Part III
The central and perhaps the most important criminal charge developed by Independent Counsel was the conspiracy charge against Oliver L. North, John M. Poindexter, Richard V. Secord and Albert Hakim. According to that charge—set forth as Count One of the indictment returned on 16 March 1988—these four men conspired to defraud the United States by deceitfully (1) supporting a war in Nicaragua in defiance of congressional controls; (2) using the Iran arms sales to raise funds to be spent at the direction of North and Poindexter, rather than the United States Government; and (3) endangering the effort to rescue Americans held hostage in Lebanon by pursuing ends that were both unauthorized and inconsistent with the goal of releasing the hostages.
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The Reagan Administration was unambiguously hostile to this count. In a move that Judge Gerhard A. Gesell described as “unprecedented”, the Justice Department in November 1988 filed an amicus brief supporting North’s claim that the count was legally insufficient and should be dismissed. Subsequently, having been informed by Independent Counsel that the conspiracy count could be tried only if a small amount of classified information were declassified, the Administration refused to release that information. Because there was no way to appeal such a refusal to declassify, Independent Counsel was forced in January 1989 to drop Count One in North and a related charge that the diversion of profits from the Iran arms sales was a theft of Government funds.
Although Count One was not tried, it was established as a matter of law that if North, Poindexter, and the others had done what they were charged with doing, they had committed criminal acts. In rejecting the challenges of the Department of Justice and North, Judge Gesell ruled that the count “allege[d] [a] well-established offens[e]” and that the activity set forth in the count was criminal. He stated: “The indictment clearly alleges a conspiracy which involved concealing the very existence of the profits of the enterprise from the start and hiding from Congress information relating to the conspirators’ assistance for the Contras.” In addition to holding that the indictment set forth a crime, Judge Gesell also found that his review of the evidence presented to the Grand Jury indicated there was probable cause that that crime had in fact been committed.
At the heart of the Iran/Contra affair, then, were criminal acts of Reagan Administration officials that the Reagan Administration, by withholding non-secret classified information, ensured would never be tried. Yet Judge Gesell’s decision marked an important, if incomplete, accomplishment of Independent Counsel. Judge Gesell’s decision unambiguously established that high national security officials who engage in a conspiracy to subvert the laws of this country have engaged in criminal acts, even when the laws themselves provide no criminal sanctions.
A successful prosecution would have allowed Independent Counsel to present comprehensively the results of his investigation into the operational conspiracy. Much of the evidence of the conspiracy was presented at the trials of the dismembered individual charges of obstruction and false statements but the questions of intent were different, the diversion of funds from Iran to the contras was peripheral rather than central, and the absence of the conspiracy charge deprived the North case of its cohesiveness and completeness.
The following discussion is an attempt to present in an abbreviated fashion what would have been Independent Counsel’s case at a conspiracy trial of North, Secord, Poindexter and Hakim, and an explanation of the criminal nature of their actions.
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The crux of the first charged object of the conspiracy was an agreement to provide military assistance to the Nicaraguan Contras and to deceive Congress about the fact that support was being provided. Poindexter, North, and their co-conspirators carried out their “secret war” in a way calculated to defeat legal restrictions governing the conduct of military and covert operations and congressional control of appropriations, and they concealed their activities from legitimate congressional oversight.
Had the case been tried as indicted, the Government’s proof of US secret war activities would have fallen into three broad categories: (1) the organization and direction of a resupply operation to provide the Contras with logistical and other support; (2) funding of the resupply operation, including exploitation of the Iran initiative; and (3) attempts to conceal from Congress the conspirators’ involvement in these activities.
During the last half of 1984 and the first half of 1985, North had developed a loose structure for Contra support. Secord, responding to Contra requests through North, was selling arms. Thomas G. Clines, a Secord associate, arranged for their purchase; Hakim, assisted by Swiss money manager Willard I. Zucker, set up the structure to finance the activities with funds provided to the Contras through North and raised primarily by President Reagan and National Security Advisor Robert C. McFarlane.
The creation of the conspirators’ more tightly organized secret resupply network dated from a meeting in Miami, Florida on 28 June 1985. This meeting was attended by, among others, North, Adolfo Calero (political leader of one Contra faction known as the FDN), Enrique Bermudez (commander of the FDN’s military forces), Secord, Clines and Rafael Quintero, an associate of Secord. At the Miami meeting, North informed Calero and Bermudez that the Contras would no longer be left to decide what arms they would purchase or from whom they would buy them. In the future, North would provide the Contras with materiel, and Secord would deliver it to the Contras in the field. In addition, North directed that actions be taken to develop and resupply a “southern front” along the border of Costa Rica and Nicaragua.
Following the Miami meeting, North assumed a central role in the Contra war effort. Using Robert W. Owen as a courier, North provided the Contras with significant military advice and guidance. At the same time, with the assistance of Secord, North in the following fashion secretly brought into being the resupply operation that he had described on 28 June.
First, North directed Owen and William Haskell, another North courier, to travel to Costa Rica and help activate a southern military front. Owen and Haskell, aided by CIA Costa Rican Station Chief Joseph F. Fernandez, undertook to build a clandestine airstrip to be used to resupply it. Haskell eventually negotiated the acquisition of property for the strip, which was funded using Swiss accounts controlled directly by Secord and Hakim, and indirectly by North. Within the United States, North attended planning sessions and personally commissioned private individuals to do preliminary site work and engineering tasks necessary for the construction of a usable airstrip.
North arranged for Haskell and Owen to be introduced to Fernandez. Fernandez minimized and concealed from his superiors at the CIA the true nature of his contacts with North and North’s private representatives. Fernandez and North eventually developed a secret communications network using National Security Agency (NSA)-supplied KL-43 encryption devices, outside normal CIA communications channels. […] Under the direction of North, Fernandez and US Ambassador to Costa Rica Lewis A. Tambs used their influence as representatives of the United States to obtain the support of senior Costa Rican officials for the airstrip project.
Second, North directed Secord to purchase aircraft capable of resupplying Contra forces. From January to August 1986, private parties working on behalf of North and Secord purchased four military aircraft costing approximately $1.8 million, as well as additional equipment for operation of these aircraft. The funds for these purchases came from Hakim and Secord’s secret Swiss bank accounts.
North took an active part in the purchase of the aircraft. He reviewed and approved a technical proposal for the resupply organization solicited by Secord from Richard B. Gadd, a Secord associate. North and Secord then directed Gadd in November 1985 to approach the Government of Venezuela in an unsuccessful attempt to purchase military aircraft. North used his influence as a Government official to vouch for Gadd’s bona fides with the government of Venezuela. Similarly, North exercised final approval on major expenditures for equipment. In January 1986, North personally directed Secord to provide Gadd with over $100,000 for anticipated costs. Later in 1986, North directed Secord to purchase a package of spare parts required by the resupply operation that cost in excess of $200,000. North personally approved the purchase of a fourth military aircraft in August 1986 at a cost of $250,000. When there was a dispute between Gadd and Secord as to the ownership of the aircraft, North resolved it in favor of Secord’s Enterprise.
Third, North secretly undertook to obtain the use of Ilopango air base in El Salvador for his resupply
