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How Not to Deal with the Iran-Contra Crimes

1.

If John M. Poindexter feels that he has been made to bear a disproportionate share of the guilt for the Iran-contra fiasco, he can hardly be blamed. Of the four main characters in the drama, he has been judged the most harshly—guilty on all five counts. The chief problem his trial presents is not whether he did anything wrong—he did—but whether it is fair to single him out in a system of wrongdoing and punish him the most for the wrongs of the system.

The four main characters were Robert M. McFarlane, the former national security adviser; Poindexter, his successor; Oliver L. North, their immediate subordinate and “operations officer”; and former President Ronald Reagan, who set the policy for them. The main testimony at the Poindexter trial came from North and Reagan, so that our chief interest is in how they revealed themselves in their testimony. Nevertheless, we know a great deal about McFarlane’s and Poindexter’s roles from the extensive documentation, the Tower Board’s report in February 1987, the Congressional hearings from May to August 1987, and the North trial in 1989.

Of all these sources, the Poindexter trial has the least to offer. The charges were framed most narrowly in order to make a conviction more easily obtainable. Of the five counts, one accused him of conspiring to mislead Congress, two of obstructing Congressional inquiries, and two of making false statements to lawmakers. In effect, they were variations on a single theme—misleading or misinforming Congress. This is a serious malfeasance but it is only a small part of the larger story.

All the prosecutions have been similar. McFarlane and North faced virtually the same charges as Poindexter. McFarlane pleaded guilty in March 1987 to four counts of withholding information from Congress and was convicted of only misdemeanors. North refused to plead guilty to anything and as a result was indicted on twelve counts. He was convicted on only three felonies—obstruction of Congress, destroying official documents, and accepting an illegal gift of a security fence at his house. None of the convictions touched on the essential nature of the Iran-contra affairs. Both McFarlane and North got off with fines, probation, and community service.

The efforts of Judge Harold H. Greene to hold the counsel on both sides in the Poindexter trial to the charges were not entirely successful, as a result of which the trial added some details and sidelights to our knowledge of the Iran-contra affairs. In substance, however, the trial contributed little to it.

Much of the reporting in the press did not distinguish between what was new and what had already been known. For example, it was reported that the chief government counsel, Dan K. Webb, had

extracted concessions from a reluctant Mr. North, who testified that he watched Mr. Poindexter tear up a crucial document signed by the President that depicted the missile shipments to Iran as an arms-for-hostages exchange.1

The document was the Finding of December 7, 1985, which President Reagan had signed in an effort to give legitimacy to CIA participation in the delivery of TOW missiles to Iran in November 1985. That Poindexter had torn up this Finding was an old story. Poindexter himself had testified at the Congressional hearing on July 15, 1987:

And I, frankly, didn’t see any need for it at the time. I thought it was politically embarrassing. And so I decided to tear it up, and I tore it up, put it in the burn basket behind my desk. I can’t recall, but I believe that Colonel North was there in the office, but I am a little fuzzy on that point.2

North’s testimony about the same scene contributed nothing more to it. Daily newspaper reporting could not do justice to the immense background of material, now well over 50,000 pages, necessary to put the latest tidbits in perspective. Whatever else may be said about it, the Poindexter trial was not notable for its revelations.

2.

It is also questionable whether this kind of trial is the best way to judge the policy that Poindexter carried out. On the one hand, Poindexter’s position made him most responsible for what had gone on day after day and week after week in the Iran-contra affairs throughout the key year of 1986. He was the only one in the chain of command above North who either authorized or permitted North to carry on his activities in behalf of the contras and in deals with Iran.

On the other hand, Poindexter was charged with none of this at his trial. The Iran-contra affairs were not on trial. Poindexter was tried on five counts that were only indirectly related to them. Moreover, the counts were not based on what Poindexter actually did. They were based on what he knew—but did not reveal to members of Congress. For example, there was no charge that the diversion was a crime or even wrong; the charge was that Poindexter committed a crime by concealing his knowledge of it. Neither was the violation of the Boland Amendment nor the arms-for-hostages deals an issue.

To prove its case, the prosecution chose a very limited number of incidents that provided evidence of concealment and obstruction. They were so limited that one incident—the Hawk missile shipment in November 1985—appears in four of the six counts. No doubt many newspaper readers and television viewers thought that Poindexter’s conviction was a condemnation of the Iran-contra policies. It was nothing of the sort. Poindexter’s malfeasances—what he did or did not tell Congress—were only indirectly related to the policies. The policies themselves were ruled off-limits.3

To get a real sense of what the trial was about, it is necessary to look more closely at the substance of the charges. The events on which they were based were few.

In 1985, then National Security Adviser McFarlane received inquiries about North’s activities in behalf of the contras from the Congressional intelligence “oversight” committees. Their oversight had been so negligible that they had learned of his activities from newspaper reports. Both Poindexter and North opposed telling the committees anything but McFarlane preferred a more conciliatory approach. McFarlane and North subsequently confessed that they had concocted replies that were lies to the committees.

In June 1986, almost a year later, the committees again read newspaper reports about North’s activities and again sent inquiries, this time to Poindexter as McFarlane’s successor. North still adamantly opposed telling the committees anything, but now Poindexter was more conciliatory. In his reply, Poindexter took the peculiar course of hiding behind McFarlane’s duplicitous denials of the year before. In an almost insultingly brief letter, Poindexter merely said that McFarlane had “made it clear that the actions of the National Security Council staff” had fully complied with the letter and spirit of the law.4 In effect, Poindexter gave assurances that what McFarlane had said in 1985 was still true.

The prosecution argued that Poindexter had known better and had been guilty of deliberate deception and concealment. The defense pleaded that Poindexter had not really known what had happened in 1985 and could not be held responsible for his predecessor’s lies. Ignorance was Poindexter’s first line of defense.

Poindexter was again caught up in a McFarlane-North imbroglio in the matter of the celebrated “horror story”—the ill-fated shipment of Hawk missiles to Iran in November 1985 by a CIA “proprietary” aircraft, which, as it turned out, delivered the wrong missiles. North’s cover story had metamorphosed the missiles into oil-drilling parts. In a meeting in Poindexter’s office on November 20, 1986, a year later, North still tried to put the cover story into a chronology of events that was being prepared for the next day’s Congressional testimony by CIA Director William J. Casey and a Congressional briefing by Poindexter.

At the Congressional hearings, Poindexter had admitted that “I was aware that the chronologies were inaccurate.”5 He also claimed that he did not know what was accurate, but that did not stop him from telling the committees on November 21 what he knew was inaccurate. In effect, Poindexter was again in trouble about something that had happened in November 1985, had not been revealed by him to Congress in November 1986, and was now charged against him in March 1990.6

This charge makes one acutely aware of the difference between a prosecutorial and a historical approach. The evidence clearly shows that North had kept Poindexter informed in November 1985. In one such message, North had advised Poindexter that Hawk missiles, not oil-drilling equipment, were being sent to Iran.7 The prosecution, however, claimed that Poindexter “was the man supervising and directing” the operation.8 The prosecution even alleged that Poindexter “was the man in charge of this country because Mr. McFarlane was over in Europe with the President, so this is the man in charge.”9

McFarlane was in Europe, in easy communication with North; McFarlane, not Poindexter, called North from Geneva and told him to assist the Israelis in getting the missiles to Iran; and Poindexter was certainly not the man “in charge of this country.” Those were hectic days and North was going full blast on his own but informing Poindexter of his plans and actions. There is no evidence that Poindexter, who had not previously been concerned with the Iran affair, was now supervising and directing the operation. On the other hand, the defense went so far as to contend that Poindexter was “not involved in that operation” at all.10 In short, the prosecution claimed too much and the defense admitted too little.

Another example of prosecutorial zeal dealt with the diversion of Iranian funds to the contras. In the Congressional hearings, North had testified that the idea had come from the Israeli emissary, Amiram Nir, and the Iranian go-between, Manucher Ghorbanifar. Before carrying it out, North had presented it to Poindexter, who testified that he had “personally approved it.”11 North testified both in the Congressional hearings and in Poindexter’s trial that Poindexter had approved the diversion when North had presented it to him.

But the prosecution was not satisfied merely with Poindexter’s approval. Instead, the prosecution seemed to want to make Poindexter jointly responsible for the idea. Webb told the jury that “North sat down with Poindexter and discussed with him an idea, which is: Let’s overcharge the Iranians…. Then we’ll divert some of the residual money off to the contras.”12 This dramatization made it appear that North had thought of the diversion only when he talked to Poindexter about it. Webb also assured the jury that “the diversion was the main way that the contras were being assisted in 1986.”13 In fact, the “main way” had been money contributed by Saudi Arabia, with an assist from President Reagan himself.

Here again, the very nature of the trial excluded any real confrontation with the substantive issue of the diversion. It was not on trial. Even Poindexter’s deliberate decision—if we can believe him—not to tell President Reagan about it was not on trial. Only what Poindexter’s knowledge of the diversion implied about other things was on trial. “No one is charging that John Poindexter committed any crime just because there was a diversion,” Webb told the jury. “The crime that is charged is that the diversion is evidence that he clearly was aware that we were assisting the contras”—which he had denied in reply to the Congressional inquiry.14

  1. 1

    The New York Times, April 8, 1990.

  2. 2

    Testimony of John M. Poindexter, p. 20.

  3. 3

    Judge Harold H. Greene, instructed the jury in the Poindexter trial: “It is important that you understand that before you are specific, particular criminal charges, as distinguished from broad policy or political disputes. And so your verdict will resolve only the five criminal charges that are alleged in the indictment. What that necessarily means is that you are not to decide the merits of some of the broader issues mentioned in the course of this trial.” Instructions to the jury, Poindexter trial, pp. 20–21.

  4. 4

    Poindexter testimony, Joint Hearings, Exhibit JMP-14, p. 447.

  5. 5

    Poindexter testimony, Congressional Hearings, p. 108.

  6. 6

    Virtually the entire government case rested on the November 1985 shipment of arms and not on the subsequent shipments. As Webb explained: “No one is suggesting that John Poindexter lied to Congress about any of these shipments in 1986. It’s only the November 1985 Hawk missile shipment that the indictment alleges that there is [sic] lies and false statements and obstruction going on about that shipment in November of 1986.” Transcript of Poindexter trial, p. 3164.

  7. 7

    North to Poindexter, November 20, 1985, in Joint Hearings, Part III, Appendixes to Parts I and II, Exhibit OLN-43, pp. 257–258.

  8. 8

    Dan K. Webb, Poindexter trial, pp. 3166–3167. Another apocryphal report in The Washington Post, April 8, 1990, stated: “North testified that Poindexter supervised the 1985 shipment of US arms to Iran, even though Poindexter had told Congress that he did not learn about the shipment until two months after it occurred.” North repeatedly testified that he had taken orders from McFarlane, who was still his superior, by telephone. The following exchange took place:

    Question: During all the time that you were doing all of this, Admiral Poindexter was not assisting you in carrying out this mission, was he? He was not working on it side by side with you that weekend, was he?

    North: I don’t recall the Admiral being on the phone with me, as you asked before, but I did keep the Admiral apprised as to what I was doing. (Congressional Hearings, p. 1360)

  9. 9

    Howard Pearl, associate US counsel, Poindexter trial, p. 3315.

  10. 10

    Richard W. Beckler, Poindexter trial, p. 3228.

  11. 11

    Poindexter testimony, Congressional Hearings, p. 36.

  12. 12

    Webb, Poindexter trial, p. 3155.

  13. 13

    Webb, Poindexter trial, p. 3163.

  14. 14

    Webb, Poindexter trial, p. 3163.

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