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![[ 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 ]](http:./i-c-gif/i-c-banner-vol-1.gif)
Defense Secretary Caspar W. Weinberger lied to investigators to conceal his knowledge of the Iran arms sales. Contrary to Weinberger's assertions, a small group of senior civilian officials and military officers in the Department of Defense (DoD), comprised of Secretary of Defense Caspar W. Weinberger and his closest aides, was consistently informed of the arms shipments to Iran in 1985 and 1986.
The OIC uncovered documents and notes and obtained testimony, which had been withheld from the Tower Commission and the Select Committees. The most important new evidence was Weinberger's own detailed daily diary notes and his notes of significant White House and other meetings regarding arms shipments to Iran. These notes, along with withheld notes of other Administration officials and additional documents that were obtained from DoD, revealed that Weinberger and other high-level Administration officials were much more knowledgeable about details of the Iran arms sales than they had indicated in their early testimony and statements.
This evidence formed the basis for the 1992 indictment of Weinberger. It also provided Independent Counsel with valuable, contemporaneous information concerning high-level participation in Iran/contra activities.
Senior officials outside the DoD, including National Security Advisers Robert C. McFarlane and his successor John M. Poindexter, kept Weinberger informed of proposals and developments. Weinberger also participated in meetings on this topic with President Reagan and other members of the National Security Council. In addition, beginning in September 1985, Weinberger, along with McFarlane and Director of Central Intelligence William J. Casey, regularly received highly classified intelligence reports containing detailed information on the negotiations and activities of Iranian government officials, private Iranian intermediaries, representatives of Israel, and the terrorists who were holding American citizens hostage. Weinberger's aides gave him additional information, which they acquired by reading the intelligence reports, from meetings and primarily from informed counterparts at the CIA, the Department of State and the NSC staff.
Throughout 1986, Weinberger continued to receive intelligence reports regarding arms-for-hostages negotiations and arms deliveries, and he continued to discuss these activities with other senior officials.[1]
On June 17, 1985, McFarlane sent a draft memorandum -- a proposed National Security Decision Directive (NSDD) by President Reagan titled "U.S. Policy Toward Iran" -- for review and comment to Secretary of State George P. Shultz and to Weinberger.[2] Among other things, the proposed presidential memorandum stated that the first component of new U.S. policy would be to
[e]ncourage Western allies and friends to help Iran meet its import requirements so as to reduce the attractiveness of Soviet assistance and trade offers, while demonstrating the value of correct relations with the West. This includes [the] provision of selected military equipment as determined on a case-by-case basis.[3]
After reading the memorandum, Weinberger scrawled a covering note to his senior military assistant, U.S. Army Major General Colin L. Powell:
This is almost too absurd to comment on -- By all means pass it on to Rich[4] -- but the assumption here is 1) that Iran is about to fall; + 2) we can deal with them on a rational basis -- It's like asking Quadhaffi to Washington for a cozy chat[5]
Assistant Secretary of Defense for International Security Affairs Richard L. Armitage subsequently drafted a response with input from Fred Ikle, the under secretary of defense for policy.[6] On July 16, 1985, Weinberger sent McFarlane a memorandum that opposed issuing the draft NSDD and stated that "[u]nder no circumstances . . . should we now ease our restriction on arms sales to Iran."[7]
During July 1985, Weinberger learned from McFarlane of Israeli intelligence information regarding Iranians who were interested in opening a dialogue with the west. On July 13, 1985 -- the day of President Reagan's surgery at Bethesda Naval Hospital -- he informed Shultz and Weinberger. McFarlane sent an "eyes only" back-channel cable to Shultz that he had met with an Israeli emissary, who had identified the Iranian contacts as Ayatollah Karoubi and an adviser to the Prime Minister named Manucher Ghorbanifar. The Israeli emissary reported that the Iranians were confident that they could achieve quickly the release of seven U.S. citizens held hostage in Lebanon. They wanted delivery of 100 TOW missiles from Israel so that they (the Iranians) could show some gain from their dealings with the west.[8] McFarlane gave the same report to Weinberger, who was at his home in Washington.[9]
In late July and August 1985, Weinberger attended meetings of senior Reagan Administration officials where this opening to Iran, through Israel, was discussed in detail. General John W. Vessey, Jr., the Chairman of the Joint Chiefs of Staff (JCS), recalled that Weinberger told him incredulously, after attending a White House meeting in the summer of 1985, that someone had proposed contacts with Iran.[10] Weinberger himself testified that he recalled attending a White House meeting in August 1985 regarding the proposed NSDD on a new policy toward Iran.[11]
According to McFarlane, President Reagan, after meeting with his senior advisers in July and August 1985 and hearing the objections raised by Weinberger and Shultz, gave McFarlane oral authorization for Israel to transfer U.S.-made arms to Iran, which the United States would replenish, to get the hostages released.[12] McFarlane recalled communicating the President's decisions to Weinberger.[13]
In late August 1985, after McFarlane learned that Israel and Iran had agreed on a shipment of 100 TOW missiles,[14] he met with Weinberger at the Pentagon.[15] Powell, who attended the meeting,[16] recalled that McFarlane gave Weinberger "a sort of history of how we got where we were on that particular day"[17] and reported that there "was to be a transfer of some limited amount of materiel."[18] Weinberger's diary shows that, in a subsequent conversation with McFarlane, Weinberger advocated an agreement with the Iranians that would release all U.S. citizens being held hostage in Lebanon.[19] Weinberger's diary also shows that he and his senior aides devoted significant time during late August and September of 1985 to planning for the release of hostages,[20] and that he approved a plan for a senior military officer[21] to represent the DoD at a meeting with Iranian representatives in Europe during that period.[22]
After the Reverend Benjamin Weir was released on September 15, 1985, Weinberger's diary refers to "a delivery I have for our prisoners."[23] Weinberger's notes show that on September 17, 1985, at a "Family Group" lunch at the White House with McFarlane, Shultz and Casey, he discussed David Kimche, director general of Israel's Foreign Ministry, who was acting as the "go between" in contacts with Iranians.[24]
Weinberger, along with McFarlane and Casey, began to receive intelligence reports that provided further detailed information about dealings with Iran in exchange for hostages. Before September 17, 1985, the Pentagon copies of the first six intelligence reports on this activity were delivered to Adm. Arthur Moreau, assistant to the chairman of the JCS, rather than to Weinberger;[25] Moreau brought his copies to Weinberger's office, however, where they were read by Weinberger and Powell.[26] On September 17, Weinberger, through Powell, complained to the originating intelligence agency about not receiving direct delivery of its intelligence reports on this topic.[27] Thereafter, and continuing through the end of 1986, these reports, which were issued frequently and on a current basis, were delivered directly to Weinberger. Later in September 1985, these reports disclosed that arms were the currency of United States dealings with Iran.[28] In early October 1985, Weinberger noted that the dealings with Iran involved "arms transfers."[29] Weinberger also knew by early October 1985 that NSC staff member Lt. Col. Oliver L. North was involved in these negotiations with Iranians.[30]
In November 1985, McFarlane informed Weinberger that negotiations involving Israelis, Iranians and Americans for proposed weapons transfers in return for hostage releases had resumed.[31] Although Weinberger objected, the activity continued. McFarlane specifically informed Weinberger that HAWK missiles were the proposed currency.[32]
In late November 1985, when McFarlane was in Geneva with President Reagan for a summit meeting with Soviet leader Mikhail Gorbachev, he gave Weinberger reports regarding this proposed transaction. On November 19, McFarlane asked Weinberger to get 500 HAWK missiles for sale from the United States to Israel, which would transfer them to Iran in exchange for the release of five hostages on November 21, 1985.[33] Weinberger passed this request to Powell,[34] who discussed it with Noel C. Koch, the acting assistant secretary of defense for International Security Affairs.[35] Powell and Koch directed Henry H. Gaffney, the acting director of the DoD's Defense Security Assistance Agency (DSAA),[36] to gather information about the availability of HAWK missiles and the legal restrictions that would apply to the proposed transfer from Israel to Iran.[37] Gaffney gave Powell a negative oral report on the proposed shipment,[38] and Powell passed this information to Weinberger later that same day. Weinberger's diary entry reads:
Colin Powell in office re data on Hawks -- can't be given to Israel or Iran w/o Cong. notification, -- breaking them up into several packages of 28 Hawks to keep each package under $14 million is a clear violation[39]
Weinberger promptly passed this information to McFarlane in Geneva. McFarlane's response was non-committal.[40]
The next day, McFarlane told Weinberger that, notwithstanding the legal problems raised by Weinberger, President Reagan had decided to send HAWK missiles to Iran through Israel.[41] McFarlane later advised Weinberger that only 120 HAWK missiles would be sent, that they would be "older models," and that the hostage release would occur on Friday, November 22, 1985.[42]
Weinberger continued to discuss this planned HAWK shipment with Powell.[43] Powell provided him a succinct "point paper" written by Gaffney concerning the practical, legal and political difficulties with the proposed shipment.[44] Weinberger's diary shows that he and Powell watched for a hostage release, which did not occur, on November 22, 1985.[45] Early the next week, Weinberger received an intelligence report confirming that weapons had been shipped to Iran on November 24, 1985.[46] Subsequent reports made clear that these weapons had been HAWK missiles.[47]
During the first week of December 1985, senior DoD officials addressed a proposal to ship additional missiles to Iran in exchange for hostages. On December 2, Assistant Secretary Richard L. Armitage discussed this topic with Menachem Meron, the director general of Israel's Ministry of Defense, who was visiting the United States.[48] The next day, Armitage discussed these proposals with North.[49] On December 5, Armitage met with retired U.S. Air Force Major General Richard V. Secord, who had just returned from Israel and had been deeply involved in the HAWK missile shipment of late November 1985.[50] North prepared a detailed paper for Poindexter that same day which discussed Israel's September 1985 TOW missile shipment to Iran and urged additional Israeli arms shipments to Iran with replenishment by the United States.[51]
On or about December 5-6, Armitage obtained an information paper from DSAA regarding the proposed shipment outlined in North's paper. This paper, a one-page analysis titled "Prospects for Immediate Shipment of I-HAWK and I-TOW Missiles," was drafted by DSAA Deputy Director Glenn A. Rudd and Gaffney.[52] The paper reported that up to 75 I-HAWK missiles were available in the United States for foreign shipment and quoted a "total package price" of $22.5 million "for [shipping] 50. . . ." It reported that "3,300 I-TOWs" could be shipped from U.S. Army stocks "immediately. . . ."[53] Armitage, in collaboration with State Department official Arnold L. Raphel,[54] also created a second information paper, using a draft by Rudd and Gaffney, titled "Possibility for Leaks." The "Leaks" paper addresses the legal implications of transferring "I-HAWKs in the quantity contemplated" and "the I-TOW quantities" and says that "[t]here is no good way to keep this project from ultimately being made public."[55]
By Thursday, December 5, 1985, Weinberger had learned that President Reagan would be meeting with his senior advisers on Saturday, December 7 to discuss this proposal.[56] Weinberger and Powell, who had been out of the country from December 2 to 6, 1985,[57] met with Armitage early that Saturday morning to discuss the information papers Armitage had assembled in preparation for Weinberger's meeting with the President.[58]
At the White House meeting, Weinberger -- supported by Shultz and White House Chief of Staff Donald T. Regan -- argued against any more arms shipments to Iran.[59] Weinberger specifically told President Reagan that he could not violate the United States embargo on arms shipments to Iran, and that "washing" an arms transfer through Israel would not make it legal.[60] The President rejected these legal arguments,[61] but he announced no decision by the end of the meeting. Later that day, McFarlane advised Weinberger that the President had decided not to trade more arms for hostages, but instead was sending McFarlane to London to meet with the Iranians and to discuss the possibility of Great Britain selling arms to them.[62]
Early the next week, after McFarlane had returned from London, Weinberger attended another White House meeting with the President and senior officials to discuss proposed arms shipments to Iran. Weinberger took detailed notes during this December 10, 1985, meeting. McFarlane told the group that the United States had an outstanding commitment to supply 500 replacement TOW missiles to Israel.[63] The meeting ended with an apparent decision by President Reagan not to send additional arms to Iran at that time but to pursue diplomatic contacts in an attempt to free the hostages.[64]
In January 1986, Israel proposed additional weapons shipments to Iran. On January 6, Poindexter briefed Weinberger regarding Israel's proposal to transfer 4,000 TOW missiles from Israel to Iran, with a commitment from the United States to replenish Israel's TOW-missile stocks.[65] The next day, Weinberger attended a White House meeting with President Reagan and other senior officials. Weinberger voiced his continuing objections to this proposal.[66] The next week, Weinberger received a briefing from Koch, the principal deputy assistant secretary of defense for International Security Affairs, who had been negotiating details relating to these shipments with an Israeli arms procurement official.[67] After hearing Koch's progress report, Weinberger commented that somebody was going to go to jail.[68]
President Reagan ultimately decided that the United States would deal with Iran directly, rather than through Israel. On January 16, 1986, Weinberger attended a White House meeting with Casey, Attorney General Edwin Meese III and CIA General Counsel Stanley Sporkin regarding a proposed presidential Finding that would authorize covert arms shipments from the CIA to Iran.[69] Although Weinberger continued to offer legal objections,[70] President Reagan signed the Finding the next day. Weinberger, through General Powell, then directed the DoD bureaucracy to make missiles available to the CIA.[71] Weinberger explicitly directed subordinates that DoD was not to be involved in shipping arms to Iran beyond selling the missiles to CIA.[72]
Throughout 1986, Weinberger received periodic but detailed reports, which he recorded in his handwritten notes, concerning arms shipments to Iran to recover the hostages. In February 1986, at a "Family Group" lunch with Casey, Shultz and Poindexter, Weinberger was briefed on the schedule for sequential TOW missile shipments and hostage releases.[73] In March 1986, Weinberger learned of a proposal to send McFarlane to meet with the Iranians.[74] In April 1986, Weinberger learned that, in addition to the TOW missiles that had already been sent, HAWK missile parts would now be transferred to Iran, and that McFarlane and North would be traveling to Iran.[75] In May 1986, Weinberger discussed with Shultz intelligence reports demonstrating that McFarlane would be bringing military equipment to Iran without a commitment that all U.S. hostages would be released.[76] Near the end of May 1986, Weinberger learned that McFarlane's trip to Iran had ended in failure.[77] In July 1986, Weinberger received a briefing from Michael Ledeen, the former NSC and DoD consultant who had participated in the 1985 negotiations with Israelis and Iranians before his dismissal by Poindexter.[78] In late July 1986, Weinberger was informed that hostage Father Lawrence Martin Jenco had been released in Lebanon due to Iran's intervention and in an effort to obtain "more US weapons."[79] In October 1986, Poindexter informed Weinberger of a new channel to Iran through Rafsanjani's nephew.[80]
Weinberger complied with President Reagan's decision by selling weapons and weapons parts from DoD to CIA for onward shipment to Iran on three occasions. In February 1986, TOW missiles were sold to CIA and ultimately transferred to Iran. In May 1986, HAWK missile parts were sold by DoD to CIA and ultimately, in a partial shipment with McFarlane that month and in a second shipment in early August, transferred to Iran. In October 1986, additional TOW missiles were sold by DoD to CIA and ultimately transferred to Israel, which retained some as replenishment for earlier shipments and transferred others to Iran, producing the release of hostage David Jacobsen. Weinberger's senior military assistant informed him at the time each of these transfers to the CIA took place.[81] Weinberger also continued to receive intelligence reports on this activity throughout 1986, which provided detailed information on dealings with Iran and arms shipments in exchange for hostages.[82]
Before the discovery of Weinberger's notes in 1991, Independent Counsel's investigation had focused primarily on DoD's sale of missiles and missile parts to the CIA in 1986, and on the involvement of military officials in contra resupply activity. The inquiry into the 1986 Iran arms sales was intended primarily to obtain a thorough understanding of the mechanics of the transactions, the pricing of the TOW missiles, and whether DoD officials involved in the pricing or transfer had knowledge of the diversion of profits from the arms sales. No prosecutions resulted from this aspect of the investigation.
Weinberger was interviewed twice as a witness.[83]
Beginning in 1987, congressional investigators and the OIC repeatedly requested notes, calendars, telephone logs, diaries and other materials relevant to the Iran/contra matter from Weinberger and other high Administration officials. Weinberger produced a typewritten memorandum of one meeting, a few documents containing his handwritten marginalia, and official calendars and activity logs that were maintained by his staff. It was not until the late summer of 1990 that OIC obtained a document suggesting that he had withheld relevant handwritten notes.
An August 7, 1987, note by Secretary of State Shultz's executive assistant, M. Charles Hill, led investigators to reexamine earlier Weinberger statements regarding notes.[84] In one OIC interview, Weinberger had referred to "a habit of making notes on any piece of paper he could get his hands on."[85]
In late August 1990, Weinberger was subpoenaed to produce relevant documents, including any handwritten notes, to the Grand Jury. On September 13, 1990, his attorney assured the OIC that Weinberger had previously turned over his notes to the congressional committees investigating the Iran/contra matter or to the Library of Congress. Subsequently, Weinberger agreed to be interviewed. On September 28, 1990, in arranging the interview, Weinberger's attorney was told that two sources of information -- Weinberger's previous interview with the OIC and a newly discovered document[86] -- indicated that Weinberger had not turned over relevant notes to Congress.
On October 10, 1990, Weinberger, accompanied by his counsel, was interviewed by OIC attorneys in the presence of an FBI Special Agent.[87] At that time, his counsel asked to see a record of the April 7, 1988, interview. After reviewing it, Weinberger said that he disagreed with that portion of the report that stated: "he had a habit of making notes on any piece of paper he could get his hands on." Weinberger characterized the statement as "misleading" because it implied that it was his habit to make notes throughout his seven years as secretary of defense, which he said was not the case. Weinberger stated that during his first year as secretary of defense he had taken notes on the backs of pages in his briefing books. He said his personal secretaries initially had saved these notes for him so that he could dictate memoranda. He said he discontinued that practice after about a year, when it became apparent that he would not have time to dictate memoranda.[88] Weinberger stated that, after his first year in office, he did not regularly take notes at meetings or make a record of meetings when he returned to his office; he did not take notes of his phone calls; and he had not deliberately withheld anything from Iran/contra investigators. During the interview, Weinberger was told that a document, contemporaneously written by someone Weinberger would consider credible, said that Weinberger had withheld some of his relevant Iran/contra notes.[89] Weinberger denied the allegation and stated he was distrustful of the author and his motivations.
Weinberger and his counsel were permitted to review the FBI agent's October 10, 1990, interview report when they returned to the Office of Independent Counsel for another interview on December 3, 1990.[90] Both Weinberger and his counsel complimented the report's accuracy and thoroughness and contrasted it favorably with the report of the 1988 interview, which had suggested he was an avid notetaker.
Between the October and December 1990 interviews, the OIC obtained Weinberger's permission to review his papers at the Library of Congress. Assuming that any documents relating to Iran/contra were classified[91] and relying on Weinberger's statements that the few notes he took were scribbled on the backs and margins of documents in his briefing books, OIC investigators asked both DoD and Library of Congress personnel where such materials would be located. The investigators were directed to the classified subject list in the Library's index to the Weinberger collection.[92] Investigators found no collection of notes among the materials they examined.
When OIC investigators returned to the Library of Congress in November 1991, they reviewed the entire index and found thousands of pages of diary and meeting notes that Weinberger had created as secretary of defense. These notes, which contained highly classified information, had been stored in the unclassified section of the Weinberger collection.[93]
Weinberger's notes proved to be an invaluable contemporaneous record of the views and activities of the highest officials regarding those sales.[94] They revealed, among other things, that contrary to his sworn testimony, Weinberger knew in advance that U.S. arms were to be shipped to Iran through Israel in November 1985 without congressional notification, in an effort to obtain the release of U.S. hostages, and that Israel expected the United States to replenish the weapons Israel shipped to Iran. Weinberger's notes also disclosed that, contrary to his sworn testimony, he knew that Saudi Arabia was secretly providing $25 million in assistance to the contras during a ban on U.S. aid.
By late January 1992, Weinberger's conduct had become a focus of the OIC's investigation.[95]
On March 30, 1992, the OIC notified Weinberger that he was a target of a federal Grand Jury investigation of possible crimes, including obstruction, false statements and perjury. Independent Counsel invited Weinberger's voluntary testimony before the Grand Jury. Although Weinberger ultimately declined to appear before the Grand Jury or make any statements before an FBI Agent, he did, at his request, make his own presentation to Independent Counsel and other OIC attorneys on May 12, 1992. In addition, in extended efforts to resolve the matter, OIC attorneys met frequently and at length over a 10-week period with Weinberger's counsel.[96]
In the course of these discussions, Independent Counsel asked Weinberger to provide complete and truthful information on a range of topics, including positions that Reagan Administration officials took before Congress and the public in November 1986. Weinberger and his counsel insisted, however, that Weinberger had no information to provide that went beyond his previous statements. Weinberger and his counsel claimed that Weinberger had never associated his diary notes with Iran/contra document requests because his note-taking was as habitual and unconscious as brushing his teeth. They also claimed that none of Weinberger's aides had asked him to produce his notes. Weinberger denied present knowledge of the information recorded in his handwritten diary and meeting notes and would not acknowledge the inconsistencies between his notes and his testimony. In an effort to demonstrate that Weinberger lacked criminal intent, his attorneys also submitted to the OIC a report of a private polygraph examination of Weinberger and a psychologist's report regarding Weinberger's memory. Both concluded that Weinberger had not intentionally concealed his notes from Congress or the OIC.[97]
The OIC found Weinberger's presentations unconvincing. Independent Counsel thereafter presented an indictment to the Grand Jury, which was returned on June 16, 1992.
The indictment contained five felony counts charging Weinberger with:
Count One, obstruction of a congressional investigation by concealing and withholding relevant notes;
Count Two, making false statements to Congress regarding his knowledge of Saudi Arabia's funding of the contras;
Count Three, perjury before Congress about his knowledge of the planned shipment of HAWK missiles to Iran in November 1985;
Count Four, perjury before Congress about his knowledge of the issue of replenishing missiles that Israel had shipped to Iran; and
Count Five, false statements to the Office of Independent Counsel and the FBI regarding his note-taking.[98]
Weinberger was arraigned on June 19, 1992, and pleaded not guilty to all charges. The case was ultimately set for trial on January 5, 1993. Hearings to resolve classified information issues under the Classified Information Procedures Act (CIPA) were scheduled for December 7, 1992, with a November 2 deadline for the Government to produce the documents it intended to use in its case-in-chief.
On September 29, 1992, the district court granted Weinberger's motion to dismiss Count One.[99] The court held that Count One, in effect, charged Weinberger with lying to Congress, which did not constitute obstruction under the decision in United States v. Poindexter.[100] Rather than appeal the district court's decision, Independent Counsel sought a new indictment charging Weinberger under 18 U.S.C. § 1001 with the same false statements to Congress that had been alleged in the original Count One. The new indictment was returned on October 30, 1992.[101] On December 11, 1992, the district court granted Weinberger's motion to dismiss the new indictment on statute-of-limitation grounds.[102] On December 24, 1992, President Bush pardoned Weinberger. At the time of President Bush's pardon, Independent Counsel had not yet decided whether to appeal the district court's ruling.
The Government's trial evidence would have demonstrated that, contrary to the impression created by his false testimony before Congress, Weinberger was a knowing participant in the initiative to send arms to Iran in return for the release of Americans held hostage in Lebanon. In the summer of 1985, Weinberger knew of President Reagan's decision to authorize Israel to send missiles to Iran and his commitment to replenish Israel's missile stocks. Beginning in late September 1985 and continuing through the end of 1986, Weinberger also received a sizeable quantity of highly classified intelligence reports regarding the Iran initiative.[103] These intelligence reports provided detailed information regarding the pricing and delivery of missiles sold to Iran and the release of American hostages in Lebanon. In particular, in very late November and early December 1985, the reports revealed that HAWK missiles were shipped to Iran from Israel in connection with hostage-recovery efforts.
The Government's evidence also would have shown that Weinberger deliberately concealed from Iran/contra investigators his diary and meeting notes, which would have demonstrated the falsity of his testimony.
For simplicity of discussing the evidence supporting the individual counts, this Report begins with the evidence proving the falsity of Weinberger's denial of the existence of his notes, which was charged in the original Count One and Count Five. Because Count One was dismissed, this discussion begins with Count Five.
Count Five charged Weinberger with making false statements in the October 10, 1990, interview with members of Independent Counsel's staff and a special agent of the FBI. Weinberger's attorney had been advised beforehand that the purpose of the interview was to discuss Weinberger's notes, and Weinberger brought to the interview a memorandum from his personal secretary that addressed this very issue. During the interview, Weinberger was asked repeatedly, in several different ways, about his note-taking practices. He insisted that he rarely took notes; that, as a rule, he did not take any notes when he met with the President or other Cabinet members; and that he specifically did not take any notes during meetings concerning the Iran arms sales. Weinberger also stated that he did not make a record of his meetings when he returned to the Pentagon and did not take notes of telephone conversations. He stated that he had always followed President Reagan's instructions to turn everything over to Iran/contra investigators and said that he was not aware of any relevant notes that had not been turned over. He insisted he had not deliberately withheld anything from Iran/contra investigators.[104]
To establish the deliberate falsity of Weinberger's statements, the Government would have proved at trial that (1) Weinberger maintained voluminous notes of meetings and phone calls, many of which were relevant to Iran/contra; (2) Weinberger knew in 1987 of congressional requests for his notes and diaries but produced none of them, and went so far as to lie under oath to conceal their existence from congressional investigators;[105] and (3) on his retirement as secretary of defense, Weinberger privately deposited his notes in the Library of Congress where no one could see them without his permission.
Throughout his career, Weinberger regularly took detailed notes, primarily in pencil, of his daily activities, including summaries of his meetings and telephone conversations. While secretary of defense, Weinberger took more than 7,000 pages of these daily "diary notes" on 5" x 7" government-issue note pads.[106] He took nearly 1,700 pages of such notes in 1985 and 1986 alone. During the same period, Weinberger compiled hundreds of pages of notes taken during White House and Cabinet meetings. More than 150 pages of these diary and meeting notes contain information relevant to Iran/contra, including information that contradicts Weinberger's sworn testimony concerning his knowledge of the Iran arms sales and of Saudi Arabian contributions to the contras.
According to General Powell, who served as Weinberger's senior military assistant from July 1983 to March 1986, Weinberger kept the 5" x 7" note pads on his desk and jotted down entries throughout the day. Weinberger stored completed note pads in his desk drawer and transferred them to the bedroom attached to his office when the drawer was full.[107] Powell's successor, Admiral Donald S. Jones, said there were "better than one or two linear feet" of papers, bound together with rubber bands, on the shelf in Weinberger's bedroom at DoD.[108] Several witnesses stated that Weinberger intended to use his diary notes to write his memoirs.[109] In 1988, while working on his book Fighting for Peace, Weinberger and his research assistant John C. Duncan reviewed some of the Weinberger diary notes that had been deposited at the Library of Congress.[110] Duncan recalled that they joked about the illegibility of Weinberger's handwriting. They decided that Weinberger's handwritten notes would be too difficult to use as a source for Fighting for Peace but agreed that the notes would be useful when Weinberger wrote a more comprehensive memoir that tracked his daily experiences.[111]
Weinberger also regularly took notes of meetings on White House note pads, on the backs of documents, and on other stray pieces of paper. In addition to his own meeting notes, many of which are identified by typed or handwritten notations made by Weinberger's secretaries, Weinberger saved notes and doodles passed to him by others, which he labeled and dated himself. Some of Weinberger's meeting notes were kept in a "Handwritten Notes" file maintained by his secretaries.[112] The remainder, which include most of Weinberger's meeting notes relevant to Iran/contra, were maintained by Weinberger himself in the same manner as his diary notes.
At trial, the Government would have shown that the sheer volume of Weinberger's notes, and the care he took in maintaining them for posterity, belied his contention that his notetaking was so habitual that he never thought of his notes.[113] The Government also would have demonstrated that Weinberger could not have forgotten his notes, having recorded in his diary the very meetings in which he was asked by Iran/contra investigators about his notes or diaries.
Weinberger's notes and other contemporaneous documents show that he knew of the Select Committees' requests for handwritten notes and diaries. Despite his direction to others to cooperate fully with the congressional investigation, Weinberger deliberately withheld his own notes from Congress and falsely denied to congressional investigators that he had contemporaneous notes of meetings and phone calls.[114]
During Weinberger's March 11, 1987, interview with the staff of the Senate Select Committee, Chief Counsel Arthur L. Liman told him that President Reagan's diary excerpts had been very useful to the Select Committees' investigation and remarked that he hoped to use these diary excerpts at the hearings.[115] Weinberger stated that his own record-keeping habits were poor and said that he regretted he did not keep copious records of meetings as Henry Kissinger had done.[116] As staff counsel noted in a memorandum of the interview, Weinberger left the clear impression that he did not keep diaries or dictate his thoughts about a day's events.[117] When the interview was over, Weinberger made the following entry in his daily diary notes: "2 Senate staff of Special Iran Committee in office -- with Larry Garrett -- re my recollections of Iran events."[118]
The Senate and House Select Committees made formal written requests on April 4 and April 13, 1987, respectively, for Weinberger's notes and diaries.[119] The DoD General Counsel's office relayed these requests to DoD officials in a series of internal memoranda. At least one of these -- an April 14 memorandum regarding the Senate Select Committee's document request -- reached Weinberger's desk and was stamped "SEC DEF HAS SEEN APR 20 1987."[120]
A singularly incriminating document is an April 17, 1987, "Action Memorandum" from DoD General Counsel H. Lawrence Garrett III to Weinberger that described the Senate and House requests for notes and diaries.[121] Garrett advised Weinberger:
I know you understand the nature of the obligations placed upon us by this request. I understand that these materials, if any such exist, are highly personal and sensitive. Accordingly, I would of course insist that any provision of these materials to the Committees be conducted in as discreet and limited a manner as you wish.
The memorandum further advised Weinberger that Garrett would determine what "the arrangements currently are for the review of any similar records of other top-ranking officials." It concluded by stating that Garrett would "await further information/instructions from" Weinberger. Weinberger underlined the reference to other officials and wrote a note below: "Larry -- let's have a meeting after you hear what others are doing."[122]
The Garrett memorandum discredits any claim that Weinberger's subordinates simply failed to ask him for his notes. In fact, Garrett told Weinberger, specifically and in writing, that Congress had requested his handwritten notes and diaries.[123] The memorandum also belies Weinberger's claim that he had no reason to believe that the congressional document requests encompassed personal documents such as his diary notes.[124] Not only did Garrett tell him that the requests included "highly personal and sensitive" papers, but Weinberger focused specifically on that part of the memorandum in asking Garrett to find out what other officials "are doing."[125]
Weinberger's secretary, Kay Leisz, said she had a general recollection that in connection with the Iran/contra document production "someone" told Weinberger that there was a distinction between "personal" and "official" documents, and it was her "feeling" that personal documents did not have to be produced. (Leisz, OIC Interview, 6/15/92, pp. 26-28.) Neither Weinberger nor his attorneys ever claimed that he had been advised that personal documents did not have to be produced to Iran/contra investigators. Garrett's memorandum reached the opposite conclusion, and he testified that he specifically advised Smith, in Leisz's presence, that the document requests included "personal notes." (Garrett, Grand Jury, 4/22/92, pp. 18-19.) Garrett did not recall giving Weinberger advice to the contrary. (Garrett, Grand Jury, 10/28/92, p. 32.)
Weinberger's diary notes indicate that Garrett raised this subject with him again in a meeting on April 21, 1987, after which Weinberger wrote: "Larry Garrett in office -- re demands by Sen -- House Committees for briefings on black programs -- + their demand for my diary[.]"[126]
There is also circumstantial evidence that Garrett raised the issue with Weinberger a third time, on April 30, 1987, and may have advised him of the arrangements that had been made for Iran/contra investigators to review President Reagan's diaries. On April 29, 1987, Garrett and Assistant General Counsel Edward J. Shapiro attended a White House meeting of the general counsels' group that coordinated Administration responses to the congressional and OIC Iran/contra investigations. The attorneys discussed the terms on which the Select Committees and the OIC were permitted to review excerpts of President Reagan's personal diaries.[127] The same day, Garrett sent an "Information Memorandum" to Deputy Secretary of Defense William H. Taft IV regarding "Congressional Request for Excerpts of Relevant Portions of the Diaries of the SecDef." The memorandum advised Taft that "[w]e have been asked again by the senior legal staff of the Senate Select Committee on Iran whether the SecDef keeps diaries. . . ." The memorandum then related to Taft that White House counsel had made transcribed excerpts of President Reagan's diaries available to the Select Committees and the OIC, subject to certain restrictions. The memorandum concluded: "I do not know whether the Secretary keeps a diary, but it is obviously necessary to pursue this."[128]
Taft recalled that he had told Garrett during the Iran/contra investigation that Weinberger had regularly kept notes during the Nixon Administration, and Taft had advised Garrett to go to Leisz and Weinberger to be sure that, if Weinberger still kept such notes, everything was produced to Iran/contra investigators.[129] Although Taft could not fix the date of this conversation, Garrett's April 29 memorandum to Taft was stamped "DEP SEC HAS SEEN" on April 30, 1987. On the same day, Weinberger made the following entry in his daily diary notes: "Larry Garrett in office re preparation for Senate House staff interview on Iran hgs -- also re papers to be turned over."[130]
The day after Garrett's conversation with Weinberger, on May 1, 1987, Mark A. Belnick, executive assistant to the chief counsel of the Senate Select Committee, spoke to Shapiro and recorded in a file memorandum that Shapiro "had been informed by Secretary Weinberger's office" that Weinberger had "no entries in his diaries responsive to [the Senate] requests," and that Weinberger had some "but not many" notes responsive to the requests.[131]
In his June 17, 1987, congressional deposition Weinberger testified falsely that he rarely made notes of meetings -- either contemporaneously or after the fact -- and had no records that could supplement his memory regarding Iran/contra events.[132] As he made these statements under oath in his office, Weinberger was sitting only four feet from the desk drawer that contained his diary notes. After the deposition, Weinberger made the following entry in his daily diary notes: "Gave deposition to Senate + House staff members on Joint Iran investigation. -- 10:35 AM -- 1:10 PM Larry Garrett & Mr. Shapiro there."[133] That same day, Weinberger also placed Garrett's April 17, 1987, memorandum regarding the congressional document requests into his out box.[134]
Weinberger personally packed his diary notes as he was preparing to leave office in November 1987. On that day, Roger Sandler, a free-lance photographer, was present to take photos for a magazine profile of Weinberger. These photos show Weinberger handling large stacks of his diary notes, neatly bundled together with binder clips and rubber bands. As Weinberger was taping boxes, he commented on his daily diary notes, and he and Sandler briefly discussed the fact that they both kept diaries.[135] Weinberger's diary notes subsequently were transferred to the Library of Congress without being submitted for classification review.[136]
Weinberger's meeting notes were transferred from the Pentagon to the Library of Congress in two sets. The "set A" notes arrived at the Library in April 1988 along with Weinberger's 1980-87 diary notes. The set A notes consist of original meeting notes by Weinberger and notes and doodles from others that were labeled and dated by Weinberger.[137] These notes, which include most of Weinberger's meeting notes relevant to Iran/contra, were kept by Weinberger himself and were not submitted for classification review before being transferred to the Library.[138]
The "set B" notes, which arrived at the Library in August 1988, consist of copies of Weinberger's notes of other meetings.[139] Many of the set B notes are identified by typed or handwritten notations made by Weinberger's secretaries at the top of the first page. Unlike the set A notes, the set B notes were individually indexed and reviewed for classified information before they left DoD for the Library of Congress. The index is titled "SECRETARY Weinberger's HANDWRITTEN NOTES" and identifies the source of the notes as "VAULT."[140] Thelma Stubbs Smith, Weinberger's second personal secretary, described how the handwritten notes file maintained by Weinberger's secretaries (set B) was transferred to the vault in his inner office and that she packed these notes at the end of Weinberger's term, leaving the boxes with Defense Department C&D personnel to transfer to the Library of Congress.[141] Boxes containing meeting notes were subsequently sent to the Executive Secretariat where they were copied, sorted and indexed for transmittal to the Library.[142] Thus, contrary to Weinberger's suggestion during his congressional deposition, it appears that none of his meeting notes were stored in Defense Department C&D's files.[143] Rather, both the set A and set B meeting notes were maintained outside DoD's recordkeeping system until Weinberger left office.
All of Weinberger's diary and meeting notes were deposited with the Manuscript Division of the Library of Congress as Weinberger's private property, under an agreement that provided expressly that no one could have access to Weinberger's papers without his permission.[144] Weinberger's repeated public assertions that his notes were deposited in "the most public depository in the United States"[145] are therefore grossly misleading. In fact, Weinberger refused in February 1990 to allow even the General Accounting Office access to the papers when it was attempting to monitor former agency heads' compliance with laws governing the removal of Government records.[146]
In summary regarding Count Five of the Indictment, the Government would have proven at trial that Weinberger had, since 1987, deliberately concealed his notes from Iran/contra investigators and that his false statements to the OIC in October 1990 were simply a continuation of those efforts. The Government also would have shown that Weinberger's motive for concealing his notes was simple: The notes disclosed that, contrary to his sworn testimony, Weinberger had contemporaneous knowledge of the Reagan Administration's involvement in arms sales to Iran in 1985, which Weinberger himself had argued at the time was illegal, and that he had greater knowledge of the Iran arms sales in 1986 than he had disclosed in his testimony.
Weinberger's notes also reflect frank and potentially embarrassing exchanges between President Reagan and his advisers, including President Reagan's sweeping rejection of concerns about illegality at the December 7, 1985, meeting. They also record the Administration's efforts in November 1986 to insulate President Reagan from knowledge of the 1985 arms sales to Iran.[147]
Count Two of the Indictment charged Weinberger with making false statements to the Select Committees denying his knowledge that Saudi Arabia had contributed to the support of the Nicaraguan contras at a time when Congress had forbidden the use of appropriated funds for this purpose. One of the chief concerns of the congressional Iran/contra investigations was third-country assistance to the Nicaraguan contras.[148] Weinberger's daily diary notes and other contemporaneous documents reveal that he knew in the spring of 1984 that foreign countries including Saudi Arabia were being solicited to provide funds for the contras, and that he knew in the spring of 1985 that Saudi Arabia was providing $25 million in assistance to the contras. Yet on June 17, 1987, when he appeared as a witness before the staff of the Select Committees, Weinberger made the following statement under oath:
Q: Do you recall learning at some point that the Saudis or some people connected with the Saudis provided funds for the contras?
A: No. I don't have any memory of any contra funding or of anything connected with [the Saudis] that I can remember now.[149]
Weinberger's daily diary notes during his nearly seven years as secretary of defense demonstrate that Saudi Arabia and Nicaragua were foreign policy matters of great concern to him.
During the period 1984-1987, Weinberger's daily diary notes record at least 64 separate contacts with Prince Bandar bin Sultan, the Saudi Ambassador to the United States. These include 16 meetings, mostly private, in Weinberger's office;[150] telephone conversations on 18 separate days;[151] and 10 social events at which both men were present.[152] The subjects of Weinberger's dealings with Bandar, as recorded in Weinberger's daily diary, range from the birth of one of Bandar's children[153] to political strategy for handling the revelation of the Iran arms sales,[154] and include discussions of helping Saudi Arabia acquire United States weapon systems.[155]
Weinberger's daily diary similarly records his concern for the Nicaraguan contras and events in Central America. On hundreds of separate occasions during 1985 and 1986, he made daily diary entries about formal meetings within the Administration, telephone calls or private meetings at the Pentagon concerning such things as the latest military and political developments in the region, the prospects for obtaining funding from Congress for the contras, recent trips to Central America by other officials and his own dealings with contra leaders.[156]
Weinberger's congressional testimony and statements regarding Saudi funding for the contras consistently protected the false position taken by the Saudi Arabian Government: total denial of such support. On October 21, 1986, Prince Bandar issued the following press release from the Royal Embassy of Saudi Arabia in Washington, D.C.:
Saudi Ambassador Denies Nicaraguan Involvement The Ambassador of Saudi Arabia to the United States today issued the following statement in response to press inquiries.
"Saudi Arabia is not and has not been involved either directly or indirectly in any military or other support activity of any kind for or in connection with any group or groups concerned with Nicaragua."[157]
Weinberger's notes and other contemporaneous documents reveal his direct knowledge that Saudi Arabia had agreed to give financial support to the Nicaraguan contras during the period when U.S. funds for the contras were virtually exhausted and Congress had refused to appropriate additional funds.[158]
In May 1984, Prince Bandar informed National Security Adviser Robert C. McFarlane that Bandar would provide $1 million per month to the contras.[159] Weinberger's diary notes show that, on Sunday, May 20, 1984, Prince Bandar asked Weinberger for an appointment.[160] Weinberger's very next diary note states that he
Called Bud McFarlane -- re
agreedfabove -- he wants to be sure there's no gap. . . .[161]
Although Weinberger's diary entry regarding his meeting with Prince Bandar shows discussion of topics other than the contras, Weinberger's diary the next day shows that he and McFarlane spoke about U.S. officials soliciting foreign countries to aid "Central America:"
Called Bud McFarlane -- rhc [returned his call] -- he doesn't want [Under Secretary of Defense for Policy Fred] Ikle working to get any Israeli, etc. aid for Cent Am
Called Colin Powell -- re above[162]
On June 20, 1984, during a "Contra Money" meeting at the Department of State that was attended by senior Reagan Administration officials,[163] Weinberger stated his views on ensuring the survival of the contras:
Don't give up on the Congr chance, altho slim. But plan for other sources for $. Keep US fingerprints off.
* * * even if Congr turns us down, we must not let collapse happen[164]
Weinberger's diary notes also show his knowledge of Saudi Arabia's continuing, and expanded, support for the contras during 1985. On March 13, 1985, Weinberger made the following entries in his daily notes after a private meeting with General John W. Vessey, Jr., Chairman of the Joint Chiefs of Staff:
Jack Vessey in office alone -- after meeting [with others] -- Bandar is giving $25 million to Contras -- so all we need is non-lethal aid
Called Bud McFarlane -- out; l.w. [left word]
* * * Called Bud McFarlane -- passed on to him Jack Vessey's report that Bandar is giving $25 million to Contras -- + suggested that if so -- we go for covert non-lethal aid of $14 mil.[165]
Weinberger's daily notes indicate that he spoke with McFarlane again the following day about Saudi aid to the contras:
Called Bud McFarlane -- No further news on Saudis gifts to Contras[166]
The following morning, March 15, 1985, Weinberger and Deputy Secretary of Defense William Howard Taft IV had their regular Friday breakfast with CIA Director Casey and Deputy Director John N. McMahon. McMahon's memorandum for the record, created that same day, documents the following discussion of the contras, including Saudi support:
Question of the support to the Contras came up. The Director [Casey] noted that we should have another meeting on it but following last week's meeting of the LSG [Legislative Strategy Group] we tended to be leaning towards non-lethal aid. I [McMahon] described the assignment given to [Assistant Secretary of State] Motley to develop different options which could be packaged and then played against Senators Lugar and Durenberger to see what combination of options in a single package might be acceptable to Congress. But I noted at the meeting that there was no agreement that we would be limited to non-lethal aid. The Director [Casey] said that McFarlane was to meet with Lugar and Durenberger today. In closing the Secretary [Weinberger] stated that he had heard that Bandar, Ambassador of Saudi Arabia, had earmarked $25 million for the contras in $5 million increments.[167]
Credible witnesses corroborated Weinberger's knowledge of Saudi Arabia's support for the contras. General Vessey, who served as Chairman of the Joint Chiefs of Staff until he retired in September 1985, recalled that Bandar informed him on two occasions that the Saudis were funding the contras.[168] On each occasion, Vessey immediately reported Bandar's statements to Weinberger, who responded that he did not want this issue to become public.[169] Vessey recalls that he or Weinberger, during a White House conversation they had with McFarlane, urged McFarlane to support a proposed arms sale to Saudi Arabia because the Saudis were funding the contras.[170] McMahon confirmed two meetings in which Weinberger reported to McMahon and Casey that the Saudis were funding the contras.[171] McFarlane recalled a number of discussions with Weinberger regarding the Saudi contributions to the contras during 1984 and 1985. McFarlane testified that in May 1984, he told Weinberger and Shultz that an unnamed foreign country had agreed to "provide for" the contras through the end of the year.[172] McFarlane also recalled Weinberger telling him in spring 1985 that Weinberger had received information that Prince Bandar had given $25 million to the contras.[173]
Throughout the 1987 period when Weinberger was testifying that he had no recollection that the Saudis had supported the contras, specific events continued to give Weinberger vivid reminders on that very subject. On January 14, 1987, for example, a reporter drew an angry response when he publicly confronted Weinberger, who denied knowing about Saudi aid to the contras.[174] Similarly, Vessey told Weinberger on February 11, 1987, that he had just told an FBI Agent of his conversations with Bandar and Weinberger about Saudi aid to the contras. Weinberger replied that he had forgotten about the conversations but agreed with Vessey's recollection.[175] Weinberger recorded this meeting in his daily diary as follows:
Jack Vessey in office -- he remembers telling McFarlane about Saudi claim they had sent funds to contras -- also he has been asked to do a mission to Hanoi on POW's by Frank [Carlucci] -- OK
Discussed Secretary of Navy vacancy[176]
As early as the summer of 1986 Weinberger concealed from Congress his knowledge of Saudi Arabian support for the contras. On September 4, 1986, in response to a letter of inquiry from Representative Dante B. Fascell, Chairman of the House Committee on Foreign Affairs, Weinberger wrote that he "regarded [a press] allegation of Saudi funding of U.S. assistance to anti-government forces in Nicaragua as so outlandish as to be unworthy of comment from the Department [of Defense]."[177]
Later in 1986, Weinberger continued to conceal his knowledge from Congress. On December 17, 1986, during sworn testimony in closed session before the Senate Select Committee on Intelligence, Weinberger gave the following answers to Sen. Bill Bradley's detailed and persistent questions:
Q: Have you been in any meeting since December -- well, in the last 2 years -- that discussed the funding for the contras outside of a direct congressional act?
A: No. I did spend a lot of time trying to persuade various Members of the Senate and House that the $100 million was required, and ----
Q: But outside of ----
A: Not outside; no, sir. No.
Q: You've had no discussions with any third party about provision of equipment or money to the contras?
A: No, sir.
Q: You've been in no meeting where it was discussed?
A: To get -- from outside assistance?
Q: Uh-huh.
A: No, I don't have any recollection of that. I know that there were a lot of attempts to get aid to the contras, but my efforts were concentrated entirely on trying to get the $100 million bill passed.
Q: But prior to that, in 1985 or early 1986 you had no discussions with anyone about providing funds or equipment to the contras?
A: I have no recollection of anything of that kind at all, Senator; no. I concentrated, as I said, entirely on the trying to get the Congress to approve the $100 million appropriation, which I thought then and think now was very necessary.
Q: You were in no meeting in which this was discussed?
A: I don't have any recollection of it, Senator, I really don't; no.[178]
By the time that Independent Counsel had discovered Weinberger's notes and the falsity of his testimony, the five-year statute of limitations had run on this testimony, so it was not, in itself, a basis for prosecution.[179]
In Weinberger's public testimony before the Select Committees on July 31, 1987, his denial of knowledge of Saudi support to the contras was categorical:
Q: . . . Mr. McFarlane testified that in the spring of 1985 there was a large contribution from [Saudi Arabia]. You were asked in your deposition whether you were aware at or about that time of the contribution. Do you recall being aware?
A: No. I was not aware.
Q: Let me just ask you, . . . if you would turn to . . . a memorandum for the record by John McMahon. It is dated March 15, 1985, and on the second page in paragraph 7 it refers to a meeting that you had with Director Casey at or about that time. It indicates, "Question of the support the contras came up." This is reporting on a meeting that had taken place between yourself and Director Casey. The very last line reads, "In closing, the Sec -- " -- meaning the Secretary of Defense -- " -- stated that he had heard that -- " -- I will tell you what is under [the black redaction mark] there is an official [Prince Bandar] -- " -- had earmarked 25 million for the contras in $5 million increments." Do you have any recollection of seeing ----
A: Well, I don't really. These were regular breakfast meetings that I had every week with the Director of CIA and they were very free-form discussions and meetings. The Director [Casey] and his Deputy [McMahon] and Mr. Taft and I went to these breakfasts every week and there was a lot of discussion back and forth and reports passed on and this statement that I had heard that, I don't remember saying it, but I did frequently joke with Mr. Casey to the effect that I frequently picked up things from his rival intelligence agency, which was one of the morning radio stations, and I may very well, simply been passing on that kind of report. I don't have any specific memory of it, but John McMahon is a good reporter so he probably heard this statement made.
Q: John McMahon was Deputy Director of the CIA at the time?
A: He was indeed.
Q: But you don't have any recollection of being advised by Mr. McFarlane or ----
A: No.
Q: ---- the President or anyone else that there had been such a large contribution from [Saudi Arabia]?
A: No. The reason I am quite sure about it is that we were all making major efforts at that time to get funding for the contras from the Congress and I think probably many of the gentlemen here remember that I made lots of calls in support of various bills and particularly trying to get the $100 million appropriation which ultimately was voted.[180]
This testimony in July 1987 simply repeated Weinberger's false testimony from the June 17, 1987, deposition. To avoid unnecessary proliferation it was not included in the indictment as a separate charge.
Count Three of the Indictment charged Weinberger with perjury for stating falsely under oath that he had no knowledge that the November 1985 HAWK missile shipment to Iran was to take place. Weinberger repeatedly denied to congressional investigators and to the OIC that he had contemporaneous knowledge of the planning for the November 1985 HAWK missile shipment. Yet his daily diary notes demonstrate his detailed and contemporaneous knowledge. Although Weinberger opposed the shipment and warned that it would be illegal under the Arms Export Control Act, his notes indicate that, in furtherance of President Reagan's decision to proceed, Weinberger took steps to identify adequate U.S. HAWK missile inventories to replenish the Israelis.
As the Indictment states, Weinberger was asked directly about the HAWK shipment while testifying under oath before the Select Committees on July 31, 1987:
Mr. Eggleston: The Committee has also received testimony that on that weekend of November 23 and November 24, [1985,] there was a shipment of 18 HAWK missiles from Israel to Iran. This [exhibit] was a paper that was written immediately prior to that time. Let me just ask you: Did you have any knowledge that that transfer was to take place?
Secretary Weinberger: No, I did not.
But his contemporaneous notes reveal that Weinberger was notified on November 9, 1985, by McFarlane of a new phase in the arms-for-hostages plan. After their conversation, Weinberger made the following note in his diary:
Bud McFarlane . . . wants to start "negot." exploration with Iranians (+ Israelis) to give Iranians weapons for our hostages -- I objected -- we'll talk later on secure.[181]
The next day, after speaking again with McFarlane, Weinberger made this diary note:
Bud McFarlane . . . -- negotiations are with 3 Iranian dissidents who say they want to overthrow government. We'll demand release of all hostages. Then we might give them -- thru Israelis -- Hawks but no Phoenix.[182]
One week later -- when McFarlane was in Geneva with President Reagan for a summit meeting with Gorbachev, and Weinberger was in Washington -- McFarlane again telephoned Weinberger. Weinberger made a diary note of McFarlane's specific request for 500 HAWK missiles from DoD stocks:
Bud McFarlane fm [from] Geneva -- update on [summit] meetings -- all OK so far -- Also wants us to try to get 500 Hawks for sale to Israel to pass on to Iran for release of 5 hostages Thurs.[183]
Weinberger informed Powell of McFarlane's request.[184] Powell promptly obtained the requested information and reported back to Weinberger, who made the following diary note:
Colin Powell in office re data on Hawks -- can't be given to Israel or Iran w/o Cong. notification, -- breaking them up into several packages of 28 Hawks to keep each package under $14 million is a clear violation[185]
Weinberger, in turn, relayed Powell's information to McFarlane in Geneva. Weinberger made the following diary entry regarding McFarlane's non-committal response:
Called McFarlane in Geneva -- re above -- he "thanks me for call" --[186]
The next day, McFarlane informed Weinberger that, notwithstanding the legal restrictions that Weinberger had identified, President Reagan had decided to approve the proposed HAWK missile shipment to Iran. Weinberger recorded the President's decision in his diary as follows:
Bud McFarlane rmc. [returned my call] fm [from] Geneva (2) -- he hasn't heard of request for logistical support for hostages -- return -- Told him we shouldn't pay Iranians anything -- he sd [said] President has decided to do it thru Israelis.[187]
Later that day, McFarlane called to give Weinberger the latest details on the planned HAWK missile shipment, which Weinberger again recorded in his diary:
Bud McFarlane fm [from] Geneva -- working on broad agreement language -- Israelis will sell 120 Hawks, older models to Iranians -- Friday [hostage] release
Called Colin Powell -- re above[188]
On Thursday, November 21, 1985, Weinberger made additional diary entries regarding this arms-for-hostages initiative:
In office 720 Am -- 105 Pm
Saw Colin Powell -- full statements of Geneva meetings, agreements, -- etc -- OK -- also re Hawks for Israel-Iran
* * * Admiral Crowe in office -- re President's decisions at Geneva -- hostage rescue attempts --[189]
On Saturday, November 23, Weinberger made a diary note of his call from his home to General Powell:
Colin Powell -- . . . no hostage release last night[190]
On Monday, November 25, 1985, Weinberger's diary contains a final note regarding this phase of the Iran arms sales:
Admiral Crowe in office -- . . . also re Iranian
hostheld hostages[191]
Because Count Three focused on Weinberger's denial of knowledge that the November 1985 HAWK missile shipment to Iran "was to take place," it was not essential to prove his knowledge of the actual shipment. Nevertheless, Weinberger did receive intelligence reports shortly after the shipment confirming that weapons had been shipped to Iran on November 24, 1985. Subsequent intelligence reports, which also were delivered to Weinberger, specified that these weapons had been HAWK missiles.[192]
Count Four charged Weinberger with perjury for stating falsely under oath that he had no knowledge of the "replenishment issue" that was created by Israel's arms shipments to Iran in 1985. The crux of that issue was that Israel wanted the United States to replenish its weapons stocks for missiles it had sent to Iran. On July 31, 1987, in sworn testimony before the Select Committees, Weinberger gave the following false answer:
Q. And in addition there are various documents which are in evidence before the Committee which refer to the Israeli desire and need for replenishment of weapons that the Israelis were sending. Did you know that replenishment was an issue?
A. No, I have no memory of that.[193]
This testimony conformed to Weinberger's previous false statements to Iran/contra investigators regarding Israel's role in arms shipments to Iran.[194]
Weinberger knew of the replenishment issue throughout 1985 and into 1986. According to McFarlane, he informed Weinberger in July and August 1985 first of Israel's proposal to send arms to Iran to achieve the release of Americans held hostage in Lebanon,[195] and then of President Reagan's decision to approve that proposal, including his agreement to replenish Israel's weapons stocks after shipments to Iran.[196] McFarlane also reminded Weinberger in December 1985 that Israel had shipped TOW missiles to Iran in August and September 1985, and that the United States had to replenish Israel's stocks.[197] From September 1985 through the end of 1986, Weinberger received intelligence reports concerning past and proposed arms shipments to Iran in return for the release of American hostages, including the initial TOW missile shipments and a delivery of HAWKs on November 24, 1985. As discussed above, Weinberger's own notes show that, in November 1985, McFarlane advised Weinberger of President Reagan's decision to provide HAWK missiles to Iran through Israel, and that McFarlane asked Weinberger "to try to get 500 Hawks for sale to Israel to pass on to Iran for release of 5 hostages . . . ."[198]
On Saturday, December 7, 1985, Weinberger attended a meeting at the White House of President Reagan and his senior national security advisers. According to McFarlane, he reviewed the development of the Iran arms sales to that point, including Israel's August-September 1985 TOW missile shipments and the November 1985 HAWK missile shipment.[199]
On Tuesday, December 10, 1985, Weinberger attended another meeting at the White House with the President and senior advisers. On the back of his DoD daily press clippings, Weinberger took two full pages of handwritten notes during the meeting, including the following statements by McFarlane:
Bud
Sales of arms only in connection with establishment of better gov't --
Hostages only
infrenindirectly linked---------
Separate hostage issue --
We tried that + they rejected it
We may lose a hostage this weekend
* * * Options
I accept original plan might lead to disclosure + more hostages
II -- US Raid to release hostages [] in Beirut -- some casualties inevitable
III -- Continue to stand away fm it -- Israeli's will go on delivering weapons + they might get hostages back
IV -- Do nothing
(V -- US deal with Iranians + give up Israeli cover)
covert operation to get arms to overthrow elements
* * * Bud
[Classified proposed message for Syria]
--------- We still must replace 500 TOWs to Israel
--------- President -- worried about hostages -- let Israelis go ahead with arms sales -- we'll get hostages back --
---------[200]
Weinberger's note -- "We still must replace 500 TOWs to Israel" -- shows that he knew of the replenishment issue that had been created by Israel's 1985 TOW missile shipments to Iran.[201]
In January 1986, after President Reagan had decided to cut out Israel by shipping arms directly from United States stocks to Iran, Weinberger received additional information about the replenishment issue. Koch reported to Weinberger on January 14, 1986, that an Israeli arms procurement official had agreed to postpone, until the hostages had been released, the needed replenishment of the TOW missiles Israel had sent to Iran in 1985.[202] At a later point, the CIA asked Powell to increase its order for the purchase of TOWs from DoD stocks by an increment of approximately 500 missiles.[203] Powell understood that the added increment was to replenish an earlier Israeli shipment of TOW missiles to Iran, and he discussed replenishment with Weinberger at that time.[204]
As Weinberger's senior military assistant from 1983 until March 1986, General Powell was one of the handful of senior DoD officials who were privy to detailed information regarding arms shipments to Iran during 1985 and 1986. When the arms shipments were publicly revealed in late 1986, investigators quickly learned that Powell was a knowledgeable party and interviewed him repeatedly regarding these events.
In 1992, after the OIC discovered Weinberger's voluminous notes and other withheld information, Powell was reinterviewed and gave additional testimony as part of Independent Counsel's investigation of Weinberger. During his February 1992 interview with the OIC, Powell read Weinberger's relevant diary and meeting notes for the first time.[205] Powell agreed that Weinberger's notes were accurate and found that they assisted his own recollection and understanding of events.[206]
Although Independent Counsel conducted no formal investigation at any time of General Powell's conduct or his testimony and regarded him as merely a prospective witness,[207] the OIC did thoroughly reevaluate the conduct and prior statements of Powell and other senior DoD officials as part of its investigation of Weinberger and its preparation for his trial. On the basis of this evaluation, Independent Counsel determined that most of Powell's early statements regarding the Iran initiative were forthright and consistent. But some were questionable and seem generally designed to protect Wein-berger.[208] Because Independent Counsel had no direct evidence that Powell intentionally made false statements, however, these matters were not pursued.
Armitage served as assistant secretary of defense for International Security Affairs (ISA) from May 1983 until January 1989. As the head of ISA, which frequently is described as the "little Department of State" within DoD, Armitage had responsibility for all DoD programs and political and military relationships outside of NATO Europe.[209] During his tenure at the DoD, Armitage became a "major player" within the Pentagon and one of Weinberger's most trusted assistants.[210] Armitage also was an active figure throughout the executive branch who maintained extensive, daily contacts with key officials at the Department of State, the CIA and the NSC staff.[211]
From his extensive sources and contacts throughout the Government, Armitage acquired information regarding Israeli and U.S. arms sales to Iran during 1985 and 1986. During the ensuing Iran/contra investigations, Armitage was questioned in detail on numerous occasions.[212]
In his early testimony, Armitage claimed ignorance of Israel's shipments of TOW missiles to Iran in August and September 1985, and its shipment of HAWK missiles to Iran in November 1985. He testified that he first knew that Israel had transferred missiles to Iran in 1985 when he heard CIA Director Casey testify on November 21, 1986, that the United States had replenished Israel's TOW missile stocks.[213] Regarding the November 1985 Israeli HAWK shipment, Armitage testified that although there were rumors and possibly intelligence reports "of some HAWK missiles to Israel [sic],"[214] the testimony of Casey on November 21, 1986, "was the first that I really knew of a shipment to Iran."[215]
The Tower Commission and Congress asked Armitage about meetings that he had with various principals in the Iran arms shipments. During the first week in December 1985, Armitage met separately with Israeli General Menachem (Mendi) Meron, the director general of Israel's Ministry of Defense, with Lt. Col. Oliver L. North of the NSC staff, and with retired U.S. Air Force Major General Richard V. Secord.
Armitage's records show three separate contacts with Meron in the first week of December 1985.[216] Armitage's account of these contacts was that they imparted no hard information to him regarding the 1985 Israeli shipments or any information on a pending proposal for Israel to sell additional missiles to Iran. When the Tower Commission asked Armitage about his conversations with Israelis, he stated that
[w]hen Mandy Marone [sic -- Mendi Meron] was around as the Director General of the Defense Ministry, I once said to him, I don't know what's going on, but I know you guys are involved, and I hear Iranians are real sleazebags and you shouldn't be involved in this kind of thing, Mandy [sic]. And he, well, other people make decisions. That was it. That's the only discussion I remember having, until after this broke.[217]
In deposition testimony to staff members of the Select Committees in 1987, Armitage denied discussing U.S. replenishment of Israeli TOW missiles with Meron.[218]
North and Armitage met in Armitage's office for lunch on December 3, 1985.[220] Armitage said that based upon the intelligence reports and after discussing his suspicions with Weinberger, Powell and Arnold Raphel of the State Department, he confronted North and asked whether he was part of discussions with Iranians.[221] According to Armitage, North responded that he had met with Iranians in Europe and, although North did not mention it, Armitage said he supposed that the meetings dealt with the hostages.[222] Armitage said he also told North that because Weinberger knew nothing about this, "[y]our ass is way out," and Armitage said he urged North to inform all of the principal national security officials.[223] Armitage said that his reaction seemed to shock North, and that President Reagan called a White House meeting on this topic and invited Weinberger to attend shortly after Armitage's lunch with North.[224]
Armitage's meeting logs indicate that he met with Secord on December 5 and again on December 27, 1985,[225] but Armitage professed in a variety of inconsistent ways to recall nothing about these meetings. During his first FBI interview in December 1986, Armitage said he had last seen Secord "over one year ago" and did not know of any role Secord had played in the Iranian arms initiative.[226] Just eight days after the FBI interview, Armitage told a different story to the Tower Commission: "I found out midway, I would say roughly midway in '86 that Secord in some fashion was working with Ollie [North] on the Iranian side of this."[227] During his May 1987 congressional deposition, Armitage testified that, although he did not actually recall, "it had to be after -- sometime after February of 1986" when he learned, perhaps from North or from some unidentified "Israelis," that Secord was involved in arms shipments to Iran.[228]
Armitage's statements regarding his lack of knowledge about the Israeli 1985 TOW and HAWK missile shipments to Iran and the issue of U.S. replenishment of those Israeli missile stocks -- and his claimed failure to recall discussing these topics during his conversations with Meron, North and Secord during the first week of December 1985 -- were significant in two respects. First, they removed Armitage from a list of people who could have provided investigators with important information on the origins of the Iran arms sales and who, among the President's top national security advisers, was witting and involved. Second, by asserting personal ignorance and failure to recall the 1985 shipments, Armitage's testimony neatly dovetailed with and made more credible Weinberger's false statements regarding his own purported ignorance of the Israeli arms shipments.
Armitage claimed that he first learned that Israel had shipped missiles to Iran in 1985 when he heard Casey testify on November 21, 1986, that the United States had replenished Israel's TOW missile stocks. Significant evidence from a variety of sources shows that Armitage's knowledge predated Casey's testimony. For instance, a North notebook entry of November 18, 1986, documents a discussion with Armitage about Israel's 1985 arms shipments to Iran -- three days before Armitage supposedly learned for the first time that such shipments had occurred:
1800
[] Call from Armitage -- Lawyers
Israeli shipments in 1985
-- Did we know about it?
--DWhen did we promise to
replenish the Israelis?[229]
Armitage's knowledge about the 1985 Israeli missile shipments went back a year earlier, to his contacts with North, Meron and Secord in the first week of December 1985. During that week, the Reagan Administration and the Israelis were trying to decide whether to proceed with the Iran arms sales in the wake of the botched shipment of 18 HAWK missiles in late November 1985. The Israelis were concerned about obtaining replenishment for the HAWK missiles and 504 TOW missiles sent to Iran in August and September 1985. Another arms transfer was being contemplated.[230] Among other things, Armitage's task was to prepare briefing materials for Weinberger in advance of a December 7, 1985, White House meeting where the future of the Iran initiative was to be debated.
Classified evidence obtained from the Government of Israel, which is set forth in the Classified Appendix to this chapter, and evidence from North and Secord show that during the period Meron met with Armitage, Meron was discussing arms shipments to Iran and Israel's need for replenishment. Secord and North, on separate occasions, directed Meron to discuss these issues with Armitage. According to Secord, when Meron told him during their meeting in Israel in late November 1985 about the previous TOW missile shipments to Iran and the need for replenishment, Secord told him to talk to Armitage and to Lt. Gen. Philip Gast, director of the Defense Security Assistance Agency (DSAA), about getting the missiles replenished.[231] Secord's recollection is consistent with North's contemporaneous note of a telephone call he received from Secord on November 26, 1985:
1230 -- Call from Dick [Secord]
-- Can we supply later serial #s for Hawks?
-- How difficult is it to procure these items.
-- Met w/ D.K. [Kimche] & Mindy [sic] [Meron]
-- Mindy coming to meet w/ Rich [Armitage] & Phil [Gast][232]
North, Secord and Meron met on the evening of December 2.[233] The next night (December 3), North sent Poindexter a lengthy PROFs computer note outlining a program for sending arms to Iran. It mentioned "discussions with Mendy Meron here in Washington which are continuing" and the problem of "replenishing Israeli stocks. . . ."[234]
On December 3, 1985, North had lunch with Armitage at Armitage's Pentagon office. Armitage's claim that the meeting was triggered by Weinberger's request to check an intelligence report that someone at the White House was meeting with Iranians is simply not true. The one report containing a White House telephone number -- was delivered to Weinberger on October 2 or 3, 1985.[235] By December 3, 1985, North's involvement in dealings with Iran was no mystery to Weinberger. His diary demonstrates that by October 4, 1985, he knew that North was involved in negotiations with Iranians.[236]
There is strong circumstantial evidence that the discussion topics at the luncheon were past Israeli arms shipments to Iran, proposals for future shipments and the issue of replenishing Israeli missile stocks. Secord had just completed meetings in Israel with Meron and Kimche regarding replenishment and had mentioned Armitage as the DoD contact on that issue. Meron had discussed the Israeli missile shipments and the need for replenishment with Armitage the previous day. At their meeting the night before, North, Meron and Secord had also discussed replenishment.[237]
Independent Counsel was unable to obtain a dispositive account of the Armitage-North luncheon. Arnold Raphel, the deputy assistant secretary of state with whom Armitage regularly discussed the Iran initiative, took notes of a telephone call he received from Armitage immediately following the lunch with North.[238] But Raphel died in 1988. Powell, who spoke to Armitage by telephone from Brussels, Belgium, during or immediately following Armitage's lunch with North,[239] recalled nothing more than Armitage's account of the lunch.[240]
Armitage said he had no recollection of a meeting with Secord in December 1985 although his own meeting log indicated they met twice in that month. Raphel's notes, which do not identify the source of the information, contain a contemporaneous report on Armitage's meeting with Secord:
-- Secord involved
Mtg. w/ Pres. -- 1000 Sat -- w/ Pres. + arms if: --
1 -- no more terrorism
2 -- moderate govt in Tehan Tehran
3 -- Iran wins war
4 -- hostages released[241]
In the preceding weeks, Secord had been operationally involved in the shipment of 18 HAWK missiles from Israel to Iran. He had returned to the United States shortly before his meeting with Armitage.[242] Secord called Armitage at 11:15 a.m. on December 5.[243]
In contrast to Armitage's failure to recall the December 5 meeting, Secord never equivocated regarding its substance.[244] Secord consistently stated that he went to see Armitage with North's permission[245] after hearing North's report that Weinberger was opposing the arms shipments to Iran.[246] Secord thought that he might be able to convince Armitage, with whom he had worked closely in the past, of the need for such an initiative,[247] and that Armitage in turn might be able to convince Weinberger.[248] Secord recalled that he was unsuccessful: Armitage remained opposed to the Iran arms sales.[249]
Secord was uncertain about the date of his discussion with Armitage. After reviewing Armitage's meeting log, Secord said that while it was "quite possible" that he talked to Armitage in December 1985, his logic still suggested the meeting occurred "later, such as in January or February, 1986. . . ."[250]
It is reasonably clear that North, having heard Armitage's account of Weinberger's opposition to the Iran arms sales during his December 3, 1985, luncheon with Armitage, produced Secord, who was trusted by Armitage, as a means of vouching for the operation.[251]
There is strong circumstantial evidence that Armitage on December 5 or 6, 1985, received a paper prepared by North containing significant information regarding the 1985 Iran arms sales and proposals for future sales.[252] The paper states explicitly that Israel, after receiving a U.S. commitment to sell replacement missiles, shipped 500 [sic] TOW missiles to Iran on September 14, 1985, two days before Reverend Benjamin Weir was released by terrorists in Lebanon. The paper describes a proposal to deliver 3,300 TOW missiles and 50 Improved HAWK missiles from Israel to Iran in exchange for the release of five remaining U.S. citizen hostages plus one French citizen hostage and a cessation of terrorism against U.S. property or personnel. The paper declares, without using Secord's name, that "a U.S. businessman acting privately on behalf of the USG [U.S. Government]" has been negotiating this deal with the Iranians and Israelis. It states that such shipments would "significantly degrade Israeli stockpiles and require very prompt replenishment" by the United States. In an emotional summation, North's paper declares that the U.S. "must make one last try or we will risk condemning some or all of the hostages to death and undergoing a renewed wave of Islamic Jihad terrorism." For this reason alone, North's paper immediately became widely known throughout the Executive Branch.[253]
If Armitage reviewed North's paper on or about December 5-6, 1985, this would establish the falsity of Armitage's statements that he was unaware until November 1986 of Israel's 1985 arms shipments to Iran and the U.S. commitment to replenish Israel's stocks. If the North paper was used by Armitage as a basis of briefing Weinberger for the December 7, 1985, White House meeting this would have been powerful evidence that Weinberger's professed lack of early knowledge of the 1985 Israeli shipments was false.
There is no question that Armitage and Weinberger received North's December 5, 1985, paper at some point. Armitage placed a copy of the paper in Weinberger's briefing book before the November 10, 1986, meeting of President Reagan and his senior advisers to discuss the Iran arms sales.[254] OIC obtained no testimonial evidence as to who delivered the North paper to Armitage or when it was delivered, but circumstantial evidence indicates that Armitage received North's paper on December 5 or 6, 1985:[255]
the North paper was closely related to the series of meetings and conversations regarding arms shipments that Armitage had during that week with Meron, North and Secord;
because Weinberger and Powell were in Europe until the night of December 6, 1985, Armitage was the senior DoD official at the Pentagon who was familiar with the Iran arms sales; he was the logical person to be informed of the North paper. By his own description, Armitage was the person who was gathering information as part of the effort to prepare Weinberger for the December 7, 1985, White House meeting;[256]
Poindexter briefed Shultz by secure telephone on the substance of North's paper before their December 7, 1985, White House meeting.[257] It is unlikely that the NSC staff would brief the Department of State of the proposal but not brief the DoD, which had the missiles.
Raphel took these notes during a telephone call from Armitage at 10:05 on December 6, 1985,[258] shortly after North's visit to Armitage's office, regarding the substance of North's paper:
-- arms for Jews
-- David Kimche
-- Mendy [Meron]/Ben Josef -- procurement
-- replace3003300 I-TOWs in IDF [Israeli Defense Forces][259]
an information paper that Armitage commissioned from DSAA officials Rudd and Gaffney prior to the December 7 meeting refers to a proposal to transfer 50 Improved HAWKs and 3,300 TOWs to Iran[260] -- the exact numbers specified in North's paper; and
North brought a copy of his paper when he met with Israelis in New York City on December 6, 1985, just before North travelled to London to meet with the Iranians and Israelis in connection with the initiative.[261] It is implausible that North shared the paper with the Israelis but withheld it from Armitage.[262]
Armitage made misleading statements regarding his preparation of Weinberger for the December 7, 1985, White House meeting. Armitage told the Tower Commission that he prepared Weinberger for the meeting "orally without any paper trail."[263] In June 1987, however, the DoD belatedly produced to the Select Committees and to Independent Counsel two December 1985 briefing papers prepared by Rudd and Gaffney regarding missile shipments to Iran. Armitage ultimately stated that he probably provided these papers to Weinberger, or at least gave him an oral briefing from the papers, in preparation for the December 7 White House meeting.[264]
These papers clearly related to the North proposal. The first of the Rudd-Gaffney papers, a two-page analysis titled "Possibility for Leaks," was created in response to Armitage's request for information on "the legal ramifications of the possible sale of Hawk and TOW missiles, either directly to Iran or as replacement for an Israeli shipment to Iran."[265] Although the "Leaks" paper mentions neither Israel nor Iran by name and does not itemize quantities of missiles or say that missile shipments are planned, it transparently refers to Israel as "the country involved," refers to another "country we do not sell to ourselves" (Iran), speaks of "I-HAWKS in the quantity contemplated" and "the I-TOW quantities," and reports, in its very first line, that "[t]here is no good way to keep this project from ultimately being made public."[266] Rudd specifically recalled providing this paper to Armitage on December 6, 1985.[267] Rudd also recalled that Armitage instructed him to retain no copies of the paper, and that he (Rudd) complied.[268]
The second paper, a one-page analysis titled "Prospects for Immediate Shipment of I-HAWK and I-TOW Missiles," also was created by Rudd, with Gaffney providing some of the information as a follow-on to his November 1985 point paper regarding HAWK missiles.[269] The "Prospects for Immediate Shipment" paper reported that up to 75 I-HAWK missiles, although intended for shipment to the United Arab Emirates, were still being tested in the U.S. and could be shipped elsewhere without impact and quotes a "total package price" of $22.5 million "for [shipping] 50. . . ."[270] This paper also reported that "the impact on Army of shipping 3,300 I-TOWs immediately would be serious but not intolerable."[271] 50 HAWKs and 3,300 TOWs were the quantities and types of missiles in the proposed shipment outlined in North's December 5, 1985, "Special Project Re Iran" paper.
Armitage's false statement to the Tower Commission that he prepared Weinberger for the December 7, 1985, meeting "orally without any paper trail," suggests that the DoD's initial failure to produce the Rudd-Gaffney papers was no accident. Notwithstanding numerous requests from investigators in late 1986 and early 1987, these two papers were not produced to the Select Committees until the weekend of June 20-21, 1987 -- after the Tower Commission had completed its work and after the Select Committees had obtained initial testimony from numerous DoD witnesses, including Weinberger and Armitage.
On June 16, 1987, Gaffney reminded Rudd that they had created a paper for Armitage regarding TOW missiles in early December 1985,[272] and that Rudd had promptly delivered this paper to Armitage, who instructed Gaffney to destroy all copies and drafts.[273] During a deposition on the afternoon of June 16, 1987, Select Committee staff members informed Rudd that a 1986 handwritten note by Koch indicated that this "TOW paper [was] locked in RLA [Armitage's] safe, wouldn't let Rudd keep copy."[274] The next day, Rudd discussed the matter with Armitage.[275] In Rudd's presence, Armitage pulled a copy of the "Leaks" paper out of his office safe.[276] Then DoD provided both the "Leaks" paper and the "Prospects for Immediate Shipment" paper to the Select Committees.[277]
Armitage claimed that he had at the outset of the Iran/contra investigations directed his aide, Lincoln P. Bloomfield, Jr., to review Armitage's files and produce all requested, relevant documents.[278] Bloomfield corroborated Armitage's account.[279] There was no evidence that Armitage and Bloomfield collaborated with anyone else to withhold documents. Independent Counsel could not prove beyond a reasonable doubt that the initial non-production and Armitage's false testimony were deliberate.
Of the chief witnesses interviewed by the OIC about the withholding of Weinberger's notes, four merit separate discussion: (1) H. Lawrence Garrett, III, DoD general counsel during the congressional Iran/contra investigation, (2) General Colin L. Powell, Weinberger's former senior military assistant, (3) Kay D. Leisz, Weinberger's confidential assistant at DoD and in his subsequent legal practice, and (4) Thelma Stubbs Smith, secretary to Weinberger at the DoD.
Garrett testified in the Grand Jury that he told Weinberger's secretaries, Thelma Stubbs Smith and Kay Leisz, that the Iran/contra document requests included personal notes and that Smith told him Weinberger had no notes.[280] Garrett had not personally observed Weinberger taking notes, other than scribbling marginalia on documents during meetings,[281] and had not seen Weinberger's diary notes until he was shown them by OIC investigators in March 1992.[282] When specific Weinberger notes were described to Garrett, he stated that he would have considered them relevant to Iran/contra and said, "[h]ad I known of them at the time, I would have so advised the Secretary."[283]
Garrett also implied that the failure to produce Weinberger's notes had been because of Garrett's own lack of vigilance. He asserted on several occasions that he had never asked Weinberger directly whether he had notes or diaries[284] and stated in his affidavit that he was "confident that if [he] or members of [his] staff had asked [Weinberger] specifically whether he kept diary notes, [Weinberger] would have provided them so that any relevant portions" could be produced.[285]
Garrett's April 17, 1987, memorandum to Weinberger and his April 29, 1987, memorandum to Taft -- both of which DoD produced after the indictment, despite having been asked for such documents much earlier -- indicate that, contrary to the impression conveyed by his affidavit, Garrett was diligent in attempting to obtain Weinberger's notes and diaries. When Garrett was questioned about these documents, he nevertheless insisted he had no recollection of discussing the production of notes and diaries with either Weinberger or Taft.[286]
Although Garrett's purported inability to recall anything about his efforts to obtain Weinberger's notes was sufficiently implausible to undermine Garrett's credibility, it would have been difficult to prove beyond a reasonable doubt that Garrett had intentionally perjured himself five years after writing his April 1987 memorandum. The evidence indicated that Garrett was not a witting accomplice in withholding Weinberger's notes from Congress.
Although Powell generally was a cooperative witness, his 1992 statements describing Weinberger's notes in detail and characterizing them as a "personal diary"[287] necessarily raise questions about Powell's 1987 statements to congressional investigators. Powell told the staff of the Senate Select Committee on April 17, 1987, that he did not know whether Weinberger kept a diary.[288] During Powell's June 19, 1987 deposition, the following exchange took place:
Q: Maybe I should know this, but did the Secretary keep a diary?
A: The Secretary, to my knowledge, did not keep a diary. Whatever notes he kept, I don't know how he uses them or what he does with them.
Q: Did he --
A: He does not have a diary of this ilk, no.
Q: -- did he dictate memos, as some people do, so that if they ever get around to writing their -- a book on the era, they have some aids; they have memoirs?
A: No, the Secretary did not dictate his daily activities, to the best of my knowledge. I've never seen it. He didn't do it and I was with him every day.
Whatever notes he took in the course of a day, I don't know what he did with them.[289]
In light of his statements in 1992, Powell's 1987 deposition testimony was at least misleading. Although Powell qualified his denial that Weinberger kept a "diary" by distinguishing that kind of record from "whatever notes [Weinberger] kept," this oblique reference to Weinberger's notes hardly constituted full disclosure.[290] Powell apparently understood that congressional investigators wanted to know whether Weinberger kept contemporaneous records of his daily activities but failed to disclose that Weinberger's notes were a running, daily log of telephone calls and meetings. He also claimed that he did not know what Weinberger did with his notes.[291]
Nevertheless, it would have been difficult to prove that his deposition testimony was intentionally false.[292] Similarly, there was no direct evidence that Powell and Weinberger colluded to conceal Weinberger's notes from congressional investigators. Thus, while Powell's prior inconsistent statements could have been used to impeach his credibility, they did not warrant prosecution.
Leisz was interviewed by the OIC on February 3, 1992, and appeared before the Grand Jury on March 6 and April 24, 1992. On the latter occasion, Leisz, who had been advised that she was a subject of the Grand Jury's investigation and had retained counsel, invoked the Fifth Amendment. On June 15, 1992, in return for an immunity agreement, Leisz gave a deposition in lieu of a Grand Jury appearance but added little to her prior testimony.
Leisz asserted in an October 1, 1990, memorandum that she had stopped maintaining Weinberger's handwritten meeting notes after his first year as secretary of defense.[293] Leisz later elaborated that she simply left Weinberger's loose meeting notes in his briefing books, which were forwarded to the Correspondence & Directives (C&D) section to be broken down and filed.[294]
Leisz adhered to this story, which Weinberger had echoed in his October 10, 1990, interview, despite overwhelming evidence that it was false.[295] For example, Weinberger's other secretary, Thelma Stubbs Smith, stated that she and Leisz had maintained a handwritten-notes file throughout Weinberger's tenure at DoD and that these notes were later transferred from Leisz's safe to the vault in Weinberger's office.[296] In addition, Leisz identified her handwritten notations on some of Weinberger's meeting notes from 1985-86.[297] Leisz had also referred to "your hand-written notes file" in a 1987 note to Weinberger;[298] another cover note by Leisz identified a collection of Weinberger's notes taken during the TWA hijacking in June 1985;[299] and a 1985 cover note from Powell to Leisz attached a set of Weinberger's meeting notes "For your File."[300] Even when confronted with this evidence, Leisz insisted that she could not recall having maintained a file of Weinberger's handwritten notes after his first year at DoD.[301]
Leisz also insisted that she was unaware of Weinberger's diary notes while at DoD and that she had not heard Weinberger refer to them as his "telephone logs" until she went with him to review the notes at the Library of Congress in December 1991.[302] Most other Weinberger aides who had similar daily contact with Weinberger eventually said they had been aware of his diary notes.[303]
Leisz's testimony, particularly about the meeting notes, was flagrantly incredible. Although the immunity agreement did not preclude prosecuting Leisz for giving subsequent false testimony in her June 15, 1992, deposition, the OIC determined that pursuing such collateral charges was not an effective use of resources.
In her first interview on March 5, 1992, Smith was shown examples of Weinberger's diary notes and stated that she had never seen them before. Smith also stated that she had seen Weinberger's meeting notes only when Weinberger used them to dictate memoranda, which he did infrequently, and she had thrown the corresponding notes away when a memorandum was completed. Smith further stated that she had no knowledge where any notes Weinberger may have made would have been kept. Smith said she had talked to Leisz before the interview, and Leisz had told her of the OIC's interest in the notes discovered at the Library of Congress.[304]
In Smith's second interview, on April 28, 1992, she was again shown examples of Weinberger's diary notes. This time, she said she had occasionally seen such notes on Weinberger's desk and assumed he intended to use them to write a book. Smith also disclosed, in contradiction to her earlier statement, that she and Leisz maintained a file of Weinberger's handwritten notes in a safe by Leisz's desk.[305]
In an affidavit executed the next day for Weinberger's counsel, Smith provided even more detailed information about Weinberger's notes. Smith stated that she had been "aware that Secretary Weinberger kept a pad on his desk on which he scribbled notes reflecting the date, time and other references to telephone calls and meetings." Smith also expanded her description of the handwritten notes file but said she did not believe Weinberger was aware that she and Leisz kept such a file. Smith said she did not recall being asked by anyone to gather "documents" relevant to Iran/contra and said that, even if she had been asked, she "would not have thought of the handwritten notes" because she did not consider them to be "documents."[306]
When questioned later before the Grand Jury about the inconsistency in her statements about the diary notes, Smith insisted that she simply had not remembered them when they were shown to her in the first interview.[307]
Smith's statements conflict with Garrett's Grand Jury testimony. Garrett said he told Smith and Leisz specifically that the document requests included "personal notes."[308] If Smith told Garrett in 1987 that Weinberger had no notes, her statement was deliberately false. Because of Garrett's own credibility problems, and the lack of direct proof that Smith had colluded with Weinberger and/or Leisz, the OIC did not charge Smith with complicity in withholding Weinberger's notes.
The OIC's experience with the DoD during the Weinberger investigation illustrates the unique problems Independent Counsel encountered investigating possible wrongdoing by high-level officials. DoD withheld documents even in 1992. DoD employees gave defense counsel confidential communications between DoD and OIC -- the Government's counsel. DoD employees improperly allowed defense counsel to review evidence being held for the OIC.
In April and May of 1992, the OIC asked the DoD to produce documents from the Office of General Counsel (OGC) and Office of the Secretary of Defense (OSD) regarding DoD's responses to Iran/contra document requests. The OGC files containing most of the information relating to DoD's Iran/contra document production, including Garrett's 1987 memoranda to Weinberger and Taft, were not produced to the OIC until after the indictment.[309] In response to additional, specific requests and subpoenas, DoD produced from OSD files another copy, and the original, of Garrett's memorandum to Weinberger, bearing the "SEC DEF HAS SEEN" stamp and a handwritten note by Weinberger -- neither of which had been produced in response to previous document requests.[310]
Although the OIC found no conclusive proof that a DoD official had deliberately withheld these documents, the OIC received an anonymous telephone call on May 21, 1992, suggesting that investigators look in the office of Deputy General Counsel Michael A. Sterlacci for information regarding Weinberger. Several of the files produced belatedly by DoD had been stored in Sterlacci's office.[311]
During the investigation, the OIC discovered that DoD officials had faxed to Weinberger's counsel copies of at least one OIC document request to DoD, which the OIC regarded as confidential. DoD's Acting General Counsel later conceded that it was not consistent with DoD policy to disclose such documents relating to an ongoing criminal investigation without at least consulting the prosecutor beforehand.[312]
OIC discovered after Weinberger's indictment that DoD personnel had given Weinberger's defense counsel apparently unsupervised access to documents the OIC had identified as evidence and left, by agreement with DoD, temporarily in DoD custody.[313] This jeopardized the integrity of original evidence in a pending criminal case and also allowed Weinberger's counsel to circumvent ordinary discovery procedures. DoD's general counsel later conceded that this conduct was not consistent with DoD policy, which provides that the Department of Justice, (in this case, the OIC) should be consulted before DoD discloses official information to a criminal defendant or other litigant.[314]
Independent Counsel decided in 1992 not to commit resources to an investigation into ongoing obstruction by the Department of Defense.