Disturbing questions haunt the recent trial of Oliver North. Was it really necessary? Did it justify all the effort and expense put into it? Was the right person tried?
If one considers the circumstances that brought it about, the answers are far from clear or obvious. Thanks to the trial, however, we know a great deal more about those circumstances than we did before.
We now know that North was put on trial as the result of a panic that seized the men around former President Reagan in the last week of November 1986. On the 22nd, two of Attorney General Edwin Meese’s lawyers examined documents in North’s office and discovered the lengthy “diversion memorandum.” In it a single paragraph incidentally revealed that North had planned to use profits from the arms sales to Iran to support the Nicaraguan contras. On the 23rd, Meese called in North, who admitted that the diversion of funds had been carried out, not merely planned.
This revelation set off a political panic. At the North trial, Meese said that he had been most troubled by the unexpected merging of the Reagan administration’s problems with the Iran and contra affairs. He was then questioned by North’s lawyer, Brendan V. Sullivan, Jr.:
Sullivan: In fact, your assessment at the time was that unless something was done, a strong response, that the merging of those two factors could very well cause the possible toppling of the President himself, correct?
>Sullivan: And there was discussion, in fact, that on the days November 23rd and 24th that unless the administration, unless you and the President himself, put out to the public the facts of the use of residuals [North’s favorite term for the profits] for the Freedom Fighters, unless you got it out the door first, it could possibly lead to impeachment by the Congress, correct?
Meese: Yes. That was a concern, that political opponents might try that kind of tactic.1
To get the facts out the door first, President Reagan and Meese held a joint press conference on November 25. North said he was shocked when he heard Meese on television imply that North could be subject to a criminal investigation by an independent counsel.
On December 8, the Justice Department applied for the appointment of an independent counsel. The only name mentioned in its petition as subject to investigation was that of Lieutenant Colonel Oliver L. North. A few days later, Lawrence E. Walsh was chosen by a special court of three federal judges to head the prosecution.
These circumstances show that North’s trial had its roots in the political panic and demoralization that had seized the Reagan administration in the face of a sudden revelation of the “diversion.” What Reagan’s men feared most was the charge of “cover-up” that had doomed former President Nixon in the Watergate affair. Since Reagan would accept no blame, it was necessary to find a surrogate to prove that there was no cover-up. Whatever North’s derelictions had been, it is not likely that he would have been chosen for the role in other circumstances.
Circumstances also dictated a particular type of jury in North’s trial. If Walsh had been permitted to prepare his case without competition, he would almost certainly have been able to count on a more representative, better qualified jury. His competition came from the congressional Iran-contra committees, which were also determined to show—after years during which Congress knew no more about the Iran-contra affairs than they had read in the newspapers—that they were now willing and eager to know all and expose all.
Senators William S. Cohen and George J. Mitchell have told us in their book, Men of Zeal, how and why the congressional committees influenced the kind of jury that eventually sat in judgment on North. 2 Walsh quickly realized that his mandate was threatened by the grants of immunity that the committees were likely to concede to the two main witnesses, North and former National Security Adviser John M. Poindexter, in order to prevent them from invoking the Fifth Amendment.
On March 11, 1987, Walsh came to the Senate committee to head off such grants of immunity. They were certain to complicate the preparation of Walsh’s case by forcing him to prove that he had assembled it prior to or independently of any immunized testimony before the committees. This much was noted at the time, but something else was largely neglected—the kind of jury required to try North and Poindexter.
Immunity implied that only those who could not have been influenced by the congressional hearings would be eligible to serve. In effect, it required the selection of jurors who had shown no interest in the hearings, who had read no newspaper accounts, had watched none of the television coverage, and had never discussed the case with anyone. Whatever other virtues these jurors may have had, a bare minimum of civic concern and participation, even to showing the most casual interest in hearings that held the rest of the nation spellbound, was not among them. This most political of trials was entrusted to the most apolitical of juries.
Why did the congressional committees reject Walsh’s request? The reason, as Cohen and Mitchell reveal, was that a delay in granting immunity, even for a reasonable period, until Walsh had determined whether North had committed an indictable offense, would have extended the hearings well beyond President Reagan’s term of office. Whatever the justification, early immunity was granted because the committees feared that they might be deprived of North’s testimony or that they might not get it in time for the deadline which they had arbitrarily set for themselves. In retrospect, Cohen and Mitchell think that the refusal to defer the grant of immunity may have been a mistake.3
The makeup of the jury inevitably influenced the two sides’ legal strategy and the outcome of the trial. This jury had to sit through eight weeks of labyrinthine testimony. On some days the heat in the courtroom was so stifling that two sessions had to be cut short. Much of the testimony went on at stupefying length and repetitiveness. The testimony was elicited from witnesses largely on the basis of documents that would have required weeks of close study to master in the best of circumstances. As one who has dutifully examined about 8,500 pages of transcript and hundreds of pages of documents, I think I can fairly say that it would have taken a jury of twelve trained historians with extraordinary fortitude to cope with this enormous volume of complex evidence.
North was charged with twelve felonies. Originally he had been charged with sixteen, which the court had whittled down to fourteen. If the first two counts of the fourteen had not been removed, we would have been given the opportunity to learn far more about the Iran affair than the actual trial made possible.
The two deleted counts dealt with the diversion of funds from the Iran arms sales to the Nicaraguan contras. They were originally considered to be the most serious charges facing North. Sullivan, however, served notice that North could get a fair trial on these counts only if he were permitted to disclose large quantities of highly classified government documents. When it became clear that the Justice Department was determined to block the defense’s use of these documents, Walsh withdrew the two counts and rested his case on the remaining twelve.
This legal maneuvering deprived the public of a full inquiry into North’s activities. We are not likely to get the complete and uncensored story until the government stops using the classification of documents as an excuse for hiding the truth about these events. Nevertheless, the defense succeeded in bringing out a considerable number of previously unknown documents, together with testimony that cast new light on much that had occurred. Some testimony even went into the Iran affair again, though that affair had a place in the trial distinctly secondary to that of the contra operation.
Of the twelve counts remaining against North, four were closely related: they were all concerned with false statements allegedly made in various circumstances. Another three dealt with obstruction of official inquiries. The other five referred to his participation in a false chronology of the Iran-contra events, destruction of documents, his acceptance of a home security system and cashing traveler’s checks for personal use, and a conspiracy to defraud the government of taxes through his association with pro-contra fund-raisers.
In the end, the jury found North guilty of only three counts—obstruction of Congress, destruction of documents, and acceptance of a security system. Whatever we may think of North’s guilt or innocence in these matters, they hardly make any difference in our understanding of the larger aspects of the Reagan administration’s Nicaraguan policy and North’s place in it.
In fact, all of the charges put together were not calculated to tell much more than that North was accused of being a liar and a thief. The trial of North by its very nature largely concentrated on his personal failings and thereby reduced the contra affair to one man’s malfeasances. Of these, the most serious charge was lying to Congress, for which he deserved punishment but was left off by the jury.
This concentration on North’s personal defects was sharpened by the prosecution’s strategy. Apparently afraid that the jury might not get too subtle a point, the principal lawyer for the government, John W. Keker, tried to persuade it that North was nothing more than a congenial liar and a petty thief. He went so far as to accuse North of “following Adolf Hitler’s old strategy” on how to make “lies work.”4 Apparently Keker could not think of any American politician who might have given North a lesson in lying.
North admitted that he had personally controlled an “operational account” of about $300,000, a third of it in traveler’s checks from the contra leader, Adolfo Calero. Some of these checks were certainly used to pay for purchases that could not be considered official business, such as a $50 check to a food store. North’s story was that he was accustomed to using his own money for expenditures and would later reimburse himself with traveler’s checks. At best, North was inexcusably lax in his accounting. Nothing could be checked, because he said that he had destroyed a ledger in which he had made a record of his dealings. He handed out money to agents without getting receipts. North may or may not have been deliberately dishonest, but there can be no doubt that he was culpably negligent.
At worst, North was accused of having mishandled, for his own personal use, $4,300—or at most $5,000—of the $300,000, if not more, in his care.5 Calero’s traveler’s checks were sitting temptations in his pocket whenever he needed money in a hurry, because they were blank on both name lines and could be used as though they were cash. A conventionally dishonest person would scarcely have stopped at less than 2 percent of the entire sum, spent thoughtlessly in relatively small amounts, without any effort to hide what he was doing. The rest of the money was apparently handed out to contra leaders and others for services rendered or to pay for some of North’s own expenses as he flitted from place to place.
In the end, the jury disregarded one of Judge Gesell’s major rulings. He had instructed it that “neither the President nor any of the defendant’s superiors had the legal authority to order anyone to violate the law.” Yet the basic strategy of Sullivan’s defense was to shift the responsibility for North’s actions onto his superiors, especially President Reagan and former National Security Adviser Robert C. McFarlane.
After the trial was over, the jury foreman, Denise Anderson, made this statement: “Basically, on the counts of ‘not guilty,’ he [North] was following orders. And there were lots of people’s orders.” She was also reported as having said: “North was the subordinate. He wasn’t running the show.” Another juror, Beverly Turner, said: “He was just the low man on the totem pole.” A third, Tara Leigh King, thought that “he had people over the top of him, and he’s a human being…. They put him out in the cold and closed the door on him.”6
The jurors also resented the use of biblical quotations by both lawyers in their closing arguments, as if they were trying to impress “poor black folks,” as Denise Anderson put it. Keker’s reference to Hitler was considered particularly offensive. Three women jurors were first inclined to acquit North on all counts.7 (The jury was made up of nine women and three men, all black.)
At the hearings of the congressional committees, North had been proud and arrogant. At his trial, a more subdued North even showed some contrition. Of his part in concocting untrue replies to congressional inquiries, he said: “I am not proud of this…. I didn’t think it was right. Therefore, it must be wrong.” But he continued to insist that it was not “unlawful.”8 After admitting that he had not told the truth at a meeting of the House Intelligence Committee on August 8, 1986, North confided: “I was not honest in that meeting. I’m not proud of that. It’s not something I feel good about.”9 In another connection, North even said: “I felt like a pawn in a chess game being played by giants.”10 Yet asked about his role in drawing up the false chronologies, North reverted to his old intransigence, and this exchange took place:
Keker: At any time on November 21, 1986, did you think that what you were doing, what you were being asked to do or what you had done might be wrong?
North: Not for one fleeting moment.11
Whatever one may think of North’s behavior, his trial in effect trivialized the contra affair by making it little more than one person’s fibbing and pilfering. It may well be that the government could not technically bring him to trial on larger, more meaningful grounds, but that is itself an admission that such a trial was not the best way to get to the bottom of this political enormity.
I have used the term “government” above, but the government’s role was double-edged. The case was brought to trial as United States of America versus Oliver L. North. But the independent counsel was not permitted to try the case as he had originally intended. Another part of the government, in the Justice Department, prevented him from pursuing his two most serious charges by withholding documents which the defense considered necessary for its case. Thus we have here a strange judicial proceeding brought in the name of the government but hamstrung by the same government. This independent counsel, as it turned out, was only conditionally independent. Whatever the reasons, North was saved from having to face the most serious charges by a branch of the government that ultimately prevailed over the judicial process.
The jury itself sensed that someone else should have been put on trial.
The foreman, Denise Anderson, said: “I think that Reagan should stand up and give an accounting for what he did. I think he knew a lot about what was going on.” Tara Leigh King thought that Reagan should even be put on trial, because “he knew a lot of things going on.” Most of the jurors, it was reported, felt the same way.12
So Sullivan’s strategy of shifting responsibility from North to his superiors paid off. The jurors could convict North on counts of personal culpability, such as shredding documents or accepting the gift of a $13,800 security fence. But when it came to his making false statements, they understood that North’s actions were part of a much larger political drama in which he was an actor but not the director.
There were, moreover, two sides to North’s trial—the legal and the historical. In the long run, the historical is by far the more important. It asks the question, “What did we learn from North’s trial about Reagan’s system of government?” rather than “Was North guilty?”
Much of the documentation in the trial was already available in the printed record of the congressional hearings. Many of the stories told by witnesses were also familiar, though sometimes the details were new and striking, as in the case of former Attorney General Meese’s panicky reaction to the “diversion memo.” But we owe most of the historical revelations in the trial to Sullivan’s strategy of blaming Reagan and McFarlane for North’s predicament.
Above all, Sullivan bore down on Reagan’s responsibility. In his summing up to the jury, he incriminated Reagan more sharply and at greater length than anyone else involved.13 Alluding to Meese’s so-called fact-finding investigation, which produced one of the charges that North had made false statements, Sullivan held forth:
Not a single step was taken in 1985 with respect to the Iranian initiative, whether it be HAWKs or TOWs [missiles] or Israel or any of these things that the President had not approved. So why not ask him? Why go and ask Ollie North? Why not ask the man who knew the facts, dealt with them firsthand? Very strange, isn’t it? Keep that in mind as a background when you’re focusing on the meeting between the Attorney General and Ollie North on the 26th.14
Sullivan also alluded to Reagan’s phone call to North on the very day of the press conference at which North was threatened with criminal proceedings. After the press conference, North, former Major General Richard V. Secord, North’s chief confederate, and Secord’s lawyer, Tom Green, had met in a hotel to confer on the unexpected developments. North gave this account of the President’s call:
The President came on the line and he said, I want to thank you for all your work. I am sorry that it happened the way it did. He said, you are an American hero.
He asked me to understand that it was—he just hadn’t known, words to that effect. I thanked him for the phone call and told him I was sorry that this had created so much difficulty for him, for the country.15
Sullivan characteristically turned this incident against Reagan:
It seemed like at the press conference Colonel North was the only one in the world that really knew or did anything about these matters. Colonel North was fired. You remember that day later in the day, the President of the United States called him. I wonder why the President called him.
That’s something for you to figure out and use a little common sense about in that jury room as well. How can you be fired at noontime and have the President of the United States call you in the late afternoon and tell you that you are an American hero? What do you suppose that’s about? What conclusion do you draw from that?
I draw the conclusion that the President was using Ollie North as a scapegoat. They threw him overboard to get some political peace, along with a couple of others. It doesn’t sound like the kind of a thing the President would do unless he knew fully well what Ollie North was doing.16
“What do you suppose that’s about?” Clearly, the jury supposed what Sullivan wanted it to suppose. In his summation, Keker carefully stayed away from any allusion to the President’s responsibility for Ollie North’s plight. The jury could only have concluded that there was no way to get around this critical connection and that there was something rotten in the state, at the very highest level.
Indeed, thanks to Sullivan’s strategy, the trial marked a new attitude toward Reagan. He had previously been protected from such uninhibited treatment by a conspiracy of silence. Now North’s lawyer was the instrument of Reagan’s exposure.
The cover-up of Reagan’s complicity had begun with the Tower board in February 1987. Its report had portrayed him as an “unaware” president whose chief fault was his passive and removed “management style.” It had heaped most blame on his “key advisers,” especially his chief of staff, Donald T. Regan.17 One reason the board managed to arrive at this judgment was that Reagan himself had orchestrated his own innocence-by-ignorance.
The President told the Board on January 26, 1987, that he did not know that the NSC [National Security Council] staff was engaged in helping the Contras. The Board is aware of no evidence to suggest that the President was aware of LtCol North’s activities.18
In which case, as Sullivan pointed out, how could the President have known that North was an “American hero”? Moreover, Reagan considered the NSC staff to be his personal staff. He held a meeting with the national security adviser, the head of the staff, for a half hour at 9:30 AM every day. The adviser, whether McFarlane or his successor, Poindexter, knew that Reagan had two main obsessions, the contras or, as they were officially called, the freedom fighters, and the hostages. A president who could say on March 1, 1985, that the contras were “the moral equal of the Founding Fathers”—a sentiment which he repeated on September 12, 1987—was quite capable of seeing himself as the Founding Father of the contras.
A few months after the release of the Tower board’s report, Reagan did more than acknowledge that he had known that the NSC staff had helped the contras. “As a matter of fact,” he blurted out to a group of newspaper editors on May 15, 1987, “I was very definitely involved in the decisions about support to the freedom fighters. It was my idea to begin with.”
How could he not have known that the NSC staff was engaged in helping the contras if it was his idea to begin with, and he was briefed by the head of the staff, every working day? What did they talk about, if not his obsessions?
The congressional hearings in May—August 1987 did little to clear up these discrepancies. As Senators Cohen and Mitchell note in their book on the hearings, the Republicans on the committees were there to defend the President, not to embarrass him. The Democrats thought that “the impropriety of assisting the Contras” was more difficult than the Iran arms sales to deal with in public because it was thought that the public was not particularly upset about raising money for the contras.19
As a result, the hearings hardly touched on the President’s role, and the committees’ report was equally discreet. North himself vowed that he was the President’s servitor who was never going to say anything critical of him. North was asked by the Senate committee’s chief counsel, Arthur L. Liman, if he had ever wondered why the President had dismissed him, if North believed that he had done nothing wrong or illegal. North’s reply was:
North: Let me make one thing very clear, counsel. This lieutenant colonel is not going to challenge a decision of the Commander in Chief for whom I still work, and I am proud to work for the Commander in Chief, and if the Commander in Chief tells this lieutenant colonel to go stand in the corner and sit on his head, I will do so. And if the Commander in Chief decides to dismiss me from the NSC staff, this lieutenant colonel will proudly salute and say “thank you for the opportunity to have served,” and go, and I am not going to criticize his decision no matter how he relieves me, sir.
Liman: Has anyone given you an explanation, Colonel North, on behalf of the President, of why he did not think it was a good idea and dismissed you?
North: The President of the United States saw fit to call me later the same day and in the course of that call, which was also intensely personal, he told me words to the effect “I just didn’t know.” I have no reason to disbelieve what the Commander in Chief told me, sir. 20
That was on July 9, 1987. But by the spring of 1989, something had changed. North was no longer willing to “sit on his head” and ignore how he had been relieved. He claimed that he had changed his mind about accepting his fate as a willing scapegoat when he heard that he was subject to criminal investigation. This explanation implies that North should have changed his mind on November 25, 1986, after Meese’s announcement of his jeopardy. Instead, North was still standing in a corner and sitting on his head, proudly saluting and saying “thank you,” on July 9, 1987.
In any case, Sullivan’s defense strategy required a head-on assault against North’s old Commander in Chief. Sullivan’s case demanded that the responsibility for North’s actions, good or bad, had rested with North’s superiors, and in the first place with the President.
In this way, North’s trial also became Reagan’s trial. What North did was already well known and the trial added little; what Reagan did had been largely hidden from sight, and enough came out at this trial, despite the government’s obfuscation, to tear away the mask of disengagement.
Reagan’s pervasive presence in the contra affair can now be traced at some critical points. We owe this knowledge to documents produced at the trial that, taken together, show a pattern at glaring variance with the prevailing impression that Reagan had sleepwalked through the contra adventure. He was far more the active agent who set the policy and even intervened to implement it. One wonders how much more we might find out about Reagan’s responsibility if the full documentation demanded by Sullivan had been made available. As it is, enough slipped through to enable us to see Reagan’s role in the contra affair in a new light.
There is evidence of Reagan’s responsibility at key junctures for the contra policy and its implementation. It enables us to gain an insight into the policy from its very inception to its later stages.
The first document is the minutes of a meeting of the National Security Planning Group (NSPG) on June 25, 1984. It is the only meeting of its kind of which we have full minutes, covering almost fourteen single-spaced pages. This meeting brought together the highest level of the administration’s officialdom, including President Reagan, Vice-President Bush, Secretary of State George P. Shultz, Secretary of Defense Caspar W. Weinberger, CIA Director William J. Casey, United Nations Ambassador Jeane J. Kirkpatrick, Chairman of the Joint Chiefs of Staff General John W. Vessey, Jr., White House Counselor Edwin Meese III, National Security Adviser Robert C. McFarlane, and Deputy Adviser John M. Poindexter. The minutes were taken down by Constantine C. Menges, a member of the NSC staff. We have other verbal references in the congressional hearings to top-level meetings, but they are scrappy, nothing more than brief allusions by Shultz or Weinberger, who say nothing about any input by the President. One might gather from these references that he let everyone else talk at these meetings and made little or no contribution himself.
Oliver North was not present at this meeting. It had no direct bearing on the charges brought against him. Indirectly, however, it bore out Sullivan’s strategy of showing that Reagan had been personally responsible for a major aspect of the contra policy.
This NSPG meeting was called to discuss what to do about the Nicaraguan contras. They had run out of money by about May 1984 and no additional funds were expected from Congress. After general remarks by McFarlane, Shultz, Casey, Weinberger, and Vessey, President Reagan stated the real purpose of the meeting:
It all hangs on support for the anti-Sandinistas. How can we get that support in the Congress? We have to be more active. With respect to your differences on negotiating [in the so-called Contadora process with Mexico, Colombia, Venezuela, and Panama], our participation is important from that standpoint, to get support from Congress.
Weinberger and Shultz briefly disagreed on a detail of the US negotiating position. Again Reagan broke in:
If we are just talking about negotiations with Nicaragua, that is so far-fetched to imagine that a Communist government like that would make any reasonable deal with us, but if it is to get Congress to support the anti-Sandinistas, then that can be helpful.
The main object of the meeting came down to where to get money for the contras, if Congress refused to appropriate it. Kirkpatrick urged that it should come from somewhere else:
If we don’t find the money to support the Contras, it will be perceived in the region and the world as our having abandoned them…. If we can’t get the money for the anti-Sandinistas, then we should make the maximum effort to find the money elsewhere.
“Elsewhere” meant getting money from other or “third” countries. In fact, President Reagan had already signed a finding authorizing such a covert operation.21 Shultz was worried about the illegality of such an expedient:
I would like to get money for the Contras also, but another lawyer, Jim Baker [then chief of staff], said that if we go out and try to get money from third countries, it is an impeachable offense.22
Thereupon an argument broke out over Baker’s interpretation. Casey insisted that Baker had said getting money from third countries without notifying the congressional oversight committees might be a problem, but that he had dropped his objection as soon as he had been informed that the finding had provided for “the participation and cooperation of third countries.”
Shultz was not convinced: “Jim Baker’s argument is that the US Government may raise and spend funds only through an appropriation of the Congress.” Weinberger supported Casey by arguing that the United States would not be spending its own money. Shultz fell back with a request for an opinion from the attorney general “on whether we can help the Contras obtain money from third sources.”
Reagan spoke up for the third time on the question of holding US troop exercises in Honduras.
Even the appearance of movement of US troops into Honduras for exercises, the movement of small units, would likely help the morale of Honduras.
And the President spoke up for the fourth time, fifth time, sixth time, seventh time, and eighth time on the advisability of negotiations with the Nicaraguans and the Contadora nations. The significance of this number is less in what he said than in how many times he chose to say it, suggesting a very active engagement in this policy making.
Toward the end, Vice-President Bush put in a few words:
How can anyone object to the US encouraging third parties to provide help to the anti-Sandinistas under the Finding? The only problem that might come up is if the United States were to promise these third parties something in return so that some people could interpret this as some kind of an exchange.
That there was still some doubt about help from third parties was made clear by McFarlane toward the close:
I propose that there be no authority for anyone to seek third party support for the anti-Sandinistas until we have the information we need, and I certainly hope none of this discussion will be made public in any way.
President Reagan had the last word in his ninth and most prophetic pronouncement:
If such a story goes out; we’ll all be hanging by our thumbs in front of the White House until we find out who did it.23
This NSPG meeting was critically important. It dealt with one of the most questionable and secretive aspects of Reagan’s new Nicaraguan policy—the decision to bypass congressional appropriations and resort to solicitation of funds from other countries. The President’s final words showed how dangerous he knew it to be. Shultz, by citing Baker, had even called up the specter of impeachment. Yet Shultz, as was his custom, did not endanger his position in the administration by holding out too firmly or too long. Later he went along with one of the most extravagant of the third-country efforts in, of all places, Brunei.
The so-called third-country funding of the contras was subversive of the very core of the constitutional separation of powers. To deprive Congress of its “power over the purse” is to deprive it of any effective legislative power. By finding a substitute source for money, the administration found a substitute for Congress. “This power over the purse,” James Madison asserted,
may in fact be regarded as the most compleat and effective weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
He even defined “the accumulation of all powers legislative, executive and judiciary” as “the very definition of tyranny.”24
The first Boland Amendment for fiscal year 1983 had already prohibited the CIA from using funds “for the purpose of overthrowing the Government of Nicaragua.” A later Boland Amendment, which took effect in October 1984, went much further and prohibited any activities that would have “the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.” In between these two versions of the Boland Amendment came the NSPG meeting of June 25, 1984, which foresaw that no more money for the contras could be obtained from Congress in the immediate future.
There was, then, good reason why Chief of Staff Baker, now secretary of state, had been sorely worried about going hat in hand to other countries for money that Congress would not appropriate. Whether or not Baker actually said that it was “an impeachable offense,” Secretary of State Shultz must have thought there was some substance to the warning by citing it. Baker, however, did not cast any doubt on his other view that “we could not do indirectly what we couldn’t do directly.” Impeachable offense or not, the Reagan administration’s defiance of this rule still did flagrant violence to the Constitution.
No wonder also about Reagan’s fear that the “story” might get out and that it would be necessary to find out who had let it out or “we’ll all be hanging by our thumbs in front of the White House.” In this case, “all” included the entire top leadership of the administration.
At this meeting, in any case, Reagan was not a passive onlooker. He spoke more often than anyone else and clearly set the tone and direction of the discussion. It cannot be said that he was not aware of what was going on and not responsible for the ultimate decisions.
Thanks largely to new evidence provided by the trial we now know that by far the largest single contribution of money to the contras from a “third country” was solicited and obtained by Reagan himself.
In June 1984, the same month as the NSPG meeting, McFarlane succeeded in getting the first allotment of money from Saudi Arabia. As McFarlane told the story, he had been accustomed to meet with the Saudi ambassador, Prince Bandar ibn Sultan, at intervals of about every three months. At one of these sessions, McFarlane told the ambassador how desperately the contras needed money and how they could not get any more from the United States government. Two or three days later, Prince Bandar informed McFarlane that the Saudis were willing to contribute $1 million a month for the rest of the year to enable the contras to survive. This money came to $8 million and lasted into early 1985.
McFarlane was so furtive about the offer that he reported it to the President on a note card which he inserted in the briefing book Reagan was given to read each morning; McFarlane explained that he had used this means because he did not wish anyone else who might have been in the room to know. Reagan’s general reaction was one of “gratitude and satisfaction.”25 When McFarlane told him that no one else knew about it, Reagan’s response was, according to McFarlane’s testimony at the trial, “Good, let’s just make sure it stays that way.”26
As the first Saudi contribution ran out in February 1985, King Fahd opportunely visited Washington. The usual etiquette called for the President to receive a head of state in the Oval Office. This time, however, Reagan did more. He met with Fahd twice, once in the Oval Office and again in his family residence, a most unusual deviation from standard practice. Just what happened the second time was, until North’s trial, undisclosed. All McFarlane had previously revealed was that Prince Bandar had informed him a day or two later that the Saudis were going to give the contras $2 million a month for the next twelve months, for a total of $32 million. When McFarlane passed on the good news, Reagan’s reaction was “analogous to the earlier time, of gratitude and satisfaction, not of surprise.” Reagan again told him to make sure that no one else knew about it.”27
There was good reason for Reagan’s lack of surprise. In his testimony at North’s trial, McFarlane told why. He had heard of the Saudis’ second gift from Prince Bandar and went to tell the President:
I thought for the first time, in a note that I sent him but it turned out the President already knew about it because it apparently was discussed in a private meeting with just the President and this leader of the foreign country and I guess an interpreter.28
North knew about Reagan’s personal supplication to King Fahd. North testified that he had told McFarlane that the contras needed more money, “and at some point later on in either late ’84 or early ’85 the President asked the King for more and the King chipped in a total, I think, of 32 million over that period of time.” McFarlane had cautioned him to reveal the secret to no one as the President had directed.29
Reagan had surely felt that it would be demeaning to his office if it were made known that he had personally solicited a few million dollars from the Saudi potentate, who undoubtedly expected to get a favor in return. Saudi Arabia is about 12,000 miles from Nicaragua and does not even have diplomatic relations with any Central American country.
Finally, the government agreed to an “admitted fact,” which reads:
In early 1985, President Reagan urged the Head of State of Saudi Arabia to continue its support for the Resistance. Saudi Arabia subsequently made a contribution of more than $25 million.30
This “admitted fact” was one of the new and startling documentary revelations that we owe to the North trial. The new evidence consists of 107 summarized documents, covering 42 pages, that were submitted to the jury with the words: “You are instructed that the United States has admitted for purposes of this trial the following facts to be true.” The documents themselves were held out, but persistence on the part of Judge Gesell and defense counsel Sullivan succeeded in getting the government to agree to a compromise—a digest of “admitted facts” in each document.
The most revelatory fact in this collection was not about Oliver North; it was about President Reagan.
King Fahd was not the only head of state or government to whom President Reagan was willing to make a personal appeal on behalf of the contras.
To keep the contras together “body and soul,” as Reagan had early instructed McFarlane, the cooperation of four Central American countries was sought. They were Costa Rica, Guatemala, El Salvador, and Honduras.
Costa Rican cooperation was vital as long as the United States was engaged in opening a “southern front” along the Costa Rican border with Nicaragua. In 1985, the Costa Rican government of President Luís Alberto Monge went along with the construction of an airstrip by the North-Secord operation near the Nicaraguan border, a deal that fell through as soon as Monge was replaced by Oscar Arias Sánchez in May 1986. With the collapse of the “southern front,” and with the new independence of the Arias regime, Costa Rica lost its usefulness as an outpost of US policy.
Guatemala was more important, because it supplied many of the “end-user certificates” necessary to get weapons to the contras. US sales of weapons to other countries required written statements attesting to the identity of the “end user” of the weapons in order to prevent them from being resold or otherwise given to countries or groups ineligible to receive or use US weapons. Since the United States was forbidden by the Boland Amendment to arm the contras directly, it had to be done indirectly. Guatemala was a major source of falsified end-user certificates that enabled the contras to obtain US weapons and ammunition.
At his trial, North explained how the system worked:
I would go down, or others using the name of myself or others, would say, please, give us some end-user certificates to go buy ammunition in Europe or ammunition and equipment in other places that we can deliver to the Resistance. And these military officials, senior officials in their government, were doing it for us.31
Ilopango, in El Salvador, was the site of the airfield that another member of the North-Secord operation, Rafael Quintero, had arranged to use. It was the main base for the airlift of weapons, ammunition, and other supplies brought in by Secord from Europe and elsewhere. Quintero was a native Cuban who had left Cuba in 1959, had been trained by the CIA to go back to Cuba to prepare for the ill-fated Bay of Pigs invasion in 1961, had been taken prisoner, had escaped, and had then worked for the CIA for about ten years.32 Secord told how Quintero had managed to install the airfield in El Salvador:
Mr. Quintero went there and negotiated with the local military and with an old friend of his who was working there too—and got an agreement, in principle, about this timeframe—that is the fall of 1985—for the basing of a small airlift operation at that location. 33
But Honduras was by far the most important, because the main contra force was based there. Wherever the weapons came from, they had to land there to be distributed to the contras. Honduras was also a special problem, because its military leaders were for their own reasons not always happy with the arrangement and sometimes put the whole operation at risk by confiscating weapons.
In these circumstances, the US officials in charge of Central American policy resorted to presidential intervention if nothing else was likely to work. On February 7, 1985, for example, a Crisis Preplanning Group (CPPG), made up of representatives from the National Security Council staff, Department of State, Department of Defense, CIA Joint Chief’s of Staff, including the ubiquitous Lieutenant Colonel North, agreed, according to the “admitted facts,” that
a Presidential letter should be sent to President [Roberto] Suazo of Honduras and to provide several enticements to Honduras in exchange for its continued support of the Nicaraguan Resistance. These enticements included expedited delivery of military supplies ordered by Honduras, a phased release of withheld economic assistance funds (ESF), and other support. The CPPG was in agreement that transmission of the letter should be closely followed by the visit of an emissary who would verbally brief the “conditions” attached to the expedited military deliveries, economic assistance, and other support. The CPPG did not wish to include this detail of the quid pro quo arrangement in written correspondence.34
This letter to Suazo was sent by President Reagan later that month through US Ambassador John Negroponte.
In early March 1985, Weinberger informed McFarlane that the Department of Defense “had commenced expedited procurement and delivery of military and other items to Honduras.”35
On March 16, 1985, Vice-President Bush met with Suazo in the Honduran capital. The “admitted facts” state that
Bush told Suazo that President Reagan had directed expedited delivery of US military items to Honduras. Vice President Bush also informed Suazo that President Reagan had directed that currently withheld economic assistance for Honduras should be released; that the United States would provide from its own military stocks critical security assistance items that had been ordered by Honduran armed forces; and that several security programs underway for Honduran security forces would be enhanced.36
When this arrangement was made public, the term “quid pro quo” was indignantly denied, as if it were unthinkable in the conduct of US diplomacy. Former Ambassador Negroponte, who had attended the meeting between Bush and Suazo, said that while Bush “may well have alluded to” the expedited aid to Honduras, “there was no discussion of a quid pro quo.”37 Former Assistant Secretary of State Langhorne A. Motley, who was also present, tried to make a delicate semantic distinction:
You don’t have to be clairvoyant to understand you do things to expedite stuff…. It shows good faith and the guy knows what you are interested in. That’s step back from a quid pro quo.38
In effect, the “stuff” had been expedited and the “guy” knew what Bush had been interested in. The only thing in question is what to call an arrangement which both sides well understood. The actual documents on which this “admitted fact” was based were later released in a report of the Senate Select Committee on Intelligence. 39 The documents show that the term “enticements” was used but “quid pro quo” was not. The latter was apparently an interpretation or summing up by Judge Gesell. The recommended “enticements” mainly consisted of expedited deliveries of military items that had been ordered by Honduras from the United States and the release of a portion of US economic assistance that had been withheld pending Honduran internal reforms. But an additional enticement was “increased support from the CIA on several projects being conducted by the Agency in Honduras.”
It is clear that the Hondurans were being enticed to continue their support of the contras. Whether the words “quid pro quo” were used matters little; the purpose of the enticements was just that. In any case, one wonders why such a fuss was raised about the use of this term in the “admitted fact”; one also wonders how US diplomacy could function without quid pro quos.
President Reagan soon took even more direct, personal action to expedite the “stuff” in Honduras. On April 25, 1985, McFarlane had informed him that the Honduran military had “stopped a shipment of ammunition from an Asian country en route to the Resistance after it had arrived in Honduras.” McFarlane requested Reagan to call Suazo to get the Honduran military to release the ammunition. Reagan obediently put in a telephone call to Suazo, who agreed to order the military to turn over the ammunition to the contras, in return for which he “raised the subject of US government aid for his country.” Negroponte soon reported that Suazo had promptly carried out Reagan’s wishes. In May 1985, “President Reagan personally approved increased US special support to Honduras and Guatemala for joint programs with those countries.”40
This incident shows that Reagan was kept currently informed of the problems associated with the contras and, when needed, stepped in to help out. A telephone call from an American president to a Honduran president about a hold-up of ammunition for the contras was not an ordinary or customary practice to be expected in the White House. Whatever one may think of its propriety, it reveals how intimately Reagan was kept abreast of and how willingly he participated in the contra program.
Reagan’s telephone call to Suazo was a small part of an extensive system of bribery and blackmail. Costa Rica for a time, Guatemala, El Salvador, and Honduras for much longer, knew that they were taking risks on behalf of the contras, knew that they were responding to US pressure, knew that they had been given a rare opportunity to make the United States pay for what it wanted from them. The collusion of Central American ministers and military in the resupply operation for the contras was bought and paid for. The “admitted facts” is an anthology of practices so shady that they could not be revealed without shame. If there was no quid pro quo the Hondurans and the others missed the opportunity of their lives and deserved to be punished for sheer incompetence.
North’s trial, then, was peculiarly unsatisfactory. The most serious issues were withdrawn at the outset. To prevent President Reagan from testifying, charges were eliminated for the express purpose of cutting the ground from under the defense’s demand for more classified documents. The same procedure has been used to eliminate similar charges in the forthcoming trial of former National Security Adviser Poindexter.
So long as a few officials in the government can withhold documents, justice cannot be served. Once the defense demands the appearance in court of classified documents and the government decides to withhold them, the government—an interested party in these proceedings—has the power to determine the very nature of the trial.
The hundreds of documents already published in connection with the congressional joint hearings have been severely censored. There is hardly a document in which passages have not been blacked out, so that they cannot be fully read. The context shows that the purpose of most of these deletions was not concealment of the information from foreign powers; they were clearly made for domestic political or bureaucratic reasons. Some are evidently so arbitrary that they defy comprehension. In exasperation, Judge Gesell once told off a government bureaucrat in charge of classification: “You have documents stamped with the highest possible classification that are just twaddle.”41 Classification is the secret weapon of secret government. Its abuse has long been a scandal. It has now begun to contaminate the justice system.42
As a result, North’s trial was largely a travesty of trivialization. It turned for the most part on his personal foibles rather than on his place in the Reaganite system of conspiratorial misgovernment. We may be grateful for such revelations as the trial brought out, but they were hardly commensurate with the effort and expense put into it. Without a full disclosure of the President’s responsibility, the trial took on the appearance of Hamlet without the Prince. North, after all, was an underling whose main crime was that he carried out the wishes of his masters with too much zeal and too little discretion. Thanks to Sullivan’s strategy and Judge Gesell’s persistence, the responsibility of the political leadership that North served was fitfully revealed at this trial, and may be revealed further by the trials to come. The real trial of that leadership must be left to the historians.*
My article was written and in galleys before Judge Gesell’s sentencing of Oliver North on July 5. Here I wish to comment only on two points, the second of which is directly related to my article.
Politically, I have no quarrel with Judge Gesell’s sentence. It is probably better for the country that North should not be made a martyr in prison. Nevertheless, the legal reasoning—that “jail would only harden your misconceptions”—is troubling. Jail has hardened many prisoners, but that is no reason for letting them off or we would not have so many in jail. Still, North’s trial was preeminently political, and it is only fitting that his sentence should be predominantly political.
I have mixed feelings about Judge Gesell’s remarks in extenuation of North’s actions, as reflected in these words:
I do not think that in this area you were a leader at all, but really a low-ranking subordinate working to carry out initiatives of a few cynical superiors. You came to be the point man in a very complex play developed by higher-ups.
Whether it was because of the excitement and the challenge or because of conviction, you responded certainly willingly and sometimes even excessively to their requirements. And along the way you came to accept, it seems to me, the mistaken view that Congress couldn’t be trusted and that the fate of the country was better left to a small inside group, not elected by the people, who were free to act as they chose while publicly professing to act differently.
It is true that North was “really a low-ranking subordinate working to carry out initiatives of a few cynical superiors.” The larger question, however, is: Who were those “few cynical superiors”?
Judge Gesell says that they were “a small inside group, not elected by the people.” He must be pointing at the national security advisers, McFarlane and Poindexter, North’s immediate superiors. He cannot be referring to President Reagan, who was elected by the people.
But McFarlane and Poindexter also worked to carry out initiatives of cynical superiors. The national security advisers were not policy makers; they were President Reagan’s immediate subordinates. Reagan, not McFarlane or Poindexter, was responsible for “the mistaken view that Congress couldn’t be trusted and that the fate of the country was better left to a small inside group.” It was Reagan’s finding of January 17, 1986, that explicitly expressed this view by directing that Congress should not be informed of his policy.
The notion that “a small inside group, not elected by the people,” was responsible for these “initiatives” is belied by the evidence introduced at the trial. This implied exculpation of President Reagan was another political decision—and a historical fiction.
August 17, 1989
Transcript of the trial, United States of America versus Oliver L. North, United States District Court for the District of Columbia (March 28, 1989), pp. 5750–5751. One of Meese’s aides present at the interview with North, Charles J. Cooper, confirmed that “we recognized that potential for concluding President Reagan’s term” (p. 5992). ↩
Viking, 1988. ↩
Men of Zeal, p. 307. ↩
Transcript, p. 8011. ↩
Keker put the sum at $5,000 (transcript, p. 8295). ↩
The Washington Post (May 6, 1989); The New York Times (May 6, 1989). ↩
The New York Times (May 6, 1989). ↩
Transcript, p. 7431. ↩
Transcript, p. 7601. ↩
Transcript, p. 6928. ↩
Transcript, p. 7648. ↩
The Washington Post (May 6, 1989); The New York Times (May 6, 1989). ↩
Transcript, pp. 8227–8230, 8253–8254. ↩
Transcript, p. 8228. The date was a slip of the tongue; the meeting was actually held on November 23, 1986. ↩
Transcript, p. 7111. Later that same year, Reagan called North a “national hero” in an interview with Time (December 8, 1986). He again called North a “hero” on March 25, 1988 (The New York Times, March 26, 1988). ↩
Transcript, p. 8239. ↩
Report of the President’s Special Review Board (February 26, 1987), pp. I-1, IV-10, 11. The board was made up of John Tower, chairman, Edmund Muskie, and Brent Scowcroft. ↩
Report of the President’s Special Review Board, p. III-24. ↩
Men of Zeal, pp. 62–63. ↩
Testimony of Oliver L. North, Report of the Congressional Committees Investigating the Iran-Contra Affair, pp. 245–246. ↩
This finding was signed on September 19, 1983. The Intelligence Oversight Act of 1980 made the President fully accountable for any covert operation by the CIA by requiring him to “find” that “each such operation is important to the national security of the United States” and to report “in a timely fashion, a description and scope of such operation to the appropriate committees of Congress.” ↩
In his deposition before the Senate Select Committee, June 22, 1987, Baker was confused about the June 25, 1984, meeting, which he thought had taken place in the fall of 1984. Though Baker is not listed as a participant in the earlier NSPG meeting, he claimed to recall a similar discussion at the later meeting. When he was asked what his view had been, he replied: “My view was that we should take a very close look at that question and I so stated in the meeting. And it was my view that we could not do indirectly what we could not do directly. My recollection is that a similar reservation was expressed by Secretary Shultz, that the meeting generally concluded with a decision to take a hard look at the legality of third-country solicitations.” ↩
McFarlane confirmed that he had heard Reagan saying words to this effect (transcript, pp. 3944–3945). ↩
No. 58 and No.47 of The Federalist. ↩
McFarlane’s testimony, Congressional Joint Hearings, p. 200. ↩
North trial, McFarlane testimony, transcript, pp. 4203–4204. ↩
Congressional Joint Hearings, McFarlane testimony, p. 23; transcript, p. 4204. ↩
Transcript, p. 4022. McFarlane also referred to “the commitment made to the President in February of 1985 by the head of state of this foreign country” (p. 4027). ↩
Transcript, pp. 6812–6813. North once more referred to “what the President had done with the King of Saudi Arabia” (p. 7326). ↩
This statement appears in No. 16 of the “admitted facts.” The $25 million figure seems to be based on document No. 18, which states that Secretary of Defense Weinberger had “heard” that the Saudi ambassador had “earmarked $25 million for the contras in $5 million increments.” The earmarking had originally come from King Fahd: the sum was $24 million, and the increments were $2 million a month for twelve months. ↩
Transcript, p. 6885. ↩
Quintero’s testimony, transcript, pp. 2877–2878, 2946–2949. ↩
Congressional Joint Hearings, Testimony of Richard V. Secord (May 5, 1987), p. 61. ↩
“Admitted Facts,” No. 51, pp. 20–21. ↩
“Admitted Facts,” No. 57, p. 23. ↩
“Admitted Facts,” No. 58, p. 23. ↩
The Washington Post (April 12, 1989). At his confirmation hearings on his nomination as US ambassador to Mexico before the Senate Committee on Foreign Affairs on April 6, 1989, Negroponte insisted that he had not been “aware of” any quid pro quo at the Bush-Suazo meeting and that the only issue had been “the rate at which that [US] assistance was released to Honduras” (pp. 54, 58). It appears from his testimony that the aid to Honduras had already been worked out and that only its “expedition” was left for Bush to discuss. ↩
The Washington Post (April 12, 1989). ↩
See A Report of the Select Committee on Intelligence, United States Senate, June, 1989. ↩
“Admitted Facts,” Nos. 62–64, pp. 25–26. At his confirmation hearing as US ambassador to Mexico, Negroponte disclosed that he had heard about President Reagan’s telephone call to President Suazo from Suazo himself (p. 57). ↩
Cited by William Prochnau, The Washington Post Magazine (June 18, 1989). ↩
I have had two typical brushes with the classification system. ↩
I am indebted to Malcolm Byrne of the National Security Archive, Washington, DC, for his counsel and assistance in the preparation of this article. ↩