of how to conduct your activities.

DR. HALL: Thank you.


DR. NELSON: I think what we have heard this morning, starting with our very first witness, is a difference in opinion in how we define this and how we start on the search. One is the search for a broad range, which you have partly come down on the side of, and the other, I think, unless I misread Mr. Lesar, was more research driven, that is what people are looking for is what we should be looking for in terms of an assassination record.

Those are two different things, those are two different ways to go about our work. It troubles me a little bit in terms of a priority. That is, we would go about our work a little differently if -- and this somewhat pursues Kermit Hall's position -- we seek the broad historical background, or if we go in a manner which is research driven.

You have some ideas about that? They are nonlegal ideas, but they are important, it seems to me, to how we start and how we continue.

MR. SANDERS: To me one of the most important factors is that this not become a free-for-all and that the perception to the public becomes, well, you know, these assassination so-called "researchers" are in there attempting to pry open every box in the government's files. The relevance standard is no good. This was an experiment that was doomed to failure because these people can't narrow their focus enough.

I think that the standard that Mark and I had suggested, some nonfrivolous relevance, is something that needs to be developed in a practical way. If someone wants access, wants the Board request access to a particular document or set of documents that seem to perhaps be on the borderline that they come forward and explain why and provide some nonfrivolous evidence so that the hearing process is utilized, and I think the Senate report mentions that, that the Board should use the hearing process to develop a better working definition of what becomes reasonably relevant.

I think we just need to be careful that we don't go too far and, by doing that, have the government agencies whose cooperation we need say, you guys are on a fishing expedition that is broader than anything --

MR. ZAID: I think there is absolutely actually a real fear that by taking too broad of an approach initially, at least to the point where the balance will not satisfy those in the government, the reality, unfortunately, is you place your funding in jeopardy through Congress, and I think that is something to be mindful of, knowing how difficult it was for you to get your funding in the first place when you hadn't even begun work, when it comes down to it, if you start snooping around without due cause, some Senator or Congressman will most definitely be alerted because they happen to work closely with an individual department, and make note.

I think with somewhat of our legal standard that we are attempting to apply, it is in combination with that of the research community in providing evidence. The legislative history clearly stresses that the Board is to make use of the public and the scholars, and especially those in the research community, to give you the ideas of where to first begin your searches.

I would point out that that, in fact, was one of the main deficiencies of the prior investigations, particularly the House Select Committee, in that the individuals that were involved did not necessarily know the case that they were trying to make, and it took a long time to relearn or to learn the background, the 15 years at the time of the background of the case to begin further investigation.

I think Congress had that specifically in mind, especially since some of those that were involved in the drafting of the legislation were, in fact, on the House Select Committee in explaining to the Board that they are to make the fullest use of the research community, and then using that information apply the definition or standard that they can come up with to facilitate their search.

DR. NELSON: Well, I asked that question because we have been told over and over again that we should have the broadest definition. It seems to me, I quite agree with you in the sense that a line has to be drawn. The question was, what line? So I wanted a little bit more explanation.

CHAIRMAN TUNHEIM: I have a question for Mr. Sanders related to your views on the issue of whether private records are included within the scope. Would you consider records developed by an individual during a period of public service taken with that individual when they left public service currently in possession to be assassination records within the definition of the act, or would those be private records not subject to the act?

MR. SANDERS: The threshold question, I think, there you have ask is, were the records taken with proper authority or were they simply removed from someone's office being the property of the United States Government and the people.

CHAIRMAN TUNHEIM: I think that gets into a relatively murky area, especially if you are looking back 30 years but, be that as it may, I would like to hear your answer.

DR. HALL: It also strikes at this question of the relationship of the relationship of what an historical inquiry might be after and what the legal standard would be that might get in the way of doing of that.

MR. SANDERS: I think the statement that a record can be subpoenaed if it can reasonably lead to the discovery of assassination records which are defined as records already held by that list of government agencies. In the scenario that you suggested, I think that it is certainly within the realm of possibility that by subpoenaing those records there would be a likelihood of discovering records that exist in the Archives, or wherever. So that there are subtleties that can be used to get around the question of whether or not they are private or public records.

DR. HALL: There is a severable issue here, isn't there? I mean the severable issue is what our Board can inquire about and subpoena versus what our Board can provide for release. So would it be your construction of the existing law that if we had the view that material in private hands might be related to some additional disclosure out of the public records that we can look at those materials?


MR. JOYCE: But that if there is not a connection that we cannot?

MR. SANDERS: Well, of course, the Board would always have the latitude.

DR. HALL: It surely would be in the power of the Board to raise question about the relevance after having examined the evidence?

MR. SANDERS: Yes, I believe so.

MR. ZAID: You will run into this issue. There is no doubt about it. For example, records of the ATF, which at the time was the Bureau of Alcohol, Tobacco and Firearms, I believe in the early '60s many have deemed those records relevant. They were conducting investigations that were related to some of the events, but their files are completely missing, and I am not speaking to the assassination, completely missing for the early years of the '60s, having spoken to the librarians and historians of the agency at Treasury and at Secret Service and at ATF, they did not compile their records at the time, and the historians in the agencies have been routinely going to individual agents that were on duty at the time, or family members of those agents, if they are deceased, because the practice was, if agents were working on a particular case they had fondness for, they would bring home copies of their reports and keep it themselves while the agency itself did not maintain its files. So that issue will undoubtedly come up.

The issue as to whether or not you have the authority to subpoena those records, I think, is clear, yes, you do. Then your determination as to its relevancy to allow you to find records within the government. If they are government that were taken, most likely you could then disclose them. If there was notes or such, there might be a murky area. But the question comes in, can you then inject them into the collection because, as Charles mentioned, you could run a foul of the constitutional taking and have to reimburse the individual.

DR. HALL: It is kind of like catch-and-release, isn't it? In other words, if you get the right species and it fits and it reveals something else, once we have subpoenaed it, even if it is a private material and it sheds some light on our ability to disclose some public materials, would it not be within our purview then, under the statute, to release that particular document, to put it into the public realm?

MR. ZAID: It might be. It would be an issue, I think, the Board's counsel will want to look into to alleviate or hopefully steer away from any legal action. I mean there is a serious question as to private materials that were held within the government, and there are materials, photographs, films, that are private but are held within the government, and the act supersedes all other statutes, except for one, the autopsy, deed of gift, and income tax records under the IRS, but all copyright restrictions and provisions to that nature might actually have been superseded by the legislation, and the taking of this property has occurred. That is an issue that you might want to look into. That is a separate issue.

The legislation does give or suggest to the Board that you begin negotiations with private individuals to either open up their deed of gift, as with Elmer Gertz, who was Jack Ruby's lawyer and had materials within one of the Presidential libraries who had restrictions on his materials, and when Congress contacted him he opened up and took away the restrictions, or I suppose even draft new deeds of gift with private individuals who might want to donate their materials to the National Archives to be in a comprehensive collection.

The Zapruder film remains a protected copyright, and other materials can be treated the same way.

CHAIRMAN TUNHEIM: Thank you, gentlemen. We appreciate your testimony this morning. It was very helpful.

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