[ FINAL REPORT OF THE INDEPENDENT COUNSEL FOR IRAN/CONTRA MATTERS // Lawrence E. Walsh, Independent Counsel // August 4, 1993, Washington, D.C. // Volume I: Investigations and Prosecutions ]

Part II

History of the Investigation



Footnotes

1

The Tower Commission's members were former Senators John Tower and Edmund Muskie and former National Security Adviser Brent Scowcroft. Scowcroft became President Bush's national security adviser in 1989 and held that post throughout Bush's presidency.
2

The Senate Select Committee on Secret Miliary Assistance to Iran and the Nicaraguan Opposition was formally established by Senate Resolution 23 on January 6, 1987, and the House Select Committee to Investigate Covert Arms Transactions with Iran was established by House Resolution 12 on January 7, 1987.
3 After the public exposure of the Iran/contra diversion on November 25, 1986, Casey gave testimony to several congressional committees. He was hospitalized with a fatal brain tumor in early December 1986 and died before giving further testimony or being questioned by the Office of Independent Counsel.
4 The first Grand Jury sat for 24 months, expiring January 27, 1989. A second Grand Jury was convened in the District of Columbia on May 15, 1990 and sat until May 15, 1992. Chief Judge Aubrey E. Robinson, Jr., granted Independent Counsel's requests for the extension of both grand juries for six months beyond the normal 18-month period because of the complex nature of the evidence being presented. In addition, Iran-contra evidence was heard by grand juries sitting in the Eastern District of Virginia in Alexandria (resulting in the Fernandez indictment) in Baltimore, Md. (resulting in the Clines indictment), and later in the District of Columbia (resulting in the Weinberger indictment).
5 See Reagan and Bush chapters.
6 CIA response to the February 1987 document request continued into February 1988. Production alternated between withholding and flooding with key documents not produced until after months of delay.
7 Independent Counsel decided to avoid initially issuing subpoenas for Executive branch documents for several reasons: (1) subpoenas enforceable by the court may require greater specificity than document requests; (2) subpoena litigation would consume time that the office could not afford as it worked quickly to outpace the congressional grants of immunity to key individuals; and (3) subpoenas could be used as a last resort, when all else failed. In the later phases of OIC's investigation, when greater specificity was possible and when the congressional hearings were concluded, subpoenas were used when necessary.
8 See Classified Appendix.
9 It was not until 1990 that OIC's continuing investigation began discovering the extent to which personal notes were withheld from Independent Counsel.
10 North's notebooks could not be obtained by OIC until North took the witness stand in his trial in April 1989. The trial court ruled that North had waived his right against self-incrimination by deciding to testify in his own defense, and therefore copies of the notebooks would be produced to Independent Counsel.
11 Earl, Grand Jury, 5/1/87, pp. 118-19. See Earl chapter.
12 See Channell and Miller chapter. North was charged in March 1988 with conspiracy to commit tax fraud but was acquitted of the charge.
13 Dutton also provided details of the final Iran arms shipments.
14 In February 1987, the Israeli government made an agreement with the Select Iran/contra Committees to supply written historical and financial chronologies in lieu of live testimony. Independent Counsel, who was not aware of this agreement until after the fact, informed the Israelis that he was not a party to the agreement and reserved the right to issue subpoenas and to take other action as OIC saw fit.
15 During the wait for the Swiss records, OIC considered immunizing Hakim, who as a signatory on the bank accounts could have authorized their release. It was decided, however, that a possible Hakim prosecution should be pursued. He was then believed to be the architect of the financial schemes to conceal the Enterprise operations, cheat the contras and bribe North. He also refused to give a proffer of his probable testimony.
16 In making the back-up appointment, the Attorney General referred to the President's desire to take every possible step that Independent Counsel's investigation continue. This support was intended to obviate any constitutional conflict based on the view that the appointment of Independent Counsel was an unconstitutional intrusion upon the powers of the President.
17 Legal challenges to the constitutionality of the independent counsel statute continued into 1988, when a federal appeals court panel in January struck down the law as unconstitutional in a case brought against Independent Counsel Alexia Morrison. The Supreme Court on June 29, 1988, reversed the appeals court ruling and upheld the constitutionality of the statute.
18 Watergate Special Prosecution Force Report, p. 52 (1977).
19 Independent Counsel persuaded the committees not to immunize Clines, Secord and Hakim's business partner in the Iran/Contra Enterprise. Clines was later successfully prosecuted and convicted of four crimes.
20 Some Committee members publicly expressed their frustration with the pace of Independent Counsel's criminal investigation.
21 Under a Memorandum of Understanding dated March 24, 1987, the Committees agreed not to vote on immunizing North before June 4, not to question him privately before June 15, and not to call him for public testimony before June 23. In exchange, Independent Counsel agreed not to seek an automatic 20-day deferral of North's immunity grant, as he was entitled to under the federal use immunity statute. For Poindexter, the Committees agreed not to vote on immunity before April 20, not to question him privately before May 2 or three days before the start of public hearings, and not to call him to testify publicly before June 15. To insure against leaks of Poindexter's private testimony, the Committees agreed that only three attorneys and a court reporter would be present and that the notes of the private session would not be transcribed or removed from a Committee vault before June 15. The attorneys who questioned Poindexter privately would not disclose his answers to Committee members or others before June 15 except under "certain extraordinary circumstances" -- that is, if he provided evidence of an impeachable offense. Independent Counsel agreed in return not to seek a 20-day deferral of Poindexter's immunity grant.
22 Independent Counsel's First Interim Report is reprinted in Volume II of this report.
23 Los Angeles Times, "The Iran-Contra Hearings . . .", 6/4/87.
24 Independent Counsel invited each of the potential defendants to make a proffer -- or outline -- of testimony he could give if he agreed to cooperate with the criminal investigation, to begin possible plea negotiations. Attorneys for North, Poindexter and Hakim rejected OIC's proposal.
25 These charges required the Swiss bank records and Zucker's testimony because OIC was unwilling to rely upon Zucker's proffers through his counsel.
26 It was always the effort of Independent Counsel to proceed to indictment and trial with immunity safeguards of his own design and to have court litigation develop as a review of the conduct trial, rather than to obtain some kind of pre-trial or pre-indictment prescription. Quite apart from the dangers of litigation, if Poindexter or North did testify, the indictment would have been subjected to a free-swinging, highly publicized attack by North, Poindexter and their congressional supporters, to which OIC could not have listened, let alone respond.
27 Teams of OIC attorneys later became exposed to those portions of the immunized testimony that did not affect the individual trials they worked on. Independent Counsel Walsh and others who were involved in the broadest aspects of the investigation and trials remained unexposed to all the immunized congressional testimony until the completion of the Poindexter trial in April 1990.
28 Before they could be used effectively, there were weeks of translation, computerization, analysis, and lengthy interviews of Zucker and his assistants.
29 A separate indictment was brought later against Fernandez.
30 It is not necessary, in a conspiracy, that all defendants be party to all activities.
31 Under the National Security Act and related Executive Orders, covert action ("special activities") by the CIA required authorization of a Finding by the President with notice to Congress either through the intelligence committees or the congressional leadership. Such activities undertaken by Government officials outside the CIA required the written authorization of the President. See The Operational Conspiracy: A Legal Analysis.
32 McFarlane was later identified in a bill of particulars as a co-conspirator of North, Poindexter, Secord and Hakim.
33 Steele, SSCI Testimony, 12/18/86, pp. 10-14, 18-22, 36-37, 46-49.
34 Steele, FBI 302, 9/18/90, p. 5.
35 Ibid., 2/4/91, p. 7.
36 Ibid., 9/17/90, p. 5.
37 Steele, FBI 302, 2/5/91, p. 6.
38 Secord became a cooperating witness following his plea agreement with OIC in November 1989.
39 Corr Note, 10/14/86, ALW 0032906.
40 In its search for previously undiscovered evidence, the continuing investigation in January 1990 sought access to the millions of documents seized by the United States following the December 1989 arrest of Gen. Manuel Noriega in Panama. OIC sought to review any Panamanian documents that might reflect upon Noriega's contacts with North, Abrams, the CIA or any U.S. Government official regarding contra-support efforts.
41 Hill Note, 8/7/87, ANS 0002776.
42 Fiers, Grand Jury, 8/16/91, pp. 11-12.
43 Croker Note, 9/2/86, ALZ 0034813-14.
44 Hill Note, 9/20/86, ANS 0001617.
45 See Abrams chapter.
46 Platt Note, 9/4/85, ALW 0036261.
47 See State Department chapter.
48 Many of these notes contain information that is highly classified.
49 President Reagan was among those who could not recall details of the key events in question. After several hours of careful interrogation in a deposition in Los Angeles in July 1992, Independent Counsel determined that the lack of recollection was genuine. Those who had worked with President Reagan had said that although the President absorbed the facts necessary to make a decision, once it was made he seemed to have the capacity for, as one witness put it, erasing the facts from his mind, like deleting data from a computer. Once the policy was set, it was said that he held his subordinates to that policy without much further reflection on how the policy developed. Furthermore, his lack of memory was reflected also in subjects not directly relevant to the inquiry.


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