US History/US History (Bureau Development Inc.)(1991).ISO/dp/0156/01565.txt

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$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.