Intelligence
Chapter 23
Conduct of CIA Officials in November 1986
Independent Counsel investigated the concerted conduct of senior CIA officials in response toearly congressional inquiries into the Iran/contra affair in November 1986. This investigationwas substantially complete as of November 17, 1991, by the end of the statutory limitationsperiod for the conduct under investigation. Upon completion of this investigation, IndependentCounsel decided not to seek additional indictments.1 The chief reason was the unavailability ofthree key witnesses -- former CIA Deputy Director for Operations Clair E. George, his formerspecial assistant, Norman H. Gardner, Jr., and most importantly, former CIA Director William J.Casey.2
1 At the time Independent Counsel reached this decision, one former CIA official, Clair E.George, was under indictment for perjury committed in December 1986. George's December1986 statements were consistent with false statements he made during November 1986. Forreasons that will be described below, Independent Counsel declined to bring charges for George'sNovember 1986 statements.
2 By all accounts, despite showing some signs of the illness that eventually took his life,Casey was a commanding figure at the Agency during most of November 1986. He also knew,or was in a position to know, about aspects of the Iran initiative that others in the CIA professedto have never learned. In short, Casey was a man whose potential knowledge of the Iraninitiative and control of the CIA was such that putative defendant could have cast doubt on aGovernment case concerning CIA conduct in November 1986 by attributing responsibility to thedeceased Casey.
Congressional Inquiries Into the Iran Initiative
After the secret U.S. arms sales to Iran became exposed in the first week of November 1986,they quickly caught the attention of the Congress. They contained at least three troublesomeaspects: (1) The sale of arms to a ``terrorist state'' was contrary to express policy, and in violationof export restrictions; (2) The link between the arms sales and the release of American hostagesalso contradicted the stated Reagan Administration position of not dealing with kidnappers; (3)The Administration had failed to inform Congress of the initiative.3
3 50 U.S.C. 501 (1982). On congressional reaction to news of the Iran initiative, seeHamilton, Poindexter Trial Testimony, 3/19/90, pp. 2177-78; ``Hill Probes of NSC Planned,''The Washington Post, 11/10/86, A1; ``Congress Members Predict Move to Curb President'sSecret Diplomacy,'' Los Angeles Times, 11/15/86, Pt. I, 9.
The Reagan Administration first responded to these reports with a series of public denials. When this strategy failed, President Reagan decided to address the nation on November 13, 1986. In anticipation of this address, four congressional leaders received a briefing on November 12,1986, about the arms sales.4 President Reagan opened the briefing by assuring the leaders thatthe sales were legal and that arms had not been exchanged for hostages. National SecurityAdviser John M. Poindexter described the Iran initiative without disclosing -- and sometimesaffirmatively disclaiming -- activities in support of the arms sales prior to a Presidentialcovert-action Finding dated January 17, 1986. Casey was among those present.5
4 By this time, the House Permanent Select Committee on Intelligence (HPSCI) had called forbriefings on the Iran initiative by Poindexter, Shultz, Secretary of Defense Weinberger, andCasey. (Letter from Hamilton to Poindexter, 11/10/86, North Trial, GX 119.)
5 For a more complete discussion of this briefing, see Reagan and Meese chapters.
CIA Briefing
On November 13, shortly before the President's speech, Poindexter and Casey briefed fivesenators and three congressmen on the speech and the January 17 Finding. Once againPoindexter denied any U.S. Government activity before the January 17 Finding ``except talk,''while Casey remained largely silent. By the next day, however, it was clear to Casey that theAdministration's briefings and the President's speech had not satisfied the intelligence oversightcommittees.6 Casey contacted Deputy National Security Adviser Alton G. Keel for guidance onwhat to tell the House and Senate intelligence committees in scheduled appearances thefollowing week. Keel passed along Casey's request to Poindexter, who in turn directed theNational Security Council's operating officer on the Iran project, Lt. Col. Oliver L. North, torespond to the director's queries.7
6 November 14 was also the day that the CIA formally notified the intelligence committees ofthe January 17 Finding.
7 PROFs Note from Pearson to Poindexter, 11/14/86, AKW 021641; North Notebook, AMX001684; DCI Phone Log, 11/14/86, ER 320.
On Saturday, November 15, 1986, Casey spoke with Senators Durenberger and Leahy of theSenate Select Committee on Intelligence (SSCI). Casey and Durenberger agreed that committeestaffers would meet with CIA personnel on Tuesday, November 18, 1986, to receive apreliminary briefing on the initiative and to advise the CIA of SSCI's concerns. This briefingwould be the first expansive CIA presentation to Congress by persons closely associated with theIran operation.8
8 George, Select Committees Deposition, 4/24/87, pp. 126-27. By November 18, the briefinghad been expanded to include staff from HPSCI.
The CIA briefed committee staffers on the morning of November 18 at CIA headquarters. CIA Deputy Director for Operations Clair E. George was the principal speaker, supported by thedeputy chief of the CIA's Near East Division; 9 the Director of the Office of CongressionalAffairs, David Gries; CIA comptroller, Daniel Childs; an executive assistant to Casey (EA/DCI);10 two special assistants to George, Norman H. Gardner, Jr., and CIA Subject #2; 11 counsel tothe Operations Directorate (DO), W. George Jameson; and the head of a DO congressionalliaison unit, George W. Gerner. The NSC's director of legislative affairs, Ronald K. Sable, alsoattended.
9 The deputy's identity is classified.
10 The identity of Casey's assistant is classified. In United States v. George, the assistant wascalled CIA Officer #8.
11 The identity of this officer is classified. It is disclosed in the Classified Appendix to thischapter.
While the briefing was not transcribed, Gerner took notes. These notes indicate that from theoutset of the briefing, Clair George attempted to limit himself to describing his directorate'ssupport to what he called ``the White House initiative to Tehran,'' and tried to avoid discussingthe legal or political wisdom of the project. George nevertheless stated this about the CIA'sinvolvement:
-- In prepared remarks, George implied that Iranians deposited funds for American armsdirectly into a CIA account. In fact, Iranian payments passed through several hands (includingthose of retired Maj. Gen. Richard V. Secord) before reaching CIA accounts.
-- In response to a staffer's question, George stated that, ``to the best of his knowledge,'' aCIA proprietary was used on only one occasion in the course of the initiative. Later Georgestated that there was no CIA support to the initiative prior to 1986. In fact, a CIA proprietarywas also used to ship Israeli HAWK missiles to Iran in November 1985.
-- In response to press reports of arms shipments before the January 17 Finding, Georgeresponded that this ``could be true, but it wasn't us.'' CIA Director of Congressional AffairsDavid Gries echoed George's remarks. Again, these statements ignored the November 1985HAWK shipment carried by a CIA proprietary.12
12 Gerner, Memorandum for the Record, 11/18/86, ER 29688-95. Notes taken by two SSCIstaffers, Edward Levine and Daniel Finn, corroborate Gerner's account of the briefing. (Finn,Memorandum for the Record, Subject: Iranian Arms Deal, 11/19/86, SSCI 86-3964; Levine,Memorandum for the Record, Subject: CIA Briefing on support to the Iran Arms Program,11/18/86, SSCI 86-3958.)
The Director Testifies
The next congressional briefings by the CIA came on Friday, November 21, 1986, in Casey'sappearances before HPSCI and SSCI.13 Casey came before each committee with a preparedstatement and a retinue of advisers, along with representatives from the State and Defensedepartments.14 In both appearances, Casey was the primary spokesman. In his opening remarksto HPSCI, Casey volunteered that ``[t]he CIA's involvement [with the Iran initiative] began inlate November of 1985'' when the CIA was asked to recommend an airline to transport ``bulkycargo to an unspecified location in the Middle East.'' Casey suggested that the CIA's associatedeputy director for operations, Edward Juchniewicz, and the deputy director of centralintelligence at the time, John McMahon, had approved the flight, although McMahon ``directedthat we would not provide any future flights into Iran in the absence of a Finding.'' 15
13 Both of these appearances came on the heels of two separate briefings of the members ofthe intelligence committees by Poindexter. Gardner attended these briefings and remained silentas Poindexter lied about prior presidential approval for the November 1985 HAWK shipment. Gardner later denied that he went to these briefings to insure that Casey and Poindexter weresaying the same thing. (Gardner, Poindexter Trial Testimony, 3/23/90, pp. 2676-79, 2689-91.)
14 Casey appeared before HPSCI and SSCI with these CIA officers: George; CIA GeneralCounsel David Doherty; Comptroller Childs; National Intelligence Officer Charles Allen; CIASubject #2; Gries; and another member of Gries's staff. Gardner joined Casey for his afternoonHPSCI session; George Jameson joined Casey for his SSCI appearance. Also present with Caseybefore HPSCI and SSCI were Under Secretary of State Michael H. Armacost and his executiveassistant; Assistant Secretary of State Richard W. Murphy; State Department Legal AdviserAbraham D. Sofaer (HPSCI morning session only); two deputy assistant secretaries of state;Assistant Secretary of Defense Richard Armitage; and a Department of Defense legislativeaffairs representative. John Bolton of the Justice Department attended the SSCI session only.
15 Casey, HPSCI Testimony, 11/21/86, pp. 5-6. In early December 1986, Casey correctedthis testimony to say that DDCI McMahon had not approved the flight. (Casey, DefenseAppropriations Subcommittee Testimony, 12/8/86, p. 10.)
Casey went on to describe briefly the financial mechanics of the arms sales:
First, the Iranian intermediary would deposit funds in an Israeli account, the funds would thenbe transferred to a sterile US-controlled account in an overseas bank. Using these funds the CIAwould work with the Army Logistics Command to obtain any material and the material wouldthen be transported to Israel for future shipment to Iran.
Casey fielded questions from HPSCI members, House Majority Leader James Wright andHouse Minority Leader Robert Michel. The questioning of Casey went past the allotted time,forcing HPSCI to ask Casey to return that afternoon.16
16 Casey, HPSCI Testimony, 11/21/86, pp. 11, 51.
Casey's intervening appearance before SSCI was marked by much sharper exchanges thanthose that had occurred before HPSCI. After Casey repeated his HPSCI opening statement,Senate Minority Leader Robert Byrd raised the possibility of placing all of the witnesses underoath. Chairman Durenberger denied the request and the questioning of Casey began with Sen.Leahy. Leahy had attended a briefing by Poindexter that morning and had learned that there hadbeen activities in 1985 -- prior to the signing of a Presidential Finding authorizing such activity. Leahy quickly inquired about the November 1985 HAWK shipment and the CIA'scontemporaneous knowledge of its contents. Casey explained that the CIA did not know of thecontents until some time in January 1986, but pleaded that he was uncertain whether the air crewhad learned earlier than that. Leahy pressed the issue, because he could not square the CIA'sattributing the flight to the NSC with what Poindexter had told him: that the NSC had justlearned about the flight.17
17 Casey, SSCI Testimony, 11/21/86, pp. 7-26, 31-36.
Casey returned to HPSCI for further questioning at 1:50 p.m. Chairman Hamilton sought asummary of ``all the arms transfers that reached Iran pursuant to this initiative, both directtransfers from the United States, which may have gone through Israel, but nonetheless werebasically direct, and transfers by the Israeli government to Iran in which the President approved.'' At Clair George's suggestion, CIA Subject #2 recited a list of shipments. This list included theSeptember 1985 Israeli shipment of TOW missiles to Iran, the February, May, and November1986 TOW shipments, and the May 1986 U.S. shipment of HAWK spare parts to Iran. CIASubject #2 did not include, however, the November 1985 U.S.-assisted shipment of 18 HAWKmissiles to Iran. CIA Subject #2 also did not disclose the shipment upon closer questioning:
The Chairman. Now, what about the amount of arms sent from Israel to Iran?
Mr. Childs. We don't have that.
Mr. George. We don't have that, Mr. Chairman.
The Chairman. Other than these?
CIA Subject #2. Other than the September 1985 shipment of TOWs we don't know.
The members of HPSCI also questioned the CIA on the extent of presidential approval forIsraeli actions in the initiative, including the November 1985 HAWK shipment:
The Chairman. Well, look, there have been reports in the press that I have seen, $40, $60million has been sent in by Israel. Under the law Israel could not ship those without the approvalof the President. Am I right about that?
Mr. [Richard] Armitage [Assistant Secretary of Defense]. That is right.
The Chairman. How many times did the President give his approval for Israel to ship armsinto Iran?
Mr. Allen. None to our knowledge, sir.
The Chairman. The President did not approve any arms shipments by Israel directly into Iran?
Mr. Allen. We don't know.
Mr. George. We don't know.
Mr. Allen. We don't know that and --
Mr. George [sic]. What do you mean we don't know it?
Mr. Allen. We don't know.
The Chairman. You mean the President hasn't told you?
Mr. Allen. We have no knowledge of that as part of this project whatsoever.
Mr. George. We received the missiles, we transported them to Israel and away they go. Wedon't know whether or what transpires. We bring them to Kelly Air Force Base I should say.18
18 George, HPSCI, 11/21/86, pp. 75-79.
Casey returned to CIA headquarters, angry that his Directorate of Operations had not servedhim well in preparing his testimony. Gardner reported to Poindexter later that afternoon that``nothing that we did up there today has done anything to answer their concerns about the wholeIran activity.'' 19
19 Doherty, FBI 302, 10/30/91, p. 19; Gardner, Poindexter Trial Testimony, 3/23/90, pp.2695-96.
The CIA's Incorrect Statements
At least seven of the statements described above were incorrect:
(1) George's statement to intelligence committee staff on November 18, 1986, that theIranians deposited funds directly into a CIA account for the purchase of arms;
(2) George's twin denials that same day of any CIA support for the Iran initiative prior to theJanuary 17 Finding;
(3) David Gries's denial that there had been CIA support for the Iran arms sales prior to theJanuary 17 finding;
(4) The prepared remarks of Casey on November 21, 1986, that CIA involvement with thearms sales began in November 1985;
(5) Additional prepared remarks by Casey, echoing George's statement about the flow offunds;
(6) CIA Subject #2's failure to include the November 1985 HAWK shipment in the list thathe recited to HPSCI on November 21, 1986, of all of the arms shipments by the Israelis and theAmericans in support of the initiative; and
(7) Allen and George's denials before HPSCI of knowing whether the President had approvedIsraeli arms shipments prior to the January 17 Finding.
As in most other investigations involving illegal false statements, the key questions inassessing the liability of senior CIA officials for these statements were, first, whether eachofficial knew at the time he spoke that his statement was false, and second, whether that officialdeliberately made that statement. The answers to some of these questions are found upon closeexamination of what happened at the CIA prior to Casey's appearances before the intelligencecommittees on November 21, 1986.
Disclosure and Alarm
According to Charles Allen, the National Intelligence Officer for Counter-Terrorism and theCIA analyst who worked most closely with the Iran initiative, the CIA's first response to thepublic disclosures of the initiative in early November 1986 was no response. Allen departed on atrip to Israel, during which he met with the Israeli representative in the 1986 arms sales, AmiramNir. Nir quizzed Allen on how the United States would respond to the disclosures, and Allenwas chagrined to admit that the United States apparently intended to do nothing.20
20 Allen, FBI 302, 11/6/91, p. 3. On the day before leaving on this trip, Allen met at the KeyBridge Marriott for the third time with Roy Furmark, an associate of arms-sales financier AdnanKhashoggi. Furmark earlier had given Allen evidence that profits from the Iran arms sales mayhave been diverted to other projects, including the contras. Furmark told Allen that investors inthe initiative who had not been paid were threatening to expose it. (Memorandum from Allen toCasey, 11/7/86, ER 46449-52.)
Unbeknownst to Allen, some in the U.S. Government, even in the CIA, were preparing torespond to the growing firestorm. Poindexter asked North on November 5, 1986, to prepare achronology of involvement in the initiative. The next day, after a morning staff meeting, thechief of the CIA's Iran Branch (C/Iran) 21 -- who was the CIA's day-to-day operational contactwith the NSC in the late stages of the initiative -- decided on his own that he would prepare achronology of CIA involvement. C/Iran's chronology contained generally accurate statementsabout CIA involvement in the Iran arms sales, including a note that CIA activities began inSeptember 1985. On the advice of his immediate superior, Chief of the CIA's Near East DivisionThomas Twetten, C/Iran personally delivered a copy of his chronology to North on November 6. Upon reading the section concerning the CIA's 1985 activities, North expressed amazement thatC/Iran wrote about it, since ``you were not involved.'' 22
21 The identity of this officer is classified. He testified as C/Iran Branch #2 in the secondGeorge trial.
22 Subject: Background and Chronology of Special Project, 11/6/86, ER 24517-20; EarlNote, 11/5/86 & 11/6/86; Earl, FBI 302, 4/21/87, p. 2; Earl, Select Committees Deposition,5/30/87, pp. 53-55; Earl, North Trial Testimony, 3/23/89, pp. 5546-47; C/Iran, FBI 302,10/29/91, pp. 6-7; WAVE Records, ALU 049209-17; 11/6/86, ER 18195-98; AKW 10038-45;North, Poindexter Trial Testimony, 3/13/90, pp. 1443-47; Earl Note, 11/10/86; Earl, SelectCommittees Deposition, 5/30/87, pp. 76-77.
For their part, Casey and Deputy CIA Director Robert Gates' stated concerns about the armssales focused on their legality. Casey and Gates met with Poindexter on the morning ofNovember 6, 1986, to discuss what to do about allegations that profits from Iranian arms saleshad been diverted to other covert projects. According to Gates, Casey proposed that Poindexterraise these allegations with White House Counsel Peter Wallison. Poindexter said he would takeup the matter with NSC Counsel Paul B. Thompson instead. After the meeting, Gates returned toCIA headquarters and ordered CIA General Counsel David Doherty to take his first look at theJanuary 17, 1986 Finding.23
23 Gates 1986 Appointment Book; DCI Schedule for 11/6/86; Gates SSCI Testimony,12/4/86, pp. 23-24, 51, 53-59; Gates, Grand Jury, 6/26/87, pp. 23-25; Gates, SSCI Deposition,7/31/87, pp. 36-39; Doherty Notes, 11/6/86, ER 46562; Doherty, FBI 302, 10/30/91, pp. 2-3;Doherty, FBI 302, 11/13/87, pp. 3-4; Doherty, SSCI Testimony, 12/8/86, p. 55. Gates asked theNSC for the Finding during the now famous North-Casey-Gates luncheon of October 9, 1986. See Gates chapter. Inexplicably, it took the NSC several weeks to get the Finding to Gates. (Gates, SSCI Testimony, 12/4/86; Gates, Grand Jury, 6/26/87, pp. 9-10; Gates, SSCI Deposition,7/31/87, p. 26; EA/DCI, FBI 302, 9/12/91, pp. 6-7.)
The day after C/Iran wrote his chronology, he revised and sent it to Associate Deputy Directorfor Operations Bertram Dunn and Casey.24 What Dunn and Casey did with the chronology isnot known. Dunn later denied having seen the chronology or having had any role in preparingCIA responses to inquiries about the Iran initiative. CIA Subject #2, who worked as closely withDunn as he did with Clair George, stated that he did not recall seeing the chronology -- with itsexplicit references to CIA activities in 1985 -- at the time he was drafting testimony for Georgein November 1986.25
24 DO 44631-35 and DO 83915-18. These papers are identical. Independent Counselobtained the first from a ``DDO Iran Soft File'' recovered from Clair George's safe. The secondof these papers was found in a working file labeled ``DO Iran/Contra Investigation,'' along withother papers of Gardner. Both papers bear C/Iran's handwritten note that his November 7chronology was passed to Dunn and Casey on 11/7/86. C/Iran could not recall who asked him tosend his chronology to these men. (C/Iran, FBI 302, 10/29/91 p. 71.)
25 Dunn, FBI 302, 9/25/91, p. 17; CIA Subject #2, FBI 302, 9/17/91, p. 4.
Preparing for Clair George's Briefing
During the week of November 9, 1986, it became clear to Casey that the controversysurrounding the Iran initiative would not abate. Organized efforts thus began to write the story ofthe Agency's involvement with the arms sales.26 After a senior staff meeting on November 12,Gates asked Doherty to join George, Twetten, and him for a brief meeting. Doherty and Gateslistened while George and Twetten summarized the CIA's involvement in the Iran initiative --activities that Doherty believed were consistent with the Finding he had read the previousweek.27
26 Casey also consulted with other senior Administration officials on the text of PresidentReagan's first public statements on the initiative and sat in on the President's first briefing ofcongressional leaders on the sales. See Regan chapter for a fuller discussion of the preparation ofthe President's statement; Letter, Casey to Poindexter, 11/10/86, ER 24035 (transmitting draft ofstatement); DCI Schedule, 11/10/86, ER 326-27; Letter, Casey to Poindexter, 11/10/86, ER24032-34 (transmitting revised two-page draft statement); AKW 20674-77 (same, recoveredfrom NSC); DCI Schedule, 11/12/86, ER 323-24; Presidential log, 11/12/86, ALU 027752.
By November 12, Casey and Gates had concluded that they could not respond to Congressunless the President lifted his order in the January 17 Finding that prohibited congressionalnotification of it. Poindexter agreed to end the ban. (Draft letter from Casey to Poindexter,11/12/86, ER 27233; Gates, Grand Jury, 6/26/87, p. 25; Gates, SSCI Deposition, 7/31/87, p. 39;Gates, Grand Jury, 5/1/91, pp. 200-01.)
27 Gates 1986 Appointment Book; Doherty, SSCI Testimony, 12/8/86, p. 55-56; Doherty,FBI 302, 11/13/87, p. 3; Doherty, FBI 302, 10/30/91, pp. 3-4. While Doherty could not recallwhy he was asked to this meeting, he believed that it prompted him to ask others within the CIA'sOffice of General Counsel (OGC) to begin drafting their own chronologies. It may have been atthis point that an OGC lawyer, Bernard Makowka, told Doherty about pre-1986 activities and hisinvolvement in the preparation of a retroactive finding that covered them. (Makowka, FBI 302,10/11/91, p. 2.)
Charles Allen returned from Israel on November 12 to find that the Agency had gone fromnonchalance to panic. His colleague on the Iran initiative, George Cave, had returned frommeetings with the Iranians in Geneva, and was now in daily contact with the White House in thepreparation of the President's November 13 address. Clair George for his part instructed CIASubject #2 on November 13 to prepare a chronology and an opening statement of the Directorateof Operations's involvement in the initiative, in anticipation of a request for CIA testimony.28
28 Allen, FBI 302, 11/6/91, pp. 3-4; WAVE records, 9/28/87; Cave, Grand Jury, 1/15/88, pp.171-172; Cave, Select Committees Deposition, 4/17/87, pp. 170-71; CIA Subject #2, FBI 302s,3/4/88, p. 2 & 9/17/91, p. 4.
CIA Subject #2 claimed not to have known much about the Iran arms sales at the time Georgedirected him to start drafting. Subject #2 thus sought out Twetten, who had been involved withthe initiative since January 1986. Twetten was scheduled to leave the country on November 15,and so he turned over much of the work to C/Iran.29
29 CIA Subject #2, FBI 302, 9/17/91, p. 4; C/Iran, FBI 302, 10/29/91, p. 7; CIA Chronology,2/27/87.
Over the next few days (approximately November 13 through November 15) Twetten hadC/Iran draft and revise several documents concerning CIA involvement in the arms sales. Forsome reason, all of these documents focused solely on CIA activities following the January 17,1986 Finding.30 This decision or understanding was in effect at least through Clair George'sbriefing of intelligence committee staff on November 18. These documents also were the sourcefor George and Casey's later misstatements that the Iranians had deposited payments for armsdirectly into a CIA bank account -- omitting Secord. This omission caused George Cave, whoread the statements prior to November 18, to note in the margins of his copies of thesedocuments: ``Not True.'' 31
30 In his October 1991 interview with Independent Counsel, C/Iran vaguely recalledinstructions from Twetten that he should limit his chronology to those events occurring after theCIA's Near East Division, the Division for which both C/Iran and Twetten worked, begansupporting the Iran initiative. (C/Iran, FBI 302, 10/29/91, p. 8.) CIA Subject #2 alleged that thecongressional committees had limited their request for information to 1986 activities. (CIASubject #2, FBI 302, 9/17/91, p. 15.) Independent Counsel found no evidence to support CIASubject #2's claim. At the 1990 trial of Poindexter, Gardner claimed that the omission of 1985references in these documents was not part of an effort to sell a ``cover story'' to the Congress. (Gardner, Poindexter Trial Testimony, 3/23/90, pp. 2647-51.)
31 Draft chronologies DO 44631, ER 29709, ER 18203, ER 18200, ER 18199 & ER 18202;Cave, Grand Jury, 11/22/91, pp. 13-14.
Clair George reviewed C/Iran's papers prior to his briefing of intelligence committee staff onNovember 18.32 George's handwritten notes on these documents are telling. George wasfamiliar enough with the flow of funds from the Iranians to write ``Gorba -> Secord -> CIAAccount -> DOD'' next to one of C/Iran's descriptions of the flow, and he replaced the words``Iranians deposit'' in two other descriptions with the words ``Channel deposit'' and ``Systemdeposit.'' George knew or was informed of the minutiae of the initiative well enough to insert, forexample, the number of communications officers and false passports provided to McFarlane'smission to Tehran in May 1986.33
32 The evidence includes C/Iran's comments on the draft statement ER 18203, which indicatethat a draft had been passed to the DDO's office sometime during the weekend of November15-16; statements made on documents prepared on November 17 that reflect George's commentson C/Iran's drafts; and George's near-verbatim recitation of the contents of one C/Iran documentduring the staff briefing. See DO 44620-17, which were retrieved from a ``DDO Iran Soft File''and bear George's handwriting. In his second trial, George admitted that he used the C/Irandocuments.
33 DO 44620-17.
Did George Know the Truth?
Clair George knew during his briefing of intelligence staffers on November 18, 1986, and inhis reviews that week of Casey's testimony, that there was something more to the CIA's obtainingmoney from the Iranians than having the Iranians make a deposit into a CIA bank account.34 According to Cave, he informed one of George's special assistants, Gardner -- most likely beforeGeorge's briefing -- that the description of the money flow found in George's briefing papers wasinaccurate.35
34 For a fuller discussion of the evidence that supports this conclusion, see George chapter.
35 Cave, George Trial Testimony, 8/11/92, pp. 2849-51; Cave, Grand Jury, 11/22/91, pp.27-28. It appears that George was prepared largely by his special assistants, Gardner and CIASubject #2. Independent Counsel found no evidence that CIA Subject #2 was aware of thefinancial aspects of what all witnesses said was a closely held program. Two CIA officers apartfrom Cave who knew about the finances of the initiative, C/Iran and his predecessor, claimed thatthey did not speak with George about this subject close to the time of the briefing. Twetten wasin the Mideast in the days leading up to the briefing, and there is no record of communicationsbetween him and George during this time.
George knew that his statement was false. George had been absent from CIA headquartersover the weekend of the November 1985 HAWK missile shipment, but he was involved innumerous events that followed in its wake. According to Juchniewicz and McMahon, Georgeknew the ``full story'' about the flight within three days. McMahon also recalled repeatedlytelling George to find out from the NSC -- particularly Poindexter -- whether the President hadsigned the retroactive Finding covering the shipment.36 Further, Gardner had been at CIAheadquarters when the NSC made its request for assistance for the HAWK shipment. Both heand CIA Subject #2 later conceded that they would have reviewed closely held CIA cable trafficthat discussed the flight.37 Both men denied that they remembered the flight in November 1986until some time after George's erroneous briefing of committee staff on November 18.38
36 Juchniewicz, FBI 302, 10/8/91, p. 4; McMahon, SSCI Deposition, 6/1/87, pp. 95-101, 108;McMahon, Grand Jury, 10/15/91, pp. 9-10; McMahon, Grand Jury, 9/18/91, pp. 9-20. North'snotebooks for November 25 and 26, 1985, support the view that George was upset about theshipment on November 25, that he spoke with Poindexter about it, and that he was aware ofGeneral Counsel Stanley Sporkin's advice to get a Finding. Independent Counsel also discoveredthat shortly after the shipment, George visited a European location that was involved in theNovember 1985 shipment. Officers who met with George during the trip, however, deny thatthey discussed anything with George about the shipment, other than commenting about the flurryof cable traffic. ([Classified Identity Withheld], FBI 302, 11/5/91, p. 8; [Classified IdentityWithheld], FBI 302, 11/7/91, p. 5.) George testified to trying to gather facts in November 1985,but he denied that he was aware of a 1985 hostages finding. (George, Select CommitteesTestimony, pp. 200-01, 290-93; George, Select Committees Testimony, 8/6/87, p. 5; George,Select Committees Deposition, 4/24/87, pp. 85-86.)
37 Gardner, Grand Jury, 4/19/91, pp. 97-100; CIA Subject #2, SSCI Testimony, 12/9/86, pp.4-5. CIA Subject #2 testified that he did not connect the November 1985 incident to the Iraninitiative until November 1986. (Ibid., p. 4.)
38 Their stories are not consistent. Gardner claimed to have recalled the flight ``vaguely''during a conversation that he and CIA Subject #2 had with North in North's office during theafternoon following George's briefing. (See text and citations at notes below.) Subject #2recalled some aspects of Gardner's story, but linked his and Gardner's recognition of the flight toa phone call from someone in the CIA's Air Branch, after Gardner and Subject #2 returned fromNorth's office. (CIA Subject #2, FBI 302, 9/17/91, pp. 3-4.)
In order to charge George's misstatements concerning the November 1985 HAWK shipment,Independent Counsel would have had to prove either that George recalled the flightindependently of Gardner and CIA Subject #2, or else that Gardner and CIA Subject #2 had liedthemselves.39 Independent Counsel found no direct evidence that George independently recalledthe November 1985 flight in November 1986.
39 Proving that CIA Subject #2 or Gardner remembered the flight prior to George's briefingcould have been enough to place knowledge in George's mind, as Subject #2 said he brought theflight to George's attention immediately after learning about it in November 1986. (CIA Subject#2, FBI 302s, 3/4/88, p. 2 & 9/17/91, pp. 3-4.)
There was evidence that information about the flight was developed for Gardner and CIASubject #2 prior to George's briefing, but this evidence was not sufficient to prove beyond areasonable doubt that Gardner and CIA Subject #2 were lying. On the evening of Wednesday,November 12, 1986, a lawyer who was assigned to the CIA's Air Branch, Cynthia Erskine, haddinner with a pilot for the CIA proprietary that had ferried the HAWK missiles to Iran inNovember 1985. During their dinner, the pilot boasted to Erskine about flying Israeli ``Gabriel''anti-aircraft missiles to Iran in November 1985, an effort that the pilot linked to thearms-for-hostages deals. Erskine repeated the pilot's story to CIA General Counsel Doherty thenext morning. Later that day or the following Monday, Erskine spoke to the CIA's contact withthe pilot's proprietary. That officer gave Erskine the flight records of the November 1985shipment, which the officer was carrying.40 Erskine used the flight records in editing achronology prepared by the Air Branch of its involvement with the Iran arms sales, which shefinished by the end of November 17. Erskine had to correct the Air Branch's chronology toreflect that missiles had been shipped in November 1985, instead of oil-drilling equipment. Sheattached the flight records to the chronology, which she understood was intended for George.41
40 Independent Counsel was unable to ask this CIA officer why he had these records. By thetime Independent Counsel had interviewed Erskine, the officer was dead.
41 Erskine, Memorandum for the Record, Subject: [Proprietary] Flight to Tehran, 11/13/86,ER 91-00487-88; Erskine, FBI 302s, 9/27/91, pp. 3-4 & 11/21/91, p. 3. Erskine became firmerin her recollection of these dates in her second interview. She was initially unable to date hercompletion of the Air Branch's chronology. Further, at some point after she spoke with Dohertybut before she saw the CIA's contact with the proprietary, Erskine says she met an Air Branchsupervisor who denied that the proprietary's flight records existed. Neither the Air Branchsupervisor nor another CIA officer who was involved in the Air Branch chronology could saywhen he received his first instructions about it.
The finished chronologies are dated November 25, 1986, although there are undated draftchronologies that point to earlier Air Branch contacts with George's office. For his part, CIASubject #2 recalled that the first information that reached George's office on November 18 aboutthe November 1985 flight came from the Air Branch, and not the other way around. (CIASubject #2, FBI 302s, 3/4/88, p. 2 & 9/17/91, pp. 3-4.)
Erskine's story of November 13 had puzzled Doherty, as it did not square with the briefingthat he had received from George and Twetten the previous day. Doherty asked the legal adviserto the Operations Directorate, attorney W. George Jameson, to question directorate personnelabout the flight. Jameson initially reported on November 13 or 14 that Gardner and CIA Subject#2 were unaware of November 1985 activity. By early the next week, sometime prior toNovember 19, 1986, Jameson called back and said that the Operations Directorate now wasacknowledging a November 1985 flight involving HAWK missiles.42
42 Doherty, FBI 302, 10/30/91, pp. 4-7. Doherty also may have received confirmation of theNovember 1985 flight on November 17, 1986, during a meeting with former CIA general counselStanley Sporkin. See text accompanying notes below. Jameson and Erskine's efforts could haveprompted CIA Subject #2 or Gardner to contact Air Branch personnel earlier than CIA Subject#2 or Gardner has claimed. Air Branch officers could not recall when they first spoke to theDDO's office about the November 1985 flight. (See Air Branch Supervisor, Grand Jury, 11/8/91,p. 32; [Classified Identity Withheld], Grand Jury, 11/8/91, pp. 27-33.)
Charles Allen also believed that CIA Subject #2 and Gardner had been confronted prior toGeorge's November 18 briefing of congressional staffers with memories of the November 1985HAWK shipment. Allen testified that Gates called a meeting on November 17, 1986, to assignresponsibilities for Casey's upcoming testimony. Allen recalled that many senior CIA officialsattended. Allen claimed further that, after Gates had concluded his business and left the room,Allen presented details of the HAWK shipment and witnessed a debate between formerAssociate Deputy Director for Operations Juchniewicz and Duane R. Clarridge, the CIA officerwho had coordinated the CIA's activities in support of the shipment. Allen recalled that Georgelistened passively, while CIA Subject #2 took notes.43
43 Allen, FBI 302, 11/6/91, pp. 3-4.
Allen's description of this meeting could not be corroborated. Gates's calendar shows a briefmeeting late in the afternoon of November 17. No one placed Allen at this meeting. Juchniewiczclaimed that, while he recalled a large gathering of senior CIA officials and vaguely remembereddiscussions about the flight, he and Casey's calendars date this meeting as December 1, 1986. Juchniewicz did not recall speaking with anyone at the CIA prior to Casey's November 21testimony.44
44 Gates 1986 Appointment Book; CIA Subject #2, FBI 302, 9/17/91, p. 10; EA/DCI, FBI302, 9/12/91, p. 11; Gates, Grand Jury, 6/26/87, pp. 27-28; Gates, Select Committees Deposition,7/31/87, p. 47; Gates, Grand Jury, 2/19/88, p. 58; Gates, Grand Jury, 5/1/91, pp. 202-03;Juchniewicz, Phone Interview, 11/8/91; DCI Calendar, 12/1/86, ER 290; Jameson, Meeting WithDCI, 12/1/86, AKY 006443-48. Allen insisted that this meeting occurred on a Monday before``Casey's testimony'' because he had to postpone a meeting of a public committee that metMonday evenings. (Allen, FBI 302, 11/6/91, p. 4.) December 1 was also a Monday evening,however, and it came before a series of congressional appearances by Casey in December 1986on the Iran/contra matter. Allen also wanted to place Doherty at the meeting. (Ibid.) Doherty'sconduct on November 19, see text accompanying notes 63-65 below, suggests that he was notpresent for any discussion with Juchniewicz about the flight prior to that date.
Questions remain unexplained about two documents generated during this period, documentswhich indicate recognition of the November 1985 flight at some point earlier than CIA Subject#2 and Gardner admitted:
-- Gardner's handwritten notes appear on a copy of a statement drafted by C/Iran prior toGeorge's briefing. Gardner listed on the front of the statement the dates of release of hostagesBenjamin Weir, Lawrence Jenco, and David Jacobsen. On the back of the last page of thestatement is a handwritten list of items that parallels the topics of concern raised by intelligencecommittee staffers during George's briefing, which Gardner attended. On the same page,however, are the words `` '85 Trip'' -- an indication that, at least during George's briefing, anadditional 1985 event struck Gardner as important.45
45 Draft Statement, DO 84292-86. For corroboration of the timing of the draft, see draft DO83905-11; draft DO 84074-80; Gardner, FBI 302, 6/17/87 302; draft ER 18359-65; C/Iran, FBI302, 10/29/91; DIRECTOR 161904, 11/18/86, DO 83899-904; CIA Subject #2, FBI 302,9/17/91. The notes of Gerner and the SSCI staffers who attended George's November 18 briefingmake no mention of any 1985 trips. They do refer, however, to NSC ``contacts'' with Iranianrepresentatives in Western Europe in 1985. (See sources cited in n. 12 above.)
-- CIA Subject #2 testified that, on the afternoon of November 18, he wrote a one-page paperthat presents the first detailed description of the November 1985 shipment. Gardner and Subject#2 visited North around 2:00 p.m., to report on George's briefing.46 Subject #2 and Gardnerthen returned to Langley, where Subject #2 claimed they received a report from the Air Branchindicating that there had been a November 1985 flight in support of the initiative. Subject #2 andGardner immediately reported the flight to George, who instructed the men to get all of the factstogether. According to Subject #2, the facts of the flight were sketchy, and not easily gathered. Nevertheless, Subject #2 claimed to have written the document -- a rather detailed account of theNovember 1985 shipment -- that same afternoon, in time for Gardner to take a copy of it toCasey in Central America early the next morning.47
46 Interestingly, North's crumpled notes of his debriefing from Gardner and Subject #2,recovered from a ``burn bag'' at NSC, contain the point: ``Not reveal Dick Secord.'' (11/18/86,AKW 32705.) North did not recall these notes or the debriefing. (North, Grand Jury, 11/15/91,pp. 31-33.)
47 Subject: CIA Airline Involvement, ER 24219; North Calendar, 11/18/86, AMX 5517-21;WAVE Records, 9/28/87; AKW 32705; CIA Subject #2, FBI 302, 9/17/91, pp. 3-4. CIA Subject#2 claimed that November 18 was further complicated with a return visit to North's office thatevening to compare chronologies. (Ibid; CIA Subject #2, FBI 302, 3/4/88, pp. 3-4.) No onecorroborated this visit, nor does Subject #2's name appear on White House gate logs onNovember 18 after his afternoon talk with North.
Subject #2's recollection of the timing of these events and his writing the first CIA chronology acknowledging the November 1985 flight is unconvincing. The completeness of the chronologyand Gardner's briefing notes indicate that Clair George's assistants knew that George was falselydenying to congressional staffers CIA activities prior to 1986.
Preparing Casey's Testimony
Casey's preparations for his intelligence committee testimony were handicapped by his takinga twice-postponed trip to Central America between November 16 and November 20. Beforeleaving, Casey instructed George to gather facts for his testimony. Casey also met with Allen onthe afternoon of Saturday, November 15, to discuss the extent to which the CIA should protect inits briefings the identities of sensitive Iranian contacts. Casey and Allen agreed that the Agencywould withhold six names at all costs.48 The next day Casey spoke with Poindexter, WhiteHouse Chief of Staff Donald T. Regan, and North. Casey then prepared a list of items he wishedto have done before he returned, and departed for Central America.49
48 DCI Schedule, 11/15/86, ER 317; Allen, FBI 302, 11/6/91, p. 5. Allen recalled thatbecause of these instructions, he withheld the names of the Iranian contacts from JusticeDepartment officials the following weekend, during Attorney General Meese's investigation intothe Iran matter.
49 DCI Schedule and Phone Logs, 11/16/86, ER 316; Memorandum, Casey to Gates,11/16/86, ER 24305, DO 84041, ER 24256-57.
Documents that C/Iran had drafted as informational papers for George's briefing weretransformed into formal, more elaborate statements about the Iran initiative. The personsprincipally responsible for this transformation appear to have been Jameson, C/Iran and Subject#2, although documents indicate that George exercised considerable editorial responsibilities aswell.50
50 Draft Statement, DO 44642-36; Draft Statement, 11/17/86, ER 7834-37; Jameson Notes,11/17/86, ER 13980; Jameson, FBI 302, 9/20/91, pp. 7-8; Draft Statement, DO 83919-26; DraftStatement, 11/17/86, ER 7838-46; CIA Subject #2, FBI 302, 3/4/88; CIA Subject #2, FBI 302,9/17/91.
Casey instructed Gates: ``It is understood that this Finding existed. Someone ought to getStan Sporkin's recollection of the advice he gave the NSC with respect to the Finding.'' 51 OnNovember 17, 1986, Doherty met with Sporkin, who had been CIA general counsel at the time ofthe HAWK shipment and had drafted the retroactive Finding that sought to authorize CIAinvolvement in it. Doherty took with him three CIA lawyers, Bernard Makowka, Edward Dieteland George Clarke, who had worked with Sporkin on this Finding. Sporkin discussed the periodbetween the HAWK shipment and the ultimate January 17, 1986, Finding:
51 Memorandum, Casey to Gates, 11/16/86, ER 24256-57.
-- Sporkin and Makowka both recalled that Sporkin talked about the November 1985 flightand his learning that there were weapons on the plane. Sporkin also mentioned ``priordocuments'' and the drafting of a retroactive Finding. Sporkin directed Makowka to look forthese drafts.52
52 Sporkin, North Trial Testimony, 4/3/89, pp. 6369-75; Makowka, FBI 302, 10/11/91, pp.2-3; Makowka, Gates Interrog., 7/12/91, p. 3.
-- Doherty's recollection of the meeting was not that crisp. Doherty recalled Sporkin, perhapsat this meeting, saying that ``there was something else'' drafted prior to the January 17 Finding.Three days later, Doherty sent Makowka back to Sporkin to confirm Doherty's ``vaguerecollection'' that Sporkin knew shortly after the shipment that arms were involved.53
53 Doherty, FBI 302, 10/30/91, pp. 8, 13. In view of what Doherty called his ``concerns''about the November 1985 flight -- concerns he had once he had heard Erskine's story theprevious week -- it is puzzling that any mention by Sporkin of a November 1985 arms shipment,or even a November 1985 flight, did not prompt Doherty to react immediately. Doherty wasunable to account for his lack of response to Sporkin's statements, except to suggest that perhapshe had spoken with Sporkin sometime prior to the November 17 meeting -- a suggestion that, iftrue, would call Doherty's recollection of Jameson's first report about the November 1985 flightinto question. (Ibid.)
-- Dietel and Clark could not remember the meeting.54
54 Dietel, FBI 302, 10/28/91, p. 5; Clarke, FBI 302, 9/24/91, pp. 2-3.
Makowka put together soon thereafter a rough chronology of the office's involvement with theinitiative, a chronology that referred to the November 1985 flight and the drafting of theretroactive Finding. Makowka also told Doherty that he remembered North saying on ChristmasEve of 1985 that the President had signed ``the document'' concerning the initiative and that itwas in North's safe.55
55 Memorandum from Doherty to DCI, Subject: Discussion with Stanley Sporkin about theIranian Finding, 11/18/86, ER 32384-85; Makowka, FBI 302, 10/11/91, pp. 2-3; Doherty, FBI302, 10/30/91, p. 8; ER 32377-78 (rudimentary OGC chronology dated 11/20/86). Doherty'sNovember 18 memorandum of the Sporkin meeting does not discuss missiles, but it does refer toa ``shipment of equipment'' to Iran that had prompted calls for a finding. (ER 32384-85.)
Doherty's Concerns
The day after the Sporkin interview, November 18, 1986, White House Counsel Wallisonconvened a meeting of general counsel from the State and Defense departments, NSC and CIA. Those who attended left with sharply contrasting impressions.56 Doherty was struck most by thetone of the NSC's presentation. NSC Counsel Paul Thompson seemed to imply by what littleinformation he provided to the group that the arms sales were a CIA operation, and that the CIAhad more facts about it than the NSC. Doherty left the meeting concerned that the NSC wouldshift the blame for the initiative's failures onto the CIA.57
56 See Meese and Regan chapters for a fuller account of the Wallison general counsels'meeting.
57 Doherty Notes, 11/18/86, ER 46616; Doherty, FBI 302, 10/30/91, p. 9; Doherty Notes,prepared after 11/18/86 meeting, ER 46524; see also ER 46603; Doherty, FBI 302, 11/13/87, p.4.
Doherty learned from Jameson that the Directorate of Operations was acknowledging aNovember 1985 flight. This news, coupled with Thompson's remarks, caused Doherty to fearthat the CIA would find itself unfairly attacked for its role in the arms sales and lacking the factswith which to fight back. Doherty requested that DDCI Gates gather the testimony team for ameeting on Wednesday, November 19. Doherty intended to use the meeting to point out theweaknesses in the Operations Directorate's facts, and to have Gates get the directorate to dobetter work.58
58 Doherty, FBI 302, 10/30/91, p. 11.
Gates testified that the task of preparing a statement for Casey overwhelmed him, and othershave criticized Gates for not providing sufficient leadership to the project.59 Casey cabled thathe was dissatisfied with an early draft of a proposed statement, and on the morning of November19 Gardner was dispatched to Casey in Central America. Gardner took with him many of thepapers Casey had requested, but he did not take a draft of testimony that addressed Casey'scriticisms.60 Gates agreed readily to Doherty's request for a meeting of the Casey testimonyteam.
59 Gates was taking many of his directions from Casey. (Casey-Gates PRT-250Conversation, 11/17/86.) Nevertheless, early in the evening of November 18, the growingproblems with Congress's calls for briefings prompted Poindexter to call Casey directly inCentral America. (Poindexter Phone log, 11/18/86, AKW 45588; Casey-Poindexter PRT-250Conversation, 11/18/86, ER 50206-08.)
60 CIA Chronology, 2/27/87; Gardner, North Trial Testimony, 4/4/89, pp. 6613-16; CIASubject #2, FBI 302, 9/17/91. Subject #2 finished a draft of testimony that reflected Casey'scomments some time on the morning of November 19, after Gardner had departed for CentralAmerica. (Draft Testimony, DO 44589-97.) This was the first full statement on the arms salesthat included the November 1985 shipment. The statement implies that the NSC told the CIAabout the cargo at the time the NSC requested the name of the proprietary. Jameson's commentson this draft suggest adding the phrase ``to assist the Israelis in shipping HAWK missiles toIran.'' (Draft Statement, ER 7764-72.) In his September 1991 interview with IndependentCounsel, Jameson professed that he could not recall where or when he got his information. (Jameson, FBI 302, 9/20/91, p. 9.)
Prior to the meeting, Doherty spoke with two congressional staff members, State and Defensedepartment counsel, and Assistant Attorney General Charles Cooper. What he heard onlyheightened his anxiety. Abraham Sofaer of the State Department complained to Doherty that hewas unable to get facts from the NSC, which Sofaer perceived to be in chaos. Sofaer's concerns,as well as his appeal for a draft of Casey's testimony, made Doherty fear that Under Secretary ofState Michael H. Armacost, who was scheduled to accompany Casey, would make a ``badwit[ness] for Admin[istration].'' 61
61 Doherty, FBI 302, 10/30/91, p. 10; Doherty Notes, telephone conversations with DanielFinn (SSCI) and Michael O'Neill (HPSCI), 11/19/86, ER 46620-21; Doherty Notes, telephoneconversations with Abraham Sofaer (State) and Larry Garrett (Defense), 11/19/86, ER 46523.
Before going to the meeting, Doherty prepared a list of imperative points to discuss withGeorge and CIA Subject #2, in front of Gates:
-- What was the extent of Casey's knowledge?
-- What about Sporkin and Makowka's memories of a second finding?
-- What was Charles Allen's involvement in the initiative?
-- How did the CIA use proprietaries and private companies in the initiative, and who werethey? 62
62 Doherty Notes, ER 46518; Doherty, FBI 302, 10/30/91, pp. 9-10. Doherty also prepared areport on what he had learned from Sofaer and the intelligence committees that morning. (Doherty Notes, 11/19/86, ER 46519.)
Doherty testified that he raised all of these concerns in the Gates meeting, which took place at2:30 p.m. on November 19. Just as Doherty was leaving for the meeting, Makowka handed himphysical proof that Sporkin had prepared a Finding other than the January 17, 1986, Finding.Makowka had recovered from Sporkin's secretary a draft of a retroactive Finding, a``mini-Finding,'' that had been stored on a magnetic computer card. The draft contained anexplicit arms-for-hostages equation not found in the later Finding and was intended to provide,retroactively, legal protection for the CIA's support of the November 1985 shipment. Dohertytook the draft Finding to Gates's office, although he could not recall showing it to anyone otherthan Gates.63
63 Draft Finding, DO 44568-69; Makowka, FBI 302, 10/11/91, p. 4; Makowka, GatesInterrog., 7/12/91, pp. 3-4; Doherty, FBI 302, 11/13/87, p. 4; Doherty, FBI 302, 10/30/91, p. 11. The only copy produced to Independent Counsel of the draft finding that was uncovered byMakowka, and marked by Doherty, came from Clair George's files.
Attending the November 19th meeting in Gates's office were Gates, George, CIA Subject #2,two persons from the CIA's Office of Congressional Affairs, and Casey's executive assistant. Doherty took notes of the meeting. According to Doherty, his concerns forced George and hisstaff to ``volunteer'' to:
-- Talk to Allen about his recollection of the mini-Finding and his activities in the initiative;
-- Get all of the facts of the November 1985 flight, including interview Juchniewicz andformer DDCI John McMahon about whether they had authorized it; and
-- Obtain a signed copy of the mini-Finding from North.64
64 Doherty Notes, 11/19/86, ER 46520; Gates 1986 Appointment Book; Doherty, FBI 302,10/30/91, p. 11; EA/DCI, FBI 302, 9/12-9/16/91, pp. 13-14; CIA Subject #2, FBI 302, 9/17/91, p.10; Doherty Notes, 11/19/86, ER 46519. The only thing that Gates remembered about thismeeting were Doherty's concerns that the facts in the proposed testimony were ``shaky.'' (Gates,Select Committees Deposition, 7/31/87, pp. 48-49; Gates, Grand Jury, 5/1/91 pp. 206-07.) According to Doherty's notes, Gates approved Doherty's plan to brief Cooper and the State andDefense departments on Casey's upcoming testimony. (Doherty Notes, 11/19/86, ER 46521,46600.)
Three observations must be made about the Gates meeting. First, it should have been clear toeveryone that at least Doherty was upset with the state of the Directorate of Operations' story,with less than two days to go before Casey was to brief Congress.65 Second, as of November 19,1986, no one in the Directorate of Operations had spoken to McMahon or Juchniewicz about theNovember 1985 flight -- or at least no one was willing to admit he had.66 The drafts of testimonythat Subject #2 prepared both before and after the meeting avoided specifying whetherJuchniewicz or McMahon had authorized the November 1985 flight.67
65 Doherty told Independent Counsel that in the car on the way back from Casey's November21 briefings, Casey complained that the Operations Directorate had done a ``lousy job'' ofgathering the facts. (Doherty, FBI 302, 10/30/91, p. 19.)
66 Subject #2 claimed later that he had spoken with Juchniewicz before Casey's testimony. Juchniewicz recalled only that someone attempted to reach him that week, but he did not returnthe call. (CIA Subject #2, FBI 302, 9/17/91, p. 11; Juchniewicz, FBI 302, 11/8/91, p. 6.)
67 Express references in Casey's final testimony to Juchniewicz and McMahon crept into thetext beginning with a draft that Casey himself (perhaps with Gardner's help) composed duringCasey's return flight from Central America. (Compare Draft Testimony, 11/19/86, DO 44653-62(Subject #2 draft); Draft Testimony, 11/19/86, DO 84277-85 (Subject #2 draft); and DraftTestimony, 11/20/86, DO 84042-52 (Subject #2 draft) with Draft Testimony, 11/20/86, DO44671-80 (Casey/Gardner draft). See also EA/DCI, FBI 302, 9/16/91; CIA Subject #2, FBI 302,9/17/91; Gardner, North Trial Testimony, 4/4/89, pp. 6620-28; Gardner, Poindexter TrialTestimony, 3/23/90, pp. 2654-60.) Independent Counsel found no evidence that Casey orGardner was aware of Doherty's concern that nothing be said about authorization until someonehad spoken with Juchniewicz and McMahon.
The third and most striking consequence of the November 19 meeting was that afterwards theteam had to know that a mini-Finding had been drafted, and that the answer to whether it hadbeen signed by President Reagan lay with the NSC. The meeting also makes the testimonies ofNorth, Gardner and CIA Subject #2 inconsistent about the state of the CIA's knowledge of themini-Finding prior to Casey's briefing on November 21.
-- Both North and Gardner claimed that, at a meeting on November 18 among North,Gardner, and Subject #2, North told Gardner that if the CIA insisted on talking about theNovember 1985 HAWK shipment, then ``they ought to know'' that the President signed a Findingauthorizing it.68
68 North, North Trial Testimony, 4/7/89, pp. 7044-45; North, Grand Jury, 11/15/91, p. 36. AtNorth's trial, Gardner explained further that he told North that the CIA was only a ``mechanic'' inthe November 1985 shipment, referring to the CIA's limited role in providing the name of aproprietary to the NSC. (Gardner, North Trial Testimony, 4/4/89, pp. 6610-11; see also Gardner,Poindexter Trial Testimony, 3/23/90, pp. 2649-50.)
-- In a March 1988 interview with Independent Counsel, Subject #2 recalled portions of hisand Gardner's discussion with North, but he did not remember any discussion of a priorFinding.69 If North had mentioned a prior Finding, however, it is strange that Subject #2 did nottell this to the Casey testimony team on November 19.
69 CIA Subject #2, FBI 302, 3/4/88, p. 4.
``Shut Up, There is No Mini-Finding''
Allen believed that he raised questions about the existence of a prior Finding early in the weekof November 17-21, 1986, or perhaps late the previous week, with Makowka, as both Allen andMakowka had been in North's office on Christmas Eve 1985 when North spoke about the``signed document.'' Allen believed he then called North and asked him if there had been a priorFinding. North denied it.70 Later, Makowka called North back, asked again about the Finding,and received another denial. Allen said that around midday on November 20, Allen raised thetopic at a meeting with Casey, George, George Cave, and perhaps Gates. Allen claims thatGeorge sharply told him that he was ``causing trouble'' about the mini-Finding, that ``it didn'texist'' and that Allen should ``shut up'' about it.71
70 Makowka corroborated Allen's story of his inquiry to North and North's denial. (Makowka, Gates Interrog., 7/12/91, p. 2.)
71 DCI Schedule, 11/20/86, ER 310; Allen, Grand Jury, 8/9/91, pp. 160-61; Allen, FBI 302,11/6/91, p. 6. Gates and Cave did not recall George and Allen's exchange on November 20. North did not recall denying the mini-Finding's existence to Allen. (North, Grand Jury, 11/15/91,p. 36.) Indeed, at his trial North said he told Allen the opposite. (North, North Trial Testimony,4/7/89, p. 7045.)
The exchange recounted by Allen explains why he told HPSCI on November 21, 1986, that hedid not know whether the President had authorized Israeli shipments to Iran prior to the January17, 1986, Finding. Despite his suspicion that there was a document reflecting approval, asuperior officer, George, had told him that no such thing existed.72 For George, the exchangewith Allen raises the likelihood that George (1) spoke with North (note his ``causing trouble''comment to Allen), (2) received confirmation that a Finding existed but that it could not bedisclosed, (3) tried to silence Allen, and (4) lied about Presidential approval for 1985 activitieswhen asked on November 21, 1986.
72 Allen, FBI 302, 11/6/91, p. 6.
On November 19, George and CIA Subject #2 told Gates that the Directorate of Operationswould find out whether the Finding had been signed. George admitted phoning North at leastonce during the week. George, Subject #2, and Gates also went to the White House shortly afterthe Casey testimony team meeting of November 19 to see Poindexter, North, Thompson, andCave. Subject #2 stayed after the White House meeting to work with North on coordinating theNSC and CIA chronologies.73 Despite these opportunities, however, no witness (includingNorth) recalled that George and North talked with each other about the mini-Finding.74
73 North Note, 11/19/86, AMX 5522-26; Thompson, FBI 302, 4/22/87, p. 5; Gates 1986Appointment Book; Cave, Select Committees Deposition, 4/17/87, p. 172. Those attending themeeting recall different aspects of the meeting. A CIA 2/27/87 Chronology states that thepurpose of the meeting was to describe George's briefing of 11/18/86. George recalled conflictover the November 1985 flight (George, Select Committees Deposition, 4/24/87, pp. 123-26),while Subject #2 stated in his 9/17/91 FBI 302, p. 13, that the meeting was a relaxed affair. Gates had no specific recollection of the meeting.
74 North affirmed in the Grand Jury, however, that after November 12, 1986, it was his beliefthat the Administration had decided that Congress was not to be told of the mini-Finding or theNovember 1985 HAWK shipment -- a position that culminated in Poindexter's destruction of themini-Finding on November 21, 1986. (North, Grand Jury, 11/15/91, pp. 33-35.)
Finishing Touches
By November 19, 1986, CIA Subject #2 was aware of the November 1985 HAWK shipment. Subject #2 had composed chronologies and drafted testimony that referred to the flight and itscontents. Although parts of the story may have been in dispute -- the extent of the CIA'scontemporaneous knowledge of the flight's contents, or the level of authorization for the NSC'suse of the proprietary airline -- it was clear to Subject #2 by November 19 that a flight had takenplace and that it had carried arms.75
75 See also Earl Notebook, 11/20/86, AMT 733 (entry: ``[CIA Subject #2]/proprietaryflight-bad problems/OLN himself ask for/McMann [sic]-Casey argument-help OK this one timebut thereafter need a Finding./Seacord [sic]-hired CIA proprietary for flt from T.A. [Tel Aviv] toEurope to T. [Tabriz, Iran]'').
The November 1985 flight was a major source of friction between the NSC and the CIA bythe time Casey testified. Subject #2 admitted that he was aware of a conflict by the time he satdown with North on November 19 to coordinate chronologies. Casey and Gates, for their part,went to the White House on the afternoon of November 20 to try to settle the dispute over theflight. This dispute contributed to the ultimate decision -- made around the time of a largemeeting at the CIA on the evening of November 20, which Subject #2 attended -- to present anextremely unspecific and thin description of the flight in Casey's prepared remarks.76
76 DCI Schedule, 11/20/86, ER 310; Gates 1986 Appointment Book; Gates, Grand Jury,2/19/88, pp. 62-63; Gardner, North Trial Testimony, 4/4/89, pp. 6629-33; Gardner, PoindexterTrial Testimony, 3/23/90, pp. 2660-63; Jameson, FBI 302, 9/18/91, pp. 6-7; Doherty, FBI 302,11/13/87, pp. 4-5; Doherty 8/5/91 Gates Interrog. at 3-4. The description of the November 1985flight in Casey's prepared statement was at its fullest on November 19. It steadily wanedthereafter, particularly between noon and 8:00 p.m. on November 20. Part of the reason for thisappears to have been the conflict with the NSC; another reason appears to have been disputeswithin the CIA over how the flight was authorized and when the CIA learned that missiles werebeing or had been shipped. (See drafts discussed in note 67 above; see also Doherty, FBI 302,11/13/87, p. 15; Makowka, FBI 302, 10/11/91, pp. 6-7; Draft Testimony, 11/20/86, DO83967-76; CIA Subject #2, FBI 302, 3/4/88, pp. 8-9; EA/DCI, FBI 302, 9/16/91, p. 6; DraftTestimony, 11/20/86, DO 83977-87; Draft Testimony, 11/20/86 [unnumbered Doherty 4:15 p.m.version]; Gries, FBI 302, 9/9/91 Interview.) Doherty found the situation so disturbing that hecalled Casey sometime on November 20 and implored him to postpone his congressionalappearances. (DCI Phone Log, 11/20/86, ER 311; Doherty, FBI 302, 11/13/87.)
Subject #2 went home immediately after the large CIA gathering on November 20. Casey'sexecutive assistant and his secretary, Deborah Geer, stayed to produce a draft of testimony thatincorporated the changes discussed at the meeting. The assistant dated this draft ``November 20,2000.'' Doherty later reported to Casey that Sporkin was certain that he knew that weapons wereon the November 1985 flight ``within days'' of its occurrence. Doherty thus sought and obtainedCasey's permission to delete a reference from Casey's ``1200'' version of testimony -- the versionwhich Doherty then assumed was everyone's working copy -- that stated that no one in the CIAknew about the contents of the flight until mid-January 1986. Doherty phoned Casey's assistant.On the 2000 draft, Casey's assistant deleted a single sentence that read: ``Neither the airline northe CIA knew the cargo consisted of 18 HAWK missiles.'' This was the only reference in the2000 text to HAWK missiles.77
77 Draft Testimony, 11/20/86, DO 83988-98; CIA Subject #2, FBI 302s, 3/4/88, pp. 5-6 &9/17/91, p. 15; EA/DCI, FBI 302, 9/16/91, p. 6; Doherty, SSCI Testimony, 12/8/86, p. 10. Thefinal Casey draft is DO 83999-84009, which Casey had typed on the morning of November 21.
The next morning, Subject #2 got a copy of the 2000 version of Casey's testimony and took itwith him to Casey's appearances on the Hill. Subject #2 made notes on the draft while Caseyspoke, for he was surprised that his draft was not what Casey was reading to the committees. Subject #2 jotted in the upper right hand corner of the first page a list of the 1986 TOW missileshipments, which corresponds with the list that Subject #2 recited of all of the arms shipments toIran.78
78 CIA Subject #2, FBI 302, 9/17/91, p. 16.
Independent Counsel's Decision Not to Prosecute
The evidence suggests a concerted effort by CIA officials to withhold information from or lieto Congress about the November 1985 shipment of HAWK missiles to Iran. The availableevidence could not, however, prove beyond a reasonable doubt that concerted action by CIAofficials violated federal laws in responding to congressional inquiries about the November 1985shipment. The primary reason was that crucial witnesses to the events surrounding the Agency'sresponses in November 1986 were unavailable in 1991: Clair George was under indictment forfalse statements and perjury; Gardner had invoked his Fifth Amendment privilege againstself-incrimination and had refused to give Independent Counsel a proffer; and Casey was dead.
There was evidence of individual crimes. Independent Counsel had proof beyond a reasonabledoubt that Clair George knew on November 18, 1986, more about the flow of funds from theIranians to the CIA than he told to intelligence committee staffers. By the time this proof wasfully developed, however, Independent Counsel had charged essentially the same category offalse statement -- in a more formal setting, before SSCI -- in the George case. As for George'sdenial in the November 18 briefing of CIA activity prior to 1986, the evidence did not establishbeyond a reasonable doubt that George at that time remembered that a CIA proprietary hadshipped weapons in 1985. George would have had two witnesses, Gardner and CIA Subject #2,who could have testified that as they helped George prepare for his briefing, they themselves hadbeen unaware of the flight.
