$Unique_ID{USH01565} $Pretitle{131} $Title{The Iran-Contra Affair: Supplemental and Additional Views Appendix A: Conduct of the Committees' Investigation} $Subtitle{} $Author{Hamilton, Lee H. and Inouye, Daniel K.} $Affiliation{US Congress} $Subject{committees committee testimony senate house staff counsel investigation members hearings} $Volume{} $Date{1987} $Log{} Book: The Iran-Contra Affair: Supplemental and Additional Views Author: Hamilton, Lee H. and Inouye, Daniel K. Affiliation: US Congress Date: 1987 Appendix A: Conduct of the Committees' Investigation The investigation of the Iran-Contra Affair by these two Select Committees was one of the more far-reaching that Congress has conducted in recent decades, extending to many offices and agencies of the U.S. Government, to Government and commercial activities throughout the United States, and to events in a number of foreign nations. This account of the investigation describes how the Select Committees gathered the evidence and developed the record on which their Report is based. Establishment of Two Congressional Committees The 100th Congress launched this investigation of the Iran-Contra Affair as one of its first actions after convening in January 1987. On January 6, the Senate established the Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition. The following day, the House established the Select Committee to Investigate Covert Arms Transactions with Iran. Both Chambers directed their respective Select Committees to conduct an extensive investigation and to submit legislative recommendations. The Resolutions in both Chambers had bipartisan sponsorship and were adopted by roll call votes of 416 to 2 by the House and of 88 to 4 by the Senate. The Select Committees' investigations were not the first look that Congress had taken at the sale of arms to Iran in 1985 and 1986, the diversion to the Nicaraguan Resistance (or Contras) of some of the proceeds of those sales, and related events. Several standing committees, including the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, conducted preliminary investigations of these events and issued reports of their findings in December 1986. The two new Select Committees assumed the jurisdiction of several Congressional Committees and were charged with undertaking a comprehensive investigation of U.S. Government agencies and individuals involved in transferring arms to Iran and in diverting funds to support the Contras. The Senate Select Committee had 11 Members; Chairman Daniel K. Inouye (D-Hawaii) Vice Chairman Warren Rudman (R-New Hampshire) George J. Mitchell (D-Maine) Sam Nunn (D-Georgia) Paul S. Sarbanes (D-Maryland) Howell T. Heflin (D-Alabama) David L. Boren (D-Oklahoma) James A. McClure (R-Idaho) Orrin G. Hatch (R-Utah) William S. Cohen (R-Maine) Paul S. Trible, Jr. (R-Virginia) The House Select Committee had 15 Members: Chairman Lee H. Hamilton (D-Indiana) Vice Chairman Dante B. Fascell (D-Florida) Thomas S. Foley (D-Washington) Peter W. Rodino, Jr. (D-New Jersey) Jack Brooks (D-Texas) Louis Stokes (D-Ohio) Les Aspin (D-Wisconsin) Edward P. Boland (D-Massachusetts) Ed Jenkins (D-Georgia) Dick Cheney (R-Wyoming) Wm. S. Broomfield (R-Michigan) Henry J Hyde (R-Illinois) Jim Courter (R-New Jersey) Bill McCollum (R-Florida) Michael De Wine (R-Ohio) A Joint Investigation Even as the two Select Committees began work independently, the idea of a joint investigation arose. With the support of Vice Chairman Rudman and Ranking Minority Member Cheney, Chairmen Hamilton and Inouye resolved problems arising from the fact that the two Committees worked under different mandates and represented Chambers with different procedures and traditions. The result of these negotiations was a series of firsts for the Congress: the first joint investigation conducted by two separate Committees, one of the House and one of the Senate; the first joint hearings held by two such Committees; and the first time that Committees of the House and Senate had ever submitted a combined report to their respective Chambers - including the names and views of Members of both Chambers. Before the Committees agreed to share resources and work together on many aspects of the investigation, they had already set up separate offices and assembled separate staffs. The Senate Select Committee occupied the ninth floor of the Hart Senate Office Building. It appointed Arthur L. Liman, a senior partner of the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison, to serve as Chief Counsel. Supervising the investigation with Mr. Liman were his law partner Mark A. Belnick (Executive Assistant to the Chief Counsel) and Paul Barbadoro (Deputy Chief Counsel), who had served both as Assistant Attorney General of the State of New Hampshire and later as Legal Counsel to Senator Rudman. The Executive Director of the staff was Mary Jane Checchi. Lance I. Morgan served as Press Officer and assisted substantially with the preparation of this Report and in other Senate Committees' work. The Senate Committee staff included Associate and Assistant Counsels, experienced investigators, experienced accountants detailed from the General Accounting Office, computer experts, and security and administrative officers. At the height of the investigation, the Senate staff totaled 54 people. The House Select Committee worked in a vault-like office under the dome of the Capitol. The Committee appointed John W. Nields, Jr., a senior partner in the Washington, D.C., law firm of Howrey and Simon, to serve as Chief Counsel. W. Neil Eggleston, an Assistant U.S. Attorney in New York, was appointed Deputy Chief Counsel, and Robert J. Havel, Director of Public Relations for the Association of Trial Lawyers of America, was chosen as Press Liaison. Chairman Hamilton appointed Casey Miller as Staff Director. Assisting the Committee was a staff of 45 that included attorneys, investigators from the Department of Defense, the Federal Bureau of Investigation, and the Office of Special Investigations of the General Accounting Office; security and administrative officers; and associate staff from standing House committees and Members' offices. Specialists from House Information Systems provided expert computer assistance and analysis capability. Minority Members of the House Select Committee, led by Representative Dick Cheney, appointed Thomas R. Smeeton, Republican Counsel to the House Permanent Select Committee on Intelligence, as Minority Staff Director; George W. Van Cleve, Committee Counsel to Representative Cheney, as Chief Minority Counsel; and Richard J. Leon, a Senior Attorney in the Justice Department's Tax Division, as Deputy Chief Minority Counsel. They directed a Committee staff of nine and an Associate staff of six, who assisted Minority Members in preparing their contributions to the Report of the Committees. The division of labor within the Committee involved all staff members. Security staff, technically assigned to the Majority, served both Majority and Minority Members and their staffs. The work of investigators, technically assigned to the Majority, was available to Members of both the Majority and Minority. The Committee's staff was responsible for all preparations for the hearings, notably in developing the briefing and exhibit books. Overall, approximately 12 people worked primarily for the Majority, while 9 worked primarily for the Minority. Organization of the Investigation The Congressional investigation of the Iran-Contra Affair was undertaken and conducted directly by the two Chairmen, the Senate Vice Chairman, the Ranking House Minority Member, and Members of the two Select Committees. They decided on the lines of inquiry to pursue, directed Chief Counsels and staff in obtaining documents and developing evidence, chose witnesses to be deposed or to testify at the hearings, prepared questions for witnesses, read depositions, and reviewed the record. They met regularly for briefings and to exchange ideas and information, discuss the evidence, and provide ongoing direction to the Chief Counsels and staffs. Several Members focused individually on certain areas of the investigation. Members also selected the themes to be emphasized in this Report and they decided which matters were relevant for inclusion in the Report. The Chairmen organized the respective Committees' attorneys and investigators into teams that concentrated on different areas of the inquiry. Flexibility was nevertheless preserved so that staff members could be employed as needed. When the Senate and House Committees agreed to combine their investigations and hearings, the Chairmen agreed that staff members from both would work closely. The investigative teams consisted of both Senate and House Committee staff members who met regularly with the senior staff members of both Committees. Members, Counsel, and/or investigators from both staffs attended interviews and depositions. Primary responsibility for potential witnesses was divided between the two Committees, an allocation of responsibility that continued throughout the witnesses' appearances at the public hearings. Thus, for example, Vice Adm. John M. Poindexter was designated a "Senate witness," meaning that Senate Committee Members and staff had primary (but not exclusive) responsibility for preparing him and that Senate counsel took the lead in examining him at the public hearings. The House, on the other hand, had primary responsibility for Lt. Col. Oliver L. North. Under the direction of the Committees and of individual Members, investigative teams assembled documentary evidence before proceeding with full scale interviews or depositions. Documents were obtained from Government agencies through written requests and from private parties by cooperation or subpoena. From the White House, the Department of State, the Department of Defense, the Central Intelligence Agency, the Department of Justice, other Government offices, and private parties, the Committees collected more than 300,000 documents totaling more than 1 million pages, all of which were reviewed and analyzed by the staffs and many of which were entered into the Committees' computerized database. Unsworn interviews and sworn depositions were the other principal investigative tools. The combined staffs conducted about 250 interviews and deposed about 250 people. The Committees dispatched Members, attorneys, and investigators throughout the United States and abroad to gather information and to interview and depose individuals. The activities that the Committees investigated were shrouded in secrecy and it was in the National interest that the facts be found and publicly exposed as rapidly as possible. The Committees proceeded expeditiously with their investigation, which began in January and continued through October. An important part of the Committees' responsibilities was to present the testimony of the participants at open hearings so that the public could learn directly from the witnesses the facts that had been withheld and concealed for over two years. At the same time, the Committees were guided by a resolve that before public hearings commenced they should conduct as thorough an examination of documents and witnesses as possible. Although the process produced over 300,000 documents and more than 500 interviews and depositions, nothing could restore the documents that had been destroyed before the investigation began; nor could any amount of investigation compel witnesses to recall what they professed to have forgotten or overcome the death of CIA Director William Casey. The Committees set their own timetable, taking into account the Independent Counsel's mandate and his strenuous objections to early grants of use immunity to key participants. The public hearings were originally contemplated for late February, but did not commence until May, when the Committees concluded they were ready to begin the first phase. But the investigative work continued even when the public hearings were in progress and after they ended. Security Security was a major concern for both Committee offices because much of the investigation involved closely held secrets of the U.S. Government. To untangle the web of events that stretched from the Middle East to Central America, the Committees' Members and staffs first had to cull through top secret information about covert operations, some of which involved foreign governments. From the outset, the Committees adopted and enforced the highest standards of U.S. Government security procedures. To ensure that documents and information were handled properly, every staff member was required to obtain a top secret security clearance. Procedures for granting security clearances to House Committee staff represented a significant advance in clearing staff of Congressional investigations. Procedures respectful of the separate constitutional functions of each branch were worked out among Chairman Hamilton, Attorney General Meese, and the Honorable David M. Abshire, the Special Counsellor to the President, and were set forth in a letter to Ambassador Abshire from Chairman Hamilton on February 19, 1987. Under these procedures, Chairman Hamilton would submit to the Department of Justice the name and background information on each individual whom he was considering for clearance. The executive branch, usually through the Federal Bureau of Investigation, would conduct the standard background investigations and would submit the results and any recommendation to Chairman Hamilton. When he was satisfied that the individual met the requirements for clearance, he would inform the individual and the Department of Justice, which would provide an indoctrination briefing on security. The individual would then execute both a briefing acknowledgment and a nondisclosure form developed by the House Committee. (See letter from Chairman Hamilton to David M. Abshire, Special Counsellor to the President, 2/19/87.) In order to expedite the Committee's work, Attorney General Meese agreed to recommend that certain staff be cleared pending completion of their background checks. The offices of each Committee were designed and managed to ensure security. Offices were fitted with storage vaults accessible only to specially designated staff through an alarmed, combination-locked door. In side these vaults, documents were kept in individually locked security safes approved for this purpose by the National Security Agency and the Central Intelligence Agency. Security personnel were on duty whenever offices were open. Committees' Members and staffs could request documents on a need-to-know basis, and security staff maintained duplicate records verifying the time and date of each transfer of a document and the name of the person who requested it. The Senate Committee offices also contained a sophisticated "clean room" that was secure from outside interference - including emissions of electronic devices - and was used for the most sensitive interviews and discussions. House Official Reporters with the requisite security clearances recorded classified depositions, which were conducted in secure facilities and attended only by Members and other individuals with the requisite security clearances. Computers and other electronic office equipment were protected from emission interception through technical security measures meeting "TEMPEST" standards. TEMPEST security ensured that no electronic signals would reach beyond the confines of the offices. Telephones were also designed with a "positive disconnect" system so that they could not be used as listening devices. Secure telephones were installed for conversations between the Committees and the White House. Public Hearings The public hearings opened on May 5, 1987, in the Senate Caucus Room of the Russell Senate Office Building. The location of the hearings alternated weekly between the Senate Caucus Room and the House Foreign Affairs Committee Room, Rayburn House Office Building, Room 2172. The Committees took testimony from 28 witnesses during 40 days of joint public hearings - from May 5 to August 3 - and took private testimony from 4 witnesses during 4 days of closed hearings (a total of approximately 262 hours of testimony). There were 1,092 exhibits presented during the public hearings. Pursuant to a rule formally adopted by both Committees, the location of the hearings determined which Committee's rules governed. When hearings were held in the Senate Caucus Room, the Senate Committee's rules applied and Chairman Inouye presided; when the hearings took place in the House Foreign Affairs Committee Room, the House Committee's rules applied and Chairman Hamilton presided. The hearings were transcribed by the House Official Reporters, who produced transcripts on a "splitrush" basis for the staff and the media. The Reporters typed transcripts of the morning sessions by midafternoon of the same day and of the afternoon session by midevening, without verifying the transcripts against tape recordings of the testimony. These transcripts, therefore, contained some errors in transcription, which were corrected later. The Committees considered it important also to preserve a visual record of the Hearings. Accordingly, they arranged for the Hearings to be videotaped by the Senate Recording Studio, which produced one tape for archival purposes and one additional tape for use by each Committee. Immunity In their respective authorizing Resolutions, the Committees were empowered to compel testimony over Fifth Amendment objections by obtaining a court order immunizing a witness against the use of compelled testimony in criminal prosecutions. This limited immunity is commonly known as "use immunity." Although it does not bar criminal prosecution of the compelled witness, use immunity imposes on the prosecutor the burden of demonstrating that the prosecution's evidence is not based on or derived from information obtained during the immunized testimony. The Committees were mindful of this burden on the Independent Counsel in deciding whether to obtain immunity orders for particular witnesses. Other factors also influenced the Committees' decisions on immunity, including the Committees' need for evidence from a particular witness, the extent to which the witness' testimony was likely to be probative, and whether any alternative sources of the same evidence existed. The Senate Committee voted to compel testimony through use immunity for 26 witnesses and the House Committee for 26 witnesses. Proceedings Relating to Swiss Bank Records One of the key considerations in assessing whether to grant use immunity for Albert Hakim, who had asserted his Fifth Amendment privilege, was the extent to which the Committees could otherwise obtain records of the secret Swiss bank accounts involved in the Iran-Contra Affair. Those records were critical to a key aspect of the Committees' investigation: following the money trail. The relevant bank records were protected from disclosure by Swiss bank secrecy law. The Committees initially hoped to overcome this obstacle by application to the Swiss authorities pursuant to a treaty between the United States and Switzerland. After discussions with the Department of State and research by the staff, however, the Committees concluded that the Swiss would take the position that the Committees were not criminal investigative authorities and were therefore not covered by the Treaty. The Committees next endeavored to reach an agreement whereby the Independent Counsel would make copies of the bank records available to the Committees once he obtained them pursuant to the Treaty. The Independent Counsel, because he believed that any such agreement would prejudice his own chances of obtaining the records, declined. The Committees also sought to obtain the records by compelling Richard V. Secord to execute a waiver of his secrecy rights under Swiss law pursuant to a procedure approved in U.S. v. Ghidoni, 732 F.2nd 814 (11th Cir.), cert. denied, 469 U.S. 932 (1984), and other cases. Secord, however, successfully challenged the Senate Committee's order compelling him to execute such a waiver. When Secord subsequently agreed voluntarily to provide evidence to the Committees, he claimed that he had no relevant Swiss bank records and that all such records were under the control of Hakim. Accordingly, the Senate Committee decided not to appeal the district court's decision, and the case was withdrawn. The Committees decided that, to obtain the critical financial records, they would have to obtain an order of use immunity for Hakim. After the order was obtained, Hakim produced his records, and equally important, assisted in interpreting them through his compelled testimony. The evidence thus obtained was indispensable to the Committees in tracing the flow of money in the Iran-Contra Affair. Proceedings Relating to Oliver L. North Given Lt. Col. Oliver L. North's Fifth Amendment objections when subpoenaed, the only way to obtain his testimony was to compel it through a grant of use immunity. The Committees' decision to grant him use immunity was not an easy one. Because North was a principal target of the criminal investigation, the Independent Counsel strenuously urged the Committees to forego any grant of immunity to North. At the same time, it was clear that the Committees' failure to obtain North's testimony would leave the record incomplete. After weighing the need for North's testimony against the arguments of the Independent Counsel, the Committees decided to strike a balance. They deferred obtaining an immunity order and compelling North's testimony until the latter stages of their investigation; in return, the Independent Counsel agreed not to exercise his right to obtain a 20-day deferral of the immunity order for North after the Committees filed their application. (A similar agreement was reached with the Independent Counsel, for the same reasons, regarding the compelled testimony of Poindexter.) On June 15, 1987, the U.S. District Court for the District of Columbia issued an immunity order compelling North to testify. Thereupon, the Committees again subpoenaed North to testify and produce documents. North, through counsel, vigorously objected and argued that, despite the immunity orders, he would be severely prejudiced in his defense of any subsequent criminal charges were he required to testify unconditionally in private and public sessions. North's counsel maintained that compelling North's testimony at such a late stage deprived North of the full benefits of use immunity and thus unfairly stripped him of a criminal defendant's most important right - to remain silent. North's counsel demanded, inter alia, that the Committees agree to limit North's testimony to a maximum of 3 days and not to recall him under any circumstances. He demanded also that the Committees agree not to require North to produce documents until immediately prior to his appearance for testimony. If such demands were not met, North's counsel informed the Committees that he would advise his client to disobey the subpoenas and defend against criminal contempt charges. The Committees were thus confronted with another difficult decision. Criminal contempt proceedings could take years to complete and, even if successful, would not necessarily result in obtaining North's testimony. The penalty for criminal contempt is imprisonment, not compulsion of the recalcitrant witness' testimony. Although civil contempt proceedings do coerce testimony from the witness, serious statutory questions arose as to whether the Committees could successfully mount civil contempt charges against North, given his status as a Government employee. Although the Committees firmly believed that North's legal arguments were without merit, it was not clear that the jury in a criminal contempt case would agree. Furthermore, certain of North's arguments were persuasive to the Committees as a matter of fundamental fairness to an individual facing likely criminal prosecution. Accordingly, the Committees again struck a balance. The Committees decided to restrict North's private testimony, in advance of his public appearance, to a single session limited to the subject of the involvement and knowledge, if any, of the President regarding "the diversion." Also, the Committees reaffirmed their intention to try to complete North's public testimony in 4 days and not to recall him for further testimony unless extraordinary developments created a compelling need therefore. It should be noted that the Committees had not recalled any witness prior to North's appearance, nor did they afterward. Robert McFarlane testified for a second time, following North's appearance, only at his own request. (The Committees declined to commit to limit North's testimony to 4 days. His public testimony actually continued for 6 days, and he was not recalled thereafter.) The Committees rejected all of North's other demands. The Committees' decisions regarding North's testimony were made to accommodate the legitimate concerns expressed by his counsel without sacrificing the Committees' power or the integrity of the proceedings. As a result, North appeared in response to the Committees' subpoenas, produced his notebooks and other relevant documents, and submitted to extensive questioning.