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Judge John R. Tunheim and the Presumed Innocence of Lee Harvey Oswald

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In the run-up to the 50th anniversary of the Kennedy assassination, U.S. District Judge John R. Tunheim, not surprisingly, was in the news. He served as chairman of the Assassination Records Review Board during the 1990s. The ARRB had been established by Congress in the wake of the outcry among the American people resulting from the movie JFK in 1991.

The movie posited that Kennedy had been assassinated by the U.S. national-security state and had framed Oswald for the crime. At the end of the movie, the following message appeared:

A Congressional Investigation from 1976-1979 found a “probable conspiracy” in the assassination of John F. Kennedy and recommended the Justice Department investigate further. As of 1991, the Justice Department has done nothing. The files of the House Select Committee on Assassinations are locked away until the year 2029.

That message produced a barrage of mail to Congress from Americans demanding that the government’s JFK records be released at that time rather than in the year 2029. Bowing to public will, Congress enacted the President John F. Kennedy Assassination Records Act of 1992, with the intent of forcing national-security state agencies to release their long-secret JFK-related records. The job of the ARRB was to ensure compliance with the law.

Tunheim’s role in the JFK controversy is a rather fascinating one.

On the one hand, he publicly rejects the notion that Kennedy was killed as a result of a conspiracy. He says that he’s convinced that Oswald was a lone assassin of the president. His belief, he says, is because as a judge, he deals only with “hard facts, the evidence” that is admissible in court.

On the other hand, he also publicly accuses the CIA of “treachery” and deception with respect to two important matters relating to the Kennedy assassination: the deception that the CIA knowingly engaged in with respect to CIA agent George Joannides and the CIA’s insistence on keeping some 1,100 records, which are estimated to encompass tens of thousands of pages, still secret from the American people. Tunheim has recently called on the CIA to release its long-secret JFK records to the public.

One of the interesting aspects of Tunheim’s views and his role with the ARRB is that one of the people who served as a staff member on the ARRB, Douglas P. Horne, has written a five-volume work, entitled Inside the Assassination Records Review Board, which sets forth a mountain of circumstantial evidence pointing to the national-security state’s cover-up during the president’s autopsy of shots having been fired from the front of Kennedy, an autopsy that was conducted by the U.S. military. Since Oswald was situated behind the president, shots from the front obviously connote conspiracy.

Yet, in all the interviews I’ve seen Tunheim give, he has never once, to my knowledge, mentioned Horne’s book. Even more interesting, I’ve never seen any member of the mainstream press asking Tunheim about Horne’s book. Wouldn’t you think some reporter would say: “Judge Tunheim. You believe that Oswald did it, but your ARRB staffer Douglas Horne has written a 5-volume book that points the finger at the national security state and claims that Oswald was innocent. Have you read Horne’s book and, if so, why do you not find it persuasive?”

(See Horne’s recent article, “Don’t Believe What Jack Tunheim Says About the JFK Assassination.”)

The big reason I find Tunheim’s role in all this fascinating is that he obviously is unable to connect his antipathy toward the CIA’s secrecy, deception, and treachery in a way that is consistent with the innocence of Lee Harvey Oswald.

As a lawyer, Tunheim knows that every person who is accused of a crime is presumed innocent. As a federal judge, he knows that that principle is not just an empty platitude. Whenever a criminal case appears in his court, Tunheim is required by law to instruct the jury that the accused is to be presumed innocent and that the jury is prohibited from finding him guilty unless convinced by the evidence beyond a reasonable doubt.

As a lawyer and as a federal judge, Tunheim knows that the principle of presumption of innocence applies to everyone, including Lee Harvey Oswald.

During the weekend of his incarceration, Oswald claimed to be innocent of having assassinated the president or anyone else.

And he went further than that. He claimed he was being framed for the crime. That’s what he meant when he said, “I’m just a patsy.”

Tunheim knows that being presumed innocent implicitly begins with a presumption that the accused is telling the truth when he says he’s innocent. It’s the government’s burden to come up with evidence that overcomes that presumption, evidence that convinces someone beyond a reasonable doubt that the accused is actually lying.

By publicly declaring his belief in Oswald’s guilt, Tunheim is effectively saying that evidence has convinced him beyond a reasonable doubt that Oswald was in fact guilty and that he was lying when he denied having committed the crime and claimed that he was being framed.

Yet, in all the interviews that I have read of Tunheim, I have never discovered anywhere in which he has actually detailed the evidence that has convinced him of Oswald’s guilt. I could be wrong and there might be some place where Tunheim has explained his position. I just haven’t found it. All I have found is Tunheim’s often-stated phrase that he deals only with “hard evidence” and the type of evidence that is “admissible in court.”

Okay, fair enough. But what exactly is that evidence? Why can’t Tunheim share with us what it is that convinced him to overcome Oswald’s presumption of innocence and conclude that he was a liar and an assassin?

Indeed, I’d like to know whether he considers the president’s autopsy report as part of the “hard evidence” on which he has reached his conclusion and whether he believes that the autopsy report would even have been admissible in court, notwithstanding the large amount of circumstantial evidence, as carefully documented in Horne’s 5-volume work, showing a break in the chain of custody of JFK’s body on its way from Parkland Hospital to the Bethesda morgue and the manifest evidence of fraud in the autopsy .

My hunch is that in the final analysis, Tunheim would respond that he’s actually just relying on the conclusions of the Warren Commission and evidence on which the Warren Commission presumably based its conclusions.

Thus, Tunheim, I think, would point to such evidence as: Oswald was communist Marine who defected to the Soviet Union, returned to the United States, became a public proponent of the Fair Play for Cuba Committee, supposedly visited the Soviet and Cuban Embassies in Mexico City, was employed in the Texas School Book Depository, was seen carrying a package of curtain rods on the morning of the assassination, had supposedly purchased a rifle by mail order, a rifle that was supposedly used to fire three shots at the president, hitting him twice, that a pristine bullet was found that supposedly caused wounds in both Kennedy and Gov. Connally, that Oswald supposedly took the time to hide the rifle before making his way downstairs to drink a Coke, and then made his escape by taking public transportation and a taxi home.

Let’s assume that all that evidence is the type of “hard evidence” to which Tunheim is referring.

There is still one big problem, however, one that apparently doesn’t trouble Tunheim: All that evidence is consistent with what Oswald was saying during his interrogation. That is, it’s entirely consistent with a good frame-up. Or as Deputy Attorney General Nicholas deB. Katzenbach put it in a memorandum on November 25, 1963: “Unfortunately the facts on Oswald seem about too pat – too obvious (Marxist, Cuba, Russian wife, etc.)”

Is it possible that Oswald was the victim of a good frame-up? Some people would say no. They would say that it’s just inconceivable that such a thing could ever happen.

My bet is that Tunheim, as a lawyer and a judge, knows full-well that government officials are fully capable of framing innocent people. Surely he’s familiar with the recent case of Annie Dookhan. She’s a chemist at a Massachusetts drug lab who just got sentenced to serve 3-5 years in jail. Her crime? She falsified drug test results, leading to the dismissal of some 1,100 criminal cases in which people were convicted based on her false testimony.

Since Tunheim undoubtedly deals with drug cases in his courtroom, I’ll bet he’s familiar with what happened in Tulia, Texas, several years ago. A highly decorated undercover drug agent framed 46 innocent people in Tulia, 39 of whom were African Americans, on drug-related charges, resulting in long prison sentences for many of them. It later turned out that the agent’s testimony was false and perjured.

Why, I’ll bet that Tunheim might even be familiar with the infamous Ruby Ridge case, where federal officials were caught obstructing justice and covering up, in an unsuccessful attempt to frame Randy Weaver.

Here’s the situation: If Oswald was in fact an intelligence agent, a possibility that the Warren Commission itself was extremely concerned about but, not surprisingly, didn’t investigate too hard, and a possibility that is supported by a persuasive amount of circumstantial evidence, wouldn’t it stand to reason that the CIA would do whatever was necessary to hide that fact, especially given that it would implicitly support Oswald’s position of having been framed? After all, if he was in fact an intelligence agent and if in fact he truly was innocent, then wouldn’t the most likely culprit on the frame-up be the CIA?

If that’s the case, then secrecy and deception would be a necessary prerequisite for a successful frame-up.

And guess what we have in the Kennedy case! You guessed it! Lots of secrecy and deception on the part of the CIA and, to use Judge Tunheim’s word, even “treachery.”

Nonetheless, Tunheim’s mind apparently will not permit him to entertain the possibility that all that secrecy, deception, and “treachery” is motivated by a desire to cover up a national-security regime-change operation on November 22, 1963. (See JFK and the Unspeakable: Why He Died and Why It Matters by James W. Douglass.)

In one interview Tunheim pointed out that the ARRB dug up what he calls “mini-cover-ups” by government agencies, which he attributes to efforts to cover up incompetence rather that criminal behavior. In another interview he suggested that the idea that the CIA could cover a conspiracy of this nature for so long “is beyond plausibility,” notwithstanding the fact the CIA has done precisely that in the case of Charles Horman, the young American journalist killed in the U.S.-supported Pinochet coup of 1973.

Surely Tunheim is familiar with the murder of Johnny Roselli, the man who served as liaison between the Mafia and the CIA in their assassination partnership during the Kennedy administration. Whichever partner killed Roselli in 1976 has done a masterful job in keeping that conspiracy under wraps.

And as Tunheim well knows, the CIA has also done a masterful job in keeping its JFK records secret from the American people for some 50 years, just as it has kept its records relating to its precise role in the Charles Horman assassination secret from the American people and from Horman’s family for 40 years.

From the very beginning, the CIA has been the agency most resistant to releasing its long-secret records relating to the Kennedy assassination, with the U.S. military being a close second.

Why?

For 50 years, they’ve maintained that “national security” requires them to keep their JFK-related records secret from the American people.

Really?

For one thing, there sure is a lot of “national security” at stake for what was supposedly a random assassination committed by a lone nut.

But hey, let’s get real: It was one thing to pull the old tried and true “national security” justification during the Cold War days, but we’re now in 2013. Why is the CIA continuing to hide some 1,100 records containing tens of thousands of pages relating to the Kennedy assassination? Where does “national security” come into play 50 years after the Kennedy assassination and 20 years after the movie JFK came out?

Are they claiming that the release of those records might cause the Soviet Union to reconstitute itself and invade and occupy Eastern Europe and East Germany, rebuilding the Berlin Wall in the process? Or are they saying that releasing the records might cause Fidel Castro to come out of retirement and lead the Cuban army to invade the United States from the Bay of Pigs? Or maybe they’re updating their national-security justification to claim that releasing their JFK records would help the terrorists or radical Muslims.

Or could there be another reason? Could it be that the records, or at least those that haven’t been “routinely destroyed,” might just support Oswald’s claim that he was innocent and that he was, in fact, being framed?

After all, consider the Joannides records, which the CIA has fought fiercely to keep secret for 50 years. Joannides was the CIA agent that was funding and monitoring an anti-Castro organization known as the DRE in New Orleans. That’s also the organization with which Oswald initially offered to help out. Yes, Oswald, the supposed fiercely committed pro-Castro, communist Marine, offered to help a fiercely anti-Castro organization. That sure sounds like an intelligence agent to me, one that might be trying to infiltrate one of the anti-Castro organizations that President Kennedy by that time was trying to shut down.

Could the Joannides records show that Oswald was in fact an intelligence agent? Could they possibly show that Oswald as devout communist was an intelligence cover from the beginning, with the aim of infiltrating the Soviet Union and later infiltrating the Fair Play for Cuba Committee, which the FBI and the CIA were trying to destroy?

As the JFK website JFKfacts.org succinctly puts it: “Is the government hiding something about JFK’s assassination? The answer, unfortunately, is yes….” We know they’re hiding some 1,100 records, including what JFKfacts.org describes as “top 7 files the CIA still keeps secret.” We just don’t know exactly what those records hold.

What we also know is that the CIA has fought fiercely to keep the Joannides records and other JFK-related records secret from the American people and that, for some reason, it continues to do so, 50 years after the Kennedy assassination and 20 years after the JFK movie.

And we know more than that. We also know that when the House Select Committee on Assassinations decided to reinvestigate the Kennedy assassination in the 1970s, the CIA didn’t appoint a regular, active-duty CIA official to work with the Committee on giving the Committee access to the CIA’s JFK-related records. Instead, it called Joannides out of retirement to serve as CIA’s liaison with the Committee for the purpose of constructing a stone wall around the CIA to ensure that the Committee couldn’t get to those secret records.

I should mention that at no time did the CIA ever disclose to the Warren Commission or to the House Select Committee that Joannides had served as the CIA’s funder and monitor of the DRE. As Tunheim would undoubtedly acknowledge, Joannides should instead have been testifying before the House Select Committee (and the Warren Commission) to explain everything about the DRE and its relationship to Lee Harvey Oswald, not serving as the builder of a stone wall around the CIA. Unfortunately (or perhaps fortunately from the perspective of the CIA), Joannides is now dead and so can’t testify to what he knew and when he knew it. And the CIA continues to steadfastly keep his records secret from the American people.

Or consider the CIA’s secret records on CIA assassin David Morales, who has been long deceased. He’s the guy who in a drunken rage told close friends about President Kennedy, “Well, we took care of that son of a bitch, didn’t we?”

Why keep Morales’ records secret from the American people? Maybe they’ll show that what he really meant to say was “Well, he took care of that son of a bitch, didn’t he?”

To his credit, Tunheim has publicly pointed out the CIA’s treachery, secrecy, and deception with respect to Joannides and its still-secret records and has called on the CIA to end its 50-years-long secrecy regarding the Kennedy assassination. What Tunheim obviously just can’t bring himself to do is to connect the CIA’s secrecy, treachery, and deception to the claims of innocence that were being made by Lee Harvey Oswald.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.