Mr. KERRY. Mr. President, I rise to discuss another matter that has come to my attention yet again in the course of the last few weeks in a way that, frankly, bothered me personally, but just bothered me as a Senator and as a citizen.
I have been amazed that last week's indictment of former Defense Secretary Caspar Weinberger has led to a renewed barrage of criticism and even for some a kind of ridicule of the independent prosecutor, Lawrence Walsh. He has been accused of character assassination and of wasting large amounts of Government money on a scandal that the American people allegedly just do not care about. And because the polls do not show that this is a popular issue, I suppose some interpret immediately that it ought to go away.
Some people seem to want to choose all the issues in this country according to the polls. That appears to be one of the problems that we face in terms of leadership, or the lack thereof, at a time when this country is desperately crying out for leadership.
Many Congressmen and Senators alike have gone to the floor and made speeches criticizing Mr. Walsh and drawing conclusions about the accusatory process in ways that I think do not reflect well on this institution or on our real understanding of constitutional obligation in this country.
Critics particularly delight in pointing out that two principal convictions that have been obtained by the special prosecutor, those of Oliver North and John Poindexter, were subsequently overturned. I might point out there have been a total of 10 convictions, 2 of which were overturned on technical bases, which were totally out of the control of the special prosecutor.
But it seems to me that Mr. Walsh should not be the object of criticism. He ought to be the object of praise and of gratitude from this country.
Now I can guarantee you that Mr. Walsh does not need me or any other Senator to come to the floor and defend him for his defense of the Constitution and of the rule of law. But I am personally concerned about the growth of an attitude--a cynical attitude--that seems to indicate that independent counsel prosecutions must all be open and shut, quickly wrapped up, politically popular prosecutions or, if not, somehow they are not worth pursuing.
If prosecuting the Iran-Contra affair were easy, we would not have needed a special prosecutor in the first place. But it is not easy. And I think that perhaps the principal reason it has not been easy is that there has been a concerted effort, from the beginning, right up until today, to deny information, documents, and facts to Congress and to the American people.
So, when Senators and Congressmen go to the floor to criticize Mr. Walsh, and they ask why his this taken so long? Why have we spent so much money? They ought to ask for the real answer to that question. The real answer to that question is because officials of the U.S. Government were unwilling to cooperate, unwilling to tell the truth, unwilling to produce information, and because our own system conspired to make it difficult for the special prosecutor.
I must say, I have never had anything but respect for the former Secretary of Defense, Mr. Weinberger. And he is innocent until proven guilty. I have always been treated cordially by him, and he is, clearly, a great public servant. It is my hope, perhaps for the country and for him, that he would be found not to have done that which he is accused of. And I hope for his family and for his sake that would be true.
But if it is not true--if it is not true, and if the charges were to stand up, then that would be one more documentation of a long series of documentation of precisely why this special prosecutor is still struggling and why he deserves the gratitude of the Nation for placing his convictions and his reputation beyond what is the quickly and easily popular in favor of standing up for principle and for obligation and for duty.
The fact is, Mr. Walsh has had to fight each and every step of the way to get information and documents from the executive branch. We know in documentation of how difficult this has been. Three individuals: Mr. Alan Fiers, Clair George, and Elliot Abrams, pled guilty to lying to investigators, including congressional investigators. Including, I might add, to this Senator.
When Government officials lie they may be lying in response to a question from a Senator or a prosecutor. But in the end they are lying to the American people who we represent. And they are deceiving the entire system.
I have recently reread the testimony of Elliot Abrams, Clair George, Alan Fiers, and others to me and other Senators on October 10, 1986, in the wake of the Hasenfus crash. I was again impressed with the dissembling, obfuscation, and outright lies from them in response to straightforward questions from us.
For example, I asked the simple question--have you had contact with General Secord? At the time, Secord was in operational charge of both Contra supply operations and the Iranian arms for hostage deal.
Elliot Abram's reply was `I never met him.'
Clair George's reply was `I know his name well * * * but I do not know the man.'
This answer came at a time when Secord's involvement in running Contra supply operations had already been the subject of extensive discussion by officials of the State Department, CIA, and National Security Council.
I then asked the question, `Max Gomez, do you know whether or not he reports to or was hired by the Vice President of the United States?'
The truth, as we all know now, was that Max Gomez--a nomme de guerre for Felix Rodriguez--was indeed placed in Central America by the Vice President's office. In fact, on August
8, 1988, Felix had gone to Donald Gregg in Vice President Bush's office to complain about the state of the Contra supply efforts he was involved with. At the time, Felix warned Gregg that General Secord was ripping off the contras, and if they kept General Secord in place, it would, to quote Felix, be `worse than Watergate.'
Felix's warning to Gregg was of sufficient concern that 4 days later, Gregg met with six other Government officials representing the National Security Council, the State Department, and the CIA--including Alan Fiers of the CIA--George's deputy--to discuss the problem between Max Gomez a.k.a. Felix Rodriguez and Richard Secord.
Yet in response to my question about whether Felix was reporting to the Vice President's office--Fiers did not say, oh yes, I discussed Felix with Don Gregg of the Vice President's office a few months back. instead, Fiers said:
Max Gomez * * * is an alias for an individual who was previously employed with us. But I don't know * * * I don't know who he is reporting to.
I asked the question again: `you don't know whether or not [Felix] reports to the Vice President of the United States?'
George's response was:
`The Vice President? I don't know.'
I asked again: `You don't know anything about that?'
Elliot Abrams replied, `I have never heard any suggestion of that.' Elliot then added, `It really stretches credulity.'
As North's notebooks showed, as notes taken by the Vice President's Security Advisor, Donald P. Gregg demonstrated, as Fiers later admitted, they all knew who Max Gomez was--his real name was Felix Rodriguez, formerly of the CIA. They knew he was sent to Central America by the Vice President's office. And they knew he was engaged in Contra supply operations. But instead of telling us what they knew--given where it might lead--they lied.
Last week, Judge Walsh wrote a letter to the Congress setting out the terms of the final phase of his investigation. He told us that he is:
`Attempting to determine whether officials at the highest level of Government, acting individually or in concert, sought to obstruct official inquiries into the Iran initiative by the Tower Commission, the Congress, and independent counsel by withholding notes, documents and other information, by lying, and by supplying a false account of the 1985 arms sales from Israeli
stocks and their replenishment by the United States.'
Judge Walsh then set out the means by which his investigations to date have been frustrated, impeded, and stymied and stopped by officials in the Reagan and the Bush administration both.
In the letter, Judge Walsh advised us that he has not been able to prosecute--this is extraordinary, Mr. President--the independent counsel has advised the Congress of the United States that he has not been able to prosecute the basic operational crimes committed in the course of the Iran-Contra affairs due to National Security claims. For example, the Reagan and Bush administrations insisted on keeping documents classified that referred to matters that were already fully known in public--with the result that criminal cases had to be thrown out, as Judge Walsh explained, because you simply did not have the documents and the evidence to put into evidence, even though the evidence had been reported publicly previously.
Let me just read from Judge Walsh's letter to the Congress. `Classified information problems'--this is reading from page 5--`have also complicated Independent Counsel's prosecutions and consumed enormous time and energy.'
So, when colleagues wonder why this has taken so long, they can look down the street to Pennsylvania Avenue and the agencies, and they will get their answer as to why this took so long.
Every line of every page of the thousands of pages of classified documents that might be used in trial by either the prosecution or the defense has had to undergo review by a group of declassification experts from several agencies. Claims of national security led to the dismissal of the central conspiracy charge against North, Poindexter, Secord, and Hakim. Attorney General Thornburgh's refusal to declassify publicly known but officially secret information forced the dismissal of the Government's entire case against former CIA Costa Rican station chief Joseph Fernandez, and more than a year's litigation was wasted.
Mr. President, we hear this tale again and again and again. In the POW-MIA that we are now investigating, we have the same problem of the fox guarding the chicken coop. The very people that you are investigating have the right to be able to say whether or not a particular document is going to be made available to you.
In this particular case the very Government that was being investigated for crime was able to deny the person investigating them the information that would have allowed them to prosecute those crimes. So they were dismissed and there is barely a ripple, barely a ripple.
It seems to me that the blame for the length and the cost of this investigation does not fall at the feet of the special prosecutor; it falls at the feet of a system, a Congress, and an executive that have been unwilling to grapple with the issue of how we make classified information available and what the American people are really entitled to know.
I believe that the fault for the length of this investigation and the reason that we should praise the special prosecutor is that there are those who have stonewalled and stonewalled on this issue in the hopes that it will simply go away. And the blame, I believe, rests with those who, from the beginning, have sought to minimize the scope and seriousness of what the Iran-Contra affair was all about.
In last week's letter, Judge Walsh warned that he has now developed what he termed `new and disturbing evidence' regarding who participated in the Iran-Contra coverup. He warned that further indictments of high-level officials are possible over the rest of this summer.
Mr. President, Watergate brought down a Presidency, but I must say that Watergate was trivial compared to Iran-Contra. Iran-Contra was nothing less than an effort to subcontract the foreign policy of the United States of America to a bunch of professional arms smugglers, including notorious terrorists like Manzer al-Kassar, drug dealers like Manuel Noriega, and nut cases like polygraph-failing Manchuer Ghorbanifar. It revolved around a scheme to sell weapons to a government responsible for murdering hundreds of American Marines, holding Americans hostage and supporting international terrorists around the world. It involved a specific, planned effort within the
White House to evade both the letter and spirit of U.S. law, and it betrayed publicly stated American commitments to isolate terrorist States and to punish--not reward--those who take hostages.
A Democratic government simply cannot survive without public trust and we are increasingly seeing public trust challenged in our own country. From Vietnam to Watergate, to Iran-Contra, to Noriega, to HUD scandals, to S&L scandals, to Iraq and some now believe POW-MIA's, our Government does not deal squarely with us.
Our Government deceives, our Government prevents us from knowing the truth in many cases indirectly and in many cases directly through concealed information, through phony claims of national security or through clever evasions that are the moral equivalent of lies, although they may not always be convictable as lies.
Judge Walsh noted last week, that `It is not a crime to deceive the American public, as high officials in the Reagan administration did for 2 years while conducting the Iran and Contra operations.' Well, it may not be a crime to lie to the public, Mr. President, but we have to set a higher standard of behavior, of public behavior, where we do not feel adequate or even congratulatory about our behavior because it is something just above the level of a crime.
Mr. Walsh's dogged pursuit of the truth in the Iran-Contra affair is a profile in courage. Judge Walsh is trying to preserve and protect our Constitution from those who would shred the law anytime the law is inconvenient.
Law enforcement is not a popularity contest. The issue is not whether what Mr. Walsh is doing is making some people uncomfortable; the issue is whether it is right and whether under the Constitution, the law and the long-term demands of a democratic society, there is no question that Mr. Walsh has chosen the right path. He deserves not our criticism, but our praise and I believe he has already earned history's respect.
I ask unanimous consent that a copy of his letter to the U.S. Congress be printed in the Record.
There being no objection, the letter was ordered to be printed in the Record, as follows:
The Independent Counsel statute provides that an `independent counsel appointed under this chapter may make public from time to time, and shall send to the Congress statements or reports on the activities of such independent counsel.'
Under the governing statute, Independent Counsel's responsibilities are threefold. First, he has an investigative role, 28 U.S.C. Section 594. Second, he has a prosecutorial role, 28 U.S.C. Section 594. Third, he has a reporting role, 28 U.S.C. Section 595.
The purpose of this report is to inform the Congress of the status of Independent Counsel's investigation and prosecutions in the Iran/Contra matters.
The criminal investigation of Iran/Contra is in its final phase. We are attempting to determine whether officials at the highest level of government, acting individually or in concert, sought to obstruct official inquiries into the Iran Initiative by the Tower Commission, the Congress and Independent Counsel by withholding notes, documents and other information, by lying, and by supplying a false account of the 1985 arms sales from Israeli stocks and their replenishment by the United States.
The indictment of former Defense Secretary Weinberger by the grand jury on June 16, 1992, stemmed from that investigation. A copy of the Weinberger indictment is attached. Independent Counsel has yet to determine whether additional proposed indictments will be presented to a Grand Jury. That investigation should be completed this summer.
While pursuing the final phase of the investigation, the Office of Independent Counsel will proceed with the trial of three pending cases, United States v. Clair E. George, United States v. Duane R. Clarridge, and United States v. Caspar W. Weinberger. The George case is set for trial on July 13, 1992, before U.S. District Judge Royce Lamberth. No trial date has been set for the Clarridge case, but U.S. District Judge Harold Greene has stated that he hope the trial can be held in October 1992. U.S. District Judge Thomas Hogan has set a November 2, 1992, trial date for the Weinberger case. In addition, Independent Counsel has been prepared to seek leave to appeal to the Supreme Court the reversal of the conviction of John M. Poindexter, but is awaiting an appeals court ruling on Poindexter's petition for rehearing in that Court.
Independent Counsel is sensitive to concerns expressed by Members of Congress and others as to the length and the resulting cost of the investigation. The investigation has continued for five and one-half years and has cost $31.4 million. This highly complex investigation posed unique problems and circumstances that stretched out our work, which I will explain in more detail later.
To speed up the completion of our investigation, I announced last December the appointment of Craig A. Gillen as Deputy Independent Counsel to direct the continuing investigation and the remaining trial work of the office, while I undertook to complete the final report of our long period of activity. I have nevertheless maintained overall responsibility for the supervision and direction of prosecutorial matters, spending one third of my time in Washington and returning to Washington full time in April for the final consideration of the Weinberger indictment. Much of the report has been drafted, but in order to complete the final phase of our investigation, and particularly while Mr. Gillen is trying cases in court, I shall continue full time in Washington where we hope to complete our investigative work by the end of this summer.
In evaluating the cost and time involved in the effort of Independent Counsel to carry out this assignment by the Appointing Panel, it is important to understand that the Iran/Contra matters posed a number of highly complicated circumstances for a prosecutor. The Iran/Contra operations were intended by the Reagan Administration to remain hidden. Because they were conducted in tandem with or in the course of covert activities, once exposed, they could not be readily explored in open court because of the national security claims.
The operations were executed by high Reagan Administration officials in support of presidential foreign policy objectives. They occurred in a broad geographic setting over a period of years. Their investigation required a thorough sifting
of hundreds of thousands of documents from some of the most sophisticated and secretive agencies of government. And, although there were many witnesses to various aspects of these operations, the most central figures were not cooperative. There were few government officers who volunteered information willingly.
It was imperative for Independent Counsel to focus first on the facts that might be the subject of immunized testimony, including the diversion of funds from the proceeds of the Iranian arms sales to assist the Contras. It was necessary to gather as much material as possible before Congress granted immunity to the most central figures in the affair. After immunity was granted, it was necessary to shield our potential prosecutions from contamination by the highly publicized congressional testimony of Oliver L. North, Poindexter and others who testified under immunity grants.
Once the first major indictment was brought in March 1988, Independent Counsel turned to trial work. In the North case alone, 108 pre-trial motions were filed, thirty-two of which challenged the validity of charges in the 23-count indictment brought against North, Poindexter, Richard Secord, and Albert Hakim.
The decision by U.S. District Judge Gerhard Gesell to sever the four defendants in the case to preserve the right of each of the defendants to use the immunized testimony of others to exculpate himself necessitated separate trials and added more than a year to the anticipated schedule. The immunity issues ultimately brought about the reversal of North and Poindexter's convictions on appeal.
Classified information problems have also complicated Independent Counsel's prosecutions and consumed enormous time and energy. Every line of every page of the thousands of pages of classified documents that might be used in the trial by either the prosecution or the defense has had to undergo review by a group of declassification experts from several agencies. Claims of national security led to the dismissal of the central conspiracy charge against North, Poindexter, Secord and Hakim. Attorney General Thornburgh's refusal to declassify publicly known but officially secret information forced the dismissal of the government's entire case against former CIA Costa Rican station chief Joseph Fernandez--and more than a year's litigation was wasted. I have previously reported to Congress at greater length on these problems.
Independent Counsel has not been able to prosecute the basic operational crimes committed in the course of the Iran/Contra affair due to national security claims. For instance, Count One in the North-Poindexter-Secord-Hakim indictment was dismissed due to claims that material information could not be declassified. It charged a conspiracy to defraud the United States by obstructing congressional oversight; by illegally supporting the Nicaraguan Contras; by depriving the government of the honest and faithful services of employees free from conflicts of interest, corruption and self-dealing; and by exploiting and corrupting for their own purposes a government initiative involving the sale of arms to Iran rather than pursuing solely the government objectives of the initiative, including the release of hostages in Lebanon.
Independent Counsel has been able to prosecute the crimes committed in the course of the Iran/Contra cover-up. These have included lying to and withholding information from Congress, lying to other official investigations, and withholding and destroying documents.
Criminal charges have been brought against 14 persons in three venues, including three cases that have not yet come to trial. Ten convictions have been obtained. The North and Poindexter convictions were reversed on appeal. The Fernandez case never came to trial due to classified information problems.
The Office of Independent Counsel could not complete its work without questioning all significant witnesses and pursuing all important leads related to the mandate issued by the Appointing Panel, a copy of which is attached. Because of the need to try North and Poindexter separately, these two principals did not become available for questioning until mid-1990.
Since then, the continuing investigation was fueled by newly discovered documents, including the personal notes of key officials, CIA cables and tapes, and other records previously withheld from Independent Counsel and other investigative bodies. These were obtained by renewed emphasis on the fulfillment of longstanding document requests, originally made in 1987 to the National Security Agency, the National Security Council, the CIA, the White House, the Office of the Vice President, and the State and Defense Departments. Also of critical importance were changes in witness testimony.
In the past two years, the continuing investigation has developed new and disturbing evidence that made it necessary to reinterview many of the witnesses first questioned in 1987. This was not merely a clean-up chore--it has provided a significant shift in our understanding of which Administration officials had knowledge of Iran/Contra, who participated in its cover-up, and which areas required far more scrutiny than we previously believed.
It is not a crime to deceive the American public, as high officials in the Reagan Administration did for two years while conducting the Iran and Contra operations. But it is a crime to mislead, deceive and lie to Congress when, in fulfilling its legitimate oversight role, the Congress seeks to learn whether Administration officials are conducting the nation's business in accordance with the law.
Lawrence E. Walsh,
Expenditures by the Office of Independent Counsel were $31.4 million as of May 31, 1992, which are the latest figures available. The staff includes 9 full-time attorneys and 33 support staff. Since Independent Counsel Lawrence E. Walsh's appointment in December 1986 there have been ten convictions; two have been dismissed on appeal.
Caspar W. Weinberger--Indicted June 16, 1992, on five counts of obstruction, perjury and false statements in connection with congressional and independent counsel investigations of Iran-contra. The maximum penalty for each count is five years in prison and $250,000 in fines. U.S. District Judge Thomas Hogan has set a Nov. 2, 1992, trial date.
Duane R. Clarridge--Indicted Nov. 26, 1991, on seven counts of perjury and false statements about a secret shipment of U.S. HAWK missiles to Iran. The maximum penalty for each count is five years in prison and $250,000 in fines. U.S. District Judge Harold Greene has not set a trial date.
Clair E. George--Indicated Sept. 6, 1991, on 10 counts of perjury, false statements and obstruction in connection with congressional and grand jury investigations of Iran-contra. On May 18, 1992 three of the obstruction counts against George were dismissed with Independent Counsel's consent; George was indicated on May 21, 1992 on two additional obstruction counts, bringing the total number of charges against him to nine. The maximum penalty for each count is five years in prison and $250,000 in fines. U.S. District Judge Royce Lamberth has set a July 13, 1992, trial date.
Elliott Abrams--Pleaded guilty Oct. 7, 1991, to two misdemeanor charges of withholding information from Congress about secret government efforts to support the Nicaraguan Contra rebels during a ban on military aid. U.S. District Judge Aubrey Robinson sentenced Abrams Nov. 15, 1991, to two years probation and 100 hours community service.
Alan D. Fiers, Jr: Pleaded guilty July 9, 1991, to two misdemeanor counts of withholding information from Congress about the diversion of Iranian arms sales proceeds to the Nicaraguan Contras and about other military aid to the Contras. U.S. District Judge Aubrey Robinson sentenced Fiers Jan. 31, 1992, to one year probation and 100 hours community service.
Thomas G. Clines--Found guilty Sept. 18, 1990, of four tax-related felonies. U.S. District Judge Norman Ramsey in Baltimore, Md., on Dec. 13, 1990, sentenced Clines to 16 months in prison and $40,000 in fines. He was ordered to pay the cost of the prosecution. The Fourth U.S. Circuit Court of Appeals in Richmond, Va., on Feb. 27, 1992 upheld the convictions. Clines began serving his jail sentence May 25, 1992.
Richard V. Secord--Pleaded guilty Nov. 6, 1989, to one felony count of false statements Congress. Sentenced by U.S. District Judge Aubrey Robinson on Jan. 24, 1990, to two years probation.
Albert Hakim--Pleaded guilty Nov. 21, 1989, to a misdemeanor of supplementing the salary of Oliver North. Lake Resources Inc., in which Hakim was the principal shareholder, pleaded guilty to a corporate felony of theft of government property in diverting Iranian arms sales proceeds to the Nicaraguan Contras. Hakim was sentenced by U.S. District Judge Gerhard Gesell on Feb. 1, 1990, to two years probation and a $5,000 fine; Lake Resources was ordered dissolved.
Robert C. McFarland--Pleaded guilty March 11, 1988, to a four-count information charging him with withholding information from Congress. Sentenced by U.S. District Judge Aubrey Robinson on March 3, 1989, to two years probation, $20,000 fine and 200 hours community service.
Carl `Spitz' Channell--Pleaded guilty April 29, 1987, to a one-count information of conspiracy to defraud the United States. Sentenced by U.S. District Judge Stanley Harris July 7, 1989, to two years probation.
Richard R. Miller--Pleaded guilty May 6, 1987, to a one-count information of conspiracy to defraud the United States. Sentenced by U.S. District Judge Stanley Harris on July 6, 1989, to two years probation and 120 hours of community service.
John M. Poindexter--Found guilty April 7, 1990, of five felonies: conspiracy (obstruction of inquiries and proceedings, false statements, falsification, destruction and removal of documents); two counts of obstruction of Congress and two counts of false statements. U.S. District Judge Harold Greene sentenced Poindexter June 11, 1990, to 6 months in prison on each count, to be served concurrently. A three-judge appeals panel Nov. 15, 1991, reversed Poindexter's convictions. Independent Counsel plans to appeal to the Supreme Court.
Oliver L. North--U.S. District Judge Gerhard Gesell dismissed the case Sept. 16, 1991, at the request of Independent Counsel following hearings on whether North's immunized congressional testimony tainted the testimony of trial witnesses. A three-judge appeals panel on July 20, 1990, vacated for further proceedings by the trial court North's three-count conviction for altering and destroying documents, accepting an illegal gratuity, and aiding and abetting in the obstruction of Congress. The appeals panel reversed outright the destruction-of-documents conviction. The Supreme Court declined review of the case May 28, 1991. North, who was convicted May 4, 1989, had been sentenced July 5, 1989, to a three-year suspended prison term, two years probation, $150,000 in fines and 1,200 hours community service.
Joseph F. Fernandez--U.S. District Judge Claude Hilton dismissed the four-count case Nov. 24, 1989, after Attorney General Dick Thornburgh blocked the disclosure of classified information ruled relevant to the defense. The Fourth U.S. Circuit Court of Appeals in Richmond, Va., on Sept. 6, 1990, upheld Judge Hilton's rulings under the Classified Information Procedures Act (CIPA). On Oct. 12, 1990, the Attorney General filed a final declaration that he would not disclose the classified information.
Mr. KERRY. I yield the floor.
Mr. HEFLIN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Alabama.
Mr. HEFLIN. Mr. President, I believe I have a 10-minute order.
The PRESIDING OFFICER. The Senator is correct. Under the previous order, the Senator from Alabama is recognized to speak for up to 10 minutes.