Report of the Select Committee on Assassinations of the U.S. House of RepresentativesE. The Department of Justice and the Federal Bureau of Investigation Performed with Varying Degrees of Competency and Legality in the Fulfillment of their Duties
Section E 1 contains an evaluation of the FBI COINTEL program against Dr. King, to determine if it might have had any effect on the assassination and if, consequently, the Bureau or the Department should bear any responsibility for the assassination.
Section E 2 contains an analysis of the performance of the Department and the Bureau in investigating the assassination, in which particular emphasis was placed on the ability of the Bureau to conduct a full and complete investigation in light of its campaign to discredit Dr. King.
1. THE DEPARTMENT OF JUSTICE FAILED TO SUPERVISE ADEQUATELY THE DOMESTIC INTELLIGENCE DIVISION OF THE FEDERAL BUREAU OF INVESTIGATION; IN ADDITION, THE FEDERAL BUREAU OF INVESTIGATION, IN THE DOMESTIC INTELLIGENCE DIVISION'S COINTELPRO CAMPAIGN AGAINST DR. KING, GROSSLY ABUSED AND EXCEEDED ITS LEGAL AUTHORITY AND FAILED TO CONSIDER THE POSSIBILITY THAT ACTIONS THREATENING BODILY HARM TO DR. KING MIGHT BE ENCOURAGED BY THE PROGRAM
- Security investigation and COINTELPRO
1For a discussion of these concepts and the difficulties in assessing responsibility for murder, see the statement of Chairman Stokes on November 26, 1978, hearings before the Select Committee on Assassinations, U.S. House of Representatives, 95th Congress, 2d sess. (Washington, D.C., U.S. Government Printing Office, 1979), vol. VII, p. 111.
As it addressed the broad question of the institutional responsibility of the FBI for the assassination of Dr. King, the committee was aware of the complex nature of its undertaking. As noted in section D, the committee found there was no evidence that FBI personnel took intentional action to accomplish or facilitate Dr. King's assassination. It then proceeded to consider a far more difficult aspect of the question of responsibility, one that arose from the FBI campaign to discredit Dr. King and destroy his standing in society.
To resolve this issue, the committee examined both the FBI's security investigation of Dr. King and its subsequent expansion into a COINTELPRO effort against Dr. King and the Southern Christian Leadership Conference.2 A security investigation--the collection of intelligence on a, specified target--is, and was in 1967-68, a legitimate function of the Bureau, when directed at an appropriate individual. COINTELPRO on the other hand, was never a legitimate FBI function. While it had no fixed definition. it may be described in Dr. King's case as an active covert campaign intended to influence "political choices and social values." (1) As noted by the Senate select committee that investigated COINTELPRO, there is a gray area between "aggressive investigation" and "counterintelligence," and the "line between information collection and harassment can be extremely thin."(2) It must be concluded that in its COINTELPRO activities, the Bureau grossly abused and exceeded its legal authority.
The committee recognized that Dr. King was a prominent social leader and critic and that his activities and public positions were the subject of considerable debate and controversy that existed apart from the conduct of the FBI. Consequently, it could not be easily determined to what degree the Bureau, in fact, contributed to the climate of controversy that surrounded Dr. King. Nevertheless, it was necessary to review the history of Bureau activities pursuant to the security investigation and COINTELPRO campaign to understand the intensity of anti-King feeling within the FBI and the possible significance of these activities with respect to responsibility for the assassination by the Bureau or the Department of Justice.
Dr. King's developing stature in the civil rights movement became apparent in 1955, as he led a successful effort to eliminate discriminatory seating practices on the buses of Montgomery, Ala.,(3) and, shortly thereafter, with the creation of SCLC.(4) In July 1959, the first of many FBI files was officially opened on Dr. King, (5) although Bureau interest in him was minimal and no data was gathered on his activities for 22 months. (6)
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(a) Security investigation and COINTELPRO
The security investigation of SCLC was opened in 1962, based on a suspicion that Dr. King was taking advice from two Communist associates. It was the responsibility at FBI headquarters of the Domestic Intelligence Division, which was supervised by Assistant Director William C. Sullivan. (7) The general function of the Division was to gather intelligence on individuals and organizations considered to be
2Section II D of this report includes materials generally describing these programs. See also Book III of the Final Report of the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, 94th Congress, 2d sess. (Washington, D.C., U.S. Government Printing Office, 1976), which contains an in-depth review of the FBI's COINTELPRO operations generally, as well as against Dr. King.
a security threat to the Nation. (8) The investigation of Dr. King and SCLC was handled in the Division by the Internal Security Section. (9) In October 1967, the Racial Intelligence Section was formed within the Division,(10) and the investigations of Dr. King, the SCLC and the civil rights movement in general became its responsibility. The Racial Intelligence Section also carried out the separate COINTELPRO campaign against so-called Black nationalist hate groups and their leaders, including the SCLC (the campaign was formally initiated in August 1967)(11) and Dr. King (formally initiated in March 1968).(12) The Crime Records Division, the Bureau's principal point of contact with Congress and the news media, was the conduit for many of the COINTELPRO initiatives, including derogatory information on Dr. King. (13) FBI field offices also had an important role in the security investigations as well as COINTELPRO. With respect to the security investigations, Atlanta was designated as the "office of origin," coordinating point for data obtained by all field offices on the SCLC and Dr. King. (14) With respect to COINTELPRO, field offices were asked to submit proposals on ways to implement the program. (15) Virtually all COINTELPRO proposals originated in the field offices and were promptly passed through the Bureau hierarchy for re-view and authorization. (16)
The Department of Justice played a role in the security investigation, since it was necessary to obtain the Attorney General's approval to tap telephones,(17) but the Department had no role in COINTELPRO. Nevertheless, both the 1977 Justice Department Task Force and the Senate select committee found that the Department failed in its responsibility to supervise the FBI during the development of COINTELPRO operations, and the committee concurred in this judgment.
The position of the FBI toward Dr. King and the SCLC cannot be understood apart from personalities. As noted, Dr. King was a social critic, and FBI Director J. Edgar Hoover was a man who strongly resented criticism of the Bureau from any source. The initial personal interest of Hoover in Dr. King is said to have originated with an article in The Nation in 1959 in which Dr. King commented on the scarcity of Black Federal agents, including FBI agents. (18) This and subsequent criticisms of the FBI by Dr. King were undoubtedly one explanation for Hoover's intense animosity toward the civil rights leader. Examples of the Director's attitude appeared with frequency during the committee's review of FBI files. In February 1962, James Bland, Chief of the Subversive Control Section, sent a memorandum to Assistant Director Sullivan asking whether King should be warned about the suspected Communist background of one of his advisers. A copy of the memo was sent to Hoover who rejected the proposal, writing in the margin, "King is no good anyway."3 (19) In December 1963, Time announced its decision to name Dr. King "Man of the Year." Hoover wrote on a copy of the news release on the decision, "They had to dig deep in the garbage to come up with this one." (20) Hoover's resentment had apparently been compounded by remarks made by Dr. King in 1962, in Albany, Ga., criticizing the Bureau for its failure to pursue
3The Bureau passed the information to the Justice Department which, in turn, informed Dr. King of the allegation.
aggressively civil rights violations in the South. In the opinion of several FBI agents questioned by the committee, the Albany statement was, from the Director's standpoint, the single most significant reason for the feud, (21) one that came to a public climax in November 1964, when Hoover, in a press briefing referred to Dr King as "the most notorious liar" in the country. (22)
In addition to Dr. King's criticism of the FBI, other factors were suggested to the committee to explain the Director's deep-seated hostility. They include "qualities of racism" in Hoover's character; (23) Dr. King's violation of the Director's strict, almost puritanical, standards for behavior by members of the clergy; (24) and Dr. King's philosophy of nonviolence, thought to stand at odds with the Director's personal belief in the ultimate importance of power. (25) In addition, it was suggested to the committee that Hoover, whose opposition to communist was unswerving, was convinced that Dr. King and his movement were susceptible to Communist influence, (26) even though a contrary assessment had been made by FBI experts.
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(1) Hoover's dislike for Dr. King.-- The committee concluded, based on an exhaustive review of FBI files and on the sworn testimony of former FBI and Justice Department officials, that the campaign to discredit Dr. King, up to the time of his death and beyond, (27) continued as long as it did and as intensely as it did only because of Hoover's deep personal dislike for Dr. King. Evidence obtained by the committee indicated that the allegation that Dr. King posed a threat to national security was merely a convenient rationalization used by the Director to justify his personal vendetta against the civil rights leader. For example, in April 1962, the Atlanta "office of origin" (28) submitted to headquarters a report on Dr. King that concluded there was no significant Communist influence being exerted on him. (29) Nevertheless, Hoover ordered that Dr. King's name be added to section A of the reserve index.4 (30) And, by October 1960, a fullscale security investigation of Dr. King and the SCLC had begun.(32) The initiation of these investigations, however, cannot be attributed wholly to the personal animosity of Hoover. They also stemmed from a general concern by the FBI about Communist infiltration of the civil rights movement that was prompted by influential people, including Congressmen, who claimed that pending civil rights legislation was inspired by a Communist conspiracy.
The investigations that followed, on the other hand, revealed there was little basis in fact for this concern. (33) In August 1963, the Domestic Intelligence Division completed a synopsis of the Communist Party's effort to exploit the American Negro. (34) It concluded that while the party had expended enormous effort and resources to influence and control Black Americans, it had been largely unsuccessful.(35) In sworn testimony before the committee, agents from the Domestic Intelligence Division insisted that their conclusion of insignificant infiltration into the civil rights movement reflected their professional judgment then as well as in 1978.
4As described by the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, the index was for people who, the FBI believed, "...in a time of national emergency [were] in a position to influence others against the national interest or were likely to furnish material financial aid to subversive elements due to their subversive associations and ideology."
Director Hoover's reaction, reflected in notes appended to the synopsis, was sharply critical:
This memo reminds me vividly of those I received when Castro took over Cuba. You contended then that Castro and his cohorts were not Communists and not influenced by Communists. Time alone proved you wrong .... (37)Hoover's irritation resulted in a sharp and immediate change in the position of the Domestic Intelligence Division. Reacting to Dr. King's famous "I Have a Dream" address, Sullivan wrote in a memorandum to Assistant to the Director Alan Belmont:
The Director is correct. We were completely wrong about believing the evidence was not sufficient to determine some years ago that Fidel Castro was not a Communist or under Communist influence. In investigating and writing about communist and the American Negro, we had better remember this and profit by the lesson it should teach.
... Personally, I believe in the light, of King's powerful demagogic speech yesterday he stands head and shoulders over all other Negro leaders put together when it comes to influencing great masses of Negroes. We must mark him now, if we have not done so before, as the most dangerous Negro of the future in this Nation from the standpoint of communist, the Negro, and national security. (38)By the end of 1963, FBI files reflected a marked difference in the Bureau's approach toward Dr. King and the beginning of a campaign to discredit him. On December 23, 1963, a conference was held in Washington,(39) with members of the Atlanta field office and the headquarters Domestic Intelligence Division in attendance. A memorandum written by Sullivan the following day summarized the results of the meeting:
Recognizing the delicacy of this entire situation because of the prominence of King, the primary purpose of the conference was to explore how best to carry on one investigation to produce the desired results without embarrassment to the Bureau. Included in the discussion was a complete analysis of the avenues of approach aimed at neutralizing King as an effective Negro leader and developing evidence concerning King's continued dependence on Communists, for guidance and direction. (40)Less than 2 weeks later, the direction of the Bureau's developing course of action became clear Assistant Director Sullivan authorized a proposal that the FBI consider promoting a new leader for the Black community who would alleviate the confusion expected once Dr. King had been "taken off his pedestal."(41) Hoover attached a note to Sullivan's memo:
I am glad to see that light has finally, though dismally delayed, come to the DID. I struggled for months to get over the fact that the Communists were taking over the racial movement but our experts here couldn't and wouldn't see it.(42)Page 436
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(2) Electronic surveillance of Dr. King.-- From October 24, 1963, to June 21, 1966,(43) the FBI also engaged in an extensive program of electronic surveillance of Dr. King. The committee found it was conducted in a particularly abusive fashion. FBI agents who monitored the devices, although they were initially instructed to be especially alert for contacts between Dr. King and Communist connections, (44) exercised little discretion in deciding what to overhear and record. Private and personal conversations were recorded, as were conversations between Dr. King and Government officials.5 In fact, the development of personal information that, might be derogatory to Dr. King became a major objective of the surveillance effort.(45) The committee found that the Department of Justice shared responsibility for the surveillance, since it was initially authorized by Attorney General Robert F. Kennedy.6 (46)
The nature of the Bureau's campaign against Dr. King is vividly illustrated by one incident. Shortly after Director Hoover's press conference in November 1964, in which he referred to Dr. King as the country's "most notorious liar," (50) a package was mailed to Dr. King. It contained an anonymous diatribe against the civil rights leader and a copy of an electronic surveillance tape, apparently to lend credence to threats of exposure of derogatory personal information made in the letter. (51) The committee was unable to locate the original letter, but an apparently authentic copy was found in the files of Assistant Director Sullivan. The final paragraph clearly implied that suicide would be a suitable course of action for Dr. King:
King, there is only one thing left for you to do. You know what it is. You have just 34 days in which to do (this exact number has been selected for a specific reason, it, has definite practical significance). You are done. There is but one way out for you. You better take it before your filthy fraudulent self is bared to the Nation. (52)In addition to Sullivan's admission of involvement in the scheme in testimony before the Senate select committee.7 (53) the committee received evidence raising the possibility that the package was delivered to Assistant to the Director Belmont prior to mailing.(55) If this was the case, the committee considered it highly likely that Director Hoover had before-the-fact knowledge of the action.
5During this period, there was no statute or regulation requiring "minimization" of the monitoring to insure that only relevant information was overheard, such as is embodied in current law.
6While authorization by the Attorney General was required for wiretaps in 1963, microphone surveillance could be initiated by the FBI Director, according to a 1954 Attorney General memorandum.(47) In 1965, the procedure was changed by Nicholas deB. Katzenbach, who replaced Robert F. Kennedy as Attorney General. Katzenbach's order made microphone and wiretap surveillance the responsibility of the Attorney General.(48) Subsequent to the Katzenbach order, according to sworn testimony before the committee, the FBI implemented microphone surveillance in hotel rooms of Dr. King on at least three occasions. (49) While former Attorney General Katzenbach testified before the Senate select committee that he had no specific recollection of the authorizations, the committee found that he had at least after-the-fact knowledge.
7The committee was unable to take testimony from Sullivan, who was killed in a hunting accident in 1977. He testified, however, before the Senate select committee that the project had Hoover's prior knowledge and was, in fact, authorized by the Director. Sullivan said at the time that he personally opposed the idea because it placed future electronic surveillance of Dr. King in jeopardy. (54) The committee noted that at the time of Sullivan's testimony, he had broken with the Director, and his testimony must be viewed accordingly.
In the final analysis, the committee was unable to fix personal responsibility for the threatening letter to Dr. King, but it noted that it did reflect the extent of the hostility in the Bureau toward Dr. King. The FBI campaign against Dr. King extended beyond the invasion his privacy. Efforts were made to interfere with SCLC fundraising and with the awarding of degrees and other honors to Dr. King. (56) Further, an extensive effort was made to smear his name through the dissemination of derogatory information,(57) and attempts were made to create ill feeling between Dr. King and his associates, as well as his wife. (58)
The FBI effort to smear Dr. King by the dissemination of derogatory information was targeted at two general audiences. One was officials of the Government in Washington--congressional leaders, White House personnel, and Federal agency staff members, all of whom were briefed regularly about Dr. King's personal life and the alleged Communist connections and sympathies of his advisers. Lengthy monographs were distributed to Government officials in November 1964,(59) April 1967,(60) and March 1968,(61) and certain key persons were from time to time given personal briefings by the Bureau. (62)
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(3) Manipulation of the media.-- Of far greater significance to the committee, for the purpose of assessing any responsibility of the FBI for the assassination, was the Bureau's program to achieve public awareness of derogatory information about Dr. King. By using friendly media outlets--newspaper and other sources who published material favorable to or supplied by the Bureau--the FBI had potential access to a vast audience. (63) The committee was able to document this COINTELPRO technique from FBI files and from the testimony of Bureau personnel assigned to the Crime Records Division. (64) It was apparent that the FBI's manipulation of the media contributed to a hostile attitude toward Dr. King and what he represented. As an illustration, the committee selected a case that raised difficult and complex questions with respect, to the bearing this sort of COINTELPRO activity might have had on the assassination. The committee found the case to be particularly significant, since it occurred in St. Louis, where the committee conducted an extensive conspiracy investigation.8
The case involved the relationship between the FBI and the St. Louis Globe-Democrat, 9 as it was uncovered by a rival newspaper, the St. Louis Post-Dispatch. In a series of articles published in 1977, the Post-Dispatch identified the publisher of the Globe-Democrat and a reporter on the paper's staff as individuals who "were looked upon by the St. Louis FBI office as key outlets in the mid-1960's for news the Bureau wanted published...."(65) The Post-Dispatch series was the result of a review of FBI documents the paper had obtained in a Freedom of Information Act request. (The documents were also reviewed by the committee.) The publisher was identified as Richard H. Amberg, who died in 1967, and the reporter as Denny
8See section II B for a detailed discussion of the committee's conspiracy evidence.
9See MLK exhibits F-515 to F-522, VII HSCA-MLK hearings, 95, 97, 99, 101, 103, 106, 108, 110 in sequence.
Walsh, who had since left the paper. (66) The name of the publisher of the Globe-Democrat in 1968, G. Duncan Bauman, had been deleted from certain documents the FBI provided to the post-Dispatch.
The committee obtained copies of internal documents referred to in the post-Dispatch series, and they revealed the ease with which the Bureau had been able to use the newspaper for its counterintelligence initiatives. For example, a memorandum from the St. Louis special agent-in-charge to Director Hoover on May 28, 1968,(67) discussed activities to disrupt "new left" organizations:
The feeding of well chosen information to the St. Louis Globe-Democrat, a local newspaper, whose editor and associate editor are extremely friendly to the Bureau and the St. Louis Office, has also been utilized in the past and it is contemplated that this technique might be used to good advantage in connection with this program.Then, on October 18, 1968,(68) the St. Louis field office received a memorandum from FBI headquarters giving permission to provide a source on the Globe-Democrat with information to disrupt organizing activities by Students for a Democratic Society at area high schools. A note appended to the memorandum praised the newspaper and its staff:
The St. Louis Globe-Democrat has been especially cooperative with the Bureau in the past. Its publisher [name deleted] is on the Special Correspondents List.Denny Walsh, a Globe-Democrat reporter named in the released FOIA documents, was interviewed by the post-Dispatch and by committee. He verified that the Globe-Democrat, as well as he personally, had enjoyed a close working relationship with the FBI.(69)
Knowledge of the presence of a willing news media outlet for the FBI in St. Louis led the committee to scrutinize carefully a COINTELPRO initiative from FBI headquarters and Globe-Democrat editorial, both of which preceded the assassination of Dr. King by less than a week.10 The editorial addressed a march on Washington that Dr. King had scheduled for the spring of 1968.
In late 1967, Dr. King had announced plans to lead a massive march on Washington in the spring of 1968. Alternately called the Washington Spring Project and the Poor People's Campaign, it generated a great deal of interest as well as considerable concern among the hierarchy of the FBI. Following the sanitation workers march in Memphis, led by Dr. King on March 28, 1968, the Bureau decided to seize upon the violence that had erupted as evidence that Dr. King was
10Because the committee did not direct its attention to a possible connection between COINTELPRO and evidence of a conspiracy in St. Louis until the later part of its investigation, it was not possible to review fully the relationship of the FBI with the St. Louis Globe-Democrat or to assess its possible link to the assassination. Specifically, the committee was not able to identify each editorial or article whose publication may have been influenced by the Bureau, determine if the editorial or article was in fact read by anyone connected with a conspiracy that might have resulted in Dr. King's death, and assess the effect if any, of the editorial or article. The committee was able to establish, however-- by interviews with the publisher of the paper and with formers news and editorial page personnel (71)-- that (1) there was a close relationship between the Globe- Democrat publisher's office and officials of the FBI, that (2) the paper followed an editorial policy that was generally opposed to Dr. King, and that (3) the paper quite possibly published material about Dr. King at the behest of the Bureau other than that which the committee considered.
unable to conduct a peaceful demonstration by a large number of people. The theory behind the strategy was to call into question the peaceful intentions of the Washington Spring Project. On the very day of the ill-fated march, a memorandum was circulated outlining an FBI-authored editorial to be placed with "cooperative news media sources."11 (70) It took Dr. King to task for getting involved in the Memphis strike and for not being able to control the march, suggesting that Memphis was merely a prelude to what was coming in Washington. (72) The editorial was "handled" that same day. (73)
On March 30, an editorial appeared in the Globe-Democrat,(74) accompanied by a disparaging cartoon of Dr. King. The editorial's similarities to the one outlined in the FBI memorandum were too close, in the view of the committee, to have occurred by chance. The memorandum and the editorial reflected the same basic argument. King called for a strike that he knew would get violent and then King fled. Language in the editorial was virtually plagiarized from the FBI memorandum:
Memphis may only be the prelude to civil strife in our Nation's Capitol [sic].--FBI memorandum, March 28, 1968
Memphis could be only the prelude to a massive bloodbath in the Nation's Capitol [sic] ...--Globe-Democrat editorial, March 30, 1968In light of the past relationship between the Bureau and the paper, the committee found that there was sufficient evidence in the editorial itself to conclude that it had been inspired by the FBI memorandum, although the only written documentation of this was the notation, "handled," on the memorandum. Independent testimony to the committee indicated that the normal method the Bureau used to place material with a friendly news source was by telephone. (75) The committee deduced that the placing probably occurred the same day the memorandum was circulated, which would account for its prompt appearance in the Globe-Democrat.12
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(4) Analysis of the impact of the FBI-inspired editorial.-- The committee carefully considered the possibility that the FBI's actions were more than defamatory and that they might have placed Dr. King's life in danger by exacerbating anti-King emotions and by seemingly justifying violent action to remove Dr. King from his position of prominence. The committee was not able to determine, however, that James Earl Ray read the Globe-Democrat, editorial. Ray testified to the committee, that he had been in the habit of purchasing a daily newspaper;(76) the evidence established, however, that he was in Birmingham on March 30, purchasing the rifle he used to assassinate Dr. King, so it is unlikely that he read the Globe-Democrat that day.
Even if Ray had read the editorial, he had, the committee noted, already begun to stalk Dr. King when it was published. Thus, at worst, the editorial might have reinforced a plan that had already
11A copy of the March 28, 1968, memorandum is published as MLK exhibit F-521, VII, HSCA-MLK hearings. 108
12Since the March 30 Globe-Democrat was a weekend edition of the paper, the deadline probably would have required telephonic transmission from the FBI.
been set in motion. On the other hand, the editorial had illustrative significance. If there had been other editorials or articles discrediting Dr. King that had been planted by the Bureau prior to the assassination, their potential significance might have been great. To evaluate this significance, however, would, as noted, require detailing all the COINTELPRO activities in St. Louis, attempting to determine if these activities had come to the attention of Ray or others residing in St. Louis who might have been involved in an assassination conspiracy-- John Ray, John Sutherland, or John Kauffmann, as examples-- and attempting to assess the impact, if any, of these activities on these individuals.
The committee did obtain evidence that John Ray read and absorbed the editorial. On June 13, 1972, he wrote to author George McMillan the following description of Dr. King:
... King was not a saint, as these try to picture him. There are millions of Rays in the United States with the same background and beliefs, who know that King not only was a rat but with his beaded eyes and pin ears look like one. A piece in the editorial sections of the St. Louis Globe-Democrat said that King led marches until he got, them stir [sic] up, then used a excuse to leave, while the dumb Blacks got their head beat in by police. A week before he was kill [sic], it also said he ran down the alley and jump into a waiting cadiliac [sic].The letter was written over 4 years after the assassination. It cannot be reliably determined when John Ray first read the editorial--before the assassination or later in prison--though his failure to reflect its content accurately indicates he may not have had it to refer to when he wrote to McMillan. What is indicated, however, is that the editorial made a significant impression on him.
The committee did not obtain evidence to indicate that any of the other individuals who the committee believes may have been involved in a conspiracy to kill Dr. King read the Globe-Democrat editorial prior to the assassination. The committee was only able to determine, therefore, that the Bureau-inspired editorial was used to rationalize the assassination.
The committee could find no evidence that the Bureau ever specifically considered the possibility that planting derogatory editorials might encourage certain parties to cause bodily harm to Dr. King. In its review of FBI COINTELPRO operations against a wide variety of targets, the Senate committee did note that the dangerous character of some of its COINTELPRO initiatives was however, recognized by the Bureau. Those techniques that were seen as likely to cause physical, emotional, or economic harm to the target, "were scrutinized carefully by headquarters supervisory personnel, in an attempt to balance the 'great good' to be achieved by the proposal against the known or risked harm to the target. If the 'good' was sufficient, the proposal was approved. (78)
The Bureau also recognized that some of their COINTELPRO activities would entail the risk of murder of the target. It realized that falsely labeling someone as an informant in a group that was the target of a COINTELPRO operation always carried the risk that the infor-
mant would be killed by the target group. (79) Apparently, the Bureau would not run the risk if it "had information that the [target] group was, at that time actually killing suspected informants." (80)
Apparently, similar caution was not observed in the implementation of COINTELPRO activities against Dr. King. Given the highly charged and emotional atmosphere surrounding Dr. King's activities, the committee concluded that the FBI should have considered the real possibility that its activities might encourage an attack on Dr. King.
While the evidence was insufficient to link COINTELPRO to the assassination, the committee obtained ample evidence to warrant strong condemnation of FBI efforts that were directed against Dr. King and SCLC for the risk they created for Dr. King. The editorial writers at the Globe-Democrat were exercising first amendment freedoms, so their conduct was constitutionally privileged. There was, however, no similar privilege covering the conduct of the FBI. Not only did this conduct contribute to the hostile climate that surrounded Dr. King, it was morally reprehensible, illegal, felonious, and unconstitutional. There is no place in a free society for such governmental conduct. It deserves the strongest condemnation.
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2. THE DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF INVESTIGATION PERFORMED A THOROUGH INVESTIGATION INTO THE RESPONSIBILITY OF JAMES EARL RAY FOR THE ASSASSINATION OF DR. KING, AND CONDUCTED A THOROUGH FUGITIVE INVESTIGATION, BUT FAILED TO INVESTIGATE ADEQUATELY THE POSSIBILITY OF CONSPIRACY IN THE ASSASSINATION; THE FEDERAL BUREAU OF INVESTIGATION MANIFESTED A LACK OF CONCERN FOR CONSTITUTIONAL RIGHTS IN THE MANNER IN WHICH IT CONDUCTED PARTS OF THE INVESTIGATION
- The FBI chain of command
- The fugitive investigation
- The conspiracy investigation
- Investigative excesses
In order to answer this ultimate question, the committee undertook, as its first step, a thorough review of pertinent investigative files of the Department of Justice and Federal Bureau of Investigation. Of primary importance were the files of MURKIN (for Murder-King, the official designation of the Martin Luther King assassination investigation) at both FBI headquarters and the Memphis field office, the office of origin. In addition, the committee reviewed field office reports from 16 FBI districts, including those covering the key cities of Atlanta, Birmingham, New Orleans, St. Louis, Kansas City, Chicago, and Los Angeles. It also looked at Justice Department files on the investigation, a separate department file on Ray's extradition, and
13A more detailed discussion of the investigation conducted by the FBI and the Justice Department appears in a committee staff report, "An Analysis of the Assassination Investigation of the Department of Justice and Federal Bureau of Investigation." XIII appendix to the HSCA-MLK hearings (hereinafter referred to as Investigation Report).
the 1977 Justice Department Task Force Report, entitled "Martin Luther King, Jr., Security and Assassination Investigations Report."
The file review was followed by a series of lengthy, in-person interviews with former officials of both the Justice Department and the FBI who played significant roles, either as supervisors or field agents, in the assassination investigation. The interviews were supplemented by the executive session and public hearing testimony of former Attorney General Ramsey Clark; former Assistant Attorney General (for Civil Rights) Stephen Pollak; former Assistant to the Director of the FBI Cartha DeLoach; and former Memphis Special Agent-in-Charge Robert Jensen.
With the exception of J. Edgar Hoover, FBI Director in 1968; Clyde Tolson, FBI Associate Director; and Thomas Robinson, U.S. attorney in Memphis in 1968, all of whom were deceased, the committee was able to interview all individuals whose testimony was considered necessary for a thorough examination of the quality of the performance of the FBI and the Justice Department in the assassination investigation.
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(a) The FBI chain of command
In 1968, the FBI was divided into 10 internal divisions. (81) Division Six, the General Investigative Division, headed by Assistant Director Alex Rosen, had overall responsibility for investigation of Federal crimes, including civil rights violations. Following Dr. King's assassination, Federal investigative jurisdiction was predicated on a possible violation of 18 U.S.C. 241, the Federal civil rights statute barring conspiracies to interfere with or impede the constitutional rights of an individual. (82) Thus, the General Investigative Division assumed responsibility for the King investigation.
Within the division, the investigation was managed by the Civil Rights Section. A headquarters "case agent" was appointed and information on developments in the investigation passed up through the chain of command to Cartha DeLoach, Assistant to the Director; Clyde Tolson, the Associate Director; and Director Hoover. In a case of such magnitude, major case developments were summarized and passed upward at least once daily.
In the field, the Memphis FBI office, which initiated an investigation shortly after the assassination, was designated "office of origin" and assumed major administrative and coordination functions. While direction of the case was a responsibility of FBI headquarters in Washington-- reflecting the national and international scope of the investigation Memphis received copies of most of the reports from the 57 other domestic offices assigned to the case. In addition, Memphis coordinated and at times initiated investigative leads.
Because the FBI was only one of several component agencies of the Department of Justice, conduct of the MURKIN investigation was ultimately the responsibility of Attorney General Clark and attorneys he assigned to supervise it. The Civil Rights Division was formally responsible for the conduct of the investigation and for any Federal prosecutions that might develop. (83)
Outside of Washington, the Department of Justice was represented by U.S. attorneys, one for each Federal district. Although
the actual prosecution of a Federal criminal case is the responsibility of a U.S. attorney, subject only to supervision by the appropriate division of the Justice Department, this was not the practice in civil rights prosecutions in 1968. Political considerations and the need to maintain working relations with local law enforcement agencies often made it awkward for a U.S. attorney to bring Federal civil rights cases against local authorities. At the time, therefore, Federal civil rights investigations and prosecutions were, with very few exceptions, the responsibility of the Civil Rights Division in Washington. (84)
This was the practice in the investigation of the King assassination. The committee's review of investigative files indicated that while the FBI's investigation was carried out by offices throughout the country, local U.S. attorneys in important cities--Atlanta, Memphis, New Orleans, Los Angeles, Chicago, and St. Louis--were excluded from the chain of information and necessarily, therefore, from decision-making.(85)
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(b) The fugitive investigation
In light of James Earl Ray's ability to elude authorities for over 2 months subsequent to the assassination of Dr. King, the committee examined the FBI's post-assassination fugitive investigation. The purpose was to determine whether all available resources had been committed to the task of identifying and locating the assassin. As first step, the committee pieced together a detailed chronology of the investigation that preceded Ray's apprehension. Dr. King had been shot at 6:01 p.m. on April 4, 1968, at the Lorraine Motel in Memphis, Tenn. Within moments, members of the Memphis Police Department were at the scene. The Memphis field office of the FBI was notified, and Special Agent-in-Charge Robert Jensen contacted Washington headquarters. Jensen recalled that he was put through to DeLoach. (86) who in turn notified Director Hoover. (87)
As the news of the assault on Dr. King was moving through the FBI's command structure, Attorney General Clark was first contacted, he believed, by a Justice Department community relations specialist who was with Dr. King at the time. (88) A short time later, Clark was in telephone contact with DeLoach and thereafter with Hoover. A decision was made, apparently almost automatically, to involve the FBI immediately in the investigation. Later that evening a memorandum was sent from the Justice Department to the FBI ordering "a full investigation" into the possible violation of 18 U.S.C. 241. (89)
The committee's inquiry revealed that the FBI had no specific written guidelines in 1968 for the conduct of an assassination investigation. FBI files as well as committee interviews reflect, however, that the investigation was treated from the beginning as a "major case" or "special" investigation. Additional administrative personnel and agents were assigned to Memphis during the initial stages, including an accountant to maintain nationwide cost figures on the investigation.(90)
A 24-hour deadline was imposed on all field offices for checking leads and a reminder system was set up at headquarters to monitor compliance with the deadlines.(91) On April 7, 1968, an "All SAC" memo was issued from headquarters with instructions similar to those normally issued in "major cases" investigations:
All investigations must be handled under the personal direction of the SAC. Leads are to be afforded immediate, thorough investigative attention. You must exhaust all possibilities from such leads as any one lead could result in the solution of this most important investigation. SAC will be held personally responsible for any failure to promptly and thoroughly handle investigations in this matter. (92)Finally, in further recognition of the special nature of the MURKIN investigation, the FBI sent an inspector from headquarters to oversee progress in key field offices. (93)
Following these initial administrative steps, there was, according to FBI files, a widespread and extensive effort to identify and apprehend the assassin of Dr. King. Exhaustive field interviews and record checks were performed with every conceivable source of information-- banks, telephone companies, audit agencies. and police departments, as well as motor vehicle bureaus, motels and hotels, even dry cleaning establishments, and dancing schools.
Many early investigative breaks resulted from a thorough analysis by the Bureau of physical evidence, much of which had been found shortly after the assassination in a bundle that had been left in the doorway of Canipe's Amusement Co. on South Main Street, Memphis. Both a pair of binoculars and a .30-06 rifle were traced to their respective places of purchase. The binoculars had been bought in Memphis itself, (94) while the suspected murder weapon was traced to the Aeromarine Supply Co. in Birmingham, Ala.(95) Early ballistics tests on the rifle and the bullet taken from Dr. King's body during the autopsy revealed that while "the bullet could have been fired from the rifle found near the scene," the mutilation of the bullet made it impossible to state "that it was actually fired from this one rifle." (96)
Interviews with clerks at Aeromarine established that the rifle had been purchased on March 30, 1968, by an individual using the name of Harvey Lowmeyer. Lowmeyer was generally described as a "white male, 36 years old, 5 feet, 8 inches tall, 150 to 160 pounds, black or dark brown hair.(97) Finally, in a clear example of both the skill and detail of the Bureau's fugitive investigation, laundry marks found pair of undershorts and an undershirt in the bundle were traced specific machine model, and ultimately to a particular laundry. Within 1 week of the assassination, the as-yet unidentified suspect's use of the Home Service Laundry in Los Angeles had been established.(98)
Nevertheless, despite the extensive FBI effort, the suspect continued to elude authorities. On April 17, in order to secure an arrest warrant and additional publicity in the fugitive search, the Government filed a complaint with the U.S. Commissioner in Birmingham. It charged Eric S. Galt 14 "and an individual alleged to be his brother" with conspiracy to interfere with the constitutional rights of Martin Luther King, Jr. (99) A fugitive press release was issued with the complaint, and media distribution of the information and accompanying photograph was encouraged. (100)
14The suspect's use of the Galt name was established through examination of a registration card at the New Rebel Motel outside of Memphis. He had stayed there the night before the assassination. See "Investigative Report," XII HSCA- MLK hearings, para. 29.
While the Department of Justice and the FBI were trying to identify "Galt" by issuing a press release asking for public assistance, a fingerprint project was in progress at FBI headquarters. Almost immediately after the assassination, the Bureau had obtained unidentified latent prints of value from the rifle, binoculars, beer cans, and a copy of the Memphis Commercial Appeal, all of which were found in the bundle thought to have been dropped by the assassin shortly after the murder. An additional latent print was obtained from a map of Mexico discovered in an Atlanta roominghouse used by Galt shortly before the assassination. Comparisons revealed that prints on the Mexico map, the rifle, and binoculars were identical. Apparently made by a left thumb, the print was identified as "an ulner loop with 12 ridge counts." (101)
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(1) James Earl Ray identified.-- This and other prints taken from the evidence were compared unsuccessfully with known prints of approximately 400 suspects whose names were drawn from the FBI's single fingerprint file and from outstanding FBI identification orders. (102) Then, a systematic manual search of fingerprints records of fugitives was initiated, concentrating on a group with similar left thumb print characteristics. Shortly after the initiation of this process, and 15 days after the assassination, a positive match was made with the prints of James Earl Ray, a fugitive from Missouri State Penitentiary. (103)
The length of time it took the FBI to match the evidence prints to those of Ray has been the subject of public concern, so the committee closely examined the procedures that were used. The committee found the FBI's performance in the fingerprint check to have been thorough, professional and without defect. (104)
It is apparent from the review of FBI files that the identification of James Earl Ray was the termination point of a major phase of the Bureau's investigation. An inspector from headquarters who had been assigned to coordinate activities in the Memphis and Atlanta field offices was taken off the case; (105) and the Memphis field office was directed to phase out 15 agents and three stenographic clerks who had been assigned to it at the beginning of the investigation. (106)
With the positive identification of Ray, a number of investigative steps were repeated. A new press release was issued, with directions to all field offices to insure "repeated and widespread distribution. (107) Three days later, a directive was sent to all offices reemphasizing the 24 hour lead deadline and directing additional contact with criminal, racial and security informants to determine whether any possessed information on James Earl Ray.
For only the second time in Bureau history, approval was given for special addition to the Ten Most Wanted List.(108) Short appeals for public assistance in the fugitive investigation were drafted and approved for use on the April 21 and April 28 installments of "The FBI" on television. (109) And within a week of the positive identification, various institutions and officials had offered a total of $150,000 for information leading to the apprehension and conviction of Ray. (110)
Finally, the positive identification prompted additional field investigation at banks, telephone companies, credit agencies, police departments, car rental agencies, motor vehicle departments, dance schools,
hotels and motels, laundries, libraries, utility companies, selective service bureaus and labor unions. (111)
Despite the extensive nationwide effort, FBI files indicated a belief within the Bureau that the best chance for success in the fugitive investigation lay with Ray's family. Instructions were sent to the four field offices responsible for areas inhabited by key members of his family:
Full coverage is to be afforded relatives of subject residing in your respective territories. This will include a spot, surveillance of these persons as well as a determination of their associates and individuals making frequent contact with them. You should also obtain all long distance telephone calls from their residences for period April 23, 1967 to the present time. You should make this a continuing project until otherwise advised by the Bureau ... You should insure that each relative is adequately covered to possibly assist in the subject's location and apprehension. (112)In the weeks that followed Ray's identification, dozens of interviews with Ray's family members, including his brothers, occurred. A close examination of these interviews indicated, however, that their primary purpose (consistent with the directive quoted above) was to secure information on the whereabouts of the suspect, not to investigate the possibility of family involvement in the assassination.
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(2) Surveillance of Ray family considered.-- On May 9, 1968, the FBI, clearly concerned about its inability to locate Ray,(113) began to consider microphone and technical surveillance (bugs and wiretaps) of John Ray and Carol Pepper, Ray's brother and sister, at their homes and at the Grapevine Tavern, a St. Louis business they jointly owned and operated. The justification used in the authorization request 15 transmitted to the Justice Department on May 13 read as follows:
These installations could assist in the early apprehension of the subject, which could possibly be instrumental in reducing the stresses and tension placed on our national security subsequent to the death of Martin Luther King Jr.(114)The committee, after a thorough consideration of circumstances surrounding the surveillance request, was concerned about several aspects of the surveillance proposal.
First, the national security justification seemed, at best, to have been insubstantial, since the rioting that had been triggered by Dr. King's assassination had subsided. In addition, it is clear that the requested electronic surveillance, if installed, would almost certainly have been judged illegal under 1968 constitutional standards. The purpose stated explicitly in FBI memorandums, was to surveil the family in hopes of apprehending Ray and not to gather evidence of the commission of a crime by Carol Pepper or John Ray. (115) Moreover, as to Carol Pepper at least, there was no significant evidence in FBI files to indicate her involvement in any criminal activity. Absent a clear threat
15In early 1968, internal Department of Justice procedures required that electronic surveillance, whether by wiretap or bug, be submitted to the Attorney General for approval prior to installation.
to national security or probable cause as to the commission of a crime that might have justified an effort to secure a judicial warrant, no constitutional basis existed for the surveillance. Finally, a clear statutory basis for such surveillance did not become law until June 19, 1968.
It is clear that the FBI recognized these legal difficulties. In an internal FBI memorandum analyzing the legality of the proposed surveillance, it is stated:
The worst that could happen [if the proposed electronic surveillance were implemented] ... is that we illegally learn where the subject is located and thus are able to arrest, him on that knowledge ... The Court would not allow the prosecution to use as evidence any information obtained through the illegal surveillance but the illegal surveillance would not taint the use of any other evidence obtained either before or after and which was gotten in a legal manner. Nor, to repeat, would the illegality of the arrest alone resulting from whereabouts disclosed by unlawful surveillance, prevent the Court from trying the subject for the offense.16 (116)The memorandum continued and warning:
... that since this search and seizure is unconstitutional as to the Peppers, they have at least a theoretical cause of action for damages against those who installed the devices by trespass .... Moreover, in any such case the Government of the United States should surely be willing to pick up the tab for any judgment had against those who installed the microphones. (117)The initials of Assistant to the Director DeLoach and Associate Director Tolson appear on this memorandum.
The committee found that the willingness of the FBI to proceed with this investigative approach in the face of an internal legal analysis recognizing its unconstitutional nature reflected an absence of concern for the fundamental rights of the surveillance targets. In addition, the proposal was a clear indication either of the Bureau's failure to consider seriously the possibility of conspiratorial involvement by members of Ray's family, or of its reckless disregard for the damage that this investigative approach could have done to any later prosecution of Ray's brothers. Assuming, as FBI officials clearly did, the illegality of the proposed electronic surveillance, any evidence of conspiracy intercepted by the tap would have been inadmissible against individuals with standing to contest that illegality; in addition, the installation of an illegal tap or bug would have raised significant taint problems17 and seriously jeopardized the ability to use any subsequently developed evidence in a later conspiracy prosecution.
The problems that could have been created by the FBI's proposal never materialized. While Attorney General Clark had no recollection
16This memorandum appears in full as MLK exhibit F-502, VII HSCA-MLK hearings.
17A problem arises when the defendant in a criminal prosecution argues that evidence is inadmissible against him because it was developed as a result of, or "through the exploitation of," prior illegal conduct by the Government. If this conduct can be shown, the evidence is said to be "tainted" and is inadmissible against the defendant.
of receiving or acting on the request, it seems clear from the files and from interviews that the proposal sent to the Justice Department was neither authorized nor implemented. The FBI case agent for the assassination investigation in St. Louis field office, which had jurisdiction for the area of the proposed electronic surveillance, told committee investigators he authorized no electronic surveillance in the MURKIN investigation. He stated specifically there were no surreptitious entries into the Ray family residences or the Grapevine. (118) In addition, the committee's review of the St. Louis field office files and of the FBI headquarters MURKIN files produced no evidence of implementation of the electronic surveillance.
In a June 11, 1968, memorandum to Attorney General Clark, Director Hoover withdrew the May 13 request for electronic surveillance in light of Ray's apprehension in London. (119)
When questioned in public hearings, former Assistant to the Director DeLoach stated that the opinion of the Division and the attorney who provided the legal analysis of the proposed electronic surveillance was apparently that this investigative step would have been illegal. (120) He also acknowledged that his initials appeared on that memorandum (121) and that he had reviewed the memorandum at the time.(122) When asked by staff counsel to explain this attempt by the FBI to use what was analyzed and recognized by FBI headquarters as unconstitutional and illegal electronic surveillance in the assassination investigation, DeLoach responded:
DELOACH. My only answer ... is that I did not recall these memoranda. You have given me the opportunity of reviewing them. I recall none of the circumstances surrounding them. The Department of Justice makes the legal determination insofar as the FBI is concerned. The FBI was following an investigative lead through the Department of Justice and the Department of Justice had the responsibility of either accepting it or turning it down in accordance with the rules of the United States as understood by the Attorney General.
STAFF COUNSEL. Would it be fair to conclude from these memos that the FBI in recommending this investigative step was willing to engage in what it recognized as a violation of constitutional rights of the Peppers and perhaps of other people in order to achieve the investigative ends of the proposal?
DELOACH. The conclusion I draw from it is the FBI was very seriously concerned about the national security of the United States by the incident I mentioned previously and the fervent desire to apprehend the man responsible for the assassination of Dr. King. They followed an investigative lead to the Attorney General, and the Attorney General would make a decision as to whether or not this would be productive. (123)Efforts to secure precise, information on Ray's location from the family did not meet with immediate results. Nevertheless, in a May 9 interview in St. Louis, John Ray reported that James had mentioned an intention to leave the country if he escaped and that he had indi-
cated, on one occasion, admiration for Rhodesian Prime Minister Ian Smith.(124) On May 10, based on the interview as well as on other independent evidence of Ray's interest in African countries,(125) FBI headquarters initiated a passport review in the Washington field office. (126) It was directed initially at the 2,100,000 applications that had been filed since April 1967, the month of Ray's escape from Missouri State Penitentiary. Washington requested Canadian authorities to review Canadian passports records. (127)
(3) Ray arrested in London.-- On June 1, a break occurred when possible photographic match of Ray turned up in the Canadian passport of George Ramon Sneyd. RCMP officials determined from the Kennedy Travel Bureau in Toronto that "Sneyd" had purchased a Toronto-London-Toronto airlines ticket, with a scheduled departure of May 6, and return on May 21, 1968. Meanwhile the FBI ascertained through fingerprint comparisons that Ray and "Sneyd" were, in fact, the same person. (128) One week later, at 11:11 a.m. on June 8, 1968, Ray was arrested in Heathrow Airport in London.
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(c) The conspiracy investigation
The conclusion reached by the Justice Department and the FBI following their investigation was that James Earl Ray, acting alone, killed Martin Luther King, Jr. In interviews conducted and testimony taken by the committee, no dissent from this conclusion was voiced. Director Hoover's views on the question of conspiracy were clearly stated in a memorandum he wrote on June 20, 1968, summarizing a discussion with Attorney General Clark. At one point during the conversation, Hoover said, "... in Ray's case, we have not found a single angle that would indicate a conspiracy." Later in the discussion, he added his personal opinion that "he [Ray] acted entirely alone," but then assured the Attorney General that "we are not closing our minds that others might be associated with him and we have to run down every lead." (129)
Clark, in an interview with the committee, indicated his agreement with Hoover's views, adding that the Bureau was probably more inclined to view the assassination in conspiratorial terms than he was. As Clark explained, he believed instinctively that Dr. King's death was the act of an eccentric racist loner. He said he believed that Ray's reference to a brother with respect to the rifle exchange in Birmingham the week before the assassination (a, remark that was to provide the factual basis for a Federal conspiracy complaint filed in that city approximately 2 weeks after the assassination) was merely an excuse created by the assassin on the spur of the moment, rather than sound evidence of conspiracy. (130)
Clark characterized the evidence developed during the investigation in the following manner:
I don't recall any presentation of evidence as distinguished from the circumstances that ever implied direct involvement of another person, and simultaneously I believe I saw an enormous amount of evidence of the direct participation of single person whose identity was fairly consistently established because I felt I should go on the facts available rather than the circumstances. (131)Page 450
Despite the ultimate conclusion of officials in both the Justice Department and the FBI that no conspiracy existed in the assassination, FBI investigative files reflect throughout a consciousness of the possibility of a conspiracy. For example, on April 26, 1968, 3 weeks after that assassination and subsequent to Ray's identification, the FBI documented from a complete review of the King security file some 50 prior threats on Dr. King's life. These threats were set out in investigative leads and transmitted to the appropriate field office for resolution, accompanied by the following instructions:
The main file on King has been reviewed at the Bureau and leads are being sent out concerning persons involved in prior threats against King. These leads as well as leads concerning any other suspects developed from any source must be given immediate and thorough handling on a top priority basis. Process has been obtained against James Earl Ray and extensive investigation is continuing to locate Ray and to establish motive of crime. You have been and will be furnished information relating to other possible conspirators. These must all be thoroughly resolved no matter how remote. (132)Moreover, a review of FBI investigative efforts following Ray's arrest revealed that while there was a significant overall reduction in Bureau expenditures at about this time,18 a limited number of additional conspiracy leads were still pursued. The major, postarrest effort, an attempt to determine the source of Ray's funds through an intensive reinvestigation of the July 1967 bank robbery in Alton, Ill.,19 stemmed almost entirely from the Bureau's awareness that Ray's extensive expenditures during 14 months of freedom strongly suggested his association with unidentified individuals.
In addition, FBI files reflected efforts over the months following Ray's arrest: (1) to identify possible criminal associates through rechecking the registrations at the New Rebel Motel in Memphis just before the assassination and at motels, hotels and roominghouses in Birmingham for the time period of the rifle purchase; (133) (2) to investigate the possibility that a Louisiana State policeman was the mysterious Raoul; (134) and (3) to interview Ray himself on the issue of conspiracy. Thus, while officials in both the Justice Department and the FBI were rapidly reaching a unanimous no-conspiracy conclusion, at least a limited amount of conspiracy investigation continued after Ray's arrest.
Despite these efforts, the committee found serious defects in both the method and focus of the FBI's conspiracy investigation.
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(1) The method.-- First, conspiracy leads were at times resolved simply by establishing a potential coconspirator's alibi during the period of March 29 to April 4, 1968, designated by the FBI as the "pertinent period" of the assassination investigation.(135) The inadequacy of this approach is demonstrated by the FBI's own case
18See MLK exhibit F-500 (committee diagram of FBI expenditures in the investigation), VII HSCA-MLK hearings, 6.
19The committee concluded, after a review of FBI files and an extensive field investigation, that Ray's most likely source of funds during the preassassination fugitive period was, in fact, the Alton bank robbery. See section II B of the final report.
against Ray, which had produced evidence that his plan to kill Dr. King had begun to take form before March 17, 1968, while he was still a resident of California. The notion that a conspiracy suspect can be absolved by establishing his absence from the scene of a crime or his nonparticipation in an overt act (the rifle purchase) reflects an erroneous view of the law of conspiracy. In 1968, as in 1978, conspiracy prosecution requires only an agreement and one subsequent overt act by any of the parties in furtherance of that agreement. Proximity to the scene of the crime, while clearly relevant and significant is not the ultimate issue.
Second, while there was a general canvass of "all racial, criminal and security reformants" at various stages of the investigation, (136) FBI files indicate only limited efforts, independent of specific leads, to investigate the possible involvement of extremist organizations such as the White Knights of the Ku Klux Klan of Mississippi or the Minutemen, even though they had demonstrated both a propensity for violence and a clear antagonism toward Dr. King.
For example, the Bureau received evidence of Ray's possible involvement with the United Klans of America when Ray, after his arrest in London, chose Arthur Hanes, St., as his defense counsel. Hanes was well known for his defense in 1965 of Klansmen charged with the murder of civil rights worker Viola Liuzzo. In addition, informant information was subsequently received indicating that the UKA might become involved in the funding of Ray's defense. Nevertheless, no concerted effort was made to pursue the conspiratorial implications of this information. Additional steps might have included a cross check of Bureau hate-group indexes against Ray's known or possible associates or taking of sworn testimony from Klan officials through the use of a grand jury subpoena and immunity grants. 20
Third, FBI and Department of Justice files reflect almost total reliance on field interviews as a means of resolving issues relevant to the overall conspiracy investigation. At no time was a grand jury used to supplement the investigation of numerous conspiracy allegations, despite circumstances which the committee believed may have been appropriate for grand jury investigation. Some examples:
Ray's possible association with a Missouri State penitentiary inmate organization was left essentially unresolved. Extensive field interviews with MSP associates and former associates of Ray confirmed the existence of the group, but "failed to ascertain information concerning the principles or membership or the extent of its network."(137)
The use of a grand jury to explore this lead--a logical step following the unsuccessful interview process--was apparently never considered.
Similarly, the FBI's investigation of a CB radio broadcast heard in Memphis shortly after the assassination, thought by some to have been an effort to divert, police attention and facilitate the flight of the assassin, was terminated with attention focused on one individual who flatly denied involvement in the incident. Authorities evidently never considered placing this individual before a grand jury for testimony under oath.2120See II C for a summary of the committee's investigation of this and several other leads suggesting the involvement of extremist groups in the assassination.
21See sec. II C for summary of the committee's investigation of the CB broadcast.
Also, the possibility of Ray family involvement in the assassination could have been explored by a grand jury and the judicious use of immunity grants. Nevertheless, the FBI and the Justice Department were satisfied to resolve the issue solely through field investigation.22 (138)
When questioned concerning the failure to use the grand jury during the assassination investigation, Assistant to the Director DeLoach offered the following opinion concerning its usefulness:
[T]he grand jury would be laborious, inefficient, might perhaps slow down the investigation, when we were looking throughout the world as intensively as we could for James Earl Ray and would be of little usage ... I think [if] we had established the grand jury investigation during the fugitive investigation, [it] would have taken the time of officials of the Department of Justice, and I doubt very seriously whether it would have been productive, as later investigation has more or less established.(139)
... the matter of an establishment of a grand jury is entirely up to the Department of Justice. Based upon the facts furnished to them by the FBI, the FBI could not in my opinion, to the best of my recollection. go to the Department of Justice and say we want a grand jury. It is not up to the FBI to do that. We are an investigative agency. We determine the facts, the Department handles the prosecution, they determine whether or not a grand jury is to be established.(140)The committee found DeLoach's remarks well taken.
When asked further, however, why this technique had not been used following Ray's arrest, "in order to determine whether ... there might have been associates of Mr. Ray involved in the assassination," (141) DeLoach responded that after the Justice Department turned down an FBI request to use a grand jury subpoena to secure the notes of author William Bradford Huie, the feeling must, have been that the Justice Department was opposed to the use of the grand jury generally in the investigation.
I am testifying strictly based on opinion. But I would certainly think that, after a turndown by the Department of Justice in this one instance, this spread the philosophy that would have kept the FBI from making further requests for grand jury investigation. It would appear the philosophy of the Department of Justice was there should be no grand jury investigation. (142)In light of the specific legal grounds for the Department's decision, however, the committee found DeLoach's explanation for the absence of further FBI proposals for grand jury work to be inadequate.23
Former Attorney General Clark testified there was simply no situation in the investigation which warranted grand jury investigation:
22See sec. II B for summary of committee's investigation of family involvement in the assassination.
23A discussion of the proposal to subpoena Huie's notes appears in "Investigation Report," XIII, HSCA-MLK hearings.
...I do not recall any suggestion that a grand jury would have utility, any proposal that a certain person be put before a grand jury. The impression I had was that we had hundreds, maybe even thousands, of FBI agents trying ... to see whether they could pick up a trace of the guy who led us to believe he might be in hippie areas of different towns, of hundreds of agents looking through millions of passport applications, and things like that. I didn't see a grand jury utility. It never--nothing I ever heard or saw or have seen indicates it would have had any utility. (143)The committee noted that on June 19, 1968, after several years of uncertainty concerning the legality of electronic surveillance as a criminal investigative tool, Congress passed title III of the Omnibus Crime Control and Safe Streets Acts of 1968. It permitted the use of court-authorized electronic surveillance by law enforcement officers in certain enumerated crimes, including murder.24 Nevertheless, in signing title III into law, President Johnson announced that the administration's established policy of confining wiretapping to national security cases would continue in force. (144) Ironically, a law which was passed in part because of Dr. King's assassination (145) could not be considered by the FBI during the investigation of that crime.
The committee, in making this observation, did not take a position on the desirability of the use of electronic surveillance generally in society. It merely noted that President Johnson's decision, as implemented by Attorney General Clark, (146) placed one more potentially crucial limitation on the investigation of conspiracy in Dr. King's assassination.
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(2) The focus.-- Of far greater potential significance than the defects that have been noted was the failure of the FBI and the Justice Department to focus a concerted effort on Ray's family, specifically his brothers, during the conspiracy investigation. Absent any extrinsic evidence, family members of the suspected triggerman deserved at least some investigative attention, given the significant amount of direct and circumstantial evidence received by the FBI during the months following the assassination that strongly suggested a great deal more contact among the three brothers than they were willing to admit. The failure to pursue this area more aggressively constituted a serious defect in the overall investigative effort.
Because the evidence implicating the brothers has been reviewed previously,25 no effort will be made to repeat the specifics. It is adequate to say simply that within a relatively short time after Dr. King's assassination, the FBI had collected evidence of possible family involvement from a number of separate sources including:
Reference by James Earl Ray to a brother being involved in the critical preassassination activities, most significantly the purchase of the rifle;24The potential for imaginative investigative efforts provided in this act in murder investigations has been noted in the Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, pp. 150-151 (1976)
25See section II B of this report; see also "Investigation Report," XIV HSCA-MLK hearings XII.
Strong signs of racism exhibited by both John and Jerry Ray,
The probable involvement of John in James' escape from the Missouri State Penitentiary;
The probable involvement of James, John and possibly Jerry in the Alton bank robbery; and
Statements by Jerry indicating his knowledge of a possible $100,000 payoff for the assassination.Finally, with publication of Huie's Look magazine articles in November 1968 and his book, "He Slew the Dreamer," striking coincidences appeared between the timing of Ray's claimed involvement with Raoul and his preassassination dealings with a brother, raising the strong possibility that Raoul was created to conceal Ray's association with one or both of his brothers.
Clearly this evidence warranted a major and concerted effort by the FBI and the Civil Rights Division of the Justice Department to determine the extent and the nature of Ray's actual preassassination contact with his brothers. In fact no such concerted effort was made.
It cannot be said that the Bureau ignored the Ray family in its investigation. As has been indicated previously, an intense effort was made to secure assistance and information from various family members during the prearrest fugitive investigation, and during this period the brothers were interviewed on numerous occasions concerning the suspect's location.26 In fact, at one point the Bureau's preoccupation with the fugitive investigation became so great that a recommendation was made for the use of illegal electronic surveillance on John Larry Ray and Carol Pepper in an effort to locate the subject. Had such a tactic been implemented, any subsequent conspiracy case against family members could have been seriously jeopardized.
Nevertheless, with the exception of comparisons of the fingerprints(147) and palm prints of the two brothers with unidentified latent prints, an effort to verify Jerry Ray's alibi for April 4, 1968, (148) and the posing of some interview questions arguably connected to a conspiracy investigation, investigative files reflected no significant efforts to determine the extent of their involvement with James in the assassination.
No effort was made, for example, to determine if the 1967-68 travels of either brother coincided with those of Raoul, as Ray related them. Such an effort might have included motel and airline canvasses for Ray brother aliases and employment verifications for appropriate periods.
Similarly, no effort was made, other than through direct questioning of the brothers themselves, to establish the alibis of either Jerry or John during the time of the rifle purchase. John's alibi, even for the day of the assassination, went unchecked. The Bureau did cover this ground routinely with other conspiracy suspects. Further, Jerry Ray's statements in June 1968 27 and again in March 1969, indicating knowledge of a conspiracy were not adequately pursued. He made his March 1969 remarks to Kent Courtney, publisher of the Conservative Journal in Louisiana. He indicated that he would discuss the "conspir-
26The FBI interviewed relatives of James Earl Ray approximately 100 times. Jerry Ray and John Ray were interviewed approximately 20 times each.
27See MLK exhibit F-606 (June 11, 1968 FBI interview), VII HSCA-MLK hearings, 457.
acy" with Courtney in a meeting on March 20, 1969.(149) Despite Courtney's apparent willingness to cooperate with the Bureau,(150) no consideration was given to the use of consensual electronic surveillance or of an undercover FBI agent during Jerry's discussion with Courtney. Rather, a decision was made--based on "background data" on Courtney and a consequent fear of Bureau embarrassment--to conduct yet another field interview with Jerry Ray. (151) However, when Jerry Ray refused to be interviewed, Bureau efforts to pursue the lead ceased.
FBI files revealed no efforts to investigate the associates of Ray's brothers either through direct, saturation interviews, or through the development of an informant apparatus. Thus, Ray's possible connection with a conspiracy through one of his brothers was not thoroughly investigated. Given the criminal nature of many of John's associates, this might well have required the use of a grand jury and immunity grants, investigative tools which might have been useful in the additional areas of John's probable involvement in the MSP escape and in the Alton bank robbery in July 1967. Some of this grand jury and immunity work could have been accomplished without violating a Justice Department policy against compelling testimony of a family member or facing the issue of immunity with either of the brothers.
The committee also sought to evaluate the performance of the FBI in investigating a St. Louis conspiracy involving John Sutherland and John Kauffmann that subsequently came to light.28 The object was to determine if the information should have been uncovered by the Federal authorities during the original investigation. The findings were as follows:
There was credible evidence developed from a police informant in St. Louis in the 1960's, a man who holds a respectable position with a major manufacturing company that an offer of money for the murder of Dr. King was in fact known in the 1966-68 period. Specifically, it was circulating among individuals who spent considerable time during the period at a motel owned by John Kauffmann. (152)Circumstantial evidence also indicated that the offer may have been communicated to a person who did undercover work for several Federal agencies.29
Nevertheless, information about the conspiracy was not developed by the FBI until 1974, and then, apparently due to an agent's error, the information was misfiled and not actively pursued.30
Had a more rigorous conspiracy investigation been conducted in 1968, the existence of the St. Louis based conspiracy might have come to the attention of the Bureau and the Department of Justice at the time when it could have been successfully investigated. The ability of the committee to investigate the St. Louis conspiracy and Ray's possible connection with it was severely hampered by the passage of so much time and the deaths of principals.
28See section II B.
29During executive session testimony before the committee, this witness denied knowledge of the Sutherland/Kaufman conspiracy. Other evidence received by the committee made it skeptical about this denial.
30See section II B, supra, for discussion of the FBI's misfiling.
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(d) Investigative excesses
As was discussed, the FBI's attempt to use electronic surveillance during the fugitive investigation reflected a lack of concern for tile constitutional rights of persons targeted by the proposed surveillance. FBI files reflected a similar lack of respect for the constitutional rights of the defendant, James Earl Ray, in two separate incidents following his arrest and return to Tennessee to stand trial for murder.
Prior to his return to the United States, Ray retained Arthur Hanes, Sr., to represent him. Hanes was Ray's primary attorney until November 10, 1968, when Ray replaced him with Percy Foreman.
On September 18, Hanes filed a motion before Judge W. Preston Battle seeking to modify various aspects of his client's conditions of confinement. During an evidentiary hearing on September 30 to determine the facts underlying the motion, testimony was taken on various subjects, including the methods used to monitor Ray's mail. A representative of the Shelby County Sheriff's Department stated that Ray's general mail was read and censored, but he then assured the court that written material passing between Ray and his attorney was perused for security purposes only, and was not read to determine the contents. (153)
Following the hearing, Judge Battle memorialized this procedure in the form of a judicial order, and in a teletype sent from the FBI's Memphis field office to Washington, the essence of the court's ruling was conveyed as follows:
Judge Battle ruled that written notes exchanged between Ray and his attorney are privileged. However, the Shelby County sheriff or his designated agent has the authority to peruse these notes to determine if there is any attempt to breach security of the jail. These notes should not be perused for the purpose of ascertaining the full contents of the message.31 (154)Despite the FBI's clear understanding of Judge Battle's order, however, within a month of its issuance, three letters from Ray to Hanes had been intercepted, photocopied, passed to the FBI's Memphis field office and transmitted to FBI headquarters in Washington.32 (155) On one occasion, the covering-memorandum sent to Washington directed the reader's attention to particularly interesting parts of the letter:
Of significance, Ray in his letter to Hanes requests that Mr. Huie not go to any of the addresses in Miami until after the trial. In this connection, Ray also states "that part of the story just covers a few days anyhow and is not too important."(156)Robert Jensen, SAC in Memphis at the time, conceded in interviews and executive session testimony that his signature or initials were on memoranda transmitting two of the three letters (157) and speculated, although he could not recall definitely, that the source of the letters
31See MLK exhibit F-503, VII HSCA-MLK hearings, 14.
32These three separate letters, and accompanying FBI memoranda, appear as MLK exhibits F-508, F-509 and F-510, VII HSCA-MLK hearings, 81, 83, 86, respectively.
was Shelby County Sheriff William N. Morris. (158) When interviewed by the committee, Morris did not deny the mail photocopying had occurred, but stated he had no recollection of specific details surrounding the situation. (159) Jensen testified further that he believed the letters were volunteered to him, rather than having been solicited by the Bureau. (160) He had no recollection of informing the State prosecutor or defense counsel of his receipt of the letters, (161) and he did not consider the possibility that receipt of privileged information might taint the prosecution. (162) He explained the situation as follows:
Where the U.S. Government or the FBI or the Justice Department has an interest in a matter and I am volunteered information relative to the matter, I am afraid that I would accept it, and I think this is what happened in this case. (163)During his testimony before the committee, Assistant to the Director DeLoach stated that while he had no personal knowledge of the mail interception, he believed the intent of the Memphis office was to peruse the documents for security reasons only,(164) as allowed by the court order.
The committee found DeLoach's explanation completely unsatisfactory. First, such an explanation was not offered by Memphis SAC Jensen, who was directly involved in the mail interception. Second, as DeLoach conceded during his testimony, the FBI "had no responsibility ... for the custody of Ray at the time." (165) Third, if the Memphis office was interested solely in detecting breaches of prison security, there would seem to be no reason to highlight portions of Ray's letters in which he wrote of "addresses in Miami," or in fact to photocopy and transmit the correspondence to FBI headquarters in Washington.
The inherent confidentiality of communications between a defendant and his attorney is a fundamental principle of American jurisprudence. It stems from fundamental individual rights established in the Constitution. The FBI's Memphis office was aware of a specific court order reinforcing the significance of the principle. Even if the FBI did not initiate the mail interception process, its willing and repeated receipt of letters sent by the defendant to his attorney showed a total disregard for Ray's right to privacy during the preparation of his trial defense and encouraged an activity by local officials that was both illegal and unconstitutional. The committee found no justification for such conduct by Federal agents.
On October 31, one month after Judge Battle's order, FBI headquarters, using a carefully worded directive initiated by Associate Director Tolson, Assistant to the Director DeLoach, Assistant Director Rosen and others, instructed the Memphis office as follows:
In view of the above order of W. Preston Battle [referring to Sept. 30, 1968 order, you should not accept any written communication from the sheriff regarding correspondence between Ray and other individuals. If it is not in violation of the court order you may accept information from the sheriff if he volunteers this information and it is on an oral basis only. (166)Page 458
With the receipt of this directive, the Bureau's practice of receiving photocopies of Ray's correspondence apparently ceased. There was no evidence in files reviewed by the committee that knowledge of the operation, or of information found in the intercepted mail, spread beyond the Memphis field office and FBI headquarters in Washington. 33
Another illustration of the Bureau's lack of concern for the constitutional rights of James Earl Ray, as well as insensitivity to legal issues that may have arisen in subsequent trials, occurred after James Earl Ray had entered his guilty plea on March 10, 1969. Immediately following the plea, Assistant Attorney General Jerris Leonard of the Civil Rights Division (who had replaced Stephen Pollak with the change of Presidential administrations in January 1969) instructed the Bureau to consider various approaches to obtain information Ray might possess on conspiracy. Alternatives considered included an immediate interview,(167) an interview at some later date, and testimony under oath before a Federal grand jury. The action was being taken in light of President Nixon's reported plan "to take the position in a future press conference that the Federal Government was continuing to give intensive interest to the possibility of the existence of a conspiracy." (168)
Following some discussion, a decision was made to attempt an immediate interview of Ray. The Memphis field office contacted Shelby County District Attorney Phil N. Canale, Ray's attorney, Percy Foreman,34 and Harry Avery, Commissioner of the Tennessee Department of Corrections. Foreman approved the interview of his client, (169) and neither Canale nor Avery raised objections.
The interview itself was conducted by Memphis SAC Jensen. Authority for the FBI to conduct the interview was given by D. Robert Owen, (170) Deputy Assistant Attorney General of the Justice Department's Civil Rights Division. In an interview with the committee, Owen recalled no consideration of the possibility of having a Department attorney present during the interview. Director Hoover gave specific instructions that results of the interview be given to him prior to dissemination to the Department. (171)
Jensen's interview with Ray lasted 50 minutes. It covered a variety of topics, including Ray's dissatisfaction with his attorneys, his plans to reopen his case, Charles Stephens, Charles Stein. "The FBI" television show, fingerprints on the rifle and Inspector Thomas Butler of Scotland Yard. Ray provided no evidence supporting the possibility of a conspiracy.
Ray was not accompanied by an attorney during the interview, nor was he informed specifically of his right to have a lawyer present; his right to terminate the interview at will; his right to remain silent; to have the Government pay for a lawyer if he could not afford one; or the Government's ability to use his statements against him at a later date (Miranda rights). In an interview with the committee, Jensen
33A review of the Miami field office MURKIN files, for example, reveals no lead sent out from Washington or Memphis following Ray's mention of "Miami address" in his letter to Hanes.
34Ray was taking steps at this time to replace Foreman with court-appointed attorneys to handle an appeal from his guilty plea. No attorney had yet been appointed.
confirmed that he did not advise Ray formally of his Miranda rights, explaining that surrounding circumstances, including Ray's extensive criminal record, indicated that he was aware of his rights without formal notification. Moreover, Jensen stated that the interview was not a hostile one, that he had called the guard to terminate the interview when Ray stated he wished to leave, and that he changed the subject matter of the interview when Ray refused to continue along a specific line. (173)
Accepting the accuracy of Jensen's recollection, the committee was disturbed by his failure to consider the implications of interviewing Ray without prior advice of his Miranda rights, as well as by the lack of concern for the defendant's constitutional rights as evidenced by this interview procedure. This interview of Ray was the first official effort to gain information on the possibility of conspiracy from the self-confessed assassin. The ability to use any of Ray's statements in a conspiracy case against him would have depended on the Government's ability to survive a motion to suppress the statements that would automatically be filed by a defense counsel.
The committee recognized that many law enforcement officials believed
the administration of Miranda rights inhibit a person from
freely divulging information he may possess. Jensen may well have
believed that he would be able to establish a more productive rapport
if he omitted the formal warnings. While this argument is not without
merit, the committee believed that the fundamental protections designed
to be achieved by the administration of Miranda warnings
required that they be given to Ray in this case, regardless of competing
strategic considerations. (174)
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The FBI's investigation of Dr. King's assassination exemplified, at times, the best of police work. Efforts first to identify and then to locate and apprehend Ray represented the work of thousands of agents on a national and international scale. In addition, close coordination was required with law enforcement authorities in Mexico, Canada, and Europe. At times the work was meticulous and tedious; ultimately, the fugitive investigation only can be categorized a success.
The committee received testimony indicating that the major effort made by the Bureau in the investigation, apprehension, and prosecution of Ray may well have reflected Director Hoover's concern that failure might be attributed to his well-publicized animosity for Dr. King. In executive session testimony before the committee, former Attorney General Ramsey Clark stated:
I had the strongest, clearest conviction that the FBI would do everything in its power to investigate this case quickly, effectively, and successfully, and it wasn't just logic. It was, I mean, my total being, told me that the thing Mr. Hoover really loved most, the Bureau was on the line here, and that if they couldn't produce here where many would suspect their concern that their failure would do more damage to them in the minds of the people than any other case they had worked on. (175)Page 460
Similar sentiments were voiced by other officials from both the Justice Department and the FBI. (176)
Ironically, this explanation for the best in the investigation may also explain the worst. The disturbing investigative "excesses" detailed above--including the proposal of illegal electronic surveillance, FBI participation in an ongoing process of mail interception at the Shelby County jail, and the failure to administer Miranda rights prior to Ray's post-guilty plea interview--may well also reflect the importance placed on the case by Director Hoover. While the committee stresses that it had no direct evidence to this effect, it is clear that in all three incidents a priority was placed on investigative breaks with a simultaneous tendency to overlook the constitutional rights of the parties involved. It seemed reasonable to assume that this reflected, at least in part, pressure from above.
Bibliographic note: Web version based on the Report of the Select Committee on Assassinations of the U.S. House of Representatives, Washington, DC: United States Government Printing Office, 1979. 1 volume, 686 pages. The formatting of this Web version may differ from the original.
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