New York Times reporter Shaila Dewan blogged this weekend that the Justice Department has declined to reopen the Malcolm X murder case.
"Although the Justice Department recognizes that the murder of Malcolm X was a tragedy, both for his family and for the community he served, we have determined that at this time, the matter does not implicate federal interests sufficient to necessitate the use of scarce federal investigative resources into a matter for which there can be no federal criminal prosecution," the department said.
This was follow up to her reporting in the Times on new attention to the Malcolm X case and new calls to investigate on the heels of the late Manning Marable’s recent biography of Malcolm X and in light of the successful prosecutions of decades-old civil rights murder cases in the South.
I’ll explain why I think the funding issue is a bit of red herring in a minute. The more important question, which Dewan raises, is why isn’t the Justice Department taking up the murder of Malcolm X under the Emmett Till Unsolved Civil Rights Crimes Act of 2008? "The department, without elaborating, said the crime did not fit the parameters of that act," Dewan reports.
If the Till Act is applied to the Malcolm X case, jurisdiction and funding would not be concerns. A House Judiciary Committee report found that though federal prosecution may not be possible in many of the civil rights era crimes addressed by the Act,
Concurrent federal jurisdiction is necessary only to permit joint state-federal investigations and to authorize federal prosecution in those instances in which state and local officials are either unable or unwilling to pursue cases that adequately address the federal interest in fighting bias crime.
This Committee nevertheless expects the federal government to still play a vital role in these prosecutions. First, in terms of investigations, in 2006 the FBI began a comprehensive effort to identify and investigate racially-motivated murders committed during the 1950s and 1960s. The FBI has already started to accumulate information from outside organizations and to follow those leads. We expect this initiative to continue and to expand….
in terms of resources, the federal government has the resources and expertise to provide valuable assistance to state and local entities pursuing state prosecutions. In the Emmett Till case, although no federal jurisdiction was present, the Department conducted an investigation into a local matter because Till had traveled from out-of-state into the state in which he was murdered. The FBI reported the results of its extensive investigation to the District Attorney for Greenville, Mississippi. We expect such cooperation and assistance to continue and to expand into other scenarios. While maintaining the primary role of state and local governments in the investigation and prosecution of violent hate crimes, the bill would authorize the federal government to work in partnership with state and local law enforcement officials and to serve an important backstop function with regard to a wider range of hate-motivated violence than federal law currently permits. (Emphasis added)
Furthermore, FBI spokesperson Christopher Allen has insisted to me in an email that "No case" taken up under the Till Act or the FBI Cold Case Initiative "has suffered as a result of lack of funding."
So if under the Till Act, the FBI is mandated to assist in investigations even where there is no federal jurisdiction, and there is no funding obstacle to federal involvement, then the real question is why won’t the Department of Justice consider the Malcolm X murder under the Till Act?
For one, it is not clear if the killing could be considered a civil rights crime because both the perpetrators and the victims are black.
[Historian David] Garrow said the definition of a civil rights crime should not be too narrow. "When a major civil rights leader is assassinated, I’d like the civil rights division to be interested, regardless of the color of the gunman," he said, referring to the federal unit.
Some experts say the Justice Department’s participation is crucial because the F.B.I. and the New York Police Department had Malcolm X under surveillance at the time of his death, raising questions about whether law enforcement officials had knowledge beforehand of the assassination plot.
It would be a shame if the color of the gunmen became a convenient cover for not examining possible failures of law enforcement to stop a crime officials may have had foreknowledge of; it would also be a shame if avoiding a full investigation allowed a known, alleged perpetrator who currently lives free to evade prosecution.
Here also are two of the thornier obstacles to resolving any number of civil rights era cold cases: black involvement in and government responsibility–direct or indirect–for the crimes. Though the approach to these issues in southern cases has largely been inadequate, it may yet be more palatable to many to consider involvement of blacks who were more widely subject to subtle and overt forms of coercion in the South and to call up stereotypes of racist southern law enforcement and lawmakers who participated in and/or fomented and supported Klan violence.
The Till Act is meant to address the very problem that most of the cases it covers were never fully investigated at the time they occurred.
David Garrow, a historian and a King biographer, obtained and reviewed the Federal Bureau of Investigation files on Malcolm X in the 1990s. He said it was probable that reams of wiretaps of the Nation of Islam had never been combed for clues. In 1980, the bureau said it had never investigated the assassination.
Without a full investigation, justice will not be done and the truth cannot be known.