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The Assassination Records Review Board held a public hearing at the original National Archives in downtown Washington, D.C. on April 2, 1997. All members of the Board were present. Surprisingly, C-SPAN was there and televised this hearing.---JB
Judge John R. Tunheim- "I call to order this public meeting, public hearing, of the Assassination Records Review Board. Thank you all for coming today. I want to first express my appreciation and the appreciation of the Board to the National Archives for permitting us to meet in this historic reception room and we are happy to be here and happy to be able to use this facility.
This is not a meeting or a function of the National Archives. The Assassination Records Review Board is an independent federal agency, not part of the National Archives.
"I would ask that everyone take care with the antiques, and old furniture and the rugs that are in this building, in this room, we would appreciate that.
"I also want to thank our witnesses today for agreeing to participate in this important hearing for the Board.
"A little information about the Board, the Assassination Records Review Board, the members were appointed by President Clinton, confirmed by the Senate in 1994. We have been at work now for almost three years working on implementing the President John F. Kennedy Assassination Records Collection Act of 1992. We primarily have been locating, securing and releasing to the public records related to the tragic assassination of President Kennedy. Much of the records that have been released are records that have been held in federal government files. We also have been on the search for additional records, whether they be in the hands of state and local governments or in the hands of private individuals who might wish to donate their materials to the United States. This has resulted in a growing, an ever growing collection of records of the assassination at the National Archives at College Park, upwards of nearly 3 and a half million pages are now available t o the public at the National Archives.
"The goal of the Assassination Records Review Board is the goal, was the goal of Congress in passing the Records Collection Act is to ensure the broadest possible public release of the records of the assassination of President Kennedy, relevant records which were created for the assassination and certainly all of the records of its investigatory aftermath.
"It is not, I emphasize, it is not the responsibility of the Review Board to solve the remaining mysteries associated with the assassination or to reach conclusions about the assassination itself, rather it is the duty of the Board and the responsibility of the Board to secure and release to the public to the greatest extent possible the records that unfortunately have remained shrouded in secrecy through so many years since the event in 1963.
"Let me turn to today's hearing, the purpose of today's hearing is to seek public comment and advice on what should be done with the camera original and motion picture film of the assassination that was taken by Abraham Zapruder on November 22, 1963. That film has been stored, the original has been stored at the National Archives. It was placed there by Mr. Zapruder's heirs who have now formed a company and they claim to posses legal title to the film. And so the Review Board is faced with the question of how to properly handle this artifact, the original, camera original film from the day of the assassination.
"We have assembled today for testimony an interesting group of experts related to legal issues that are associated with this question, and certainly issues relative to the value of the camera original film taken by Abraham Zapruder, the film itself.
"I'd like to ask before we begin whether any of the other Review Board members have any comments that they would like to make before we get into the witnesses.
(No response)
"I appreciate all of you coming today, thank you for attending this hearing. We are going to hear first from the General Counsel for the Assassination Records Review Board, Mr. Jeremy Gunn who is going to outline some of the issues that are presented to the Review Board by the Zapruder film. Mr. Gunn?"
Mr. Gunn-"Thank you Mr. Chairman, members of the Review Board, Dr. Marwell. The meetings of this Board are regulated by the federal law called the Government in the Sunshine Act. Under the Sunshine Act, the Review Board's deliberations should be open to the public except to the extent that the deliberations would involve issues relating to national security, or certain types of legal strategy. The vast majority of the Board's deliberations to date have been in closed meetings where issues of national security have been discussed in the records that the Board has reviewed. The question now before the Board is what action it should take, if any, with regard to the disposition of the original Zapruder film. It necessarily involves discussion of issues that are properly within the public domain but that also involve issues that may involve some type of legal strategy. In my opinion, the Board is acting properly in holding this open meeting and to the greatest extent possible deliberating publicly about issues that are of public concern.
"I would like to provide a little bit of background about the Zapruder film. The conventional story of the Zapruder film is as follows. Mr. Abraham Zapruder was a clothing manufacture in Dallas, Texas, who had, who's company was located near Dealey, Plaza. On November 22 Mr. Zapruder took a late model Bell and Howell zoom camera containing double 8 millimeter Kodak film to Dealey Plaza to record the presidential motorcade. The film that he took there is now universally regarded as including some of the most important images of the actual assassination. After the motorcade passed, the Secret Service learned and accompanied him to a Kodak laboratory in Dallas where the original film was developed. They then went to Jamieson Film Co. which made three copies, which I will refer to as "first day copies" of the original film. Two of those first day copies were loaned to the Secret Service and are now in the hands and in the custody of the National Archives. They are the property of the U.S. government.
"The third first day film, along with the original was subsequently sold, as I will get into in a moment. Now when I refer to the terms "original" and "camera original" I am describing what is generally thought to have been the film that was actually in Mr. Zapruder's camera at the time the motorcade passed. I will use the term "copy" to refer to any image that was made from that original film.
Some researchers believe that what we are calling here today the camera original may not in fact be the camera original film. I am going to continue to use the term "camera original" to describe what is commonly understood without any prejudice to whether in fact that is the original film or not or whether there may indeed be a copy, or a film that precedes that.
"Shortly after the film was developed, Mr. Zapruder sold the original film and his remaining first day copy to TIME, Inc. Although there has been some controversy in the past regarding the amount that Mr. Zapruder was actually paid by TIME mag, TIME Inc., the record reflects that he received a $25,000 dollar cash payment which he then gave to the Dallas police department for the widow of officer Tippit and he received subsequent payments of totalling approximately $150,000 dollars over a several year time span. LIFE magazine which then had the original film published some frames of the Zapruder film as early as November 29, 1963 and in some subsequent issues during the following two years.
"In 1975 TIME-LIFE sold the original film to LMH company for $1.00 dollar. The shareholders of LMH company are the widow and the children of Mr. Zapruder, who now is deceased.
"In 1978, LMH Company placed the original film in the National Archives under a storage agreement. LMH company believes today that it currently possesses legal title to this film that is now located in the National Archives.
"Although the public does not now have access to the original film, this would not necessarily change if the U.S. government were to have possession rights over the original film. The Archives keeps the film in cold storage, at what I understand to be 25 degrees Fahrenheit in archivally sound conditions. The original film due to shrinkage cannot now be shown on a standard motion picture projector. The possible uses of the original today would thus be presumably limited to forensics examinations of the film as well as to making master copies of the film, either internegatives or interpositives of the film.
"At the archives today there are still slide copies of the film that are available for examination. Copies of individual frames as well as the film itself are widely available to the public in books, magazines, videos, motion pictures, and there's even a version on CD-ROM.
"One of the questions that the Board needs to consider under the JFK Act is whether the Zapruder film is an "assassination record" within the meaning of the Act. The Review Board's authority, of course, derives from the JFK Act which was passed by Congress in 1992. The JFK Act itself provides for the "expeditious public transfer of assassination records to the National Archives". And the question is raised is this Zapruder film an assassination record that should be in the JFK Collection at the Archives and essentially, should that be federal government property rather than the property of private citizens?
"To some extent the statute answers, well, at least part of this question. Under the JFK Act, an assassination record includes, among other records, any "record that is related to the assassination of President John F. Kennedy...that was made available for use by...the Warren Commission. The record reflects that the Zapruder film was, the original Zapruder film was explicitly and specifically requested by the Warren Commission, and the Warren Commission and the staff were shown versions, were shown the original film Zapruder film. This would seem to suggest that within the statutory definition the Zapruder film qualifies as being an assassination record. Moreover, the Board independently, from prior statements, believes that the original film is an assassination record within the meaning of its own regulations.
"Now at this public hearing today there are things that I understand the Board will be doing and things it may not be doing in order that there be some clarity I'll try and suggest some of things I think the Board is not going to be doing.
"The Board is not seeking comment from the public regarding whether the Zapruder film is one of the most important records of the assassination. The reason the Board would not be considering this is is that that is a foregone conclusion that that is the case. The Board already acknowledges this. Nor is there a question of whether the Zapruder film is an assassination record under the JFK Act as I have just outlined. Nor does the Board question whether, in the ideal world, were no costs involved, whether the Zapruder film ought to be possessed the U. S. government and placed in the Archives.
"The Board also is not undertaking today any examination regarding the authenticity of the Zapruder film, although it is aware of the controversy surrounding those allegations.
"The Board also is not holding a hearing on whether LMH company possesses legal title to the Zapruder film. That would, to the extent that that is a controversy would be a matter for the courts. Similarly, the Board is not evaluating the validity of LMH Company's copyright interests in the film, that also would be a matter for the courts.
"Rather, the core question for the Board today is whether it should undertake an action that would effect a "taking", in constitutional terms, of the original film, or whether the Board should seek a negotiated arrangement with the Zapruder family, now LMH Company, that would attempt to: (a) make high quality copies of the Zapruder film easily available to the public for the first time, (b) provide for forensic testing of the film, to determine in part any questions relating to authenticity and (c) would ensure that the U.S. Congress has an option, if it so chooses, to purchase the film.
"The choice then for the Review Board is, to some extent, should the film be taken and transferred to the JFK Collection in the Archives, or should a negotiated arrangement be made that would include some terms that would make copies of the film easily available to the public.
"I would like to outline the parameters of the two options before the Board. So, the first one is the "taking" option. The first witness who will be following me, Professor Brauneis, will discuss some of the the constitutional and statutory issues involving how the federal government "takes" private property for public use. I am in somewhat in a quandary in that I am the General Counsel for the Board and the Board is entitled to my confidential legal advice which I have attempted to provide and I believe it would be inappropriate for me to express my own opinions on this matter in this particular forum but Professor Brauneis will examine those issues from his perspective.
"Should the Review Board believe that a taking is appropriate it would instruct, presumably, the Archivist of the United States that the Zapruder film should be transferred to the JFK Collection at the Archives. Now to one extent that is a paper transfer. The film would continue to be stored in exactly the same location but rather than having the LMH company be recorded as the owner the U.S. government would be the owner of the film. Although there are several possible developments that might follow from that instruction by the Board, one likely scenario is that LMH company would then sue the federal government in the United States Court of Federal Claims and demand just compensation for having been deprived of its property. The Department of Justice would then, presumably represent the United States and the Review Board in any following litigation.
"If the court were to agree that the Review Board has the authority to transfer the film the court would then, presumably, likely determine the value and order that LMH company be compensated out of funds from the U.S. Treasury. Under this particular scenario, Congress would not need to make any particularized appropriation of funds for the film, although, payments nevertheless are derived from funds appropriated by Congress for this litigation fund.
"If the Board were to attempt a negotiated arrangement option, it would likely follow along, the following, would likely contain the following provisions.
"First, LMH would agree to make the best possible available copy of the Zapruder film using the best available technology, best available current technology. The high quality copy would include the images that are between the sprocket holes on the original film. A digitized version of this film, or of the original film could then be made.
"Second, LMH would agree to make this high quality copy available to researchers for their individual use. Thus, to the extent that LMH has a perfected copyright interest in the film they would agree to license to some extent the use of the high quality images.
"Third, although copies would be available at cost to the public from the archives LMH would nevertheless continue to possess whatever copyright interest it would have in the film. Thus, although members of the public could then easily purchase, for the first time, high quality images of the film for their individual use the license agreement with the Archives would not provide that members of the public would be entitled to make subsequent commercial use of that film. So, a member of the public could request the film, obtain a copy of it, they could not then under this arrangement go out and redistribute that or put it into a movie or put it into a book and make profits on it.
"Fourth, Congress would be given an option to purchase the film. Such an option could be formulated in different ways. Nevertheless, an agreement would provide that Congress would be given an opportunity to purchase the film and place that in the Archives, have the government have permanent possession of it in the Archives.
"Finally, the basic term that would likely be involved in such a negotiated agreement, the government would be able to conduct all appropriate forensics tests of the original film, including any and all tests that would reasonably answer the question of the film's authenticity.
"I think there are a few questions that the Board ought to consider from the experts who have been called here today and from other members of the public who will be speaking and I would like to give some suggestions of the sort of questions that would be appropriate. "First, in regards to the camera original film, does the original Zapruder film possess an intrinsic historical value such that the Review Board should take action to ensure that the original is kept at the National Archives, regardless of costs?
"Second, what harm might befall the original if the government does not acquire the film? For example could a private purchaser purchase the film from LMH Company, cut the film into individual frames and then sell that on the public, thus destroying the integrity of the original film.
"Another question is, is the original film itself a wasting asset in the sense that it has deteriorated over time, and that it will continue to deteriorate over time so that conceivably a copy of the film right now may be worth more for it's evidentiary value then would the original film be twenty years from now. That's a question for the experts.
"Could a high quality copy of the film, which includes images between the sprockets, satisfy all of the legitimate needs of researchers and scholars? If not, which specific needs would not be satisfied by a copy of the original?
"Another question is, could such needs be addressed by the government's conducting a forensics examination? Could a panel of experts be assembled who could look at the original film and make determinations regarding the speed at which the film went, the significance of the images between the holes, and other technical questions that have come up regarding the Zapruder film.
"Finally in this area, there is the question of whether possible future technology not known today, using the original film may be able to answer questions that cannot be answered through current technology.
"Questions that would seem to be also appropriate, if for the question of whether there is a statutory authority to "take" the film are as follows: "What actions may the Review Board legally and properly take in order to ensure that the public has access to the original and to high quality copies of the film?
"If the Board believes that the film should be owned by the U.S. government, should the "taking" be by an action of the Review Board or is that an action that should be taken by Congress?
"Another question is whether the Review Board under the JFK Act, has the legal authority to take the Zapruder film?
"Another question is what are the possible consequences of the Board's attempting to take the original film? What are the possible consequences of the Board's not attempting to take the original film?
"Another question which may be of interest to the Board is what monetary value should be attached to the film? Now I should say to the public here that the Board has received in confidence monetary appraisals of the Zapruder film that were conducted by experts, retained by the Department of Justice, and by LMH Company in cooperation with each other. So, the Board has had some information which is currently protected on some evaluation which the Board is free to either accept or reject in its best judgement.
"To say that the Zapruder film is "invaluable" or is "important does not really answer the question of what monetary value should be attached to the film. If the film were taken by the JFK Act, or if Congress were to purchase the film, the legal owner would still need to be compensated. How much should the government pay to compensate the original owner?
"Finally, is there a cost beyond which the government should not take the original? Should it be up to a certain amount that would be appropriate for either the Review Board or Congress to take the film but beyond that amount it would not be appropriate.
"Those are all questions confronting the Board. And finally a question that the Board should consider is whether the Board, if it decides not to take action to take the Zapruder film should it urge Congress to take the film?
"Thank you very much."
Chairman Tunheim-"Any questions or comments for Mr. Gunn while we have him up here?
(no response)
Mr. Gunn-"My favorite kind of question.
Chairman Tunheim-"Thank you, as usual you raise a lot of questions for us to ponder today.
"Next we would like to hear from Robert Brauneis, who is an associate professor at the George Washington University Law School and an expert on the "takings issue". Welcome Professor Brauneis.
Professor Brauneis-"Thank you Mr. Tunheim. As I understand it the Review Board is interested in my opinion about a number of issues related to the exercise of the government's eminent domain power, it's power to force private individuals to give up property, over this camera original film taken by Mr. Zapruder especially the issue whether the Records Collection Act affects a taking of the film for which just compensation is due or whether it authorizes the Review Board to affect such a taking, and I am going to direct my prepared comments to that narrow issue, the issue of legal authorization and then any other broader issues that can be explored later in questions.
Let me say at the beginning that there's really not any constitutional question here. Under settled law, Congress has eminent domain powers over both real estate and personal property in the United States, presumably, including the Zapruder film, nor do I think that there's any question that if the Review Board were to direct the Archives to place the film in the JFK Collection that that would constitute a taking for which just compensation is due. The issue, rather, is a statutory one and that is given that Congress has the power to exercise eminent domain did it do so, or did it authorize the Board to do so in the Records Collection Act? In having closely examined the text of the statute and the legislative history of the statute my conclusion is that this is a close call. There are arguments to be made on both sides. And therefore I think it would be most helpful for me today to outline the arguments on either side and then leave the difficult questions to you.
"Let me first consider the portions of the text and legislative history that weigh in favor of the exercise of eminent domain, or of the taking of the film. Mr. Gunn has already covered some of this material in his testimony. There are two major operative provisions in the act, they are Sections 5 (c) (1) and 5 (d) (3). They both use the terms "assassination record" and "possession". Section 5 (c) (1) directs each government office to review, identify and organize each "assassination record" in its "custody or possession" for eventual transmission to the JFK Collection. Section 5 (d) (3) directs the Archives to place in the JFK Collection all, again, "assassination records" which are in its possession and which have been publicly available in their entirety without redaction.
"Mr. Gunn has suggested that it's not really a question before the Board today whether the Zapruder film constitutes an "assassination record" but I guess just to add to that I think I would point out that if a court were in the position of having to decide this issue I think that there is a very good chance that it would find that the Zapruder film is indeed an assassination record. So putting aside for the moment other provisions of the JFK Act, these two operative provisions would indeed seem to mandate the transmission of the Zapruder film to the JFK Collection.
"If the issue of whether it is an assassination record is put to one side the only other issue is, was it in the custody or the possession of either the Archives or some other government agency and I think there is a pretty good argument to be made that it was.
"So that is the major part of the text of the statute which weighs in favor of a finding that the statute has taken the film. The other major factor it seems to me that weighs in favor of a "taking" is the text of the Act and particularly all of the statements in the legislative history of the Act that disclose the purpose of the Act. The Senate Report on the Act notes that "in the eyes of the public, each investigation and inquiry into the assassination of President Kennedy served to raise additional questions" about the assassination. The Senate Report states that the JFK Act was a result of "the recognition by Congress and the Executive Branch that the records relating to the assassination of President Kennedy be fully disclosed." The Zapruder film, as Mr. Gunn has already stated, is such an important record of the assassination that it may well be the case that faiIure to maintain government possession of the camera original or to disclose it to the public might well undermine the "public confidence", and there I am quoting again from the Senate Report that it identifies as one of the "underlying principles" of the (JFK) Act.
"So there's the gist of the case in favor of a taking.
"Let me turn to the other sider now, however, and look at the text and the legislative history and interpretive principles that the courts might apply that weigh in the opposite direction. It seems to me having looked at the Act that the most important piece of text may be Section 11 (a) of the Act. Section 11 (a) creates an exception to those operative provisions I was talking about earlier, it creates an exception to this Act's requirements that all assassination records in the possession of government agencies be transmitted to the JFK collection and publicly disclosed. The Section 11 (a) in particular says that the Act's requirements will not apply when it conflicts with, and here again I quote the Act, "deeds governing access to or transfer or release of gifts and donations of records to the United States Government. So, in other words if someone has given records to the federal government and they place certain restrictions on them as to transfer of those records or release of those records the Review Board is directed by the Act to respect those restrictions. One could interpret this exception as the result of a determination by Congress that when private individuals have retained certain rights in records that are in the possession of the government, the Act shouldn't be applied in such a way as to violate or diminish those rights. Now my understanding is that the Zapruder film was delivered to the Archives under a "storage agreement" that gives its owners the right to retrieve it from the Archives. This "storage agreement" is not a deed, in the narrow sense of a deed within Section 11 (a) which gives rise to another ambiguity that the Board would have to deal with. Although it is not a deed in the narrow sense of that term it is an agreement which grants limited rights to the Archives and which reserves rights in a private grantor. Indeed, one might say it reserves greater rights in the private grantor than a restricted deed would. The JFK Act also grants the Review Board the power to issue regulations interpreting the terms of the Act and I think that it is likely that a court would uphold a broad interpretation of "deed" as covering any instrument under which possession of or title to a record was transferred to a government office. So, I think if the Review Board were to come to the conclusion that it thought it appropriate to define "deed" broadly that a court would probably uphold that broad definition, that of course, would mean then the Review Board would not be mandated by the Act to transfer the Zapruder film to the JFK Collection.
"Significantly, the Senate Report on the JFK Act, the Records Collection Act states that if the Review locates assassination records that were given to the government subject to restrictions it should, and here I quote the Senate Report, "where possible seek the waiver or necessary permission to open the records to the American public". This language doesn't seem to contemplate a taking in which the Review Board would force public disclosure and pay just compensation to the donors for breaking their restrictions, rather it seems only to contemplate that the Board would seek a voluntary waiver of the restrictions on the part of the donors.
"Now aside from Section 11 (a) the Act also contains several references to "government records", a term that shows up in a number of provisions in the Act, which could be read as suggesting that the Act applies only to records owned by the government. The term "government records" applies [he said "applies" but I think he meant "appears"] in the "Findings and declarations" portion of the Act and it also, applies, er, it also appears in a number of its operative provisions. And perhaps most significantly, Section 4 (a) (1) of the Act provides that the JFK Collection at the National Archives "shall consist of record copies of all government records relating to the assassination of President John F. Kennedy. "Government records", however, is an undefined term in the Act and Section 4 (a) (2) the immediate subsequent section describing in detail the contents of the JFK Collection says that that collection will include all "assassination records" that the Act requires it to include. Now the term "assassination record", of course, is defined and I think it does not appear to require government ownership. And my guess here is just that the term "government record" is a remnant of an earlier statement of the process of drafting the Act, probably should have been wholly replaced by "assassination record" and one of the ways one might render various portions of the Act consistent would be to interpret "government record" as meaning "any record in the possession of the government", not where title is owned by the government.
In addition to these two items of text that the JFK Act does contain, it might be notable that the Act is missing any reference to eminent domain or just compensation. And in this respect one might contrast the Act with the so called Presidential Recordings and Materials Preservation Act, the famous Act concerning the presidential papers and tapes made by President Richard Nixon. This Act, the PRMPA, in acronym form, is similar in some respects to the JFK Act, it also require any federal government employee in possession of certain records, here relating to the Nixon presidency, to deliver them to the Archivist of the United States, who is directed to retain those records. But the PRMPA expressly recognizes that the actions that it mandates may amount to a taking for which just compensation is required. There is a section in the PRMPA which says payment of just compensation shall be made from the general fund of the United States Treasury if a court holds "that any provision of the Act has deprived an individual of private property without just compensation."
So, in the case of the PRMPA, closely, similar operative provisions but a clear indication from Congress that it realized a taking might be found. By contrast the JFK Act, of course, contains no provisions suggesting that Congress contemplated that the Act might effect a taking. The legislative history of the Act reinforces the impression that Congress didn't contemplate that the Act might require a payment of just compensation. For example the Senate Report on the Act contains a section evaluating the regulatory impact of the legislation; that section declares that the Act, I quote, "would not result in any additional regulation to any individuals and businesses," and therefore it would have no economic impact on any individual or businesses. The Senate Report also contains an analysis undertaken by the Congressional Budget Office of the cost of implementing the Act; and that cost estimate does not include any amount for paying awards of just compensation to individuals whose private property is taken by the Act.
"And then finally, having taken a look at the text of the statute and the legislative history let me just point out one interpretive presumption that courts use that may also weigh in favor of a finding that the Act does not effect a taking. The Supreme Court has stated that the power of eminent domain, the power to force private individuals to give up their property, quote, must "be given in express terms or by necessary implication." So, it is a kind of rule that says if you want to use the power of eminent domain you have to do it clearly. It's possible to argue that if the JFK Act indeed mandates transfer of all assassination records in government hands to the JFK Collection, and if the Zapruder film is an assassination record, then we could say it is a "neccessary implication" that eminent domain power will be exercised in making the transfer if it turns out that the Zapruder film is private property. The cannon, however, or interpretative presumption indicates that a court if faced with equally balanced conflicting evidence about whether a statute directs actions that might or might not amount to a taking, would likely decide that the statute did not require such actions.
"So in sum, there is support on both sides of this takings issue and I for one would find it difficult to predict exactly what a court would do. And I am happy to answer any questions that you might have."
Chairman Tunheim-"Thank you Professor Brauneis. Questions, from members of the Board? Go ahead Ann."
Dr. Anna Nelson-"It's been of great interest, this question of "possession" and it may very well be, for example, that the Congress was not as aware of the fact that the Archives stores things and so it uses the word possession. Possession in your view then means what? Does it mean that the Zapruder film may or may not, 'cause you just finished saying that if it turns out that the Zapruder film is not in the hands of the government, is it your opinion then that the film is or is not-"
Professor Brauneis-"In the possession of the federal government-"
Dr. Anna Nelson-"...in the possession of the federal government?"
Professor Brauneis-"I think it's most likely that a court would find that the film is in the possession of the federal government. It's not entirely the case that Congress was completely unaware, I think, that the Archives stores items, although the material and the legislative history is sort of scant but the Archivist did mention the deposit agreements in the legislative history, so, some evidence that Congress may have been aware of that."
Chairman Tunheim-"Can you point to precedence, Professor Brauneis, where the United States government has taken artifacts, so to speak, from private individuals using its eminent domain power?
Professor Brauneis-"Well, I think the most famous recent example is the Act under which the Nixon tapes and papers were taken from President Nixon and retained by the government. The District of Columbia Circuit, the federal court decided that indeed that Act did constitute a taking and ordered that the government pay just compensation for those records, and those were tapes and papers and all sorts of things that pertain to the Nixon administration. So, that's a very clear example recently of the taking of, certainly of a large bulk of records than is involved here.
Dr. Kermit Hall-"Mr. Brauneis, let me ask you, would this case, or this set of circumstances be different if in fact the film were not in the Archives?"
Professor Brauneis-"Oh, I think it would. I guess that relates in part back to Ms. Nelson's question about possession. If the film were not in the Archives then there's much greater issue about whether any of the operative provisions in the Act mandate the transmission of the film to the JFK Collection. It's not in the possession of any government agency and I think it most likely under those circumstances that the Act would not mandate the transmission of the film.
Dr. Kermit Hall-"So, the distinction with regards to possession turns out at least for purposes of thinking our way through statutory understanding turns out to be significant."
Professor Brauneis-"That's correct."
Dr. Kermit Hall-"Okay. Is there anything in the legislative history that would suggest to you that those who framed the statute intended that the Zapruder film be exempted from being included as an assassination record? And I pose that question in the context of at least in one instance, that with regard to the autopsy photographs, they were fully capable of designating a specific category."
Professor Brauneis-"There's nothing in the legislative history that specifically singles out the Zapruder film. There's no mention of the film by name that suggests that Congress was thinking of exempting it from the Collection. The only indication in the legislative history is testimony of the Archivist of the United States which may have resulted in the amendment, the placement of Section 11 (a) in the Act, the broader exception that I was talking about earlier, that exception for restrictions in gift deeds was not in the original drafts of the Act. And the Archivist testified that failure to put such an exception in the Act would likely result in fewer donations of records and therefore there should be such an exception. And one of the Archive's position statements actually mentions deposit agreements as well as gift deeds, but as we know it Section 11 (a) only refers to gift deeds.
Dr. Kermit Hall-"Let me, if I may Mr. Chairman, press just a little bit on this particular issue and raise with you the question of whether or not Section 11 (a) is directed at the question of how materials that are in the possession of can be used, and access granted, and rights to be able to view them would be structured between the Archives and the person that's making the donation or contribution as against the question of removal of the material altogether from a possession of the government and returning it to the individual who originally donated it.
Professor Brauneis-"It's possible that Congress did have in mind that sort of distinction. Section 11 (a) mentions "transfer" as well as "disclosure" so they may have been concerned about physically where the items were but it certainly is the case that if the item was indeed donated to the federal government then one would presume that it remains in the possession of the federal government, and as you say the issue is simply, where is it in the government's possession, when will it be disclosed and to whom under what conditions?
Dr. Kermit Hall-"One final question, if I may, and that is, if I could, and I'm not sure this is appropriate, and that's really where I need your help, I need a law professor's help here, what if we took our understanding of this issue and did not see it initially as a question of taking or eminent domain although that matter may well enter into the discussion at some other point, but viewed it rather as a question of bailment, that is the Zapruder's have given the film to the Archives, the Archives were acting in the capacity of a bailee in the set of circumstances that were governed by then existing rules. The rules, however, in the course of the time that the material was held the bailment arrangement had changed. Would it not be possible then that the Archives would find itself in some conflict and that it might and the government might well in that capacity of acting as a bailee act in favor of retaining the material given the fact that it is not private in the strict sense of the word but rather is in fact in possession and it has now become an assassination record and therefore the Archives could do what it did, which is to say that we are not going to return the material because we cannot do that in our capacity acting as a bailment, in a bailment capacity.
Professor Brauneis-"I think that's the other side of Section 11 (a). Section 11 (a) is entitled "Rules of Construction" and it says that the mandates in the other operative provisions of the Act shall supersede any other statute and any other common law doctrine and that's the doctrine of bailment that might direct a government agency to do something different, and the only exception that it makes is for gift deeds that have certain restriction in them. So, if Section 11(a) on the one hand opens up this possibility of gift deed on the other hand it sort of forecloses other possibilities and says common law doctrine shall not take precedence over this Act.
Dr. Kermit Hall-"Thank you very much."
Dr. Henry Graff-"Mr. Chairman, if I might ask Professor Brauneis to come back to the point that Judge Tunheim was on before about whether there is a precedence for the handling of something like this, was this film transmuted into an assassination record and therefore did it become like a document in the Nixon case or is there something unique about this like the Liberty Bell or Betsy Ross's flag or what, that requires a special kind of legal treatment?"
Professor Brauneis-"I don't think that the Act certainly has anything to say about its Liberty Bell status as affecting its legal status. The Act of course, defines assassination record very broadly to include not only paper but film, sound recordings and so on and the Zapruder film may not be the only record within that definition that has gained some sort of iconic status over the years. So, I don't really see-
Dr. Henry Graff-"Well, we have not identified another with this kind of iconic status."
Professor Brauneis-"Right. I suppose my answer remains the same though I don't really see that that particular aspect changes things legally."
Dr. William Joyce-"Professor Brauneis, is there any support for the proposition that the legislation in designating assassination records as including all exhibits before the Warren Commission, and since the Zapruder film was shown to the Warren Commission, is there any support for the proposition that it is already an assassination record by the passage of the Act?"
Professor Brauneis-"Oh, I think that's quite possible, yes. Of course the Act also grants the power to the Board to define the terms of the Act and you have taken that power and defined "assassination record". There may well be outer limits to that power though and if you were to attempt to use your power to define assassination records so narrowly that it excluded the Zapruder film or excluded other records that came before the Warren Commission that a court might find that you had exceeded the scope of your delegated powers under the Act, that when it gave you some leeway to define terms it didn't give you leeway to say that a horse is a cow."
Chairman Tunheim-"Well, just to clarify that issue a little bit more, is it possible to argue the Act has already effectuated a taking of this particular artifact and therefore there is essentially no decision before the Board-
Professor Brauneis-"I think it is."
Chairman Tunheim-"-is that possible?"
Professor Brauneis-"That's right, I think it is, I think it is."
Dr. Kermit Hall-"And to go back again, there is a distinction to be drawn here between a film of the assassination that reposes, er, and is in repose and the refrigerator of the Archives and a film that is held in someone's desk in Dubuque."
Professor Brauneis-"I think that's a very important distinction."
Dr. Anna Nelson-"Of course the Zapruder, the LMH Company has been, challenges this view in which case it would have been taken to the court of claims.
Professor Brauneis-"That's right."
Dr. Anna Nelson-"Presumably. It seems to me that, well it's an interesting thought that the Act has already decided the issue for us. Is that really what you meant? I mean we keep pushing that because that of course is a very interesting new idea that you brought in today."
Professor Brauneis-"That is really what I meant, yeah. Again as I suggest although the Act gives the power to the Review Board to issue interpretative regulations the court might find that there are limits to that power. And if the film is an assassination record, and it was in the possession of certain government agencies then the Act just says it shall be transmitted to the JFK Collection.
Dr. Anna Nelson-"And it was a part of the Warren Commission."
Professor Brauneis-"That's correct."
Chairman Tunheim-"I'm going to ask you one last question, Professor Brauneis, you've examined a lot of cases in which takings have occurred and in which courts have determined value eventually for the material that was taken any thoughts that you have for us on what the financial costs to the taxpayers might be in a case like this one?"
Professor Brauneis-"Well, the measures of damages are the measure of just compensation generally is fair market value.
Chairman Tunheim-"Does that include commercial value?"
Professor Brauneis-"That certainly does. It's what the property would bring on the open market if it were, say, put up for an auction. So, that's the measure of damages. I certainly can't speculate as to what that would be. There are appraisal experts I'm sure who would have their say about that. I suppose the only one other thing I might mention is that there could be a separate value, and perhaps Mr. Gunn has already adverted to this, there could be a separate value placed on the physical object itself, the camera original film and other rights associated with that film, such as copyright and so you might easily place one component at fair market value, the fair market value of the original as an artifact, the other component is other rights such as copyright."
Dr. William Joyce-"I would like to ask one other question in pursuance of that, is there a precedence for taking transfer of title but to leave copyrights and other rights similar with that with the original owner?"
Professor Brauneis-"I have not come across a case in which that has been done but I would not find it all out of the ordinary given the structure of copyright law which presumes that copyright is a completely separate set of rules than the rules about title over the physical object."
Chairman Tunheim-"Thank you very much Professor Brauneis.
Professor Brauneis-"Thank You."
Chairman Tunheim-"We appreciate you joining us here today very much. Very good.
"Next, we are going to hear from Jim Lesar, who is the President of the Assassination Archives and Research Center. Welcome Mr. Lesar."
Jim Lesar-"Good afternoon Mr. Chairman, members of the panel.
Chairman Tunheim-"We are happy to have you back again."
Jim Lesar-"Thank you. It's a pleasure to be here.
"The questions that the Board has asked revolving around eminent domain are not really within my expertise so I face them with some trepidation, particularly after listening to Professor Brauneis' very scholarly exposition pointing up all of the aspects of the statutory language that bear on the questions. I would, I have a somewhat different take on a couple of matters that may have some bearing on the ultimate issues.
"First, I think that while it's important to always to analyze the bits and pieces of a statute that those bits and pieces have to be considered in light of the overarching purpose of the statute and the JFK Act was clearly intended to accomplish a couple of things that were set forth in Section 2 of the Act "Findings Declarations and Purposes" and the very first "Finding, Declaration and Purpose" is that Congress found that all government records related to the assassination of President John F. Kennedy should be preserved for historical and governmental purposes.
"I think it's very important that the Board take actions consistent with that purpose and not lose sight of the forest here. I also have a thought regarding whether or not the JFK Act has already effected a taking and it's my view that with respect to the copyright in the film that the JFK Act has in fact effected a taking by virtue of the very Section that the Professor has cited, Section 11 (a) which provides that the JFK Act in effect overides all prior statutes. The JFK Act having been passed subsequent to the Copyright Act, I think that it overides the Copyright Act, and so the Congress has itself effected a taking of the copyright. Now that has implications certainly for the value of the film, because the, the commercial value of the film is hardly separable from the copyright in the film. And it also has implications in terms of public access because under both the JFK and the Freedom of Information Act, if it is an assassination record, and I think unquestionably it is, then the public has a right to have copies of the film, certainly at no more than cost and in under the waiver provisions of both Acts the public may also in certain instances be able to get them without cost. So, that leaves you with the question of the value of the actual physical copy, the camera original, as divorced from the copyright. And it seems to me, one that that value is greatly diminished. It certainly is important to have it in the collection for various reasons. Section 4 of the JFK Act also provides that the Archivist in establishing the collection is to ensure the physical integrity and provenance of all records. I think it is difficult if not impossible to ensure the integrity of the film and its provenance so long as it remains subject to the whim and caprice of private ownership. So, I would argue that, and it seems to me also somewhat ludicrous to argue that Congress did not intend that the most important and unique piece of evidence to be in the collection, to be fully accessible to the public, and I think it needs to be subject to government ownership in order to, not only to preserve it, but to make sure that with advances in technology the public may have access to the information provided by any advances in technology that can take place.
So, now, as to, there are various scenarios as to how this matter could resolve itself. I have suggested that in fact the Act has already effectuated a taking and the implication of that is that someone who wanted to put that to the test can file suit under the Freedom of Information and JFK Acts and seek a court resolution of it. There have been previous attempts to ensure that the Zapruder film be made part of the public dialogue on the Kennedy assassination and that history is first in the Bernard Geiss Associates case which I think Professor "Tink" Thompson will, Josiah Thompson, will inform you about later. The court ruled that the copies that he made of it for use in his book, "Six Seconds in Dallas" were subject to the "fair use" doctrine. Secondly, Professor Melville Nimmer, a noted copyright scholar, and first amendment scholar proposed that in certain, a very certain narrow class of cases the First Amendment interest in enlightened democratic dialogue overrides the copyright interest. He gave two examples of that, one example of the famous photographs of the My Lai massacre, the second, the Zapruder film. And in his opinion it would be unconscionable that the copyright interest would supersede the overwhelming public interest that could not be fulfilled in any other way but through access to the photographs.
"I think that if I'm correct if the JFK Act has effectuated an expropriation of a copyright then it would seem bizarre to hold that Congress did not also intend that the original, the camera original, would not be in the possession of the government. For one thing it would mean that future requestors would not be able to take advantage of advances in technology to request the newly available information.
"Those are basically my thoughts. I'd be happy to answer any questions, if I can."
Chairman Tunheim-"Let me ask you a question, Mr. Lesar, you were active in the passage of this Act and testified before the Congress, quite active as I recall, why don't you think that the Congress specifically mentioned the eminent domain issue in the Act?"
Jim Lesar-"I have no idea. I had an input into the Act but not into that part of it. I can only say that when I saw Section 11 my immediate reaction was that takes care of the Zapruder film."
Dr. Anna Nelson-"You heard, we all heard Professor Brauneis say that, acknowledge that quite likely the Court of Claims would have to hear a case, that the LMH Company would in fact probably seek money, seek payment, and so part of our task is to perhaps decide how much in fact the American people will be out, the taxpayers will be out, if we in fact decide to take the film, under any of these conditions, say it is part of the Act anyway, how far up would you as someone who has had the assassination, resources, so many of the documents, how high should we go, that is to say it is difficult to compare but we know for example that Bill Gates paid about $20 million dollars for the Leonardo codings, how far should we, should we go?
"Now making an assumption here that it is not already included. I am making a different kind of assumption."
Jim Lesar-"Um. I don't know. One, I'm not familiar enough with the calculations that would go into that to make a very good guess as to it. As a more personal reaction than as a legal matter I would think that the "fair market value" should be offset by the very large sums of monies that have been paid out in the past. And I must say that what particularly troubles me about the exercise of which I view as a misuse of copyright with respect to this film over the past decades is that I think it has thwarted the intent of the copyright provision in the Constitution, which I view as ordinarily intended to be consistent with the First Amendment. For twelve years after the assassination, the American public did not get to see this film and that had a devastating impact on the history of the case, delaying its reinvestigation among other things by more than a decade. So, I would hope that there would be some recognition that the copyright hold has already garnered an enormous windfall profit from this film and would not put the taxpayers to any further great expenditure of funds."
Dr. Kermit Hall-"What would your estimation be of the amounts that the Zapruders have earned from the copyright?"
Jim Lesar-"Well, I would say that it probably would approach a million dollars, would be my guess. You start with $150,000 dollars that we know about for certain. There have been movie producers that have paid reportedly 30,000 or 40,000. There have been television producers, and others. So, I would not be surprised if it approached that figure but I have no personal knowledge of it. I think that that is something that the Review Board should try and find out if it has to make a determination as to how much should be paid for the film."
Dr. Kermit Hall-"Let me, if I may, kind of follow up on that and follow along the context of Anna's question, would it be your judgement, that, and let's assume for the purposes of argument that the copyright issue was not settled in a way that you believed it should be, is there any ceiling on what the American people should pay?"
Jim Lesar-"I think there's obviously a ceiling, there's a ceiling to everything, short of national survival but where that ceiling is I don't know."
Dr. Kermit Hall-"Well certainly that is an interesting and important issue here, and so is the question of what researchers and scholars might take from the Zapruder film, either in matters of research or matters of authenticity given the controversy that surrounds the film. Can you speculate for us at all about what it might mean to a researcher to have this original available."
Jim Lesar-"Oh, I think it means a great deal to the research community. Remember, that I cited some of the findings of the purpose of this Act but perhaps the overriding purpose of the Act was to restore some confidence in government. It's very difficult for me to see how you can go to the assassination community and say we have restored confidence in the ability of this government to come to grips with this history and yet we are leaving the single most important piece of evidence in the hands of a private citizen. That seems to me to be just self-defeating. It can't be done."
Dr. Kermit Hall-"But the crux of that understanding would be that a high quality copy, or a copy made of the Zapruder film before it got into trouble with TIME-LIFE would not be as good as the original."
Jim Lesar-"Well, um, there are others, it's not only a question of the quality of the original, it's what happened to the original, splicings that took place, there's a history to the original that is important. And let me just allude to one other thing, the Act says that it not only is, it refers to preserving it for historical and governmental purposes, now of course the odd thing about this film is that it was not seized by the government at the start. This is a criminal case, in fact a criminal case of the highest magnitude, and evidence is routinely seized in criminal cases and that was not done here."
Dr. Kermit Hall-"But if I remember my legal precedence well the rule with regard to seizure and maintenance of evidence is a function in fact of having a criminal proceeding."
Jim Lesar-"Well, and the fact that there wasn't is a consequence of Oswald having been shot. But there is still the possibility, remote though it may be that at some point there will be a criminal proceeding and then this provision that preserves it for governmental purposes takes precedence it is inconceivable to me that at that point that the government would not assert its interest in the original. I mean the court rules requires originals, record copies. There is also a provision in the Act that refers to record copies, the obligation to preserve record copies. The Zapruder film, the camera original is the ultimate record copy in this case.
Dr. Kermit Hall-"But if in twenty years or twenty five years from now there's nothing there...
Jim Lesar-"Um,
(really before Jim could respond Dr. Hall continued-)
Dr. Kermit Hall-"Would anyone have any interest in the Zapruder film if in fact the images that are there now-"
Jim Lesar-"if it completely deteriorates into an amorphous mass-
Dr. Kermit Hall-"Right."
Jim Lesar-"I suppose the answer is no."
Dr. Kermit Hall-"So, it could look like a bad yield to pay out a lot of money to lay claim to something that will not exist in the future."
Jim Lesar-"That is certainly a consideration."
Dr. Kermit Hall-"Thank you."
Chairman Tunheim-"Dr. Joyce has a question."
Dr. William Joyce-"I'd like to on a related path, you mentioned in the course of your statement that you thought it was important to preserve the film against the development of future technological advances that could assist us in understanding the event and I'm wondering if you could, given your knowledge of the concerns and the issues that are in the research community if you could tell us what kinds of information or what questions are currently focused on the film as a piece of evidence concerning the assassination and how future developments might assist researchers (to) understand the event.
Jim Lesar-"Well, as to the technological aspects it's beyond my kin. I'm not a photographer, and I'm not very well versed in computer science so I do not know what the potentials are with respect to computer enhancement and other matters. I would suggest that you might solicit the views of experts in those fields."
Dr. William Joyce-"My question really was aimed at-"
Jim Lesar-"researchers"
Dr. William Joyce-"-the questions of researchers that would like to have answers to."
Jim Lesar-"Yeah, well one obvious thing which was alluded to by Mr. Gunn and his presentation is the material between the sprocket holes and about 20% of the exposed surface of the original film falls between the sprocket holes. It is not reproduced on the film copies of the original however it can be reproduced through slides. So, it require the original in order to capture that information. That, I think, is certainly a priority in the research community, is having a high quality copy made of the camera original that will reproduce the material between the sprocket holes. So that's one. Now there are other issues which I'm less familiar with that I hear rumblings of them in the hinterlands, questions about authenticity of the film, and alterations of the film, and so forth. I'm not really qualified to speak about those."
Chairman Tunheim-"One final question Mr. Lesar, your point that you made earlier that any award of financial cost for taking of this film should be offset by the costs [income] that the family has made off of the film, and I understand that completely from a visceral kind of reaction, are you aware of any cases that would establish that principle that we can look at?
Jim Lesar-"No I'm not, however, I haven't had any chance to research the issue but I'm not aware of any. Returning to Professor Joyce's question, some of the other questions are the obvious ones that relate to the sequence and timing of shots, direction of shots, where the wounds are located, the movements of witnesses, the movements and reactions of Secret Service personnel, Dallas police department personnel, all of these things are of interest to the research community."
Chairman Tunheim-"Thank you Mr. Lesar, we appreciate your testimony today."
Jim Lesar-"Thank you, very much."
Chairman Tunheim-"Next we are going to hear from Mr. Josiah Thompson, who is an author, one of the early authors of a widely read book on the assassination, Six Seconds in Dallas, I believe? Mr. Thompson, thank you for joining us today."
Josiah Thompson-"Thank you Mr. Chairman, Dr. Marwell, distinguished members of the panel.
"I do not have a prepared statement but sitting here I've had a few thoughts on two basic points. One concerns the anomalies concerning this film in private hands, which I've had much experience of in the 1960's and '70's. And secondly, a question that was just asked, what is the central enormous research importance of this film? I could and I will give you some reasons for seeing the centrality of the film.
"Friday afternoon November 22, and Forrest Sorrels is in Abraham Zapruder's office. Abraham Zapruder gets his camera out of the safe. Had Forrest Sorrel said, 'Mr. Zapruder, I'm taking that camera and that film as evidence in this homicide,' we might still be here today but we wouldn't be here with this particular problem. Forrest Sorrels did not do that, I think he made a mistake, and because he did not do that, in August of 1966 when I came to this very building and saw the Zapruder film for the first time, what I was permitted to see was a copy of a Secret Service copy. In the summer of 1966 that was the only way any ordinary citizen in this country could see a copy of the Zapruder film, was coming to the Archives, registering, and have Marion Johnson screen a copy of a copy for you. I did that it was a miserable copy, a miserable copy.
"I had heard through the grapevine that LIFE's original and LIFE's copies made from that original, 4 x 5 transparencies, were remarkably clear. Through brute luck, two years later, two months later I ended up being hired to co-direct LIFE magazine's assassination investigation and was permitted to see copies made from the original, 4 x 5 transparencies, made from the original. Everything I had been told was correct. They were remarkably clear. One could see the hit on Connally which was completely unclear on the copy in the Archives.
"Dallas, November, 1966, we have 4 x 5 transparencies, the LIFE team is made up of three or four members.
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