Real Hillbilly Views: 2016

THE PROSECUTOR’S TALE

(With Apologies to Chaucer)

By Dan L. Hardway

A Tale Well Told

For the past few years Robert Tanenbaum has been telling a fascinating tale of a 1976 encounter with David Atlee Phillips. I first heard his presentation at Duquesne University’s Wecht Institute’s Passing the Torch Conference in October, 2013. He told the story with great detail, drama and flourish.

Tanenbaum served as head of the Kennedy task force of the House Select Committee on Assassinations (“HSCA”) from late fall 1976 until July 1977. He began work there around the same time as the HSCA’s first Chief Counsel, Richard Sprague. One afternoon a week while working for the HSCA, Tanenbaum told us, his office was open to anyone who wanted to see him. On one such afternoon Mark Lane showed up at Tanenbaum’s office just long enough to hand him an envelope. Lane told him, without any further explanation, that he knew that Tanenbaum would “do the right thing” with the document that was in the envelope.[1] The envelope contained a copy of the initial report on the FBI investigation of the assassination sent to the head of the Secret Service, James K. Rowley, on November 23, 1963, under a cover letter signed by J. Edgar Hoover. Tanenbaum calls that report “the Hoover Memorandum.” The early investigation

report contained in the Rowley Letter contains the following paragraph:

“The Central Intelligence Agency advised that on October 1, 1963, an extremely sensitive source had reported that an individual identified himself as Lee Oswald, who contacted the Soviet Embassy in Mexico City inquiring as to any messages. Special Agents of this Bureau, who have conversed with Oswald in Dallas, Texas, have observed photographs of the individual referred to above and have listened to a recording of his voice. These Special Agents are of the opinion that the above referred to individual was not Lee Harvey Oswald.”[2]

With this ammunition in hand, Tanenbaum asserted, he subpoenaed David Atlee Phillips to appear before the HSCA sitting in executive session. Mr. Tanenbaum did not tell us when this hearing was held. Listen while he masterfully sets the scene:

“Seated opposite me at the table, at this long table, rectangular, was David Phillips. He appeared as though he had just walked out of a coffin. He was ashen, thin, three-piece suit, very erect. He sat down. He was sworn in. The stenographer was to my left and he was where the gentlemen is right here in front of me. The rest of the committee was off to my right.”[3]

Having set the scene in the Committee hearing room so graphically in our minds, Tanenbaum then described how he initially questioned Mr. Phillips to establish Phillips’s story about Oswald’s visit to the Soviet Embassy and Cuban Consulate, which Tanenbaum, based on the Hoover Memorandum, believed would be false. The details of the case, in Tanenbaum’s telling in Pittsburgh, weren’t really exact in detail, but his point was to let us know that he’s tying David

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Phillips down in his testimony so as to catch him in a lie. He tells us that Phillips testified that the surveillance camera was broken on the day of Oswald’s visit and, consequently, the CIA sent out the wrong photo. He relates that Phillips testified that the CIA’s Mexico City listening posts recycled the tapes used to record intercepts at the Cuban and Soviet diplomatic facilities every 7 to 14 days. He tied Phillips down that it was his sworn testimony that the tape was not in existence on November 1, nor on November 22, nor on November 23, 1963.

Tanenbaum continued his dramatic account of the hearing:

“I then looked at him, and he was staring at me, and I sort of have this effect on people when I question them in court, mostly defendants. I said there are three people in this room who now know you have committed perjury, you, me and Detective Fenton who’s standing off to the right. I’m going to give you the chance to purge yourself. And he stared at me and said nothing. I then asked Cliff [Fenton] to circulate the memo that I received from Mark Lane. And the memo states as follows in substance: ‘It’s from J. Edgar Hoover to all supervisory personnel in the FBI worldwide, dated November 23, 1963. And it states that our agents, seven of them who had been questioning Lee Harvey Oswald for the past seventeen hours – keep in mind this is a pre-Miranda case– who have questioned him for the past seventeen hours have listened to the tape made by an individual on or about October 1, 1963, inside the Russian Embassy in Mexico City calling the Cuban Embassy and they can state categorically that the voice on the tape is not the voice of Lee Harvey Oswald.’ So I, he now read it. This is your chance. And in his, what we call demeanor evidence, appellate courts, Judge Breck, do not have the advantage of demeanor evidence. He looked at me and I will give you the cleanest version I can, and that is to say that in his mind his staring at me and my having the gall in his alleged mind to ask these questions of him would be the equivalent of him obliterating my presence. He simply folded up the document and he left the room.”[4]

In Mr. Tanenbaum’s telling, one of the members of the Committee immediately questioned him – Tanenbaum – “Why didn’t we get this document before?” In Pittsburgh, Tanenbaum didn’t explain why the Memorandum wasn’t passed to the Committee members in advance of the hearing nor did he tell us how he answered the Congressman. He doesn’t say whether he told them how the document came into his possession, but he did tell us that he responded by telling the Committee members at the hearing, “We’re not playing that game, that’s the game that was played with the Warren Commission.” He said he explained to the members that he was going after the unredacted good stuff. He boldly told the Committee members, “This is what we are going to do. In order, since we are not a grand jury, we should invite him back with a lawyer, and tell him he is now committing contempt because he was subpoenaed and there’s more questions to be asked and he committed perjury and try to have him absolve himself of that and tell us the truth.”[5] In response, according to Tannenbaum, the Committee remained silent.

In Pittsburgh, Tanenbaum then related that, after this confrontation, the Committee’s funding was cut and he had to intercede personally with every member of the House, and the Speaker of the House, to get the staff paid. As he tells the tale, the Chairman of the HSCA, whom he identifies at this point as Louis Stokes, then called Mr. Tanenbaum to his office to tell him about all the compromises that have to be made to run a Congressional Committee. In Tanenbaum’s telling, this conversation appears to be about prosecuting Phillips for contempt and perjury.[6] Tanenbaum boldly told him that if the Committee was going to do nothing about Phillips, then he had his resignation. Returning to his office, Tanenbaum says he called Richard Sprague in Philadelphia and told him to come to D.C., “that the curtain had come down.”[7] Sprague came down as requested and met, asking Tanenbaum what he thought they should do. Tanenbaum told him, “We’re going to resign. He said, ‘OK.’” Tanenbaum called the Chairman and told him, “Get the Committee together, Dick and I are going to resign.”[8] Tanenbaum says he told the Committee that he was resigning because their investigation was a sham. In spite of his expressed low opinion of the Committee’s will to investigate, the Chairman and at least one member, Christopher Dodd, asked him to take over as Chief Counsel. Richard Sprague agreed with them and urged him to take the job. None of them got it, according to Tanenbaum. He wasn’t interested in the job, or in getting the Chief Counsel’s job after telling Sprague to resign. He was concerned with the truth and had determined that no one else was, Sprague included evidently.[9]

In Tanenbaum’s tale, “They [the HSCA] never called Phillips back. So he just walked out on the Committee.... I said we would not accept redacted documents. Not only did my successor accept redacted documents, but he couldn’t even take notes from them.”[10] And so, we are left to conclude, the best opportunity to have had the JFK murder solved by America’s best prosecutor/novelist was lost. But Robert Tanenbaum maintained his integrity.

Robert Tanenbaum repeated a very similar tale in an interview with Len Osanic and Jim DiEugenio on BlackOp Radio on May 14, 2015. In most of its details, the story pretty much tracks the tale told in Pittsburgh a year and a half before. He again attributes the resignations to the Committee’s reluctance to do anything about the “phony Oswald in Mexico City.”[11] In both venues Tanenbaum told a story about him and Clif Fenton, his chief investigator, reviewing Gaeton Fonzi’s files from his work with the Church Committee. After they completed that review at Tanenbaum’s house, Fenton, according to Tanenbaum’s telling, looked at him and said, “We’re in way over our heads here.”[12] Unfortunately, that may be the truest statement in the prosecutor’s tale.

The Spymaster’s Actual Testimony

Having worked for the HSCA as a researcher in 1977 and 1978 with a primary responsibility for looking into Oswald’s activities in Mexico City, I was, naturally, quite intrigued with Tanenbaum’s tale. In the 18 months I was in D.C., David Atlee Phillips and his activities were very much in the focus of my attention. When I first started working on the Mexico City area of investigation, I reviewed all the materials the Committee had up to that point on Phillips. I read his executive session testimony. I waded through his book, The Night Watch: 25 Years of Peculiar Service. But, sitting there in Pittsburgh, I couldn’t remember anything at all resembling the drama described by Tanenbaum. If this confrontation had occurred, I wanted to see the transcript. I knew that Tanenbaum’s statement that the HSCA never called Phillips back before them was incorrect. I prepared Mickey Goldsmith for that hearing, which was held on April 25, 1978. I attended the hearing, as did Ed Lopez and Gaeton Fonzi who both had spent extensive time working on Phillips after Tanenbaum jumped ship in late summer of 1977.[13] Phillips was also called back for one last interview with staff – Gaeton Fonzi, Charles Berk, and me – in August of 1978 as we were trying to wind up our work.[14] His assertion that Phillips was never called back before the Committee is just the beginning of the problems with the prosecutor’s tale.

David Atlee Phillips was first called to testify before the HSCA on November 27, 1976.[15] This is the only time Phillips testified before the HSCA while Richard Sprague was Chief Counsel. I had a copy of this transcript when I began work on Mexico City and Phillips. In addition to the two Committee members who were present for the hearing, the record indicates that the following Committee staffers were also at the hearing: Richard Sprague, Kenneth Brooten, Donovan Gay, Richard Feeney, Jonathan Blackmer, Jeremy Akers, Linda Conners, Jackie Hess and Robert Ozer.[16] Conspicuously absent from that list – and from the hearing – was one Robert Tanenbaum. According to the transcript of the hearing, Tanenbaum did not participate at all in the hearing. He wasn’t even there. All the questioning of Phillips, except that done by Congressmen, was done by Chief Counsel Richard Sprague or Kenneth Brooten, a staff attorney.

Three exhibits were used at the November hearing. The first was a redacted copy of the October 8, 1963, cable from the CIA’s Mexico City station to Headquarters first reporting Oswald’s contact with the Soviet Embassy.[17] The second was a redacted copy of an October 16, 1963, memorandum from the CIA’s Mexico City Chief of Station, Win Scott, to the ambassador, providing some of the information contained in the other two exhibits.[18] The third exhibit was a redacted copy of the Headquarters response of October 11, 1963 to the Mexico City Cable.[19] Conspicuously absent from this list is the Hoover memorandum Tanenbaum said Mark Lane gave him.

Phillips did testify, under Richard Sprague’s questioning, about the erasure and reuse policy for tapes in the Mexico City Station,[20] and about the possible erasure of the Oswald tape.[21] No exhibits were used in this portion of the questioning, which occurred quite early in an examination that lasted more than three and a half hours, long enough to cover 134 pages of transcript. It appears that, if Mark Lane had indeed given a copy of a Hoover memorandum to Tanenbaum, Tanenbaum had either not provided it to his boss or the Committee or, if he provided it, they decided not to use it in interrogating Phillips.[22]

At the end of the three and a half hours of questioning, David Phillips was still sitting in the witness chair when Sprague admonishes him that the testimony he has given has been in executive session and “is not to be discussed anywhere.” The Committee continued Phillips’s subpoena and advised him that he remained subject to recall should the Committee wish to ask more questions. The hearing ended with Congressman Preyer, one of the members of the HSCA whom Tanenbaum says he respects, saying, “I want to thank you, Mr. Phillips....”[23] The transcript of Phillips’s one appearance before the HSCA while Tanenbaum was employed by the Committee is not nearly as dramatic as the prosecutor’s tale told in Pittsburgh. According to the transcript of the November hearing, Phillips giving Tanenbaum the evil eye and stomping out in contempt of Congress just isn’t there. For that matter, neither is Tanenbaum.

I have not been able to find any transcript of any hearing where Phillips testified other than the HSCA executive sessions on November 27, 1976, and April 25, 1978. Robert Tanenbaum was at neither of these executive session hearings.

How the Spymaster Came to be Called to Testify the First Time.

The actual historical record indicates that Phillips’s appearance before the HSCA on Saturday, November 27, 1976, was a rather spur of the moment affair. Journalist Ron Kessler had written an article that appeared in the Washington Post on Friday, November 26, 1976, entitled “CIA Withheld Details on Oswald Call.” The article reported statements made by David Phillips about Oswald’s call to the Soviet Embassy.[24]

The same day as the Kessler article appeared in the Post, Jeremy Akers of the HSCA staff called the CIA and spoke with Lyle Miller, the Deputy Legislative Counsel to ask whether Win Scott had been head of the Mexico City Station in 1963 and whether David Phillips had served there at that time.[25] Mr. Miller also recorded that he had been informed by the Deputy Director of Central Intelligence (DDCI) that David Phillips had been requested to appear before the Committee that afternoon “to confirm certain information in the newspaper article.” Phillips wanted to be relieved of his Security Agreement. Mr. Miller contacted Phillips and told him he was not relieved from the agreement.[26] As it turned out, Phillips did not testify that same day, but did appear the following day.

The CIA treated the Kessler articles, and Phillips’s testimony, as a security breach and began an investigation. In connection with that investigation, the Inspector General (IG) of the CIA, John H. Waller, reported to the DDCI in a Memorandum dated December 1, 1976, that it was the intent of the IG to “let Sprague or his investigators have generally unfettered access to our relevant files here in this building. Those documents he wishes to take out would be given a minimal sterilization. Those documents which he wishes to have taken out and declassified would be sterilized for that purpose.”[27] At that early stage it appears from the records available to us today, that the HSCA had not asked for any documents from the CIA. It was true that the HSCA, at that time, had no access to CIA classified documents – or the classified documents of any other government agency for that matter – because no one on the HSCA staff had a security clearance. But, as we will see, even Sprague accepted the fact that no one without a security clearance could see classified information under the relevant U.S. laws.

The Actual Record

Other details in Tanenbaum’s fantastic tale are also impossible to verify in the record. Tanenbaum worked much of the magic in his well-spun Pittsburgh tale by collapsing time and conflating events in regard to these details. His claim that the CIA denied access to documents is mirrored by his claim that what the HSCA eventually got was access to redacted copies from which they could not take notes. The CIA followed the law and made the Committee wait until staff members received security clearances before giving them access to classified documents. Once staffers had passed background checks, the CIA gave staff members unexpurgated access to everything we asked for, at least until close to the end of the HSCA’s life when they began to seriously stonewall on Mexico City.[28] The staff members took extensive notes from classified documents and many, although not all, of those notes are now in the National Archives. As noted above, Tanenbaum’s claim that the CIA flatly denied access is true only if you leave out the fact that, in the time-frame he is talking about, no one on the staff had their security clearance and the HSCA had not yet requested access to documents. Thus Tanenbaum creates a very false impression of what was happening.

Richard Sprague, after becoming Chief Counsel in November, 1976, tried to negotiate a Memorandum of Understanding with the CIA so that HSCA staff could gain access to CIA materials, something he never accomplished.[29] From the CIA’s perspective, Sprague, in the fall of 1976, appeared to be cooperative and sympathetic to the Agency’s concerns. Negotiations aimed at obtaining such an agreement had only barely begun at the time Phillips first testified.[30] This explains why Sprague used expurgated FOIA copies of the documents used to confront Phillips at the November 1976 hearing.

Sprague met with the CIA’s Legislative Counsel, George Cary, two days after Phillips’s November 1976 testimony. The concern was that the HSCA staff had not received security clearances from the FBI. They also addressed the memorandum of understanding that would provide staffers with access to CIA documents. The CIA counsel found the discussions to be “thoroughly friendly.” Sprague assured them that “he has no desire to obtain any more classified information than is absolutely necessary and he is very mindful of the need to ‘run a tight ship’.... He also advised ... that all employees hired by the Committee thus far have been appointed subject to security clearance, including himself.” At that point, the Agency’s Legislative Counsel thought that Sprague “fully understands our intentions and desire to cooperate and to be forward leaning....”[31]

It is hard to find any record of Tanenbaum’s involvement in the negotiation of a memorandum of understanding between the CIA and the HSCA. One exception was a meeting on December 8, 1976. CIA Legislative Counsel and the CIA’s Deputy Director of Security met on that date with Tanenbaum, Robert Lehner and Stephen Fallis from the HSCA, to discuss the Memorandum of Understanding and FBI background checks for HSCA staffers. Counsel Cary noted, “Since this is a new world for these gentlemen, they did not have a very clear comprehension of security clearance procedures despite the fact that DCID 1/14 and Executive Order 10450 had been left previously for their study.”[32] Fallis seemed to have led the discussion on the part of the HSCA staffers. The CIA’s Security representative explained the procedures to the staffers who then “seemed to have a better understanding of the good reasons for clearing their people” and Cary felt “that they will go the 1/14 route, particularly after they talk to Mr. Sprague.”[33] He reported, “The meeting ended with Sprague’s arrival and I think on a positive note. It appears that Lehner, Tanenbaum and Fallis realize they are in a new ball game and that we demonstrated that we wished to be cooperative.”[34] There is no record of Tanenbaum having told them that he would never accept expurgated documents. But, then again, that does not appear to be what the CIA was offering.

The negotiations eventually led to a draft agreement in February 1977 and work on ironing out the details was set to begin.[35] But Sprague and Tannenbaum

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never completed the work. In that same month the implosion that led to Sprague’s resignation took over the dynamic of the Committee. Tanenbaum would not receive his security clearance until July 15, 1977, shortly after Robert Blakey took over as chief counsel and shortly before Tanenbaum’s departure from the staff.[36]

Tanenbaum’s spin on Sprague’s resignation is also dependent on collapsing the time frame between David Phillips’s testimony in November 1976 and Richard Sprague’s resignation in March of 1977. You can see this plainly when he talks about the funding crisis for the Committee. The way he presents it in the tale he told in Pittsburgh, he makes it sound like the HSCA’s funds were slashed because of his alleged confrontation with Phillips. He doesn’t ever say it directly, but he tries to maneuver you into a place where you are comfortable in drawing that inference. Sprague and Tanenbaum were hired in November, 1976, not long before Phillips’s testimony. The HSCA had been created in September of that year by the 94^th Congress. In December, 1976, Sprague submitted his budget request for 1977. He requested a budget of 6.5 million dollars. The HSCA voted unanimously to recommend that the House approve the budget.

In addition to the budget, the HSCA authorizing resolution also had to be passed by the new (95^th) Congress in order for it to continue work. Reauthorization of a select committee is usually a routine matter in early January of the first year of a new Congress. Efforts by the HSCA to do so, however, were stymied when a Republican Congressman from Maryland objected. The budget request, and Sprague’s plan to use lie detectors and stress evaluators in his investigations, created controversy and for a time the continued existence of the HSCA with the large staff Sprague was hiring, was in doubt.[37] On February 2, 1977, the House re-authorized the HSCA but only for a four-month period. The authorizing resolution also required the HSCA to make public written rules governing its procedures by March 31, 1977. Congress also only funded the HSCA with $84,000.00 for the four months which, as represented by Mr. Tanenbaum, was not enough to cover the salaries of the staff.[38]

Sprague fought with the new Chairman of the Committee, Henry Gonzalez of Texas. Gonzalez wanted to meet the budget short-fall by cutting staff. Sprague wanted to keep the staff and ask them to take pay cuts. The plan to use polygraphs and stress tests was also a point of contention between them. On February 10, 1977, Gonzalez fired Sprague. The HSCA members overrode Gonzalez and kept Sprague on as chief counsel. Gonzalez resigned as Chairman of the Committee on March 1, 1977, and Louis Stokes of Ohio assumed the position. With all the controversy generated by these events, it was becoming increasingly doubtful that the HSCA would be continued after the end of April when the authorizing resolution was set to expire. The rules required by the authorizing resolution, however, were adopted by the HSCA under the leadership of Chairman Stokes in a unanimous vote in early March. Under Stokes’s leadership, the investigation began to move forward with staff briefings of the members on March 9 and 10 and public hearings on March 11 and 16.

Congressman Gonzalez, however, lobbied against Sprague being retained as chief counsel of the HSCA. On March 28 and 29 he presented his version of his controversy with Sprague in speeches on the house floor. No one involved in the controversy at the time said anything about David Atlee Phillips, his testimony, or whether he should be prosecuted for perjury or contempt. Gonzalez said that he had been treated “shabbily” by his cohorts in the House and that Sprague was guilty of “insubordination...deceit and dishonesty” and “malfeasance.”[39] Sprague resigned at midnight on March 29, 1977. His resignation was accepted by vote of the Committee on March 30, 1977. On the same day, the House passed a resolution authorizing the HSCA through the life of the 95^th Congress. On April 25, 1977, Congress passed a budget of 2.5 million dollars for the HSCA for 1977. On June 20, 1977, the HSCA hired Robert Blakey as Chief Counsel.[40] On August 29, 1977, the HSCA and the CIA completed a Memorandum of Understanding that granted staffers unexpurgated access to CIA documents.[41]

Gaeton Fonzi’s View

Tanenbaum frequently expresses his respect for Gaeton Fonzi, an investigator for the HSCA. This is something about which he and I would certainly agree. Gaeton was a wonderful human being, an excellent investigator, a fine writer and a man of integrity. Interestingly enough, Gaeton’s account of the early 1977 implosion of the Committee tracks the account I have sketched above but in more detail.[42] He had the impression that Tanenbaum didn’t want him “to know how chaotic things were in Washington.” Gaeton reports, “About a week after the Committee was temporarily born again [in February 1977], I received a call from Bob Tanenbaum. ‘Well,’ he sighed, ‘World War III has started in Washington. It’s Gonzalez vs. Sprague. You wouldn’t believe it. Gonzalez is taking back his stationary.’”[43] He goes on to describe the fight between them over franking privileges. Gaeton thinks the political pressure was getting to Tanenbaum at this point. He reports, “Tannenbaum became paranoid. He took a few staff members into his confidence and distrusted everyone else.”[44] According to Gaeton, “[w]hat drove Richard Sprague to resign as chief counsel appeared obvious. His proposed use of controversial investigative equipment, unrestricted investigation, his refusal to play politics with chairman Gonzalez....”[45] Sprague did indicate, in retrospect after his resignation, that if he had it to do over, he would have started his investigation with an investigation of the CIA’s role.[46] He did not indicate that Phillips or his testimony had any role in his resignation.

In the period after Sprague’s departure and before the hiring of a new chief counsel, Gaeton continued to try to conduct an investigation in Miami without much guidance from Tanenbaum or anyone else in D.C. He made his first trip to D.C. and the HSCA offices in mid-April, 1977. He reports:

“The staff was in sorry shape. Morale was horrendous. Many of the junior lawyers complained to me that Tannenbaum treated them like children. Tannenbaum complained to me that many of them were children. ‘They can’t figure out a thing for themselves,’ he moaned. The wheel-spinning had gotten to everyone. For many, the frustration peaked when Tannenbaum ordered the staff to outline the 26 volumes of Warren Commission evidence and testimony – an exercise in redundancy.

“After Sprague departed and it eventually became apparent that he wouldn’t be the new chief counsel, Tannenbaum’s attitude deteriorated. He hung on until Blakey settled in and then left Washington for private practice in California.”[47]

In all of his writings, so far as I have been able to find, Gaeton never recorded anything that indicated that a supposed confrontation with David Phillips had anything to do with Sprague and Tanenbaum’s resignations. Given Gaeton’s tendency to tell all he safely could of what he knew, Tanenbaum apparently never told his tale to Gaeton.

When Was the Tale Told?

Tanenbaum was not inactive between Sprague’s resignation and his own. Remember, the Committee members wanted to be able to present a solid appearance of investigative progress when the issue of continuing the life of the Committee came up in April. As part of the plan to do so, Tanenbaum briefed the Committee on the staff’s best investigative leads at an executive session held on March 17, 1977. Tanenbaum briefed the HSCA on a woman who had come forward identifying herself as the Babushka lady in Dealey Plaza who was willing to testify that Jack Ruby had earlier introduced her to Oswald as being “CIA”.[48] He reported that the investigators had developed information from a nurse at Parkland about recovery of bullet fragments from Governor Connally and the hope that they could “track down those fragments” and “conduct scientific tests on them,” including “possibly neutronic relation [sic] tests.”[49] He proceeded to brief the members on his contacts with Willem Oltmans in regard to George De Mohrenschild.[50] Tanenbaum then commented on “Mr. Trafficante and others of his ilk.”[51] Most of the comments turned out to be about Jim Brady, aka Eugene Hale Braden. Tanenbaum then advised the members that the staff had “information that a person who is now a doctor, who was a resident at the time in Parkland Hospital, noticed wounds on the governor’s body that appeared to be somewhat inconsistent with the official reporting of what happened.” The staff hadn’t really heard from him, Tanenbaum hedged, but one of the doctor’s friends had come forward and told them about it.[52] Notice there is not a word about Phillips, Mexico City or the CIA.

The March 17, 1977, executive session transcript was accidentally released to the press. A young reporter by the name of Jerry Policoff who was covering the HSCA for New Times wrote a long letter to Christopher Dodd, a member of the Committee from Connecticut, about “a section of the transcript that was largely glossed over by most of the press.... the briefing given the committee by Robert Tannenbaum [sic] regarding leads currently being pursued by the staff.”[53] Jerry, in his own inimitable manner, gets right to the heart of the matter. “Mr. Dodd I must be frank in telling you that I was appalled to find that in his seven months with the committee Mr. Tannenbaum has apparently learned next to nothing about the case and takes seriously several leads that are dismissed as nonsense or disinformation by most if not all of the more knowledgeable critics.... If this is the material Tannenbaum feels is credible enough to present to the committee I shudder to think about what he is holding back.”[54] Mr. Policoff then proceeds to give a fairly good summary of the already widely known credible information discrediting each of the issues raised by Tanenbaum in his briefing.

As I continued to look into this story, I wondered if maybe Tanenbaum had told others about his confrontation of David Phillips. I know from my experience that documents can go missing, even from the files of Congressional committees, once they get into the CIA’s hands. Maybe there was a missing executive session transcript out there where this integrous prosecutor confronted the steely-eyed contemptuous perjurer even though I’ve been unable to find it. Or, at least, maybe Tanenbaum told this tale before the Duquesne conference. In terms that a prosecutor would understand, such a consistent earlier telling would bolster the credibility of the testimony under question. On the other hand, finding inconsistent earlier statements discredits the testimony under question.

Like Gaeton and I, Tanenbaum testified before the Assassinations Record Review Board (ARRB) in 1996.[55] I hoped that Tanenbaum had told his tale to the ARRB and that they had made an effort to track down the missing executive session transcript. Tanenbaum does tell the ARRB about Phillips’s executive session testimony, saying he was “stunned and disappointed” when Phillips lied. But, then instead of telling a tale like the one he told in Pittsburgh, he gives them a very tame description of Phillips’s November 27, 1976, testimony without any claim of having actually participated in the hearing.[56] He also states that after Phillips testified “[w]e of course then came up with” a copy of the Hoover memo. But Tanenbaum doesn’t tell the ARRB anything about any dramatic confrontation with Phillips or Phillips refusing to answer and departing in contempt.[57]

In his ARRB testimony, Tanenbaum also mentions David Phillips in connection with the budget crunch of early 1977 in the midst of his usual professions of independence, integrity and love of country. He told them:

“when it became clear that we had to recall David Phillips to the Committee, when it became clear that we had to probe into this area that burst forward like ripe peaches falling from trees, the CIA's involvement with anti-Castro Cubans and Lee Harvey Oswald, where the Committee almost shut us down virtually. That is to say, we could no longer make long distance telephone calls. We had franking privileges removed.”[58]

He also told them that there were “a lot of records with respect to Antonio Veciana, who had formed Alpha 66 with the help of Bishop Phillips [sic] and the whole connection of Oswald with the intelligence community. That was the prime area. Where they are today of course I have no idea.”[59] Maybe these were the records that Gaeton says he “later learn[ed] Tannenbaum [sic] and Fenton were secreting most of my memos away in the back of their file drawers, fearful of information in them leaking out.”[60] Most amazingly, he doesn’t tell the ARRB that there is another transcript out there somewhere where he confronted Phillips. Consequently, it appears that the ARRB never investigated the possibility of a missing transcript.

Tanenbaum testified before the ARRB on September 17, 1996. Probe Magazine published an interview with Tanenbaum in its July/August 1996 issue.[61] In that interview, the following exchange occurred between Tanenbaum (BT) and Jim DiEugenio (JD):

“BT: .... Phillips testimony was that there was no photograph of "Oswald" because the camera equipment had broken down that day and there was no audio tape of "Oswald's" voice because they recycled their tapes every six or seven days. The problem with his story was, we had obtained a document, it was from the desk of J. Edgar Hoover, it was dated November 23^rd, 1963, the very next day after the assassination. This document was a memo to all FBI supervisorial staff stating, in substance, that FBI agents who have questioned Oswald for the past 17 hours approximately, have listened to the tape made on October 1st, by an individual identifying himself as Lee Henry Oswald inside the Russian Embassy, calling on the phone to someone inside the Cuban Embassy and the agents can state unequivocally that the voice on the tape is not the voice of Lee Harvey Oswald, who is in custody.

“JD: Did you have this document while you were questioning Phillips?

“BT: No. It was a whole separate sequence of events that occurred. But, I wanted to get him back before the Committee so we could confront him with this evidence, because we were in a position to demonstrate that that whole aspect of the Warren Report, and what he had testified to, was untrue. And of course, the Committee was not interested in doing that.”[62]

At this point, I think it’s safe to say that the prosecutor’s tale has been discredited beyond belief by his own prior statements as well as the transcript of Phillips’s actual November 1976 testimony. We can also safely conclude that a transcript of the hearing Robert Tanenbaum fantasized about in his Pittsburgh presentation will never be found, unless, maybe, it is in one of his best-selling novels. If you are inclined to look for it, you might want to start with the novels published between 1996 and 2008, as it appears Tanenbaum changed his story about Phillips sometime after his 1996 interviews[63]. I’m not about to spend the time necessary to read those novels to see if I can find it.

Conclusion

Why would a man who professes to possess such high levels of integrity and honesty so inflate this story? I’m afraid I can’t answer that. You would have to ask him and, so far as I know, no one has done so yet.[64] An even more cogent question is why does Tanenbaum work so hard, and so deceptively, to make it look like this imagined confrontation with Phillips was the reason the HSCA imploded five months later causing Sprague, and ultimately himself, to resign? Is there, maybe, some salve there for an old guilt felt from abandoning ship when the ship got into waters over his head? Maybe it’s easier to live with yourself if you can convince yourself you didn’t abandon the task but were rather run off for being just to dad-blamed honest and virtuous.

It’s been almost three years since I first heard the prosecutor’s tale at Duquesne. In that time, I’ve thought about it quite a bit. At first, I thought that, maybe, Tanenbaum was talking about a deposition. But I couldn’t find a deposition transcript and, re-listening to his tale, its clear that he’s talking about an executive session of the Committee. I thought, maybe, I’d just missed seeing a transcript – that Phillips had been called before the HSCA more than once in 1976. But my searching has not found a transcript and has pretty conclusively shown, at least to my satisfaction, that the prosecutor’s tale is fabricated from whole cloth. I could not let the issue rest, even when I’d set it down and try to walk away from it, because this area – David Phillips and the disinformation campaign he ran until he died – is too important to the JFK case to leave the possibilities unexplored. It is also too important to let more and more misleading, obfuscating, and untrue propaganda about it to go unrefuted.

I have published this reluctantly. I am not a master researcher in the extant public JFK materials, although I like to tell myself I’m getting better at it. I may be wrong about both the Hoover Memorandum and the prosecutor’s dramatic confrontation with the spymaster in an executive session of the HSCA. Maybe there is another November 23, 1963, memo from the Director to “All Supervisory Agents.” Maybe there is an executive session transcript of Tanenbaum confronting Phillips. Either way, it’s time for the prosecutor to produce the transcript of the hearing and the Hoover Memorandum or explain what has happened to them. If he can’t, then he should take the opportunity that he says he wanted to offer Phillips: He should come back before the body politic before whom he has testified and purge himself of falsehoods.

ENDNOTES

[1]. Robert Tannenbaum, An Analysis of Government Misconduct: The House Select Committee on Assassinations, presented at Duquesne University’s Wecht Institute’s Passing the Torch conference, 10/18/2013, (hereinafter “Analysis”) beginning at time marker 26:35.

[2]. RIF 104-10400-10027, Letter to Rowley, 11/22/63. In his tale, Tanenbaum describes the memo as being from the Director of the FBI to “all Supervisory Agents” on November 23, 1963. I have not been able to find such a document. This cited document to Rowley is, I believe, the document to which Tanenbaum refers.

[3]. Tanenbaum, Analysis, time marker 28:11 to 28:42.

[4]. Id. at 30:51-33:07. You really have to see the performance, and the demeanor evidence, to really appreciate it. You may view it at http://www.c-span.org/video/?315655-3/kennedy-assassination-conspiracy-theories-robert-tanenbaum-james-lesar. Note, however, that my time references in this article are taken from a copy of the video downloaded from the Wecht Institute and the CSPAN video includes several minutes of introduction so the time references run approximately 45 seconds behind the times I have used. This quote, for example starts at approximately time mark 31:34 on the CSPAN copy.

[5]. Tanenbaum, Analysis, time marker 33:46 – 34:12.

[6]. Id. beginning at 35:55. Tanenbaum notes, in an aside, that the only person he knows of in modern history who was ever referred for prosecution for perjury (lying to Congress) was Roger Clemens. An interesting side question would be how he has managed to never have heard of Richard Helms’s badge of honor.

[7]. Id. at 41:46.

[8]. Id. at 44:00 – 44:13.

[9]. Id. at 46:30. Tanenbaum doesn’t interrupt his narrative flow to tell us here that he did agree to stay on until a new Chief Counsel was chosen. I have tried to find a transcript of the HSCA meeting Tanenbaum says Chairman Stokes called at Tanenbaum’s request where he told them what he thought of them before they asked him to stay on as head of the Kennedy staff anyway, but, so far have been unable to find a transcript of such a meeting.

[10]. Id. at 47:56 – 48:50

[11]. Robert Tanenbaum, Black Op Radio #731a, May 14, 2105 at approximately time marker 49:15.

[12]. Id. at time marker 57:30; Tanenbaum, Analysis, time marker 25:20

[13]. RIF 180-10110-10016, HSCA Hearing Transcript, 04/25/1978, at p. 5.

[14]. Memorandum titled David Atlee Phillips, 08/24/1978, copies available from author. This document, which I wrote, has not, to my knowledge, been located at NARA or otherwise released in response to the JFK Act. The copy I now have is redacted and was recently supplied to me by a researcher working in the JFK research community. I do not know the provenance of the document but I do recognize it as a poor copy of the document I wrote. The notes and materials collected in preparation for, and used in the interview, have not been found to date.

[15]. RIF 180-10131-10328, HSCA Hearing Transcript, 11/27/1976

[16]. Id. at p. 4.

[17]. Id at p. 75 [p. 71 of Transcript]; RIF 1993.06.16.16:38:42:060000, Classified Message MEXI 6453, 10/10/1963.

[18]. RIF 180-10131-10328, at p. 90 [p. 87 of Transcript]; RIF 104-10015-10051, Memorandum from Win Scott to Ambassador, 10/16/1963.

[19]. RIF 180-10131-10328, at p. 90 [p. 87 of Transcript]; RIF 1993.08.12.17:31:16:400030, Classified Message DIR 74830, 10/11/1963.

[20]. RIF 180-10131-10328, at p. 20 [p. 17 of Transcript].

[21]. RIF 180-10131-10328, at pp. 21-26 [pp. 18-23 of Transcript].

[22]. I have to note two things here about the memorandum upon which Tanenbaum says he was going to base his novelistic prosecution of Phillips. First, the actual document doesn’t come anywhere near to saying what Tanenbaum said it did in Pittsburgh. The existence of a tape of Oswald’s call is a hotly contested issue in JFK research and is beyond the scope of this article. But regardless of whether such a tape existed at the time of the assassination, the actual memo Tanenbaum talks about does not say, necessarily, that it was purported to be Oswald on the tape. The subject of the statement was the man in the photograph that was sent from Mexico City to Dallas on November 23^rd. In that context, the statement “have observed photographs of the individual referred to above and have listened to a recording of his voice” could be a reference to a recording of the voice of the person in the photograph who was not Oswald. In that case, Phillips’s testimony that all the recordings of Oswald had been erased and reused could not be shown to be false simply by this ambiguous double hearsay statement. If they photographed the wrong man, even if there was a tape, the tape may have been of the wrong man as well. As such, the memo provided a very thin reed upon which to bring a perjury charge. And I have to add a personal note here. I interviewed Phillips. I watched him testify to the Committee. He was smart, very smart. Gaeton Fonzi and I confronted him with questions that seriously agitated and disturbed him. I don’t think that being confronted with the Hoover memo would have disturbed him much. And he would never have done something as stupid as walking out on a Congressional committee hearing where he was appearing after having received a subpoena. This is not to say that David Atlee Phillips did not lie to Congress. He did. He lied about the existence of a tape and many other things. But that, too, is another story.

[23]. Id. at pp. 136-138 [pp. 133-135 of Transcript].

[24]. RIF 1993.08.03.19:34:54:090059, Ron Kessler, CIA Withheld Details on Oswald Call, Washington Post, p. 1, 11/26/1976. The November 27, 1976, HSCA questioning of Phillips focused on the discrepancies between his sworn testimony and the statements he had made just the day before to Kessler. Phillips was questioned hard about his motivations for making statements to the press the day before he testified that were not consistent with the testimony he offered to the Committee. In response he referred to his soon to be published book. Sprague returned to that at the end of the hearing, asking him to comment on the advantage gained by him in making the comments to the media. Phillips acknowledged that, “[h]aving sold this book, I obviously want it to be successful, one reason being that I have five more kids to send through college. So there is no question I am looking for an opportunity to get publicity, which will help with the book.” But, he went on to explain that the publicity had been unwelcome and disturbing to him and his family because an inference could be based upon it that he “might have played a role in a coverup of the murder of one of my Presidents....”

[25]. RIF 1993.07.22.16:06:24:960340, Memorandum for the Record, 11/26/1976.

[26]. Id.

[27]. RIF 104-10147-10059, Memorandum for DDCI, 21/01/1976.

[28]. See, e.g. Dan Hardway & Edwin Lopez, The HSCA and the CIA: The View from the Trenches, AARC Conference, September 2014, available at http://2017jfk.org/watch/; Declaration of Dan Hardway, Morley v. CIA, Civil Action No. 03-02545, (D.C. Cir. 2016) available at http://aarclibrary.org/wp-content/uploads/2016/05/Doc.-156-1.-Dan-L.-Hardway-Declaration.pdf.

[29]. See, for example, RIF 1993.08.04.16:33:35:430058, Memorandum for the Record, 11/10/76.

[30]. Id.

[31]. Id. Emphasis added.

[32]. RIF 104-10322-10262, Memorandum for the Record, 10/08/1976.

[33]. Id.

[34]. Id.

[35]. See, for example, RIF 1993.08.05.11:02:36:46004, Memorandum for Coordination and Review Staff from Inspector General, 02/14/1977.

[36]. RIF 1993.08.04.16:05:05:280005, HSCA Security Procedures and Clearances, 19 Oct 76 – 26 Dec 78, at p. 245.

[37]. There was, evidently, a misunderstanding between Sprague and the then Chairman of the Committee, Henry Gonzalez, about what the HSCA’s budget would be while it awaited reauthorization with the consequence that the amount was overestimated and more staff than could be paid for was hired beginning January 1, 1977. See, e.g., Gaeton Fonzi, The Last Investigation (Thunder’s Mouth Press, New York 1993) at p. 181.

[38]. Congressional Quarterly Almanac, Assassinations Committee, 1977, available at https://library.cqpress.com/cqalmanac/document.php?id=cqal77-1203687.

[39]. Id.

[40]. Id.

[41]. RIF 180-10141-10123, HSCA/CIA Memorandum of Understanding, 08/29/1977.

[42]. RIF 104-10404-10057, Gaeton Fonzi, Who Killed JFK, The Washingtonian, November 1980, at pp. 40 - 43.

[43]. Id.

[44]. Id. at p. 41

[45]. Id. at p. 44.

[46]. Id.

[47]. Id. at pp. 45– 46.

[48]. RIF 180-10110-10239, HSCA Executive Session, 03/17/1977, at p. 95. [p.100 of Transcript].

[49]. Id. at p.97 [p.102 of Transcript].

[50]. Id. at p. 98 [p. 103 of Transcript].

[51]. Id. at p. 99 [p. 104 of Transcript].

[52]. Id. at p. 101 [p. 106 of Transcript].

[53]. RIF 180-10084-10418, Letter to Chris Dodd from Jerry Policoff, 04/17/1977.

[54]. Id.

[55]. ARRB, Testimony of Robert Tannenbaum, Los Angeles, California, 09/17/1996.

[56]. Id.

[57]. Id.

[58]. Id.

[59]. Id.

[60]. Fonzi, Who Killed JFK, at 45.

[61]. Probe, The Probe Interview: Bob Tanenbaum, (Vol. 3, No. 5, 1996), available at http://www.ctka.net/pr796-bti.html.

[62]. Id.

[63]. The earliest version of the prosecutor’s tale that I’ve been able to find appears in David Talbot’s 2008 book, Brothers: The Hidden History of the Kennedy Years (Free Press) at pp. 382-385. Talbot’s retelling was, apparently, based on his interview of Tanenbaum sometime prior to the book’s publication. See page 382 note at page 444. Talbot repeats Tanenbaum’s story without questioning or substantiating any of the details. He dryly notes: “It was a dramatic confrontation.” Talbot concluded, as have many others who have heard the prosecutor weave his dramatic tale, “It was a taste of what might have been, if key suspects in the JFK assassination had been thoroughly subjected to this type of skilled prosecutorial scrutiny.” Were that the truth was equal to the reputation created.

[64]. When Jim DiEugenio interviewed Tanenbaum on Len Osanic’s Black Op Radio on May 14, 2015, he evidently forgot his earlier interview for Probe magazine. They discuss the confrontation with the Hoover Memorandum beginning at around the 1:03:50 mark but never raise the prosecutor’s prior inconsistent statement.

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