Another snip from “History Will Prove Us Right” by Howard Willens, page 76:
The Commission’s Decides to Do Its Own Investigating
Our discovery that the FBI was hiding information, apparently for self-serving reasons, required a decision about the continued use of FBI agents in our investigation. Could the commission work with an agency that proved willing to withhold information from us? I thought we could handle this problem and, in fact, had no alternative. We had very competent lawyers who would be hard to fool as they became more knowledgeable about the facts. I had seen instances at the Justice Department where department lawyers had some reservations about Hoover’s direction of the FBI, but found ways to work around the problem. They used other investigative agencies to cross-check what the FBI told them; they developed their own sources; and they always were aware of the possibility that the FBI was gaming them in some respect. FBI agents out in the field tended to act with fewer “political” motives than their Washington superiors, especially while working closely with department lawyers to prosecute a case successfully. But we all feared that this instance of deliberately withheld information was not likely to be an isolated event. Our continued use of the FBI did give rise to criticism over the years that we failed to use “independent” investigators not employed by the federal government. Some critics believed that the commission’s investigation was already fatally tainted because of its initial reliance on the FBI and other federal agencies. In their view, federal agents could not be relied upon to investigate allegations that their own agencies failed in their responsibilities. In addition, critics claimed that federal agents (and their superiors) would be more susceptible to political pressures within the federal government to ensure that the investigation came to a predetermined conclusion. I understood these concerns, but saw no problem in using federal agencies so long as the commission’s ultimate decisions were based on its own extensive record of sworn testimony. By late January, commission lawyers had identified hundreds of details that had to be checked out, stories that had to be confirmed or rejected, and additional physical evidence that had to be recovered. Only the FBI could muster the resources and manpower to do this work within an acceptable time frame. We had no other comparable pool of trained and experienced investigators in the United States. If the FBI and other federal agencies were barred from assisting the commission, candidates would have to come primarily from state and local police departments, with no assurance of their quality or independence. Many of these law enforcement officials had been employed or trained by the FBI, so they might not be considered “independent” investigators. Even if such candidates were found in suitable numbers, the required security clearances (typically done by the FBI) would have delayed any significant investigation by the commission for several months. I simply didn’t see any practical or politically acceptable alternative to using investigators from the FBI, the CIA, and the Secret Service. The commission members, all of whom had extensive Washington experience, came to the same conclusion, despite reservations about Hoover’s trustworthiness. Former commission members Ford and McCloy later emphasized the ability of the commission’s staff and its supervision of the federal agencies. Ford noted, Although the staff and the Commission utilized the investigative personnel and capabilities of organizations within the Federal establishment, we as a Commission and the staff were never satisfied with what information we got from these Federal organizations. What we did was to use them as a base, and then the staff and the Commission took off from there and handled individually the inquiries, the questions, and any leads that came to the Commission or to the staff.36 McCloy supported Ford’s position and stated: “It is not true, as has been alleged, that we relied entirely on the agencies of the Government.”37 Rankin explained later that he had examined the possibilities of using an independent investigative staff. He concluded and reported to the commission “that it would be a long time before we got any such staff put together that could handle all the problems that were involved with the size of the investigation” that we were conducting. Because President Johnson had instructed all government agencies to cooperate fully with the commission, Rankin decided “that it seemed prudent to try to use the intelligence facilities that the Government had at hand.”38 Redlich and I shared the view that our reliance on an FBI we didn’t fully trust meant we would have to work harder and longer to be sure we checked out every fact. We felt the weight of the staff lawyers’ distrust of the FBI as they accelerated the pace of investigative requests to check and double-check facts. Rankin had instructed that all such investigative requests should go to me before they went to him for approval. Rankin also felt the burden as he approved the taking of sworn testimony from an ever-growing list of individuals with potentially relevant information. This process ultimately produced testimony from 552 people: 94 witnesses who appeared before the commission, 395 witnesses deposed by commission lawyers, 61 witnesses who provided sworn affidavits, and 2 who provided statements. In assessing this entire record of testimony, and more than three thousand exhibits, the commission had the responsibility to do what federal investigative agencies do not customarily do—evaluate all the available evidence and make reasoned judgments of the conclusions that are supported by that evidence. This process is one that lawyers routinely are called upon by their clients—whether public or private—to undertake, and the commission members and lawyers had a wealth of experience in doing exactly that.
