Interview with Burke Marshall
Interview with Burke Marshall


Production Team: A, B, C

Interview Date: November 4, 1985
Interview Place: New York, New York
Camera Rolls: 148-159
Sound Rolls: 1124-1130

Interview gathered as part of Eyes on the Prize: America's Civil Rights Years (1954-1965).
Produced by Blackside, Inc.
Housed at the Washington University Film and Media Archive, Henry Hampton Collection.
Editorial Notes:

Preferred citation:
Interview with Burke Marshall, conducted by Blackside, Inc. on November 4, 1985, for Eyes on the Prize: America's Civil Rights Years (1954-1965). Washington University Libraries, Film and Media Archive, Henry Hampton Collection.

These transcripts contain material that did not appear in the final program. Only text appearing in bold italics was used in the final version of Eyes on the Prize.

INTERVIEW
FILM PRODUCTION TEAM:

Sound Roll 1123

CAMERA CREW MEMBER:

THIS IS ROLL 11, 11 UH, 23. OK, THIS IS UH, CAMERA ROLL 148, UH, EYE ON THE PRIZE, 1130 UH, 85, NEW YORK CITY.

Burke Marshall:

The uh, when, when the Kennedy Administration started, the only uh, statutory authority that it had through the Department of Justice, was, was uh, in voting rights. So that the first goal of the Department of Justice was to bring a whole lot of voting rights cases, and we geared up to do that and we started to do that. The President was committed in the campaign uh, to do whatever he could do by executive action - the term executive action is sort of a key word to the goals of the Kennedy Administration in 1961. And uh, he had promised uh, other executive actions: a housing order, he uh, he executed in 1961, [ a ], uh, employment order for, uh, federal government and, and for federal contractors. And they committed a uh, sub-cabinet group on civil rights that met quite frequently and did various things to try to move ahead the uh, civil rights movement.

QUESTION 1
INTERVIEWER:

[unintelligible]

Burke Marshall:

No, well, she's a woman of such enormous dignity.

QUESTION 2
INTERVIEWER:

DID SHE ALWAYS HAVE THAT DIGNITY? DID SHE [?]. . .?

Burke Marshall:

Oh, oh, I think so, uh, her family came, ca- uh, uh, not, not a hi- not a very populated island, it starts with an A, it starts with An- …

QUESTION 3
INTERVIEWER:

ANTIGUA?

Burke Marshall:

No, it isn't Antigua. . .lots of family there. I took, I, I spent a day with. . .

CAMERA CREW MEMBER:

THIS IS, UH, SOUND ROLL UH, 1124, TAKE UH, 10.

Burke Marshall:

Well, the, the sit-ins and demonstrations are sort of different. Uh, the, the sit-ins which started in 1960, basically, were uh, sit-ins at lunch counters typically, at uh, department stores and so forth, that s- that served black people everywhere except where they, and uh, that was a problem that couldn't be handled legally at all. There was a great deal of litigation over the legality of arrest of students that were sitting. And the Supreme Court, I think, by 1965, had about 3,000 cases which were involving sit-ins. Uh, the Department of Justice participated in every case that came up to the Supreme Court involving a sit-in, and we always participated on the side of the civil rights movement participants on different theories. I mean on one case we'd have one theory, another case we'd have another theory, but there was no sort of strong clear constitutional principle, uh, that could be relied on. And there was no uh, statutory congressional framework could be, uh, that could be relied on. That, that was the reason, that was the whole reason uh, for Title 2 of the, uh, Civil Rights Act of 1964. President Kennedy, when he sent that down to Congress, said, and, and I said over and over again to the Con- to the civil rights workers, that the only way you can deal with this is by establishing the legal right to be there. You can't deal it by trying to restrain the police or, or talking the uh, uh, lunch counter owners into behaving differently. That, that, that just didn't work, and so you had to have a rule of law that had to come from the legislature that would apply to everyone, and put everyone in the same situation, so that nobody could get an advantage out of sort of breaking the pact to uh, to, uh break up that pattern of behavior of refusing service to blacks. Now the demonstrations, if you want me to talk about the demonstrations, are, [ are ] a different problem. Uh, that, that is a uh, a, a right to speech problem, and a lot of those arrests for demonstrating, for picketing, just walking quietly, peacefully up and down the street with a sign, saying "Don't, don't eat, don't where you, where uh, don't buy where you can't eat," something like that. And those were protected by the First Amendment. There was nothing the Department of Justice could do directly though, but again, we could participate in, in litigation once it started and we did do that.

QUESTION 4
INTERVIEWER:

TERRIFIC. WHAT, WHAT I, WHAT I WAS ORIGINALLY LOOKING FOR, UM. . . [unintelligible]

CAMERA CREW MEMBER:

Take 11

QUESTION 5
INTERVIEWER:

[unintelligible]

Burke Marshall:

After they started, in fact, as far as I am concerned. . .[unintelligible] Oh, right, I'm sorry. The, the Justice Department, at least as far as I'm concerned, learned about Freedom Rides, after they'd gotten going. My own situation was that I had the Mumps, and therefore, I was out of commission for about a week. I would get uh, papers from the Department of Justice and sometime during the course of that week I got a clipping about what happened, I think in Rockdale, South Carolina, where there were, was arrest- John Lewis was arres- I think he was arrested, I think he was also, uh, beaten. Uh, but uh, the uh, Freedom rides, uh, didn't really come to our attention until Anniston, and then of course, when the bus was burned in Anniston, it came to our attention in a very, very uh, dramatic way.

QUESTION 6
INTERVIEWER:

[unintelligible]

Burke Marshall:

Well, I, I don't think, and I'm quite sure, he didn't meet with the Freedom Riders, uh, because I don't think he was aware of the Freedom Rides at all until I called him, uh, the day that the bus was burned at Anniston. Uh, now they might, uh, they probably did, send a copy of the press release to the Department of Justice. They might have sent a telegram. Uh, the way that would be handled in the Department of Justice would be in a bureaucratic way, and it would all depend on, on the foresight of some clerk or possibly some young lawyer, but most likely just the clerk, to, to read the uh, press release or the telegram and say: "This is important, somebody should look at it, somebody should see it." And as far as I know, that, that didn't happen, that whatever was sent by uh, the uh, uh, CORE about the freedom rides, was treated routinely, so it didn't come to my attention, it didn't come to the attention of John Doar, my first assistant, and although I can't ever be sure of such things, I'm quite sure it didn't come to the attention of either the Attorney General personally, or anybody in his direct office. It got stuck somewhere in the Civil Rights Division, I'm sure.

QUESTION 7
INTERVIEWER:

[unintelligible]

Burke Marshall:

Well, of course we, uh, immediately realized the seriousness of that situation. Uh, the burning of the bus in, in, uh, in Anniston, was followed, I think the same day, uh, by the burning, by the attack on the riders in another bus in Birmingham, so there were two events, they both happened on Sunday, and the Sunday was Mothers' Day, May 21, May 14th, something like that, the middle of May, 1961. And uh, as so, as soon as it happened, with the disruption of interstate movement in the United States uh, we realized that the matter had to be dealt with effectively and promptly. Uh, it was complicated to do that and we had to put a lot of things into motion to do it uh, but uh, the importance and urgency of the matter was, was, uh, recognized right off.

QUESTION 8
INTERVIEWER:

[unintelligible]

Burke Marshall:

Well, I guess we were outraged. I, uh, let me say this about the uh, uh, Department at that time – you know, uh, May uh, of 1961, I had just been confirmed by the Senate in my job. Uh, many of the lawyers in the civil rights division were young and had recently been recruited. They were recruited because they had a commitment to the cause of racial justice, but they didn't know anything, in a way, they had no experience uh, with, with the reaction that was going to take place to, against the movement for rac- racial justice. The Attorney General was new in his job, he hadn't had any experience in, uh, none of the other Assistant Attorney [ Generals ] had. I was out of a big law firm in Washington with a corporate practice, so that in a way uh, wh- when the uh, violence happened to the freedom rides, we were uh, outraged, but also sort of astounded uh, that people would have this kind of reaction, you know, pro- presumably, otherwise sane, sensible, rational uh, may, may be even sensitive people, have this kind of reaction simply, simply to where people were sitting in a bus. So it was sort of incomprehensible to us, but it brought home a reality of a problem that, that was dealt with from that time as long as I was in the Department.

QUESTION 9
INTERVIEWER:

[unintelligible]

Burke Marshall:

The FBI had information, it turns out, uh, that was quite specific about what was going to happen in Birmingham. They might have had uh, similar information about what was going to happen in Anniston, but I'm not sure of that. But they clearly had advance information from Klan sources uh, that the uh, Freedom Riders were going to be attacked in the bus station at Birmingham, and that the Birmingham police were going to absent themselves and not do anything uh, to protect the riders. The Bureau knew that. Uh, the Bureau didn't pass that information along to anybody in any other part of the Department;** they didn't inform the Civil Rights Division; they didn't inform the Attorney General; they didn't inform anyone until after the event. Now, uh, the reason that they didn't do that, may be partly, uh, sort of a historical statistic that they, they didn't understand what was going on in, in the country. Uh, it may have been in part, a, uh, bureaucratic uh, FBI reaction to the protection of informants uh, because if, if they had done something, it might have become, probably would have become, clear to the Klan, that someone in the Klan was peaching [?]. And the uh, danger to that person, had he been identified by the Klan, would have been very great—so that, that might have been another reason. A third reason is that I think the Bureau, Mr. Hoover personally, was totally out of sympathy with the civil rights movement and uh, especially uh, the, the degr- degree to which it took uh, uh, focus in, in uh, demonstrations and uh, direct action.

QUESTION 10
INTERVIEWER:

DO YOU REMEMBER UM, THE ATTORNEY GENERAL'S REACTION WHEN HE LEARNED THAT BY THE KLAN?

Burke Marshall:

Uh, we were not surprised by that, the attorney general was not surprised by that, I was not surprised by that. Uh, we, we did uh, we, we weren't totally ignorant. I said we were somewhat ignorant, but we weren't totally ignorant. Uh, we were aware of the student movement based in Nashville, uh, the uh, freedom rides did not or- originate with that, uh, but the student movement in Nashville at that time, principally at Fisk University uh, was the center of the sit-in. And it was inconceivable to me, and I, I, I remember in particular, John [?], who was from Nashville, a newspaper man, who was then the Executive Assistant to the Attorney General, saying - that those students: Diane Nash, James [?], the s- the students in, in Nashville would never let it drop, whatever CORE, itself as an institution, decided to do. And, and that prediction was true, and so we expected it, we, we could expect uh, that the uh, students would let violence pr- prevent uh, an action that was not only just and right, but was completely protected legally in the Constitution.

QUESTION 11
INTERVIEWER:

[unintelligible]

Burke Marshall:

Well, uh, Robert Kennedy uh, well, he was, he was always a, a frantic, frantic is a word I wouldn't use about Robert Kennedy. Robert Kennedy would say, "Well, what are you going to do about it? What are we, what, what can we do, uh, to protect these people and to prevent them any more violence from action. What specifically can we do? Who's going to go where? Who's going to file what law suit? Who's going to make what speech? Who's going to go on what television program? Who's going to call the Mayor of Birmingham? Who's going to call the governor? Who's going to get the president's cabinet in motion? Who's going to do what and when and why, why not five minutes ago?" is the kind of reaction that he would have that would be a very uh, well, oriented towards movement, towards movement, specific movement.

QUESTION 12
INTERVIEWER:

INAUDIBLE

FILM PRODUCTION TEAM:

Page 1 [of next tape?]

CAMERA CREW MEMBER:

Sound Roll 1125, Camera Roll 150 Sound Tape 12 coming up.

Burke Marshall:

Well, in everything that Robert Kennedy did in the Department of Justice# civil rights or anything. He was always interested in getting something done and in order to get something done, he knew that somebody had to do something specific and so he always wanted to have people work on a timetable on specific jobs on specific pieces of a problem so that some action would be not talk, but some action something would happen and something would happen that was effective and prompt.

QUESTION 13
INTERVIEWER:

NOW, THE NEGOTIATIONS WITH GOVERNOR PATTERSON. YOU TELL US WHAT YOU FELT YOU HAD GOTTEN AS AN AGREEMENT AND WHETHER HE STUCK TO IT? Uh, what Governor Patterson committed to the President's representative John [Seigenthaler?] was that he had the men and the force and ability and the will to protect, I think he said, everyone in Alabama. But in the context, he meant the Freedom Riders, that's exactly what he meant, that's what he was asked about that's what his statement was taken to mean. Now did he leave, live up to that? Well, it didn't happen. Whether it was his fault that it didn't happen, it was certainly his responsibility that it didn't happen. Whether he knew that the Montgomery police were going to pull out and let the Klan members beat up on the freedom riders in Montgomery is something that I just don't know. But he protected against that, he'd given the commitment to the President of the United States not to let that happen, and it happened. So it's plainly his responsibility and the commitment was clear as crystal.

QUESTION 14
INTERVIEWER:

DID THE PRESIDENT- DID YOU EVER HEAR THE PRESIDENT EXPRESS A SENSE OF DISQUI- I MEAN FEELING HE WAS DECEIVED IN A WAY?

Burke Marshall:

He was mad. The President was mad. Mad. Irritated. Mad.

QUESTION 15
INTERVIEWER:

STAYING IN MONTGOMERY, JOHN SEIGENTHALER GETS VERY BADLY BEATEN UP IN MONTGOMERY. WAS THERE A PARTICULAR IMPACT THAT THIS HAD?

Burke Marshall:

Well, John Seigenthaler was hit over the head and had a serious concussion, he was unconscious for a good while. He was left lying in the streets because nobody would pick him up. The people in the Klan just didn't pay any attention to him. He was a personal friend of the Attorney General, a very close friend for many years and so natural it had an impact that was more direct I suppose than somebody being treated in the same way that wasn't a personal friend. But it didn't have any, make any difference to what was done, I think exactly what was done would have been done whether John Seigenthaler had been hurt as well as John Lewis, or not. It didn't make any difference in that sense.

QUESTION 16
INTERVIEWER:

IT WASN'T A CATALYST, THAT WASN'T THE CATALYST FOR BRINGING IN THE MARSHALS?

Burke Marshall:

No, no, the, at the time that that happened, that John Seiganthaler was hit, we had already collected the marshals. I mean we didn't want to use marshals, we didn't went to use troops, we didn't want to use physical force, we wanted the governor of Alabama to behave like a governor and use the state police and the state forces to protect people from getting beaten up in the capital of the state of Alabama. It was disgraceful. But by the time that that had happened in Montgomery, we had already started to put into place the physical force that was used later.

QUESTION 17
INTERVIEWER:

WAS IT THE FREEDOM RIDES THAT CATYLIZED THE CHANGE IN ICC REGULATIONS OR WAS THAT SOMETHING THAT WAS ALREADY IN THE WORKS? MAYBE YOU COULD DESCRIBE HOW THOSE REGULATIONS AFFECTED [POLICIES?].

Burke Marshall:

Before the freedom rides, I was directing my attention to interstate travel facilities. My focus then was on airports. The reason my focus was on airports was because I had a call, a personal visit from the president of Tuskegee—Tuskegee Institute which is near Montgomery—a very distinguished man, a distinguished educator. Tuskegee is a distinguished educational institution. It is primarily, or almost all-black institution. He told me how he himself was insulted every time he went through the airport in Montgomery and not only that he brought visitors from other countries and from all over the United States down to speak at Tuskegee and they had to go through and airport where the drinking fountains were labeled colored and white or the bathrooms were labeled colored and white. Where the eating facilities were labeled colored and white, and he was outraged and he brought it to my attention, as I said I was new at the job but I thought that was outrageous. So I'd started to work on that. We didn't have that many direct statutes that we could work from but I started to work on the airports. When the Freedom Rides happened in the bus stations, there was already in place a sort of general ruling of the Supreme Court, that segregation, racial segregation in interstate bus stations was illegal. The trouble is that that general rule of law wasn't implemented in any way. So that the Freedom Rides and the events of the Freedom Rides was a catalyst to spur the Department of Justice to go to the ICC and ask the ICC to implement through new regulations, this rule that prohibited, this statutory rule that prohibited a, racial segregation in the state bus travel, including the stations.

CAMERA CREW MEMBER:

SOUND 14.

Burke Marshall:

…the stations.

QUESTION 18
INTERVIEWER:

EXPLAIN HOW THESE CHANGES CLARIFIED FEDERAL RULE.

Burke Marshall:

Well, the difference that the ICC regulations made to the a, situation with respect to bus stations and railroad stations and bus, buses and railroads, was that instead of having sort of a general rule that permitted somebody to bring a suit, every time there was discrimination there was a specific regulation that directly applied. It's as if we'd sued everybody at once, sued every bus station, every bus, every railroad station, every railroad, all in one massive lawsuit and had won the lawsuit. That's what the regulation did. Prior to it you'd have to go station by station, sue in Thomaston [Anniston?], sue in Montgomery, sue in Birmingham , sue in Jackson, sue in New Orleans, sue in so forth. And this as I say dealt with whole facilities in one stroke.

QUESTION 19
INTERVIEWER:

GIVEN HERE'S THE [NEW?] REGULATION IN PLACE, RIGHT AFTER THAT, THE FREEDOM RIDERS ARE ARRESTED IN ALABAMA, GEORGIA AND THE FEDERAL GOVERNMENT IS CRITISIZED FOR NOT ACTING AT THAT POINT.

Burke Marshall:

Well, my recollection with Albany, Georgia in the first place they claimed they weren't arresting them to enforce segregation. They were arresting then for some other purpose. So that was a dispute. I have no doubt about which side of the dispute was right but there was a dispute and an argument. But, we did do something. The city almost immediately agreed to desegregate these facilities in Albany. And the movement in Albany moved out of the bus station where it started from and other areas of the cities and other problems where we didn't have the authority that we could wave at the city of Albany that we had in the case of the bus stations.

QUESTION 20
INTERVIEWER:

IN OTHER WORDS, JUST TO TRY TO UNDERSTAND IT, YOU'RE SAYING THAT THE GOVERNMENT DIDN'T ACT BECAUSE IN FACT THE CITY TOOK CARE OF THAT PART OF THE PROBLEM.

Burke Marshall:

Yes, right.

QUESTION 21
INTERVIEWER:

MAKE SURE I WAS CLEAR ON THAT.

Burke Marshall:

Well, the situation in Albany was confused in my mind and it was confused at the time and I don't recollect it very clearly. It is a fact that the federal judge in that district that was appointed by President Kennedy turned out to be a terrible judge. He was a terrible mistake. There was some reason why we made the mistake. I mean we relied on statements with respect to how Judge Elliot could be expected to behave which didn't turn out to be right. They were wrong. They couldn't, they were [ wronger ] than you could possibly have expected. But that is true. That is not I think the only reason that Martin King withdrew from Albany. The fact is that the Albany movement was sort of splintered, it wasn't cohesive. Things were a little unclear, and it, to some degree, petered out rather than have a specific event which stopped it.

CAMERA CREW MEMBER:

CAMERA 151.

QUESTION 22
INTERVIEWER:

IN THE CONTEXT OF ALL THIS SO WAS THERE A SOUTHERN MINDSET THAT WAS INFLUENCING THE FBI OR THE JUSTICE DEPARTMENT?

Burke Marshall:

The FBI had a mindset, I don't know whether I'd call it a southern set, I would call it a Hoover mind set. And the Hoover mindset was anti-civil rights movement for reasons that may have been pure racism. That may have had other motives in it, I don't know. Mr. Hoover at that time was not showing good judgment about anything in my opinion. Uh, that is not however, the complete explanation for the reasons that the civil rights movement complained about the behavior of the Bureau. Wholly apart from Mr. Hoover's feelings about the civil rights movement, he had for a long time stuck to the notion that the Bureau was purely an investigative agency. The way it, the investigation, investigative agency worked in his highly bureaucratic mind was that something happened, that there was reason to believe that what happened violated a federal law, wasn't just wrong or unjust, or hurt somebody, but violated some federal law that you could name and that then somebody, some lawyer, in the Justice Department—Civil Rights Commission in this case—would write him a memo, addressed to Mr. Hoover, saying, "Please make a preliminary investigation," or another term, "please make a full investigation of the following matter." And then he would insist on knowing what federal law had been violated. So that just speaking very broadly, if somebody beat somebody up on the streets of Albany, that violates justice. It violates a city ordinance in Albany, it may violate the law of the state of Georgia. But it doesn't violate in, normally any federal law so that the FBI will say that it's none of their business. And it will say that it's none of their business, not only to investigate it afterwards, but that it's sort of doubly none of its business to interfere with what's going on at the time, since the Bureau, Bureau agents are not policemen, they're investigators, they're job is to produce evidence to go into court later and not to interfere. Now that's, that's the position. Of course he didn't hold to that position with say bank robberies so it's not coherent or co- consistent position. But as I understood it, that was his position throughout the period.

QUESTION 23
INTERVIEWER:

IT WASN'T A QUESTION OF THE AGENTS IN PLACE BEING THEMSLEVES SOUTHERNERS AND THEREFORE MAKING PERSONAL DECISIONS?

Burke Marshall:

The fact that the agents themselves were southerners might have increased the problem, but it didn't create the problem. In my, in my judgment, even if you'd had, even if it had been a total transfer so that only agents from Minnesota were in Georgia and only agents from Georgia were in Minnesota, I think the basic Bureau behavior would have, would have been the same. Now when, when the bureau finally took on as a matter of public commitment and public responsibility dealing with Klan violence in Mississippi and brought down a whole wad of new agents, some of them southern, but they knew what their job was and their job was to break the Klan and so they treat the Klan like they treated the Communist Party. They infiltrated it, they bribed Klan members, they eavesdropped, they poked around they, put out false rumors, they obfuscated things, and confused things and they got the Klan in such an uproar that it was able to, it just ceased to act effectively after…

FILM PRODUCTION TEAM:

[Sound interrupted]

QUESTION 24
INTERVIEWER:

HOW ARE YOU HOLDING UP? SOMETIMES YOU'RE ANSWERING THE NEXT TWO QUESTIONS AND SOMETIMES YOU'RE OPENING- HOW CLOSELY WAS THE ADMINISTRATION FOLLOWING JAMES MEREDITH'S ATTMEPT TO ENTER THE UNIVERSITY OF MISSISSIPPI AND HOW AND WHY AND WHEN DID THE GOVERNMENT DECIDE TO ENTER?

Burke Marshall:

We, we, followed the Meredith from the day it was filed almost. It was filed the inauguration day, 1961 or maybe the day after, January 21, 1961, and when I got this job as head of the civil rights division, as soon as I found out where my office was, just about, I tried to get a sort of checklist of trouble. And in the course of that I talked to Thurgood Marshall and he told me about the Meredith case. He would have to speak to himself [?] about the case, he represented Meredith of course. I don't think it was on the NACP list of priorities to integrate the University of Mississippi, but James Meredith was his own man and he had his own mind and he was determined to do it and so the Legal Defense Fund represented him right from the beginning of the case. Now the case, the outcome of the case was inevitable. The University of Mississippi was a segregated institution, it was a white institution. They made all sorts of defenses. They claimed that they weren't turning Meredith down because he was black, but because of some other reason. They'd make up a different reason almost daily. And the board of the University really perjured themselves on the stand to try to create reasons for turning down Meredith on some ground that he wasn't black, but the, and the district judge—who was an old Mississippi appointment, who I think going way back, Eisenhower, maybe, maybe, maybe Truman, maybe even Roosevelt, I don't know, he'd been on the bench for a long time—bought that, because he was part of the Mississippi establishment, but as soon as it got to the Fifth Circuit, and came before Judge Wisdom, and whoever the other two judges were, the panel, then the outcome of the case was foreordained. Now there was a lot of sort of litigation problems that went on, which involved one of the judges of the fifth circuit, Judge Cameron from Mississippi, he kept staying the order of his own court. But it became clear to me that Meredith would be- have an order entitling him to enter the University of Mississippi in October of 1962 and so that we followed it right up, we entered the case when it became clear that the order would be final and that that would be date, and we entered it in order to make sure that the order of the court was complied with.

QUESTION 25
INTERVIEWER:

WHY WOULDN'T YOU ENTER EARLIER IS THE QUESTION?

Burke Marshall:

There was nothing to do earlier, really from the point of view from the Department of Justice. Meredith's rights were being protected by the court and by his own representation, by the Legal Defense Fund. We couldn't contribute anything to that. What we could contribute something to was insuring the court that its orders would be complied with, insuring the governor and the people of Mississippi that the order would be complied with, insuring Meredith and the Legal Defense Fund that the order would be complied with and when I say "complied with" in that context, I meant the- by the use of whatever force would be necessary to make sure that it worked. Uh, there was a history, you know of orders not working in the University of Alabama, the University of Georgia on a previous occasion and we were determined that Meredith would enter the University of Mississippi in accordance with the order of the court at the time that the court ordered him to enter, which was in the fall for the fall term of 1962.

CAMERA CREW MEMBER:

CAMERA 152.

QUESTION 26
INTERVIEWER:

THIS QUESTION OF ENFORCING A COURT DECREE WHEN, WHEN THERE'S OPPOSITION TO IT, WHAT DOES THIS MEAN IN TERMS OF FEDERAL [?]?

Burke Marshall:

Well, it, it, it doesn't often but it happens. If a governor is determined to do everything he can to thwart a compliance with a federal court order, he has enormous powers at his control. He has the power of the, over the motions, the emotions of the people of the state and that's an enormous power because if you have a crowd of two or three or four or five thousand people, with guns there is an enormously dangerous situation. It isn't just a question of getting out marshals, you have to get out the United States Army to combat with that. He's got, he's got initial control of state national guard. Now the, the problem in our history—it isn't the only problem—but the basic problem in our history that is about that kind of defiance of federal authority, by state authorities is the race issue. It is the determined adherence to a system of racial oppression. And the system of racial oppression was threatened just by the entry of one black student to the University of Mississippi, so the state of Mississippi was just determined by the state, I mean the governor, every state official, every state judge, that I know of. Almost all of the officials of the University, 90% of the students of the University, all the sheriffs of the counties of Mississippi, all of, a whole lot of deputy sheriffs, a whole lot of farmers and other people with guns were determined to resist that order. Now when you get to that situation, it is, it's not a question that can be handled by lawyers. It isn't a question of going to the court and saying, "This is what you should do, court. Order this and all will be well." That won't solve it. The only thing that solves that in the end, is by the use of force, and the only questions are, whom, a, who is going to apply the, who is going to apply the force? At what time? On what occasion? By what means? In what magnitude? For what duration?

QUESTION 27
INTERVIEWER:

WELL, WHAT WAS THE KENNEDY ADMINISTRATION'S POSITION ON THAT? WHAT WAS THEIR PRFERENCE?

Burke Marshall:

Our preference in all occasions was to get the states to apply the force that is necessary to, to make the order work. The reason for that is plain to me. Well, there are two reasons. One is that I think that is what the constitutional system contemplates and so there is a value in sticking to the constitutional system where you can. The other reason is though that the federal authorities are going to have to leave. And when they, it may be 6 months, it may be 16 months, but their going to have to leave, and when they leave the same state is gonna be there, the same sheriffs are going to be there, the same school boards are gonna be there. So if you can get them to accept their responsibility and get them to accept the inevitability of what's going to happen from the outset, everybody's better off, including the members of the civil rights movement. The use of federal force is a last resort, was our policy and I still think it was a proper policy.

QUESTION 28
INTERVIEWER:

YOU THINK THAT WAS THE MOTIVATION FOR JOHN KENNEDY'S LONG NEGOTIATIONS WITH GOVERNOR BARNETT? OR HOW MUCH ALSO WAS THE QUESTION OF POLITICS PLAYING?

Burke Marshall:

The, the, what I've been talking about in terms of federalism of course is politics. It, it, it is the politics of consensus. The politics of trying to make a permanent change that is very, very unpleasant to a large number of people who are in power, and by that, the large number of people that were in power I mean the white people of the south or at least the parts of the south represented by the state of Mississippi. So that's a political matter, it's a matter of political leadership to try to make that work. Of course the president's gonna win in the end.** He's got the whole armed forces of the United States. He can call in the Air Force; he can bring Navy ships up the Mississippi; he can call out the army as he did; he can drop parachuters in. I suppose he could shoot missiles at Oxford Mississippi, so he's gonna win at the end. But the political matter is politics in a deep sense of political leadership so that the change that is gonna come about, it- the change that is recognized and accepted and is not looked upon as having been imposed by force.

QUESTION 29
INTERVIEWER:

YOU'RE SAYING A MATTER ONLY, THERE ARE CHARGES THAT THE KENNEDY ADMINISTRATION TRIED TO DUCK THIS ONE AND YOU'RE SAYING THAT WASN'T WHAT WAS GOING ON?

Burke Marshall:

There was never one minute when the possibility of ducking out of the Meredith situation was contemplated. Not one minute. It was always clear as crystal, and I personally made a commitment knowing the President would back it up to the Fifth Circuit sitting all nine of them. That whatever force was necessary to make their order affective would be applied.** I made that commitment in open court, in New Orleans and I meant it.

QUESTION 30
INTERVIEWER:

WHAT ABOUT THE NEGOTIATIONS BETWEEN THE ADMINISTRATION AND GOVERNOR BARNETT? THE TELEPHONE CONVERSATIONS THAT YOU KNOW ARE PUBLIC RECORD N0W. THEY'RE AT THE KENNEDY LIBRARY. COULD YOU TALK ABOUT WHAT YOU WERE TRYING TO ACCOMPLISH AND WHAT BARNETT'S GOALS SEEM TO BE. WHETHER HE UNDERSTOOD HOW INTRANSIGENT [BARNETT] WAS GOING TO BE.

Burke Marshall:

Uh, Governor Barnett was intransigent and he was also stupid. He had a narrow political vision. He wanted it to happen. He knew that Meredith was going to the University of Mississippi. He just didn't want it to be his fault. So that if you could give him a way of acting like a governor and performing a governor's duty and at the same time say, I couldn't help it, then Governor Barnett's political, very narrow , short range, stupid political values and political goals would have been achieved. What we were trying to do in those negotiations which may read silly conversations because they- with a silly man was to try to give him an out of that sort, give him an out of that sort and and, it almost, it almost, almost worked and the trouble is that Governor Barnett didn't have the confidence of anybody. He didn't have the confidence of the students, he didn't have control of the police force, or if he did have control of the police force, he didn't exercise the control of the police force, he pulled the state police out at a critical moment and during the riot and so in the end we did what we were always determined to do when necessary which was to use federal, physical force.

QUESTION 31
INTERVIEWER:

DID YOU EVER TALK ABOUT THE PRECEDENTS IN THE JUSTICE DEPARTMENT IN WASHINGTON, LITTLE ROCK, GEORGIAI EVEN THE BROWN CASES? THE LUCY CASE, HAVE YOU EVER TALKED ABOUT THAT?

Burke Marshall:

Yes, yes, we thought that the uh, I thought, I can speak for myself that them, um Lucy case was a failure of federal responsibility because it didn't stick. She was in the end driven off the campus by violence, and that's unacceptable when she has a constitutional right and a right based on a specific court order to go to the University. As far as Little Rock is concerned, we thought, I thought, I think the President thought that President Eisenhower had been indecisive and ambiguous with Governor Faubus at first and then maybe had done too much secondly by sending in a large force than in context of Arkansas, which was really prepared to accept integration in the central high school, it wasn't the people of Arkansas, or the people of Little Rock, it was the governor that was the problem there. And so that, that massive use of troops in Little Rock I thought in retrospect was unnecessary. That was why we tried marshals and used marshals successfully as you know during the Freedom Rides. Marshals weren't enough at Oxford as, as, as it, as it turned out.

CAMERA CREW MEMBER:

CAMERA ROLL 157, SOUND ROLL 1130.

Burke Marshall:

The President was exhilarated by the March on Washington. He watched it on television. He met with the leaders after it was over, thought the- Martin King's speech was magnificent. I heard him say he thought it was one of the best speeches he ever heard. So it was — it was a great, great moment for him and he thought, very, very helpful politically because the country saw blacks and whites acting together in a political movement that everybody would respect and like.

CAMERA CREW MEMBER:

CAMERA ROLL 158.

QUESTION 32
INTERVIEWER:

THE REACTION AT JUSTICE, AND THE WHITE HOUSE, TO THE TRAGEDY IN BIRMINGHAM…

Burke Marshall:

The—there was a feeling of real bitter outrage at the killing of those four little girls—church bombing and of course there was an enormous reaction in Birmingham. The president asked me to go down there and I went down there immediately. When I got to Birmingham I found—I thought I was in a city under siege. There—the black community had set up guards to prevent people from coming into it. There were afraid. They didn't know what would happen, they were afraid the Klan had gone wild. And that they would come in with other violence. So that you had to go through a cordon, in order to get into the black community. When I got there, I called Martin King immediately, who was there, and arranged to meet him. He was in a house in the black community. The Bureau didn't want to take me there, because there were no black Bureau agents, and driving white, cop-looking people, driving into the black neighborhood at that time, [ were ] sort of like an act of war. So that Martin King, or somebody, Arthur Shores, somebody there, arranged for some black civil defense workers, who were acting as sort of guard, to come get me, at my hotel, and I they gave me a white helmet, and sort of shoveled me down in the back seat, so that my face couldn't be seen, and drove me into the neighborhood, into the house where, I think it was John Drew's house, where Martin was staying, and then we had a long meeting about what to do. The president had choices to make, that were important choices, should he do something militarily? The city might explode, and it would be possible to do something militarily. Martin King, I think, favored that notion at first. I was against it, because I knew that it the military came in, they would declare martial law. And blacks, as well as whites, would be confined to their houses, nobody would be able to protest anything. And having the military run a civil rights movement is a terrible step to take, if it can be avoided. The president did move some troops down near Birmingham, as sort of a symbolic gesture, of federal force, if the state authorities didn't behave themselves. And then, of course, the other thing that we could do was get the Bureau out in full force. Now the Bureau, I think, knew who did that bombing. It certainly turned out in the end that they knew who did that bombing. They, they never gave us the Civil Rights Division, they never gave the Department of Justice a case to prosecute, or identified to the Civil Rights Division the person that, that did the bombing. He was eventually prosecuted by state authorities. That was a terrible event, a terrible event, because of its cruelty, its futility, its senselessness, and everybody in the administration felt that, just the same way that everybody, at least every sensitive person, civilized person, in Birmingham, white as well as black, thought. It was horrifying event.

QUESTION 33
INTERVIEWER:

COULD YOU TALK ABOUT THE ADMINISTRATION'S REACTION TO GOVERNOR WALLACE? WOULD THEY HAVE USED FORCE AGAINST HIM?

Burke Marshall:

We would have used force. We would have removed the Governor physically, although that would have been very unpleasant, in consequences. I think we would have had a lot of violent protest against federal officials, and even federal military, as a result. But I never thought that it would come to that. I- we had no communication with the Governor. We tried to have communication with the Governor, and that didn't work. He just sat in open meeting with a tape recorder going. But we did—by we I mean the administration—put enormous pressure on Alabama businessmen and Alabama politicians, and Alabama newspaper men that could be reached, which was a lot of them, as well as of course on the university officials. And I was quite confident that Governor Wallace was going through a show. And at the end of the show, he'd do what he did. Which was say, "I give in to federal force, I can't do anything more. I've stood in the schoolhouse door, and I've been forced out of it by federal troops." And that's in fact what he did, and there was no violence in- in Alabama. He learned from Oxford, Governor Wallace, he didn't want—at least his friends—his political friends, and his business friends— didn't want to have happen in Alabama what had happened a year earlier in Mississippi. They didn't want that reputation, that stain, on their state. So they wanted it over with, and they wanted it over with peacefully. And whatever Governor Wallace's personal inclinations were, he gave in to that.

QUESTION 34
INTERVIEWER:

TALK WITH US A LITTLE BIT ABOUT THE JUSTICE DEPARTMENT'S ACTIVITIES IN 1961 IN DALLAS COUNTY.

Burke Marshall:

Well, I don't remember quite when the first suit was filed in Dallas County, but Dallas County was marked as a place for voting rights suit, early, in 1961. We prepared the case. We prepared it thoroughly. We had a bad judge. That is, the federal judge, who had- who had been a judge for several years, was not so much racially prejudiced, perhaps, as totally indecisive. So he wouldn't do anything. He—he would just sit on the case, and wouldn't issue an order. The—once an order was issued, the Dallas County authorities did all sorts of things to avoid it, avoid complying with it. So that it was- just took enormous amount of man-hours, of lawyers' work, to get a little accomplished in Dallas County, to get a few people registered to vote. They would change the rules, they would cheat, they would do anything to avoid letting black citizens freely register to vote, in that part of Alabama. It wasn't just Dallas County, but the neighborhood counties. There was a, a large black population in those counties, and the whites were just afraid of losing their political power, and they were determined to fight it.

QUESTION 35
INTERVIEWER:

…DOING THIS FAVOR, PERSONAL WORK FOR THE PRESIDENT. COULD YOU TALK ABOUT THAT MEETING WITH GOVERNOR WALLACE AND PRESIDENT JOHNSON?

Burke Marshall:

The president asked Governor Wallace to come up, because the president wanted Governor Wallace to enforce law and order in the state of Alabama, which governors are supposed to do. And the meeting, which was in the- the president's office, was intended to do that. Governor Wallace brought one person with him. I guess there were two people there besides the president, sort of on the federal side. What happened in the meeting was that the, the president totally snowed him. Governor Wallace didn't quite grovel, but he, he was so pliant, by the end of the two hours, with President Johnson putting his arm around him, and squeezing him, and telling him it's a moment of history, and how do we want to be remembered, in history? Do you want to be remembered as petty little men, or do we want to be men remembered as great figures that faced up to our moments of crisis, and that kind of thing, and then he led president- Governor Wallace out, in the hopes that Governor Wallace, who was, by that time, like a rubber band, would give a press statement that confirmed his determination to protect the marchers at Selma, comply with the court order from Judge Johnson, and act like a responsible governor.** Well, some time between the time that the president stopped squeezing him in the Oval Office, and the time that the governor got right before the television cameras with the reporters there, he– he took a small, mental cold shower, and so that when his statement, that actually came out, was very ambiguous, and by the time he got back to Alabama, he'd recovered, from the presidential treatment, and was back to- to being George Wallace again, and he said he didn't have any money, and he couldn't preserve it, and this was all a federal plot, and he wasn't going to have anything to do with it.

QUESTION 36
INTERVIEWER:

WONDERFUL IMAGE. GEORGE WALLACE AS A RUBBER BAND. WONDERFUL IMAGE.

Burke Marshall:

Well, here's what I think the civil rights movement accomplished. Of course, it accomplished it with the federal government, or through the federal government, through federal action, but what it accomplished was the destruction of Jim Crow. It- it accomplished the destruction of racial segregation by law. The Voting Rights Act of 1965, because it operated directly on state officials, not just through the courts, but directly on state officials, replaced them, made massive registration by black people possible, overnight—speaking historically, since they hadn't been able to be registered since 1880. And, so that was done. The whole framework of southern law that segregated blacks from whites, and oppressed blacks, was destroyed. It was destroyed by the 1964 Civil Rights Act, mainly, and what was left of it was destroyed by the 1965 [ Civil ] Rights Act, plus the court decisions that accompanied that. The national commitment was clear as crystal, with respect to that problem. Racial segregation by law was dead. It didn't- it didn't have a supporter left, hardly, by the end of 1965, after the overwhelming passage of the 1965 Voting Rights Act. So that's an enormous accomplishment. It- it is a- it is a return, in the way, to Reconstruction. It is- it is a wipe, an erasure, of the legal treatment of race, during the inter- intervening eighty, ninety years. So- and that was done basically between 1954 and 1965. And it was done even more basically, I'd say, between 1960 and 1965, with the start of the student participation, and sort of the grass-roots, direct action, Civil Rights movement. Now what did that leave unaccomplished? It left an awful lot unaccomplished. It hasn't done anything with respect to disparities in income, education, health, social living, housing, I mean, all of the sort of daily necessities of life, are untouched, by this destruction of the legal situation– legal racial oppression. And I think that there [ is ] a lot of black leaders, that– that wouldn't have existed but for that. And there is a larger black middle class, certainly, than there would have been but for that. But if you think of the masses of the city

FILM PRODUCTION TEAM:

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