June 25, 1992
The Independent Counsel statute provides that an "independent counsel appointed under this chapter may make public from time to time, and shall send to the Congress statements or reports on the activities of such independent counsel."
Under the governing statute, Independent Counsel's responsibilities are threefold. First, he has an investigative role, 28 U. S. C. Section 594. Second, he has a prosecutorial role, 28 U. S. C. Section 594. Third, he has a reporting role, 28 U. S. C. Section 595.
The purpose of this report is to inform the Congress of the status of Independent Counsel's investigation and prosecutions in the Iran/Contra matters.
Status of the Investigation
The criminal investigation of Iran/Contra is in its final phase. We are attempting to determine whether officials at the highest level of government, acting individually or in concert, sought to obstruct official inquiries into the Iran Initiative by the Tower Commission, the Congress and Independent Counsel by withholding notes, documents and other information, by lying, and by supplying a false account of the 1985 arms sales from Israeli stocks and their replenishment by the United States.
The indictment of former Defense Secretary Weinberger by the grand jury on June 16, 1992, stemmed from that investigation.
A copy of the Weinberger indictment is attached. Independent Counsel has yet to determine whether additional proposed indictments will be presented to a Grand Jury. That investigation should be completed this summer.
While pursuing the final phase of the investigation, the Office of Independent Counsel will proceed with the trial of three pending cases, United States v. Clair E. Georqe, United States v. Duane R. Clarridge, and United States v. Caspar W. Weinberger. The George case is set for trial on July 13, 1992, before U.S. District Judge Royce Lamberth. No trial date has been set for the Clarridge case, but U.S. District Judge Harold Greene has stated that he hopes the trial can be held in October 1992. U.S. District Judge Thomas Hogan has set a November 2, 1992, trial date for the Weinberger case. In addition, Independent Counsel has been prepared to seek leave to appeal to the Supreme Court the reversal of the conviction of John M. Poindexter, but is awaiting an appeals court ruling on Poindexter's petition for rehearing in that Court.
Independent Counsel is sensitive to concerns expressed by Members of Congress and others as to the length and the resulting cost of the investigation. The investigation has continued for five and one-half years and has cost $31.4 million. This highly complex investigation posed unique problems and circumstances that stretched out our work, which I will explain in more detail later.
To speed up the completion of our investigation, I announced last December the appointment of Craig A. Gillen as Deputy Independent Counsel to direct the continuing investigation and the remaining trial work of the office, while I undertook to complete the final report of our long period of activity. I have nevertheless maintained overall responsibility for the supervision and direction of prosecutorial matters, spending one third of my time in Washington and returning to Washington full time in April for the final consideration of the Weinberger indictment. Much of the report has been drafted, but in order to complete the final phase of our investigation, and particularly while Mr. Gillen is trying cases in court, I shall continue full time in Washington where we hope to complete our investigative work by the end of this summer.
Length of Investigation
In evaluating the cost and time involved in the effort of
Independent Counsel to carry out his assignment by the Appointing Panel, it is important to understand that the Iran/Contra matters posed a number of highly complicated circumstances for a prosecutor. The Iran/Contra operations were intended by the Reagan Administration to remain hidden. Because they were conducted in tandem with or in the course of covert activities, once exposed, they could not be readily explored in open court because of the national security claims.
The operations were executed by high Reagan Administration officials in support of presidential foreign policy objectives. They occurred in a broad geographic setting over a period of years. Their investigation required a thorough sifting of hundreds of thousands of documents from some of the most sophisticated and secretive agencies of government. And, although there were many witnesses to various aspects of these operations, the most central figures were not cooperative. There were few government officers who volunteered information willingly.
It was imperative for Independent Counsel to focus first on the facts that might be the subject of immunized testimony, including the diversion of funds from the proceeds of the Iranian arms sales to assist the Contras. It was necessary to gather as much material as possible before Congress granted immunity to the most central figures in the affair. After immunity was granted, it was necessary to shield our potential prosecutions from contamination by the highly publicized congressional testimony of Oliver L. North, Poindexter and others who testified under immunity grants.
Once the first major indictment was brought in March 1988, Independent Counsel turned to trial work. In the North case alone, 108 pre-trial motions were filed, thirty-two of which challenged the validity of charges in the 23-count indictment brought against North, Poindexter, Richard Secord, and Albert Hakim.
The decision by U.S. District Judge Gerhard Gesell to sever the four defendants in the case to preserve the right of each of the defendants to use the immunized testimony of others to exculpate himself necessitated separate trials and added more than a year to the anticipated schedule. The immunity issues ultimately brought about the reversal of North and Poindexter's convictions on appeal.
Classified information problems have also complicated Independent Counsel's prosecutions and consumed enormous time and energy. Every line of every page of the thousands of pages of classified documents that might be used in trial by either the prosecution or the defense has had to undergo review by a group of declassification experts from several agencies. Claims of national security led to the dismissal of the central conspiracy charge against North, Poindexter, Secord and Hakim. Attorney General Thornburgh's refusal to declassify publicly known but officially secret information forced the dismissal of the government's entire case against former CIA Costa Rican station chief Joseph Fernandez -- and more than a year's litigation was wasted. I have previously reported to Congress at greater length on these problems.
Crimes Charged and Tried
Independent Counsel has not been able to prosecute the basic operational crimes committed in the course of the Iran/Contra affair due to national security claims. For instance, Count One in the North-Poindexter-Secord-Hakim indictment was dismissed due to claims that material information could not be declassified. It charged a conspiracy to defraud the United States by obstructing congressional oversight; by illegally supporting the Nicaraguan Contras; by depriving the government of the honest and faithful services of employees free from conflicts of interest, corruption and self-dealing; and by exploiting and corrupting for their own purposes a government initiative involving the sale of arms to Iran rather than pursuing solely the government objectives of the initiative, including the release of hostages in Lebanon.
Independent Counsel has been able to prosecute the crimes committed in the course of the Iran/Contra cover-up. These have including lying to and withholding information from Congress, lying to other official investigations, and withholding and destroying documents.
Criminal charges have been brought against 14 persons in three venues, including three cases that have not yet come to trial. Ten convictions have been obtained. The North and Poindexter convictions were reversed on appeal. The Fernandez case never came to trial due to classified information problems.
The Office of Independent Counsel could not complete its work without questioning all significant witnesses and pursuing all important leads related to the mandate issued by the Appointing Panel, a copy of which is attached. Because of the need to try North and Poindexter separately, those two principals did not become available for questioning until mid-1990.
Since then, the continuing investigation was fueled by newly discovered documents, including the personal notes of key officials, CIA cables and tapes, and other records previously withheld from Independent Counsel and other investigating bodies. These were obtained by renewed emphasis on the fulfillment of longstanding document requests, originally made in 1987 to the National Security Agency, the National Security Council, the CIA, the White House, the Office of the Vice President, and the State and Defense Departments. Also of critical importance were changes in witness testimony.
In the past two years, the continuing investigation has developed new and disturbing evidence that made it necessary to reinterview many of the witnesses first questioned in 1987. This was not merely a clean-up chore -- it has provided a significant shift in our understanding of which Administration officials had knowledge of Iran/Contra, who participated in its cover-up, and which areas required far more scrutiny than we previously believed.
It is not a crime to deceive the American public, as high officials in the Reagan Administration did for two years while conducting the Iran and Contra operations. But it is a crime to mislead, deceive and lie to Congress when, in fulfilling its legitimate oversight role, the Congress seeks to learn whether Administration officials are conducting the nation's business in accordance with the law.
s/ LAWRENCE E.WALSH