Washington Decoded

The Ford Files

The Warren Commission posing for its official picture. Representative Gerald R. Ford (R-Michigan) is sitting in the lower left corner, followed by Representative Hale Boggs (D-Louisiana), Senator Richard B. Russell (D-Georgia), Chief Justice Earl Warren, Senator John Sherman Cooper (R-Kentucky), John J. McCloy, Allen W. Dulles, and J. Lee Rankin, the panel’s general counsel.

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By Max Holland

   Gerald R. Ford’s FBI files, released under the Freedom of Information Act this month, will not force an instant reappraisal of America’s 38th president some 20 months after his death.[1] 

    Unlike John F. Kennedy’s bureau file, which documented JFK’s trysts in the 1960s with Judith Campbell (a Mafia moll) and Ellen Rometsch (a suspected East German spy), the FBI files on Ford hold no information about any dangerous liaisons.

    The files do contain information, though, on a curious liaison. Ford secretly arranged to share information with the FBI while serving on the Warren Commission, the panel charged with investigating President Kennedy’s 1963 assassination. This would surely have been an explosive revelation but for one fact: Ford’s covert dealings with the bureau in 1963-1964 have been public knowledge since 1978, when 58,000 pages from the FBI’s files on the assassination were first released.[2]

    Notwithstanding the passage of 30 years, there is a great deal of misunderstanding and misrepresentation of what Ford’s secret liaison with the bureau in 1963-1964 signified. A recent Washington Post article on the newly-released files, for example, insinuated that Ford all but volunteered to steer any skeptical colleagues on the Warren Commission to the conclusion already reached by the FBI in early December 1963—namely, that Lee Harvey Oswald, acting alone, assassinated President Kennedy.[3]

     The problem with such breathless accounts can be traced to a lack of historical understanding. The Post article both misread the documents and missed their point because it did not put the FBI memos into the context of what was going on at the time. This article will describe what troubled Ford about Warren’s leadership of the commission in the weeks immediately following the assassination.

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    The 1948 election, which initially brought Jerry Ford to Washington, was the first to be conducted after the onset of the cold war. But foreign policy was not the main issue in the September GOP primary. Instead, bread-and-butter issues like veterans’ housing defined the difference between the candidates in the race to represent Michigan’s fifth congressional district. In a stunning upset, Jerry Ford, a 35-year-old lawyer and Navy veteran with no political experience, defeated Bartel “Barney” Jonkman, a five-term incumbent who campaigned all too casually against a novice. And winning the primary was tantamount to being elected, because the fifth district was overwhelmingly Republican.

    Still, foreign policy was the subtext of the campaign, if not the reason for the primary contest in the first place. The 64-year-old Jonkman was an isolationist, notwithstanding the causes and consequences of World War II, whereas Ford was now a committed believer in US world leadership. In fact, one of the Senate’s leading internationalists, Arthur H. Vandenberg (R-Michigan), had quietly encouraged Ford to challenge Jonkman, though Vandenberg could not openly take sides in a primary in his home state.

    The flip side to Ford’s internationalism, of course, was a deeply embedded anti-Communism both foreign and domestic. Once Ford arrived in Washington in January 1949, he aligned himself with those congressmen who were unstinting supporters of the FBI, the arm of the government directly involved in combating the US Communist Party and Soviet espionage. Indeed, one of the ancillary revelations from the bureau’s files is that Ford himself came close to being on the front lines of the domestic war against subversion. In early 1942, while apparently uncertain about his Navy appointment, Ford applied to become an FBI agent. His background check was favorable, save for his role in organizing the “America First” committee while attending Yale University’s law school in the fall of 1940.[4]

    One of freshman Ford’s earliest statements on the House floor directly involved J. Edgar Hoover, who had already been FBI director for 25 years by 1949. Ford had nothing but praise for the director, although it was already abundantly clear that Soviet spy rings had operated with near-impunity in war-time Washington. “The question of domestic security is of vital importance,” Ford noted on July 8, and “Mr. Hoover’s record for the past 25 years is unassailable.”[5] 

    Ford’s statement occurred during a discussion of compensation for top federal employees, including the directors of agencies. Ford believed that Hoover should not receive a penny less in salary than men in comparable positions, such as the much newer director of the Central Intelligence Agency. This statement of support was bound to attract Hoover’s attention and warm his heart, for the FBI’s legislative office regularly monitored the Congressional Record for all mentions of the bureau or its director. “It is always extremely gratifying to learn of such favorable observations,” Hoover wrote in response a few days later, as he thanked Ford for his “gracious comments” and expression of confidence.[6]

   Over the next decade, as Ford concentrated on issues of interest to his district or national defense, the Michigan congressman actually had little direct business with the bureau. But since he held a coveted seat on the Appropriations Committee—though not on the subcommittee with direct oversight of the FBI’s budget—Jerry Ford was a valuable man to cultivate as part of the bureau’s “Hill contact” program. As one internal memo put it, Ford represented “a contact in the event his services are needed on matters of interest to the bureau.”[7] 

    During the 1950s, Ford also became close friends with Louis B. Nichols, an assistant director whose duties included liaison with members of Congress. Nichols, who developed many of the FBI’s public relations techniques, was considered one of the most influential officials in the bureau until his 1957 retirement. Then too, Ford was clearly a Republican politician on the rise; by 1960, he was even being mentioned as a possible running mate for Richard Nixon, the GOP’s presidential nominee. So every two years, when fifth district voters returned Ford to Washington by wide margins, Hoover made sure to send a hearty note of congratulations and his best wishes. 

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    The second session of the 87th Congress began in January 1963 on a familiar note for Jerry Ford and the FBI. Shortly after the Congress convened, Cartha “Deke” DeLoach, the FBI’s congressional liaison, personally presented Ford with a special gift in light of the re-elected congressman’s “friendly attitude” toward the bureau.[8]  It was a signed copy of the director’s latest book, A Study of Communism (which was actually written by William C. Sullivan, assistant director of the Domestic Intelligence Division, but publicly credited to Hoover). The gesture affirmed that Ford stood in good stead with the FBI, and certainly complemented the picture of Hoover that had been furnished to Ford the year before.

    Then, late in 1963, the cordial relationship between Ford and the FBI suddenly took a very serious turn. The reason was the assassination of President Kennedy, and Lyndon Johnson’s appointment of Ford to the presidential commission headed by Supreme Court Chief Justice Earl Warren.

Indoctrination U

In the guise of education, John Simkin’s website delivers agitprop.

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By Don Bohning

   

    If newspapers write “a first rough draft” of history, as the publisher Philip Graham once put it, then the internet can be said to host a “worst draft” of history. 

    There are tens of thousands of reliable websites about historical topics, of course, and many provide the actual tools (instant access to primary documents) that enable readers to reach their own, independent conclusions. But many other sites are extraordinarily tendentious and shroud their advocacy behind a mask of false scholarship. 

    A case in point is a website, Spartacus Educational, established in 1997 by John Simkin, a British historian.[1] Spartacus is billed on Google as a “British online encyclopedia [that] focuses on historical topics . . . articles are geared toward students.” And the website, according to one description, is “one of the most established and popular history sites on the world wide web.”[2]  In the late 1990s, apparently, Simkin was one of the very first history teachers to recognize the potential of the internet and take advantage of the new digital medium. As for Simkin, he presents himself as a history teacher and prolific author of books about a diverse number of subjects—which he is, although his short books are mostly self-published.[3] 

    An innocent student who stumbles onto Spartacus Educational would probably think the Google description is apt, and be impressed by Simkin’s credentials. It takes a little digging to figure out Simkin is much more interested in indoctrination than education, in keeping with his unreconstructed left-wing views. Simkin exemplifies the kind of militant socialists, once peculiar to the Labour Party, who were all but run out of that party by former Prime Minister Tony Blair.

    I first encountered Spartacus Educational three years ago, when Simkin contacted me after publication of my 2005 book, The Castro Obsession. At first I was impressed with Simkin’s diligence and outreach, and the portion of his website dedicated to US history, particularly intelligence history during the cold war. But it did not take long to learn that more often than not, the articles he featured were at variance with well-documented facts, including information I had gained directly from interviews and thousands of official documents declassified in recent years. Worse still, Simkin proved impervious to the idea that falsehoods should be corrected rather than perpetuated.

Operation 40

    One of  the most egregious misrepresentations on the Spartacus site involves  “Operation 40.” The website describes it as a Central Intelligence Agency unit that was organized in the early 1960s to engage in sabotage operations against Cuba. Operation 40 then supposedly “evolved into a team of assassins.”[4]  No credible documentation is supplied to support either the sabotage or assassination claims, and for good reason: none exists.

    To be sure, there was a CIA-organized group called Operation 40 involved in anti-Castro activities. And though it bears scant resemblance to the Simkin’s fictionalized version, the unit’s interesting history needs to be recounted before one can appreciate how much Simkin bends and distorts it.

Tapes: Hearing a Wrong Leaning, er, Meaning

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By Max Holland

    Twenty-five years ago this month, a handful of captured conversations helped to bring down Richard M. Nixon's presidency. Given the demonstrated power of White House tapes to record, and sometimes alter, history, it's striking that it has taken all these years to flesh out a full account of surreptitious recording devices installed at the behest of presidents. The more than 3,500 hours of meetings and conversations tape-recorded during the Nixon presidency merely represent the apogee of a slow trend that began with President Franklin D. Roosevelt in 1940, and greatly accelerated during the presidencies of John F. Kennedy and Lyndon B. Johnson.

    These recordings are presidential history with the bark off and will foster and sometimes force novel interpretations of even the most familiar events. Yet, when the source material is so raw--one is trafficking in micro-history--the potential for misunderstanding and misrepresentation is great. Sometimes, a single mis-heard word can make all the difference. Consider, for example, the rendering of a September 18, 1964 conversation in Taking Charge: The Johnson White House Tapes, 1963-1964, historian Michael R. Beschloss's initial volume on the Johnson recordings.

The first minutes of this telephone conversation between Johnson and his mentor, Senator Richard B. Russell, concern the latter's participation on the Warren Commission, which was created to investigate the Kennedy assassination. That very day, after 10 arduous months, the panel had put the finishing touches on what would become known as the Warren Report. Johnson asked Russell if the commission's findings were unanimous. Russell replied, according to Beschloss's transcript, “Yes, sir. I tried my best to get in a dissent, but they'd come 'round and trade me out of it by giving me a little old threat.”

    The implication is that the senior senator from Georgia, one of Washington's most powerful men, signed the Warren Report  under duress; that he was in fundamental disagreement with one or more of the commission's key findings, but bowed to an unspecified threat.

    There's something wrong here. A Southern Democrat and staunch opponent of civil rights, Russell detested Chief Justice Earl Warren and the kind of jurisprudence the Warren Supreme Court practiced. In fact, Russell protested long and vigorously when Johnson informed the Georgian, on November 29, 1963, that he had been appointed to serve on the commission. It wasn't because Russell thought the duty unimportant; it was primarily because he didn't want to work with Warren on any matter. But Johnson insisted. “I don't give a damn if you have to serve with a Republican; if you have to serve with a Communist; if you have to serve with a Negro; if you have to serve with a thug,” he stated. So Russell did serve. Still, the notion that a grudging participant like Russell would ever bow to a threat from a panel headed by Warren is astounding.

    Listening to the tape, it becomes clear that Beschloss's transcription is incorrect. What Russell actually said is: “I tried my best to get in a dissent, but they'd come 'round and trade me out of it by giving me a little old thread of it.”

     Suddenly, the conversation makes sense. Russell came to the commission's last meeting on September 18 determined to register his opinion on two pivotal issues: whether a foreign conspiracy existed, and the sequence of the bullets that struck Kennedy and Texas Governor John B. Connally in Dallas's Dealey Plaza. Far from threatening the Georgian, Warren had labored that day to oblige him.

    The chief justice believed it was inordinately important for the commission to deliver a unanimous decision to the American people. If complete agreement proved elusive, Russell, of all the members, could not be the lone dissenter. Russell was to conservative opinion what Warren was to liberal: a standard bearer and powerful influence. So along with the other panel members, Warren kept massaging the final language until it incorporated Russell's views. Finally, the senator could only assent.

    Construing history from presidential recordings is an arduous but hardly thankless task. Yet, it requires being steeped in contemporary minutiae: events of a given day and sometimes a given hour; the nuances of every issue before the president; and the foibles of each individual unwittingly recorded for posterity. It might not even be an exaggeration to say that those who would interpret the recordings need to be as well-versed as these evocative voices were in their day.

    Postscript: Despite an enormous volume of tape recordings waiting to be transcribed and annotated, Beschloss has not released another book of Johnson tapes since his second volume,  Reaching  for Glory, was published in 2001.

       This article first appeared in the Los Angeles Times, 1 August 1999
                                  © 1999 by Max Holland

Jerry Ford Was No Accidental President

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By Max Holland
   

    Conventional wisdom attributes Gerald R. Ford’s presidency solely to the Watergate scandal of the 1970s. Yet it is no less accurate to say that but for the assassination of John F. Kennedy in 1963, it is likely that Ford never would have become president. His  ascent was the culmination of eleven tumultuous years, not two.

    To be sure, in the early 1960s, many Republicans believed the tall, blond, athletic congressman from Grand Rapids, Michigan represented the GOP’s best response to Kennedy’s youthful appeal, the perfect spokesman for a modern, postwar brand of Republicanism. But at  the time, the 50-year-old Ford had only one great ambition in life, and it certainly did not include running for president. All he yearned to accomplish politically was to preside as  speaker over a House of Representatives firmly in Republican control.

     The November 22nd assassination changed all that. Akin to a political earthquake with large, persistent aftershocks, the assassination marked the first in a series of convoluted,  yet interrelated, developments that would ultimately thrust Ford into the Oval Office. The sequence defied imagination in 1963, and remains astounding even in retrospect.

    The first tangible effect of the assassination on Ford’s career was the new president’s  decision to appoint him to the Warren Commission, the presidential panel charged with  investigating the assassination. That single decision lifted Ford from being a parochial  congressman—apart from his constituents, he was largely known only to the small club of reporters who covered Capitol Hill—and introduced him to the country at large as a politician worthy of national responsibilities.

    When I interviewed Ford in 1996, I asked him about President Johnson’s November 29th telephone call. Effectively, LBJ was asking Ford to serve under Chief Justice Earl Warren, whose competence and jurisprudence Ford harshly and regularly attacked on the House floor. Ford’s recollection was that he was unenthusiastic,  and had to be dragooned by Johnson into serving. Unbeknownst to Ford, however, LBJ was secretly taping their phone conversation, and the extant recording proved the opposite. Judging from the alacrity of Ford’s expressed willingness to serve, he immediately recognized that the new president was handing him a great big political plum. He leapt, in  fact, at the opportunity.

     Ford might well have eventually risen in the GOP ranks on his own merits, but service on the Warren Commission—in its day, the equivalent of the 9/11 Commission—indelibly marked him as a leader, someone who “would rise to the consciousness of responsibility,” as Speaker John McCormack (D-Massachusetts) put it when Johnson asked McCormack what he thought about selecting the little-known Michigan congressman to sit on the Warren Commission. After the 1964 election, in which the GOP suffered a landslide defeat, the so-called “Young Turks” in  the House, led by a newly-prominent Jerry Ford, mutinied against the House minority leader, Representative Charles Halleck (R-Indiana). Ford won the vote to replace Halleck.

     By 1966, Johnson rued the day that he had plucked the Grand Rapids congressman out of relative obscurity and  put him on a national stage. LBJ would complain bitterly about Ford’s hard-ball tactics to Senator Everett Dirksen (R-Illinois), Ford’s counterpart in the upper body. The energetic  Ford had proved to be far tougher in the political clinches than Halleck ever was, or some of the other GOP congressmen Johnson contemplated appointing to the Warren Commission.

    Over the next decade, the landscape that Ford expected to contend with for the balance of his political life shifted dramatically, also precipitated in no small part by John F. Kennedy’s absence. By 1966, the Democrats’ New Deal coalition was coming unglued under the  twin pressures of the Vietnam war and civil rights, and although the party’s congressional  majority would largely persist for another 30 years, decay was in the air. The skillful Texan who succeeded Kennedy might have coped successfully with one of these elemental challenges, but not both taken together. Southerners and conservative whites elsewhere began abandoning the party in droves, effectively ending Democrats’ hegemony.

    Of course, it’s absurd to think that John Kennedy would not have faced the same troubling issues that destroyed Lyndon Johnson’s desire to stay in office until 1972. Still, it’s hard to imagine, had JFK served two terms, that things would have worked out exactly the same for the Democrats, which is to say, as badly as they did. Johnson had to make critical decisions about South Vietnam in his first term, whereas Kennedy, facing the end of his tenure, might have cut American losses with the same cold calculation that prompted him to overthrow Ngo Dinh Diem. It’s also unlikely that JFK would have ever have lost the allegiance of the Democratic Party’s intelligentsia, much less have been subjected to its blistering attacks.

     The 1968 Democratic crackup, symbolized by the party’s unprecedented repudiation of Johnson, culminated in the narrow election of Richard Nixon, who had seemingly been consigned to political oblivion following his defeats in 1960 and 1962. But with Democrats hopelessly split over foreign policy, Nixon could reasonably claim that a return to Republican stewardship was needed, and he augured in a nearly unbroken period of GOP control of the Oval Office until the cold war ended.

    Nixon shared some of Johnson’s demons, specifically, paranoia about war protestors and the Kennedy mystique. Yet in his lawlessness Nixon was so brazen that it eventually  threatened his own tenure in office. When he needed to appoint a vice president who might actually succeed him in office, the pool of plausible GOP candidates for a national office was not that large. Former New York governor Nelson Rockefeller was anathema to GOP conservatives, and former Texas governor John Connally (another political phenomena formed by the shots in Dealey Plaza) was unacceptable to the GOP rank-and-file, not to mention a Democratic Congress. The GOP leadership in the Senate, after decades of being in the minority, was relatively old and uninspiring, which left the stolid, vigorous Ford as the only Republican who could plausibly claim to have national standing.

    Rather than label Ford the accidental president, because he was never elected, it might make more sense to place him in the same category as a Harry Truman or Dwight Eisenhower. These were also men who, initially, never yearned for the presidency with every fiber of  their being. Only events, and their performance in positions of responsibility, conspired to put them into the Oval Office.

      This article first appeared on History News Network, 29 December 2006
                                                © 2006 by Max Holland

RFK: The Man Who Really Brought Down LBJ

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By Max Holland   

 

    Nearly all the obituaries for Eugene McCarthy credit the former Minnesota senator with forcing Lyndon Johnson out of the 1968 race for the Democratic presidential nomination. Without taking anything away from McCarthy’s principled run against a sitting president of his own party, this is simplistic history that ignores everything we have since learned about that fateful year.

    To be sure, McCarthy added to Johnson’s sense of beleagurement when the little-known senator made an unexpectedly strong showing in the New Hampshire primary, garnering 42% of the vote. Johnson had talked plenty about quitting months earlier. He was worn and exhausted by the burdens of office, especially the war, and worried about his ability to survive another term. The Tet offensive by communist forces in South Vietnam, while a defeat for Hanoi, was particularly debilitating. It gave lie to Johnson’s claims of steady progress in the war, and was undoubtedly a decisive factor in McCarthy’s unexpectedly strong showing on March 12. Before the offensive, reliable polls indicated that Johnson was going to “annihilate” McCarthy. Johnson did not announce his withdrawal the day after the primary.

    Indeed, political soundings taken soon afterward showed that he could still garner enough delegates to win the nomination, and Johnson was convinced that if nominated he would be reelected, assuming Nixon was his GOP opponent. To some degree, Johnson relished the prospect of running against the liberal intelligentsia in his party, an element he had assiduously courted but one that had never truly accepted him. So what precipitated LBJ’s withdrawal on March 31?

     The only event of significance between McCarthy’s unexpected showing and Johnson leaving the race was Robert F. Kennedy’s entry. RFK announced his candidacy on March 16, after refusing to challenge Johnson earlier because he reportedly feared that it would be perceived as only personal. But after New Hampshire, Kennedy could plausibly claim that the Democratic Party was deeply split over the war, and that he was not the cause.

    Much of the media treated Kennedy’s entrance as proof that Johnson was unlikely to be renominated. But as any hard-boiled, vote-counting politician would have realized on March 16 - and Johnson was among the best - RFK’s entrance enhanced Johnson’s chances. The 1968 process involved a different set of rules for nearly every state, meaning that delegates were largely controlled by elected officeholders and party bosses. And since McCarthy deeply detested Kennedy, and was not about to withdraw or join forces with him, a three-way race meant the antiwar faction of the Democratic Party was irrevocably split between two Catholic, liberal senators. As The New York Times reported on March 24, LBJ seemed likely to get at least 65% of the delegates for the nomination.

  Nonetheless, it was Kennedy’s entrance that was the precipitating factor in Johnson’s withdrawal. Johnson believed, and with good reason, that he had always kept faith with the 1960 political compact he had formed with John Kennedy in Los Angeles, when LBJ stunned most observers by giving up the Senate to run for vice president. In return for subordinating himself to an undistinguished senator who was clearly his political junior, Johnson was given the opportunity to be on a national ticket and thereby transcend the onus of being a southerner, perhaps the last political vestige of the Civil War. If he ran well, LBJ could keep alive his burning desire for the presidency - in 1964, if the JFK-LBJ ticket lost, and in 1968 if Kennedy served two terms.

  Instead, of course, Johnson was abruptly catapulted to the White House in 1963. He was then treated, first by RFK, as a usurper, grabbing at the accoutrements of power, and then later by the country as an unworthy successor, even though Johnson had done far more to advance liberal causes than JFK.

    The flaw in Johnson was that he was not content to lead and be respected. Rather, he demanded almost slavish support and public adoration. Such deep emotion is reserved for very few presidents, and usually, they have to die in office to achieve it. Johnson’s curse was that he inherited the presidency from such a man. And now RFK was repudiating everything Johnson represented or hoped to accomplish. As Johnson told his biographer Doris Kearns after he left the White House: “I felt [in 1968] that I was being chased on all sides by a giant stampede coming at me from all directions. . . . And then the final straw. The thing I feared from the first day of my presidency was actually coming true. Robert Kennedy . . . openly announced his intention to reclaim the throne in the memory of his brother. And the American people, swayed by the magic of the name, were dancing in the streets. The whole situation was unbearable for me.”

    If McCarthy cannot be credited with forcing Johnson from the race, the meaning of his challenge to LBJ is hardly diminished. In fact, it reverberates to this day. It was McCarthy’s candidacy that cracked open the Democrats’ consensus on foreign policy. Nearly four decades later, the party is still struggling with that divide.

This article first appeared in the Los Angeles Times, 22 December 2005
© 2005 by Max Holland

Presidential Tapes and Transcripts: Crafting a New Historical Genre

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By Sheldon M. Stern and Max Holland 

   

    Though it has been slow to develop and achieve recognition, it is now becoming apparent that scholarly works based on the extraordinary cache of presidential recordings from the Kennedy, Johnson, and Nixon administrations actually constitute a new and distinct genre of historical investigation.

    The history profession is familiar with books that exploit new primary sources, or interpret old primary sources in a fresh way, along with works that are syntheses of primary and secondary sources. There is also an honored place in the canon for books that annotate the private papers of such prominent figures as Woodrow Wilson. Books based on audio recordings, however, are arguably distinct from these traditional categories. The main reason is that the historian shoulders an even larger burden in this new genre. He or she is obviously selecting, deciphering, and making judgments about a primary source, much like the editor of a documentary collection. But, in the process of transcribing a tape recording, the historian is also creating a facsimile—while still endeavoring to produce a reliable, “original” source. In essence, the historian/editor unavoidably becomes the author of a “new” source because even a transcript alleged to be “verbatim” is irreducibly subjective at some level. As a result, the historian’s responsibility in this genre is a very unusual one, and requires the most careful scholarship imaginable. No other task of discovery and/or interpretation in the historical canon is quite comparable.

    As the audio recordings from the Kennedy, Johnson, and Nixon presidencies have become available, historians have eagerly taken up this unprecedented challenge—and understandably so. The attraction of being able to convey even a fraction of what actually transpired in the Oval Office and Cabinet Room from 1962 to 1969, and 1971 to 1973, is irresistible, the ultimate fantasy for many historians. The recordings offer the tantalizing prospect of history “wie es eigentlich gewesen ist”—as it really was—in the famous formulation of the 19th-century German historian Leopold von Ranke.[1] Or as Columbia University professor Alan Brinkley put it in 1997, “No collection of manuscripts, no after-the-fact oral history, no contemporary account by a journalist will ever have the immediacy or the revelatory power of these conversations.”[2] Almost a dozen “tapes-based” books have been published since 1997, more are in the offing, and this does not count the growing number of conventional histories and/or biographies and articles in newspapers, magazines, and scholarly journals that selectively but increasingly rely on the presidential recordings for substantive insights, anecdotal asides, or simply colorful quotes.[3]

    One issue must be acknowledged before leveling any criticism: transcribing these tapes is far more difficult than it appears on the surface for subjective and objective reasons. There are knotty stylistic issues, for example, that have substantive consequences. When is a hesitation or “uh-huh” significant?[4] Something as seemingly minor as eliminating a pause, or “ironing out a cadence,” as one historian put it, can shift emphasis and even change meaning.[5] Not being able to fully render tone or intonation runs the same risk. If LBJ lapses into his most Southern dialect, and that is reflected in the transcript, does he risk being portrayed as some character out of a Mark Twain novel? Alternately, does it misrepresent LBJ to render him speaking the King’s English when he demonstrably does not? Reading even the most faithful transcript will never substitute for actually listening to the recordings themselves; as one historian put it, “transcripts are not interchangeable with the original tapes.”[6] A transcript, or a narrative that attempts to capture both the verbal and affectual dimensions of the tapes, can further refine our understanding. But only the tapes can be legitimately cited as the genuine primary source.

    These questions aside, the most daunting issue is the frequently poor audio quality of the tape recordings. It can be exasperating to try to decipher something as fundamental as who is speaking, particularly on the tapes from the Kennedy and Nixon administrations, which include many recordings of meetings. Even the most painstaking effort to transcribe the recordings is bound to result in some errors, the present authors’ own attempts included. Accordingly, all three presidential libraries have desisted from producing official transcripts—although without transcriptions the recordings are not user-friendly, despite the libraries’ best efforts to index and catalog them. The libraries have decided (wisely, in our view) to regard the recordings as the original document and everything after that as a facsimile or interpretation, almost a translation, so to speak, and one that must be vouched for by the scholar(s) who produced it.[7]

    Another factor, of course, is the enormous commitment of time and resources it would take for the presidential libraries to produce high-quality transcripts. When the Kennedy Library estimated, nearly 20 years ago, that it would take about one hundred hours of listening to produce an accurate transcript of a one-hour recording, it was widely suspected of manufacturing an excuse to avoid the work. But time and experience have proven that ratio to be right on target.[8] Producing books based on the tape recordings is (or ought to be) an extremely labor-intensive endeavor. It is microhistory, and presenting it accurately demands that the scholar be steeped in the subject matter. Often he or she must know the events of a given day, and sometimes a given hour. There is, in other words, a direct correlation between the time one invests in listening to the tapes, and in researching their context, and the sense one is able to make of them. Regardless of the difficulty in rendering accurate transcripts, the onus remains on those scholars of the Kennedy, Johnson, and Nixon presidencies who willingly assume the burden and claim in print to have carried it off.

    The remainder of this essay will examine several of the most acclaimed works in this evolving historical genre, namely, the volumes based on the Kennedy recordings by Ernest May, Philip Zelikow, and now the Miller Center of Public Affairs at the University of Virginia, and the books on the Johnson recordings produced by Michael Beschloss.

Libby Indicted, But the Press Still Needs a Federal Shield Law

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By Max Holland

    One of the older conventional wisdoms in our nation’s capital is that any president who tries to plug leaks in the ship of state is engaged in a futile, self-defeating exercise. The leaker(s) can never be definitively identified, and any attempt to do so involves tactics more familiar to a police state and likely to boomerang. Richard Nixon’s formation of a secret “plumbers unit” is invariably cited as proof of this proposition, as it was arguably the first step in the self-destruction of his presidency. But Washington clichés often seem like athletic records: they exist in order to be broken.

    Regardless of how it ends, the investigation into who leaked the occupation of Ambassador Wilson’s wife, Valerie Plame, to columnist Robert Novak has already shattered several conventions. When special counsel Patrick Fitzgerald took up his charge in 2003, many observers predicted that his probe would wind up like countless others mounted in the past. He might develop a list of probable sources, but ultimately Fitzgerald would prove unable to pinpoint the leaker(s)—and reporters, of course, never identify their confidential sources.

    But espousers of the conventional wisdom too quickly discounted several unique aspects of the case. Fitzgerald was specifically investigating whether a felony had been committed under the Intelligence Identities Protection Act of 1982, rather than some run-of-the mill leak. Plame’s standing as a CIA officer under non-official cover was also a secret known (and only of interest to) a very small circle outside the agency, chiefly the office of Vice President Cheney. By working the investigation from the inside out, via e-mails, schedules, telephone logs and interviews, Fitzgerald was able to pinpoint what two White House aides, Karl Rove and I. Lewis “Scooter” Libby, knew and when they’d learned it. Fitzgerald then extracted waivers of confidentiality from the two men by hoisting them with their own petards: since the White House had confidently declared that neither aide was involved in outing Plame, Rove and Libby could hardly refuse.

    That was the moment that Rove, Libby and their lawyers must have started to feel very queasy about Fitzgerald’s ability to achieve the previously unachievable. The waivers helped open the door for reporters to talk, some more willingly than others, about their conversations with the White House aides. The Supreme Court was not about to reverse precedent and rule that reporters have an absolute right, during a criminal investigation, to protect their sources under the First Amendment.

    It seems obvious that Rove and Libby were wedded, as much as anyone, to conventional notions about how the leaking game is played in Washington. Otherwise, what happened defies explanation. The only plausible reason Libby would have given his allegedly false statements to the FBI, and committed perjury and obstruction of justice before a grand jury, was that he believed he could get away with it, i.e., he was convinced that reporters’ sworn testimony would never be pitted against his own. He also seems to have miscalculated in thinking that the main legal threat he faced was violation of the 1982 act. Fitzgerald has charged no one under that narrow law, nor is he likely to.

    Judging from Fitzgerald’s five-count indictment, if Libby had simply feigned a loss of memory or told the truth, he might still be the vice president’s chief of staff and national security adviser. At this writing, the only difference between Rove and Libby seems to be that Rove and/or his lawyers were quicker to realize that this leak investigation just might be different. Rather than initially attempting to deceive and later to obstruct, Rove seemed to have a fresher memory of events with every grand jury appearance.

    Libby’s indictment has already exacted a political toll on the Bush administration regardless of how this situation plays out. Even with the Iraq War raging, and even though the White House further distorted already flawed intelligence to justify that war, President Bush had managed to enjoy a positive rating with the public in terms of his personal integrity. No longer. The Libby revelation has struck a nerve with the public. Nearly six out of every ten citizens believe the administration is ethically challenged, according to an Associated Press-Ipsos poll conducted in early November.

    If the Plame affair were to be investigated no further, it would likely be remembered as the pivotal mistake of the Bush presidency, the moment when the administration’s arrogance and bald duplicity on national security matters finally caught up with it. But the shattering of conventions in this leak case has likely not yet run its course. If recent signals from Libby’s lawyers are to be believed, his defense team plans to pursue testimony from journalists aggressively, both those named, and those unnamed, in the indictment, and to seek access to their notes and records. Such a strategy threatens to turn any trial into a protracted legal battle over reporters’ privilege, with reporters coming out the losers.

    Such a turn would be in keeping with an ominous trend, because the Libby indictment is not occurring in a legal vacuum. For nearly three decades following the Supreme Court’s decision in a 1972 case known as Branzburg v. Hayes, federal courts rarely issued subpoenas seeking the disclosure of reporters’ anonymous sources, despite the absence of a federal “shield law” protecting reporters’ historical privilege to keep the identity of their sources confidential. But in the last few years this privilege has come under concerted attack in a variety of cases. Both prosecutors and defense attorneys have been resorting, in increasing numbers, to the tactic of using reporters and/or their ostensibly privileged information to achieve victories in court that might otherwise be unobtainable.

    In a pending lawsuit brought by Wen Ho Lee, for example, five journalists are facing contempt-of-court charges and $500-a-day fines because they refused to reveal their government sources for stories written or broadcast in 1999 about the former Los Alamos nuclear weapons scientist. Lee was publicly accused of espionage then—wrongly, it turned out—and he is now suing the Energy and Justice departments, and the FBI, for violating his rights under the Privacy Act. He claims that five reporters (H. Josef Hebert of the AP, Robert Drogin of the Los Angeles Times, James Risen of The New York Times, Walter Pincus of The Washington Post, and Pierre Thomas, then with CNN) received confidential information about his employment and finances from federal officials. It does seem obvious that they did. But in order to prevail in his civil suit, Lee must identify precisely which government entity provided the information, and only the reporters know that.

    Short of complying with the lower court order to be questioned by Lee’s attorney, the reporters have only one recourse: an appeal to the Supreme Court. If the Lee case is accepted by the Justices, it will mark the first legal test of reporters’ privilege since 1972, the last time the Court addressed the issue. And while there is little doubt Lee is justified in seeking redress for the grave personal damage done to him, a marked erosion of reporters’ privilege would be a high price to pay for compensating him.

    Meanwhile, an entirely separate legal proceeding raises a somewhat different, but still very troubling, issue. In this instance, federal prosecutors seem bent on criminalizing the dissemination of classified information to a journalist. The case involves a Washington Post reporter, Glenn Kessler, and two lobbyists, Steven Rosen and Keith Weissman, from the American Israel Public Affairs Committee (AIPAC), a pro-Israel organization.

    Unbeknownst to Kessler, Rosen and Weissman were put under FBI surveillance in 2004 after Larry Franklin, a Pentagon analyst, admitted to having passed classified information on to them as well as directly to journalists on numerous occasions. Franklin had agreed to participate in a “sting” operation, whereby he would pass an allegation about an Iranian plot in Iraq to Rosen and Weissman while the FBI monitored the two lobbyists to see what they would do with the information.

    On this occasion Franklin handed no actual documents to Rosen and Weissman, so when they phoned Kessler in July 2004, all they could convey was oral information, gleaned, they told him, from “an American intelligence source” whom they would not identify. Kessler never wrote a story based on the leak, but that tape-recorded conversation is now part of the federal indictment of Rosen and Weissman, who were charged in August with “conspiracy to communicate [classified information] to persons not entitled to receive it.”

    This particular allegation represents a very aggressive application of the 1917 Espionage Act. Indicting either AIPAC lobbyist for knowingly passing classified information to a representative of a foreign power (which the lobbyists deny they did) is one thing, but still in keeping with traditional prosecutions under the statute. On the other hand, including “members of the media” as persons not entitled to receive that information is a startling departure. If allowed to stand, it will tend to “criminalize conversations with journalists,” as Howard Kurtz of The Washington Post put it, if not nudge application of the 1917 law uncomfortably close to a British-style Official Secrets Act.

    Another worrisome situation concerns Dana Priest, a Washington Post reporter, who broke a November 2 story about a “hidden global internment network” run by the CIA to house suspected members of Al Qaeda. The so-called “black-sites program” dates back to six days after the 9/11 attacks, when President Bush signed a directive authorizing the CIA to kil