Defense Secretary Caspar W. Weinberger lied to investigators to conceal his knowledge of the Iran arms sales. Contrary to Weinberger's assertions, a small group of senior civilian officials and military officers in the Department of Defense (DoD), comprised of Secretary of Defense Caspar W. Weinberger and his closest aides, was consistently informed of the arms shipments to Iran in 1985 and 1986.
The OIC uncovered documents and notes and obtained testimony, which had been withheld from the Tower Commission and the Select Committees. The most important new evidence was Weinberger's own detailed daily diary notes and his notes of significant White House and other meetings regarding arms shipments to Iran. These notes, along with withheld notes of other Administration officials and additional documents that were obtained from DoD, revealed that Weinberger and other high-level Administration officials were much more knowledgeable about details of the Iran arms sales than they had indicated in their early testimony and statements.
This evidence formed the basis for the 1992 indictment of Weinberger. It also provided Independent Counsel with valuable, contemporaneous information concerning high-level participation in Iran/contra activities.
Senior officials outside the DoD, including National Security Advisers Robert C. McFarlane and his successor John M. Poindexter, kept Weinberger informed of proposals and developments. Weinberger also participated in meetings on this topic with President Reagan and other members of the National Security Council. In addition, beginning in September 1985, Weinberger, along with McFarlane and Director of Central Intelligence William J. Casey, regularly received highly classified intelligence reports containing detailed information on the negotiations and activities of Iranian government officials, private Iranian intermediaries, representatives of Israel, and the terrorists who were holding American citizens hostage. Weinberger's aides gave him additional information, which they acquired by reading the intelligence reports, from meetings and primarily from informed counterparts at the CIA, the Department of State and the NSC staff.
Throughout 1986, Weinberger continued to receive intelligence reports regarding arms-for-hostages negotiations and arms deliveries, and he continued to discuss these activities with other senior officials.1
1 After the revelation of the Iran intiative, Weinberger stated that he had ``seriously contemplated resignation'' in January 1986 but decided against it. (Weinberger, Fighting for Peace: Seven Critical Years in the Pentagon (Warner Books, 1990), pp. 383-84 (hereafter, ``Weinberger, Fighting for Peace''). No contemporaneous document corroborates this claim.
Origins of the Arms Shipments
On June 17, 1985, McFarlane sent a draft memorandum -- a proposed National Security Decision Directive (NSDD) by President Reagan titled ``U.S. Policy Toward Iran'' -- for review and comment to Secretary of State George P. Shultz and to Weinberger.2 Among other things, the proposed presidential memorandum stated that the first component of new U.S. policy would be to
2 Memorandum from McFarlane to Shultz and Weinberger, ``Subject: U.S. Policy Toward Iran,'' 6/17/85, AKW 001713-20.
[e]ncourage Western allies and friends to help Iran meet its import requirements so as to reduce the attractiveness of Soviet assistance and trade offers, while demonstrating the value of correct relations with the West. This includes [the] provision of selected military equipment as determined on a case-by-case basis.3
3 Ibid., AKW 001719.
After reading the memorandum, Weinberger scrawled a covering note to his senior military assistant, U.S. Army Major General Colin L. Powell:
This is almost too absurd to comment on -- By all means pass it on to Rich[ 4] -- but the assumption here is 1) that Iran is about to fall; + 2) we can deal with them on a rational basis -- It's like asking Quadhaffi to Washington for a cozy chat 5
4 Richard L. Armitage, Assistant Secretary of Defense for International Security Affairs.
5 Weinberger Note, circa 6/18/85, ALZ 0049658. Powell also delivered a copy of the draft NSDD, with a typed version of Weinberger's note, to Deputy Secretary of Defense William Howard Taft IV, who reviewed it on June 20, 1985. (ALZ 004401 (``DEP SEC HAS SEEN'').)
Assistant Secretary of Defense for International Security Affairs Richard L. Armitage subsequently drafted a response with input from Fred Ikle, the under secretary of defense for policy.6 On July 16, 1985, Weinberger sent McFarlane a memorandum that opposed issuing the draft NSDD and stated that ``[u]nder no circumstances . . . should we now ease our restriction on arms sales to Iran.'' 7
6 Memorandum from Armitage to Ikle, 7/13/85, ALZ 0071353-62 (transmitting alternative draft memoranda for Weinberger's consideration in responding to McFarlane); Memorandum from Armitage to Weinberger, 7/16/85, ALZ 004400.
7 Memorandum from Weinberger to McFarlane, 7/16/85, AKW 001710. Shultz had sent McFarlane a similar response to the draft NSDD. (Memorandum from Shultz to McFarlane, 6/29/85, AKW 005357 (``I . . . disagree with the suggestion that our efforts to reduce arms flows to Iran should be ended.'').)
During July 1985, Weinberger learned from McFarlane of Israeli intelligence information regarding Iranians who were interested in opening a dialogue with the west. On July 13, 1985 -- the day of President Reagan's surgery at Bethesda Naval Hospital -- he informed Shultz and Weinberger. McFarlane sent an ``eyes only'' back-channel cable to Shultz that he had met with an Israeli emissary, who had identified the Iranian contacts as Ayatollah Karoubi and an adviser to the Prime Minister named Manucher Ghorbanifar. The Israeli emissary reported that the Iranians were confident that they could achieve quickly the release of seven U.S. citizens held hostage in Lebanon. They wanted delivery of 100 TOW missiles from Israel so that they (the Iranians) could show some gain from their dealings with the west.8 McFarlane gave the same report to Weinberger, who was at his home in Washington.9
8 Cable from McFarlane to Shultz, 7/13/85, ALV 005092-95 (Shultz file copy).
9 In his 1990 book, Weinberger noted McFarlane's testimony regarding his July 13 briefings of Shultz and Weinberger, but dismissed it sarcastically:
His ``recollection'' . . . exceeds mine on this, as it did on many other points. I recall no such meeting. July 13 was the Saturday the President was operated on for abdominal cancer; and I was going over office papers in the garden at our home in McLean, Virginia, and not being briefed by McFarlane.
(Weinberger, Fighting for Peace, p. 366.) In fact, Weinberger's diary entries for July 13, 1985 -- which are part of the voluminous Weinberger note collection that the OIC first located in 1991 -- memorialize five separate conversations, apparently by telephone, with McFarlane, plus Weinberger's conversation with General Powell, regarding a conversation Powell had had with McFarlane. (Weinberger Diary, 7/13/85, ALZ 0039537H-37J.)
Although none of these diary entries record substantive information regarding hostages, Israel or Iran, that omission could reflect Weinberger's apparent decision to make no detailed notes during July and early August 1985 regarding this activity. (See, e.g., Weinberger Diary, 8/6/85, ALZ 0039585-87 (no notes of a White House meeting on Iran, which Weinberger later testified he attended on this date)). On Monday, July 15, 1985, Weinberger did make a cryptic diary entry -- ``Saw Colin Powell -- re proposed Iran'' -- that is consistent with McFarlane's testimony about his disclosures to Weinberger two days earlier. (Weinberger Diary, 7/15/85, ALZ 0039539.)
In late July and August 1985, Weinberger attended meetings of senior Reagan Administration officials where this opening to Iran, through Israel, was discussed in detail. General John W. Vessey, Jr., the Chairman of the Joint Chiefs of Staff (JCS), recalled that Weinberger told him incredulously, after attending a White House meeting in the summer of 1985, that someone had proposed contacts with Iran.10 Weinberger himself testified that he recalled attending a White House meeting in August 1985 regarding the proposed NSDD on a new policy toward Iran.11
10 Vessey, Select Committees Deposition, 4/17/87, pp. 30-31. In a subsequent interview, Vessey elaborated, explaining that Weinberger had first offered Vessey a ride to the White House meeting and then, after checking, had to tell Vessey that he was not invited. The next day, Weinberger told Vessey that he `` `wouldn't believe what was being proposed,' namely, negotiation with the Iranians.'' (Vessey, FBI 302, 6/11/92, p. 1.)
11 Weinberger, Select Committees Testimony, 7/31/87, pp. 88-89; cf. Weinberger, Tower Commission Testimony, 1/14/87, p. 5 (``I do not have memory of an August [1985] meeting as such, but I gather that there was an August [1985] meeting, and there was certainly a meeting with the President upstairs in the residence after he got out of the hospital.'').
According to McFarlane, President Reagan, after meeting with his senior advisers in July and August 1985 and hearing the objections raised by Weinberger and Shultz, gave McFarlane oral authorization for Israel to transfer U.S.-made arms to Iran, which the United States would replenish, to get the hostages released.12 McFarlane recalled communicating the President's decisions to Weinberger.13
12 McFarlane, FBI 302, 3/20/92, p. 2. In President Reagan's August 23, 1985, diary entry, which he made available for review to Independent Counsel, in excerpted form, he wrote that he had ``received `secret phone' call from Bud McFarlane -- seems a man high-up in the Iranian govt. believes he can deliver all or part of the 7 kidnap victims -- I had some decisions to make about a few points -- but they were easy to make -- now we must wait.''
13 McFarlane, FBI 302, 3/20/92, pp. 3, 5, 6, 7, 9.
Israel's Initial TOW Missile Shipments and the September 1985 Release of the Reverend Weir
In late August 1985, after McFarlane learned that Israel and Iran had agreed on a shipment of 100 TOW missiles,14 he met with Weinberger at the Pentagon.15 Powell, who attended the meeting,16 recalled that McFarlane gave Weinberger ``a sort of history of how we got where we were on that particular day'' 17 and reported that there ``was to be a transfer of some limited amount of materiel.'' 18 Weinberger's diary shows that, in a subsequent conversation with McFarlane, Weinberger advocated an agreement with the Iranians that would release all U.S. citizens being held hostage in Lebanon.19 Weinberger's diary also shows that he and his senior aides devoted significant time during late August and September of 1985 to planning for the release of hostages,20 and that he approved a plan for a senior military officer 21 to represent the DoD at a meeting with Iranian representatives in Europe during that period.22
14 Ibid., p. 3.
15 Weinberger Diary, 8/22/85, ALZ 0039605 (``Bud McFarlane fm [from] AF1 [Air Force One] -- wants to meet with me tonight -- ''); Powell, Select Committees Deposition, 6/19/87, pp. 5-8, 52.
16 Powell, FBI 302, 12/5/86, p. 1; Powell, Select Committees Interview Memorandum, 4/17/87, p. 2, AMY 000561. Although Powell could not supply a precise date for this meeting (Powell, Select Committees Deposition, 6/19/87, p. 39, placing this meeting ``in the summer'' of 1985), Weinberger's diary indicates that the meeting occurred in his office on August 22, 1985, and was attended by Weinberger, McFarlane, Powell and General Charles Gabriel, the Acting Chairman of the Joint Chiefs of Staff (Weinberger Diary, 8/22/85, ALZ 0039606-07). Weinberger's typed calendar, which corroborates the attendees and the location, indicates that the meeting lasted from approximately 7:30 until 8:10 p.m. (Weinberger Calendar, 8/22/85, LC-007474.)
17 Powell, Select Committees Deposition, 6/19/87, p. 5.
18 Powell, FBI Interview Transcript, 12/5/86, ALZ 0047719-20; accord Powell, Select Committees Deposition, 6/19/87, p. 5; see also Weinberger Diary, 8/22/85, ALZ 0039606-07 (``Bud McFarlane, Charles Gabriel, CP [Powell] in office. Peres sent Israeli Envoy to tell us 2 Iranians offered to return g008some of our kidnappees -- want us to have better attitude toward Iran after Khomeni -- I argued that we tell them we wanted g008all hostages back'') (emphasis in original).
19 Ibid., 8/23/85, ALZ 0039608 (``Conference call -- with Bud McFarlane + General Gabriel -- on Iranian proposal to let us have our Kidnappees -- agreed we should deal directly with Iranians + not thru Israelis + that we should get guarantees that we'll get them all -- + take them off w helos fm Tripoli Beach'').
20 See, e.g., ibid., 8/24/85, ALZ 0039611A; bid., 8/26/85, ALZ 0039613; ibid., 8/29/85, ALZ 0039621-22; ibid., 9/3/85, ALZ 0039627, ALZ 0039630; ibid., 9/11/85, ALZ 0039647-48.
21 The DoD determined in 1993 that the senior military officer's name and all details relating to this subject continue to be classified. See Classified Appendix to this chapter.
22 Weinberger Diary, 8/29/85, ALZ 0039621-22. The senior military officer said that he was not aware that he had ever been considered for a meeting with Iranians and, notwithstanding Weinberger's diary notes, he stated emphatically that he had no knowledge of any dealings with Iranians. (Senior Military Officer, FBI 302, 1/28/92, p. 3.) The senior military officer also said that he never dealt with Oliver North and never heard his name mentioned in connection with the hostage Benjamin Weir's release; he described North as ``simply a staff officer on the periphery. . . .'' (Ibid., pp. 2-3.)
The senior military officer's account conflicts with the contemporaneous evidence. Weinberger's diary relates that the officer embarked on a mission involving travel to Vienna, Austria -- at McFarlane's request and with the approval of Weinberger and General Vessey -- in early September 1985 ``to see if Iranians will release our hostages. . . .'' (Weinberger Diary, 9/6/85, ALZ 0039637; accord Ibid., 8/29/85, ALZ 0039621-22; ibid., 9/3/85, ALZ 0039627, ALZ 0039630; ibid., 9/4/85, ALZ 0039632.) North's notebook quotes Adm. Moreau, who supervised the officer in the JCS chain of command (Senior Military Officer, FBI 302, 1/28/92, p. 2), as reporting on Wednesday, August 28, 1985, that ``[senior military officer]'' had been ``briefed Monday.'' (North Note, 8/28/85, AMX 001340.) On September 4, 1985, he applied for and received a ten-year passport in a false name. (Department of State Passport Application, 9/4/85, ALW 015697 (signed by ``[alias]'' and bearing the Senior Military Officer's photograph); accord ALW 015698 (identification page of passport).) Contemporaneous notes show that North sought a false passport for himself and a second false passport for the Senior Military Officer; that North invoked Moreau's name while making this request; that North was going to Europe with the military officer; that they would be using the aliases; and that their reservations were in the latter alias. (Quinn Note, 8/30/85, ALV 002319 (``Secure call -- Ollie North -- . . . Asked for false passport for trip to Europe -- ''); Ibid., 9/4/85, ALV 002320 (``OLLIE -- One more passport -- DoD -- ''); Raphel Note, 9/10/85, ALW 0045285 (North/[Senior Military Officer] -- to Europe); Platt Note, 9/10/85, ALW 0036312 (``Ollie North, [Senior Military Officer] -- Goode, [false name]''); North Note, 9/4/85, AMX 001723 (``TICKETS & HOTEL: [false name]''); see also Platt Note, 9/10/85, ALW 0036317 (``Armacost heard from Pdx [Poindexter] . . . -- That Ollie + friend going nowhere''); see generally Memorandum for the Record from Martel, ``Subject: Request for Passport Retrieval,'' 11/25/86, ALW 015668 (passport believed issued for Senior Military Officer at the request of Ambassador Robert B. Oakley); Memorandum from Coburn to George, 10/16/87, ALW 015667; Coburn, FBI 302, 10/30/87, p. 3.)
After the Reverend Benjamin Weir was released on September 15, 1985, Weinberger's diary refers to ``a delivery I have for our prisoners.'' 23 Weinberger's notes show that on September 17, 1985, at a ``Family Group'' lunch at the White House with McFarlane, Shultz and Casey, he discussed David Kimche, director general of Israel's Foreign Ministry, who was acting as the ``go between'' in contacts with Iranians.24
23 Weinberger Diary, 9/15/85, ALZ 0039653F.
24 Ibid., 9/17/85, ALZ 0039659.
Weinberger, along with McFarlane and Casey, began to receive intelligence reports that provided further detailed information about dealings with Iran in exchange for hostages. Before September 17, 1985, the Pentagon copies of the first six intelligence reports on this activity were delivered to Adm. Arthur Moreau, assistant to the chairman of the JCS, rather than to Weinberger; 25 Moreau brought his copies to Weinberger's office, however, where they were read by Weinberger and Powell.26 On September 17, Weinberger, through Powell, complained to the originating intelligence agency about not receiving direct delivery of its intelligence reports on this topic.27 Thereafter, and continuing through the end of 1986, these reports, which were issued frequently and on a current basis, were delivered directly to Weinberger. Later in September 1985, these reports disclosed that arms were the currency of United States dealings with Iran.28 In early October 1985, Weinberger noted that the dealings with Iran involved ``arms transfers.'' 29 Weinberger also knew by early October 1985 that NSC staff member Lt. Col. Oliver L. North was involved in these negotiations with Iranians.30
25 AMW 0001918-40. The apparent reason for delivering the Pentagon copy of these intelligence reports to Adm. Moreau during the first weeks of September 1985 was the fact that the senior military officer who was to meet with Iranian representatives during that period reported to the Joint Staff. (Senior Military Officer, FBI 302, 1/28/92, p. 2.) The intelligence reports, in short, were initially delivered to the senior military officer's commanding officers, Moreau and Gen. Vessey, who in turn reported with him to Weinberger. (Ibid., p. 3.) Independent Counsel was not able to obtain additional information regarding Moreau's handling of the initial intelligence reports because he died shortly before Independent Counsel was appointed in December 1986.
26 Powell, FBI 302, 2/24/92, p. 5.
27 Weinberger Diary, 9/17/85, ALZ 0039659.
28 Ibid., 9/20/85, ALZ 0039671; accord Intelligence Report, AMW 0001937.
29 Weinberger Diary, 10/3/85, ALZ 0039703.
30 Ibid., 10/4/85, ALZ 0039704.
Israel's November 1985 HAWK Missile Shipment
In November 1985, McFarlane informed Weinberger that negotiations involving Israelis, Iranians and Americans for proposed weapons transfers in return for hostage releases had resumed.31 Although Weinberger objected, the activity continued. McFarlane specifically informed Weinberger that HAWK missiles were the proposed currency.32
31 Ibid., 11/9/85, ALZ 0039774.
32 Ibid., 11/10/85, ALZ 0039775; ibid., 11/19/85, ALZ 0039795.
In late November 1985, when McFarlane was in Geneva with President Reagan for a summit meeting with Soviet leader Mikhail Gorbachev, he gave Weinberger reports regarding this proposed transaction. On November 19, McFarlane asked Weinberger to get 500 HAWK missiles for sale from the United States to Israel, which would transfer them to Iran in exchange for the release of five hostages on November 21, 1985.33 Weinberger passed this request to Powell,34 who discussed it with Noel C. Koch, the acting assistant secretary of defense for International Security Affairs.35 Powell and Koch directed Henry H. Gaffney, the acting director of the DoD's Defense Security Assistance Agency (DSAA),36 to gather information about the availability of HAWK missiles and the legal restrictions that would apply to the proposed transfer from Israel to Iran.37 Gaffney gave Powell a negative oral report on the proposed shipment,38 and Powell passed this information to Weinberger later that same day. Weinberger's diary entry reads:
33 Ibid., 11/19/85, ALZ 0039795.
34 Powell, Grand Jury, 4/22/92, pp. 57-58.
35 Koch, FBI 302, 3/23/92, p. 9. Koch was acting assistant secretary of defense because Armitage was traveling from November 15 to November 23, 1985. After Armitage returned to the United States in late November, Powell informed him of the activity that had occurred during his foreign trip. (Ibid., pp. 10-11.)
36 Gaffney, who was DSAA's director of plans at the time, was acting director of DSAA during the week of November 18, 1985, because the director, Lt. Gen. Philip Gast, was traveling with the Armitage delegation, and the deputy director, Glenn A. Rudd, was out of town. (Gaffney, FBI 302, 4/9/92, p. 2; Gaffney, Select Committees Interview Memorandum, 4/10/87, pp. 3, 5-6, AMY 000542, AMY 000545-46.)
37 Gaffney, Select Committees Deposition, 6/16/87, pp. 62-63, 73.
38 Ibid., p. 81; Gaffney, Select Committees Interview Memorandum, 4/10/87, p. 8.
Colin Powell in office re data on Hawks -- can't be given to Israel or Iran w/o Cong. notification, -- breaking them up into several packages of 28 Hawks to keep each package under $14 million is a clear violation 39
Weinberger promptly passed this information to McFarlane in Geneva. McFarlane's response was non-committal.40
39 Weinberger Diary, 11/19/85, ALZ 0039797.
40 Ibid.
The next day, McFarlane told Weinberger that, notwithstanding the legal problems raised by Weinberger, President Reagan had decided to send HAWK missiles to Iran through Israel.41 McFarlane later advised Weinberger that only 120 HAWK missiles would be sent, that they would be ``older models,'' and that the hostage release would occur on Friday, November 22, 1985.42
41 Ibid., 11/20/85, ALZ 0039799. There is no record that Weinberger attempted to contact the President to voice his opposition or to seek reconsideration of this decision.
42 Ibid., 11/20/85, ALZ 0039801.
Weinberger continued to discuss this planned HAWK shipment with Powell.43 Powell provided him a succinct ``point paper'' written by Gaffney concerning the practical, legal and political difficulties with the proposed shipment.44 Weinberger's diary shows that he and Powell watched for a hostage release, which did not occur, on November 22, 1985.45 Early the next week, Weinberger received an intelligence report confirming that weapons had been shipped to Iran on November 24, 1985.46 Subsequent reports made clear that these weapons had been HAWK missiles.47
43 Ibid.; ibid., 11/21/85, ALZ 0039802.
44 ``Point Paper: Hawk Missiles for Iran,'' ALZ 000353-54. A second copy of Gaffney's point paper, which is labeled ``REVISED'' in his handwriting but in fact contains only one less word, apparently was located in Weinberger's office complex during an April 1987 search for Iran/contra documents. On April 17, 1987, Col. James F. Lemon, the executive secretary in the Office of the Secretary of Defense, transmitted this version of Gaffney's point paper to the DoD general counsel and the assistant general counsel who were collecting Iran/contra documents, with a cover memorandum explaining that the point paper had been located during a search, conducted at the general counsel's instruction in response to document requests from the Select Committees, of ``the Immediate Office of the Secretary of Defense, the Office of the Deputy Secretary of Defense, and the Office of the Executive Secretariat.'' (Memorandum from Lemon to Garrett and Shapiro, with attached ``Point Paper: Hawk Missiles for Iran,'' 4/17/87, ALZ 0058446-48.)
Although the revised Gaffney point paper and Lemon's cover memorandum were responsive to Independent Counsel's 1987 omnibus requests for DoD documents, they were not made available to the OIC until 1992. There also is no record that the DoD Office of General Counsel ever provided this version of Gaffney's point paper or the information regarding its location in Weinberger's office to the Select Committees. When the Select Committees questioned Weinberger using Gaffney's file copy of the point paper, Weinberger said he did not recall seeing the document contemporaneously. (Weinberger, Select Committees Testimony, 6/17/87, pp. 22, 41.)
45 Weinberger Diary, 11/23/85, ALZ 0039806A (``Colin Powell -- . . . no hostage release last night'').
46 Intelligence report, 11/25/85, AMW 0002001-03 (``Subj: Lebanese Kidnappings: . . . Delivery Made on 24 November 1985'').
47 Intelligence reports, AMW 0002010-12 (12/11/85), AMW 002016-17 (12/12/85).
December 1985 Meetings Regarding Proposals to Transfer Additional Weapons to Iran
During the first week of December 1985, senior DoD officials addressed a proposal to ship additional missiles to Iran in exchange for hostages. On December 2, Assistant Secretary Richard L. Armitage discussed this topic with Menachem Meron, the director general of Israel's Ministry of Defense, who was visiting the United States.48 The next day, Armitage discussed these proposals with North.49 On December 5, Armitage met with retired U.S. Air Force Major General Richard V. Secord, who had just returned from Israel and had been deeply involved in the HAWK missile shipment of late November 1985.50 North prepared a detailed paper for Poindexter that same day which discussed Israel's September 1985 TOW missile shipment to Iran and urged additional Israeli arms shipments to Iran with replenishment by the United States.51
48 Armitage, Meeting Log, 12/2/85, ALZ 016436. Two days after Meron's meeting with Armitage, the Director of DSAA's Israel desk, Diana Blundell, sent an information paper on Israel's HAWK missile systems through DSAA Deputy Director Rudd to Lt. Gen. Gast, the director of DSAA. (Information Paper SUBJECT: Israel -- HAWK Missile System, circa 12/4/85, ALZ 0044276.) Blundell's paper contains detailed information on the status and schedule for improving Israel's HAWK missile batteries, the anticipated schedule for delivering modified missiles to Israel that would be compatible with the improved batteries, and the numbers of basic and improved HAWK missiles that Israel had received from the U.S. in the past. Blundell's cover note transmitting the information paper to Rudd and Gast says that they had requested a paper ``on I-HAWK deliveries to Israel.'' (Memorandum from Blundell through Rudd to Gast, 12/4/85, ALZ 0044275.) Rudd's schedule indicates that, after he, Gast and Blundell had received a farewell ``courtesy call'' from Gen. Meron on December 2, 1985; Rudd, Gast, Blundell and others met the next afternoon ``re: I-HAWK. . . .'' (Rudd Schedule, 12/2/85, ALZ 0044110; ibid., 12/3/85, ALZ 0044110.) This meeting preceded Blundell's paper on I-HAWK deliveries to Israel.
Blundell's information paper and the related Rudd schedule documents are consistent with a response to an Israeli request during the first week of December 1985 for prompt replenishment of the 18 HAWK missiles that Israel had transferred to Iran the previous week. Armitage, one possible source of such a request, did not recall possessing knowledge in early December 1985 of Israel's HAWK shipment. Because the Blundell and Rudd documents were not produced by DoD to the OIC until 1992 (and apparently never were produced to the Select Committees), the OIC did not pursue the matter after Blundell stated in 1992 that she had no recollection whatsoever of the events that prompted her 1985 information paper. (Blundell, FBI 302, 5/29/92, pp. 4-5.)
49 Armitage Meeting Log, 12/3/85, ALZ 016437 (``1230-1345 Ollie North -- Lunch in office'').
50 Ibid., 12/5/85, ALZ 016439 (``1300 -- Gen Secord'').
51 See Armitage section below.
On or about December 5-6, Armitage obtained an information paper from DSAA regarding the proposed shipment outlined in North's paper. This paper, a one-page analysis titled ``Prospects for Immediate Shipment of I-HAWK and I-TOW Missiles,'' was drafted by DSAA Deputy Director Glenn A. Rudd and Gaffney.52 The paper reported that up to 75 I-HAWK missiles were available in the United States for foreign shipment and quoted a ``total package price'' of $22.5 million ``for [shipping] 50. . . .'' It reported that ``3,300 I-TOWs'' could be shipped from U.S. Army stocks ``immediately. . . .'' 53 Armitage, in collaboration with State Department official Arnold L. Raphel, 54 also created a second information paper, using a draft by Rudd and Gaffney, titled ``Possibility for Leaks.'' The ``Leaks'' paper addresses the legal implications of transferring ``I-HAWKs in the quantity contemplated'' and ``the I-TOW quantities'' and says that ``[t]here is no good way to keep this project from ultimately being made public.'' 55
52 Gaffney, Select Committees Deposition, 6/22/87, p. 24 (joint deposition with Rudd).
53 Prospects for Immediate Shipment of I-HAWK and I-TOW Missiles, ALZ 0058747.
54 Raphel served as the principal deputy assistant secretary of state in the Bureau of Near Eastern and Asian Affairs (NEA) during 1985 and 1986.
55 Possibility for Leaks, ALZ 004343.
By Thursday, December 5, 1985, Weinberger had learned that President Reagan would be meeting with his senior advisers on Saturday, December 7 to discuss this proposal.56 Weinberger and Powell, who had been out of the country from December 2 to 6, 1985,57 met with Armitage early that Saturday morning to discuss the information papers Armitage had assembled in preparation for Weinberger's meeting with the President.58
56 Weinberger Diary, 12/5/85, ALZ 0039827 (``Colin Powell in room -- re meeting Saturday with President on Iran hostages + TOW's'').
57 Ibid., 12/2/85, ALZ 0039818 (departure for Europe); ibid., 12/6/85, ALZ 0039829 (return to U.S.).
58 Ibid., 12/7/85, ALZ 0039830 (``Met with Colin Powell + Rich Armitage -- re NSC Plan to let Israelis give Iranians 50 Hawks + 3300 TOWs in return for 5 hostages -- NSC will present it as a means of helping group that wants to overthrow gov't -- But no g722assu assurance that any of this g722goes -- weapons will go to Iranian Army.'').
At the White House meeting, Weinberger -- supported by Shultz and White House Chief of Staff Donald T. Regan -- argued against any more arms shipments to Iran.59 Weinberger specifically told President Reagan that he could not violate the United States embargo on arms shipments to Iran, and that ``washing'' an arms transfer through Israel would not make it legal.60 The President rejected these legal arguments,61 but he announced no decision by the end of the meeting. Later that day, McFarlane advised Weinberger that the President had decided not to trade more arms for hostages, but instead was sending McFarlane to London to meet with the Iranians and to discuss the possibility of Great Britain selling arms to them.62
59 Ibid., 12/7/85, ALZ 0039831.
60 Ibid. (``I argued strongly that we have an embargo that makes arms sales to Iran illegal + President couldn't violate it -- + that `washing' transaction thru Israel wouldn't make it legal. Shultz, Don Regan agreed.'').
61 Ibid. (``President sd. he could answer charges of illegality but he couldn't answer charge that `big strong President Reagan passed up a chance to free hostages'.'').
62 Ibid., ALZ 0039832, ALZ 0039838 (``Called McFarlane in Washington -- he is going to London to advise President's decision that we will g008not ransom our hostages -- he will discuss with UK Possibility of their selling some arms to negotiators.'') (emphasis in original).
Early the next week, after McFarlane had returned from London, Weinberger attended another White House meeting with the President and senior officials to discuss proposed arms shipments to Iran. Weinberger took detailed notes during this December 10, 1985, meeting. McFarlane told the group that the United States had an outstanding commitment to supply 500 replacement TOW missiles to Israel.63 The meeting ended with an apparent decision by President Reagan not to send additional arms to Iran at that time but to pursue diplomatic contacts in an attempt to free the hostages.64
63 Weinberger Meeting Notes, 12/10/85, ALZ 0040645 (``We still must replace 500 TOWs to Israel'').
64 Weinberger Diary, 12/10/85, ALZ 0039840 (``President still wants to try to get hostage released -- But forcible storming would mean many deaths -- decided to send Dick Walters to Damascus [with classified message].'').
January 1986 Meetings and President Reagan's Decision To Proceed With Direct Weapons Transfers From the United States to Iran
In January 1986, Israel proposed additional weapons shipments to Iran. On January 6, Poindexter briefed Weinberger regarding Israel's proposal to transfer 4,000 TOW missiles from Israel to Iran, with a commitment from the United States to replenish Israel's TOW-missile stocks.65 The next day, Weinberger attended a White House meeting with President Reagan and other senior officials. Weinberger voiced his continuing objections to this proposal.66 The next week, Weinberger received a briefing from Koch, the principal deputy assistant secretary of defense for International Security Affairs, who had been negotiating details relating to these shipments with an Israeli arms procurement official.67 After hearing Koch's progress report, Weinberger commented that somebody was going to go to jail.68
65 Weinberger Meeting Note, 1/6/86, ALZ 0042650-51 (``Nir proposed selling 4000 TOWs (unimp. [unimproved]) -- No launchers -- + Israelis would deliver 500 via Israeli plane -- if all 5 US hostages released -- then Israelis want 4000 TOW replacements, + If they are g722cauget caught they would want us to acknowledge that we kneg008w of it + did not object.'') (emphasis in original). Weinberger Diary, 1/6/86, ALZ 0039880 (``John Poindexter in office. Another Israeli-Iranian scheme offering freedom to hostages in return for TOW missiles -- Told him I opposed it.'').
66 Weinberger Meeting Note, 1/7/86, ALZ 0042655; Weinberger Diary, 1/7/86, ALZ 0039883 (``Met with President, Shultz, Poindexter, Bill Casey, Ed Meese, in Oval Office -- President decided to go with Israeli-Iranian offer to release our 5 hostages in return for sale of 4000 TOWs to Iran by Israel -- George Shultz + I opposed -- Bill Casey, Ed Meese + VP favored -- as did Poindexter.'').
67 Ibid., 1/14/86, ALZ 0039901 (``Colin Powell + Noel Cook [sic -- Koch] in office -- re changes in Iran offer on hostages -- '').
68 Koch, Select Committees Testimony, 6/23/87, pp. 76, 187-88 (``I said to him -- and I did not say it in a very serious way -- it may not sound in context as an opportunity for levity, but I said, do we have a legal problem with this, is somebody going to go to jail, and his response was in the affirmative. But I didn't take that seriously. . . . I hadn't intended it seriously when I asked the question. We had the shared background of Watergate to bounce some of these perceptions off of, so there was that. Chiefly I assumed if there was any prospect of it being illegal, that he would have stopped it. . . . [S]ince he didn't leave, I assumed it was legal.'').
President Reagan ultimately decided that the United States would deal with Iran directly, rather than through Israel. On January 16, 1986, Weinberger attended a White House meeting with Casey, Attorney General Edwin Meese III and CIA General Counsel Stanley Sporkin regarding a proposed presidential Finding that would authorize covert arms shipments from the CIA to Iran.69 Although Weinberger continued to offer legal objections,70 President Reagan signed the Finding the next day. Weinberger, through General Powell, then directed the DoD bureaucracy to make missiles available to the CIA.71 Weinberger explicitly directed subordinates that DoD was not to be involved in shipping arms to Iran beyond selling the missiles to CIA.72
69 Weinberger Diary, 1/16/86, ALZ 0039906A (``Met with John Poindexter, McLaughlin -- re ways to increase aid + financing for Lebanon -- Bill Casey -- Ed Meese -- Stanley Sorkin [sic -- Sporkin]''); Sporkin, Select Committees Testimony, 6/24/87, pp. 126-28.
70 Weinberger Diary, 1/17/86, ALZ 0039906D (``Saw Colin Powell -- re acts prohibiting sales to Iran[;] Colin Powell (2) to Car -- citation to statute above[;] Lunch with Shultz, Bill Casey, John Poindexter in W.H. [White House] Family Dining Room, re attempts to get hostages back from Hizballah -- Told him of Statutes forbidding sales to Iran.'').
71 Powell, FBI 302, 7/6/87 & 7/9/87, p. 1.
72 Weinberger Diary, 1/24/86, ALZ 0039919 (``Noel Koch -- in office -- with Colin Powell -- re Iranian-Hizbollah hostage release -- we are not to be involved in this beyond selling to CIA'').
DoD Knowledge of Weapons Transfers to Iran During 1986
Throughout 1986, Weinberger received periodic but detailed reports, which he recorded in his handwritten notes, concerning arms shipments to Iran to recover the hostages. In February 1986, at a ``Family Group'' lunch with Casey, Shultz and Poindexter, Weinberger was briefed on the schedule for sequential TOW missile shipments and hostage releases.73 In March 1986, Weinberger learned of a proposal to send McFarlane to meet with the Iranians.74 In April 1986, Weinberger learned that, in addition to the TOW missiles that had already been sent, HAWK missile parts would now be transferred to Iran, and that McFarlane and North would be traveling to Iran.75 In May 1986, Weinberger discussed with Shultz intelligence reports demonstrating that McFarlane would be bringing military equipment to Iran without a commitment that all U.S. hostages would be released.76 Near the end of May 1986, Weinberger learned that McFarlane's trip to Iran had ended in failure.77 In July 1986, Weinberger received a briefing from Michael Ledeen, the former NSC and DoD consultant who had participated in the 1985 negotiations with Israelis and Iranians before his dismissal by Poindexter.78 In late July 1986, Weinberger was informed that hostage Father Lawrence Martin Jenco had been released in Lebanon due to Iran's intervention and in an effort to obtain ``more US weapons.'' 79 In October 1986, Poindexter informed Weinberger of a new channel to Iran through Rafsanjani's nephew.80
73 Weinberger Meeting Note, 2/11/86, ALZ 0040652D-52E.
74 Weinberger Diary, 3/4/86, ALZ 0040006B (``Attended lunch with John Poindexter -- in his WH [White House] office -- re Iran hostages. (About delays and demands -- McFarlane will go as rep. to meeting if they agree.)'').
75 Ibid., 4/10/86, ALZ 0040065 (``Saw Don Jones -- re cables fm [from] Will Taft -- on addl [additional] attempts to buy our kidnappees' release -- with g722sp Hawk equipment -- ''); Weinberger Diary, 4/13/86, ALZ 0040072 (``[Saw] Will Taft -- . . . also re g722sam Iran hostages -- McFarlane, North going to Iran -- idiocy -- '').
76 Ibid., 5/13/86, ALZ 0040147-48.
77 Ibid., 5/29/86, ALZ 0040165.
78 Ibid., 7/24/86, ALZ 0040303.
79 Ibid., 7/30/86, ALZ 0040312.
80 Ibid., 10/3/86, ALZ 0040458.
Weinberger complied with President Reagan's decision by selling weapons and weapons parts from DoD to CIA for onward shipment to Iran on three occasions. In February 1986, TOW missiles were sold to CIA and ultimately transferred to Iran. In May 1986, HAWK missile parts were sold by DoD to CIA and ultimately, in a partial shipment with McFarlane that month and in a second shipment in early August, transferred to Iran. In October 1986, additional TOW missiles were sold by DoD to CIA and ultimately transferred to Israel, which retained some as replenishment for earlier shipments and transferred others to Iran, producing the release of hostage David Jacobsen. Weinberger's senior military assistant informed him at the time each of these transfers to the CIA took place.81 Weinberger also continued to receive intelligence reports on this activity throughout 1986, which provided detailed information on dealings with Iran and arms shipments in exchange for hostages.82
81 Jones, FBI 302, 3/24/92, pp. 2, 6.
82 Weinberger Diary, 5/13/86, ALZ 0040146-48; ibid., 10/30/86, ALZ 0040506.
Independent Counsel's Investigation
Investigation of the DoD, 1986-1990
Before the discovery of Weinberger's notes in 1991, Independent Counsel's investigation had focused primarily on DoD's sale of missiles and missile parts to the CIA in 1986, and on the involvement of military officials in contra resupply activity. The inquiry into the 1986 Iran arms sales was intended primarily to obtain a thorough understanding of the mechanics of the transactions, the pricing of the TOW missiles, and whether DoD officials involved in the pricing or transfer had knowledge of the diversion of profits from the arms sales. No prosecutions resulted from this aspect of the investigation.
Weinberger was interviewed twice as a witness.83
83 Weinberger, FBI 302, 12/1/86; Weinberger, FBI 302, 4/7/88.
Discovery of Weinberger's Notes
Beginning in 1987, congressional investigators and the OIC repeatedly requested notes, calendars, telephone logs, diaries and other materials relevant to the Iran/contra matter from Weinberger and other high Administration officials. Weinberger produced a typewritten memorandum of one meeting, a few documents containing his handwritten marginalia, and official calendars and activity logs that were maintained by his staff. It was not until the late summer of 1990 that OIC obtained a document suggesting that he had withheld relevant handwritten notes.
An August 7, 1987, note by Secretary of State Shultz's executive assistant, M. Charles Hill, led investigators to reexamine earlier Weinberger statements regarding notes.84 In one OIC interview, Weinberger had referred to ``a habit of making notes on any piece of paper he could get his hands on.'' 85
84 Shultz told Hill that ``Cap takes notes but never referred to them so never had to cough them up.'' (Hill Note, 8/7/87, ALW 0056370.)
85 Weinberger, FBI 302, 4/7/88, p. 2.
In late August 1990, Weinberger was subpoenaed to produce relevant documents, including any handwritten notes, to the Grand Jury. On September 13, 1990, his attorney assured the OIC that Weinberger had previously turned over his notes to the congressional committees investigating the Iran/contra matter or to the Library of Congress. Subsequently, Weinberger agreed to be interviewed. On September 28, 1990, in arranging the interview, Weinberger's attorney was told that two sources of information -- Weinberger's previous interview with the OIC and a newly discovered document 86 -- indicated that Weinberger had not turned over relevant notes to Congress.
86 The August 7, 1987, Charles Hill note.
On October 10, 1990, Weinberger, accompanied by his counsel, was interviewed by OIC attorneys in the presence of an FBI Special Agent.87 At that time, his counsel asked to see a record of the April 7, 1988, interview. After reviewing it, Weinberger said that he disagreed with that portion of the report that stated: ``he had a habit of making notes on any piece of paper he could get his hands on.'' Weinberger characterized the statement as ``misleading'' because it implied that it was his habit to make notes throughout his seven years as secretary of defense, which he said was not the case. Weinberger stated that during his first year as secretary of defense he had taken notes on the backs of pages in his briefing books. He said his personal secretaries initially had saved these notes for him so that he could dictate memoranda. He said he discontinued that practice after about a year, when it became apparent that he would not have time to dictate memoranda.88 Weinberger stated that, after his first year in office, he did not regularly take notes at meetings or make a record of meetings when he returned to his office; he did not take notes of his phone calls; and he had not deliberately withheld anything from Iran/contra investigators. During the interview, Weinberger was told that a document, contemporaneously written by someone Weinberger would consider credible, said that Weinberger had withheld some of his relevant Iran/contra notes.89 Weinberger denied the allegation and stated he was distrustful of the author and his motivations.
87 The following account of the OIC's October 10, 1990, interview of Weinberger is based upon the FBI Record of Interview, also referred to as a ``302.''
88 At the beginning of the October 10, 1990, interview, Weinberger produced an October 1, 1990, memorandum by Kay D. Leisz, his executive assistant at that time and throughout his tenure at the DoD, regarding the OIC's request for Weinberger's notes. Leisz's memo echoed Weinberger's assertion that, other than notes he took in his briefing books during his first year as Secretary of Defense, no notes were retained. (Memorandum for the Record by Leisz, 10/1/90, ALZ 0051360.)
89 The August 7, 1987, Hill note.
Weinberger and his counsel were permitted to review the FBI agent's October 10, 1990, interview report when they returned to the Office of Independent Counsel for another interview on December 3, 1990.90 Both Weinberger and his counsel complimented the report's accuracy and thoroughness and contrasted it favorably with the report of the 1988 interview, which had suggested he was an avid notetaker.
90 Weinberger's counsel had asked to review the FBI report of the October 10, 1990, interview because of Weinberger's criticisms of the earlier FBI report.
Between the October and December 1990 interviews, the OIC obtained Weinberger's permission to review his papers at the Library of Congress. Assuming that any documents relating to Iran/contra were classified 91 and relying on Weinberger's statements that the few notes he took were scribbled on the backs and margins of documents in his briefing books, OIC investigators asked both DoD and Library of Congress personnel where such materials would be located. The investigators were directed to the classified subject list in the Library's index to the Weinberger collection.92 Investigators found no collection of notes among the materials they examined.
91 Almost all high-level documents regarding the Iran arms sales and the Reagan Administration's efforts to obtain foreign support for the contras are highly classified.
92 In what may have been a misunderstanding, the OIC investigators did not believe they were at liberty to examine other parts of the index and therefore did not see the references to diary and meeting notes in the description of unclassified material.
When OIC investigators returned to the Library of Congress in November 1991, they reviewed the entire index and found thousands of pages of diary and meeting notes that Weinberger had created as secretary of defense. These notes, which contained highly classified information, had been stored in the unclassified section of the Weinberger collection.93
93 The OIC immediately informed the Library of Congress and the Department of Defense of the security breach. After reviewing Weinberger's notes, the DoD determined that ``classified information [had] inadvertently been included in the unclassified portion of the Weinberger collection at the Library of Congress'' and recalled Weinberger's diary notes and activity logs to the Pentagon pending a formal security review. (Letter from Sterlacci to Stansbury, 6/12/92, 019316.)
Weinberger's notes proved to be an invaluable contemporaneous record of the views and activities of the highest officials regarding those sales.94 They revealed, among other things, that contrary to his sworn testimony, Weinberger knew in advance that U.S. arms were to be shipped to Iran through Israel in November 1985 without congressional notification, in an effort to obtain the release of U.S. hostages, and that Israel expected the United States to replenish the weapons Israel shipped to Iran. Weinberger's notes also disclosed that, contrary to his sworn testimony, he knew that Saudi Arabia was secretly providing $25 million in assistance to the contras during a ban on U.S. aid.
94 During his interview with the Tower Commission, Weinberger lamented the fact that there were not ``accurate minutes taken of all [NSC and NSPG] meetings.'' (Weinberger, Tower Commission Interview, 1/14/87, pp. 43-44.) He conceded that someone might have taken notes of the relevant meetings but said, ``I don't know of any.'' (Ibid., p. 46.) Weinberger recommended strongly that accurate records be kept of such meetings in the future to show ``who said what to whom and when.'' (Ibid., pp. 44, 46.)
Investigation, Indictment and Pretrial Proceedings in United States v. Weinberger
By late January 1992, Weinberger's conduct had become a focus of the OIC's investigation.95
95 In the course of the Weinberger investigation, the OIC requested and reviewed numerous DoD documents relating to the Iran arms sales and DoD's document-production efforts, and questioned more than 25 witnesses in interviews and in the Grand Jury. The central witnesses included Weinberger's personal secretaries at DoD, Kay D. Leisz and Thelma Stubbs Smith; former DoD General Counsel H. Lawrence Garrett III; former DoD Assistant General Counsel Edward J. Shapiro; former DoD officials Richard L. Armitage and William H. Taft IV; General Colin L. Powell; and Library of Congress personnel.
On March 30, 1992, the OIC notified Weinberger that he was a target of a federal Grand Jury investigation of possible crimes, including obstruction, false statements and perjury. Independent Counsel invited Weinberger's voluntary testimony before the Grand Jury. Although Weinberger ultimately declined to appear before the Grand Jury or make any statements before an FBI Agent, he did, at his request, make his own presentation to Independent Counsel and other OIC attorneys on May 12, 1992. In addition, in extended efforts to resolve the matter, OIC attorneys met frequently and at length over a 10-week period with Weinberger's counsel.96
96 Independent Counsel recognized that Weinberger had a distinguished public career and that he had strongly opposed the Iran arms sales. OIC representatives met with Weinberger's attorneys on at least 12 separate occasions between April 1 and May 13, 1992. After Weinberger's counsel requested additional time to work with their client, Independent Counsel agreed not to present a proposed indictment to the special Iran/contra Grand Jury whose two-year term expired on May 15, 1992. Independent Counsel met with Weinberger's attorneys on June 2, 1992, to permit a final presentation by them. Subsequently an indictment was presented to and returned by a different Grand Jury.
In the course of these discussions, Independent Counsel asked Weinberger to provide complete and truthful information on a range of topics, including positions that Reagan Administration officials took before Congress and the public in November 1986. Weinberger and his counsel insisted, however, that Weinberger had no information to provide that went beyond his previous statements. Weinberger and his counsel claimed that Weinberger had never associated his diary notes with Iran/contra document requests because his note-taking was as habitual and unconscious as brushing his teeth. They also claimed that none of Weinberger's aides had asked him to produce his notes. Weinberger denied present knowledge of the information recorded in his handwritten diary and meeting notes and would not acknowledge the inconsistencies between his notes and his testimony. In an effort to demonstrate that Weinberger lacked criminal intent, his attorneys also submitted to the OIC a report of a private polygraph examination of Weinberger and a psychologist's report regarding Weinberger's memory. Both concluded that Weinberger had not intentionally concealed his notes from Congress or the OIC.97
97 The polygraph report concluded that no deception was indicated when Weinberger denied having intentionally misled or lied to Iran/contra investigators about his diary notes, denied having deliberately withheld his diary notes, and denied misleading investigators about his knowledge of arms transfers to Iran from August through November 1985. (Polygraph Examination Report, 5/5/92, ALZ 0046855-56.) The psychologist's report concluded that Weinberger's note-taking was so ``routine, compulsive and habitual'' that it was not ``stored in memory for easy retrieval'' and that the questioning of Weinberger ``lacked sufficient specificity'' to trigger a recollection of his notes. (Letter from Fishburne to Bennett, 6/1/92, pp. 3-4, ALZ 0047613-14.) Although Fishburne apparently reviewed Weinberger's congressional deposition, in which Weinberger was questioned about his note-taking (Ibid., p. 1), he did not review other evidence the Government would have used at trial to show Weinberger's consciousness of his notes.
The district court later ruled that neither the polygraph examination result nor expert testimony on memory could be admitted at trial. (Memorandum Opinion and Pretrial Order No. 15, United States v. Weinberger, Crim. No. 92-0235-TFH (D.D.C. Dec. 21, 1992).)
The OIC found Weinberger's presentations unconvincing. Independent Counsel thereafter presented an indictment to the Grand Jury, which was returned on June 16, 1992.
The indictment contained five felony counts charging Weinberger with:
-- Count One, obstruction of a congressional investigation by concealing and withholding relevant notes;
-- Count Two, making false statements to Congress regarding his knowledge of Saudi Arabia's funding of the contras;
-- Count Three, perjury before Congress about his knowledge of the planned shipment of HAWK missiles to Iran in November 1985;
-- Count Four, perjury before Congress about his knowledge of the issue of replenishing missiles that Israel had shipped to Iran; and
-- Count Five, false statements to the Office of Independent Counsel and the FBI regarding his note-taking.98
98 Indictment, United States v. Caspar W. Weinberger, Criminal No. 92-0235-TFH (D.D.C. June 16, 1992).
Weinberger was arraigned on June 19, 1992, and pleaded not guilty to all charges. The case was ultimately set for trial on January 5, 1993. Hearings to resolve classified information issues under the Classified Information Procedures Act (CIPA) were scheduled for December 7, 1992, with a November 2 deadline for the Government to produce the documents it intended to use in its case-in-chief.
On September 29, 1992, the district court granted Weinberger's motion to dismiss Count One.99 The court held that Count One, in effect, charged Weinberger with lying to Congress, which did not constitute obstruction under the decision in United States v. Poindexter.100 Rather than appeal the district court's decision, Independent Counsel sought a new indictment charging Weinberger under 18 U.S.C. 1001 with the same false statements to Congress that had been alleged in the original Count One. The new indictment was returned on October 30, 1992.101 On December 11, 1992, the district court granted Weinberger's motion to dismiss the new indictment on statute-of-limitation grounds.102 On December 24, 1992, President Bush pardoned Weinberger. At the time of President Bush's pardon, Independent Counsel had not yet decided whether to appeal the district court's ruling.
99 Memorandum Opinion and Pretrial Order No. 6, United States v. Weinberger, Crim. No. 92-0235-TFH, pp. 4-5 (D.D.C. Sept. 29, 1992).
100 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 656 (1992). The obstruction statute outlaws, among other things, ``corruptly'' ``obstruct[ing]'' or ``imped[ing]'' a congressional inquiry. (18 U.S.C. 1505.) The Court of Appeals held in Poindexter that the term ``corruptly'' implies that a defendant must cause another knowingly to violate a legal duty and found that the term was therefore unconstitutionally vague as applied to a defendant charged with lying to Congress himself rather than causing another to do so. (951 F.2d at 379, 385-86.)
The OIC had argued that Poindexter did not preclude the obstruction charge against Weinberger because the indictment alleged that Weinberger had obstructed Congress not merely by lying but also by withholding and concealing his relevant notes. The Poindexter decision left open the possibility that concealing or destroying documents could be considered analogous to causing a witness to lie or withhold testimony and therefore would satisfy the court's interpretation of the term ``corruptly.'' (Ibid. at 384, citing United States v. Walasek, 527 F.2d 676, 679 & n.11 (3d Cir. 1975); cf. United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982)).
101 Indictment, United States v. Caspar W. Weinberger, Criminal No. 92-0416-TFH (D.D.C. Oct. 30, 1992). Weinberger had moved on August 3, 1992, to disqualify Deputy Independent Counsel Craig A. Gillen from trying the case on the ground that Gillen was a witness to Weinberger's October 10, 1990, interview. Gillen withdrew voluntarily from the case on October 9, 1992, following the District Court's preliminary ruling on this issue. Substitute trial counsel James J. Brosnahan was appointed on October 15, 1992. Brosnahan would have tried the case with Associate Counsel John Q. Barrett, George C. Harris, and Christina A. Spaulding.
102 Memorandum Opinion and Pretrial Order No. 12, United States v. Weinberger, Crim. No. 92-0235-TFH (D.D.C. Dec. 11, 1992). Although the charged statement was beyond the five-year statute of limitations, 18 U.S.C. 3288 provides that when a count is dismissed for ``any reason'' after the statute of limitations has run, the prosecution may bring a new indictment based upon the same facts within six months of the dismissal. To be proper under section 3288, the new indictment must be based on ``essentially the same facts as those alleged in the old indictment'' so that the defendant is on notice, within the statute of limitations, of the basis for the new charges. (Pretrial Order No. 12, at 4 quoting United States v. George, 1992 U.S. Dist. LEXIS 9618 (D.D.C. July 8, 1992).)
The District Court acknowledged that, under this standard, Weinberger ``clearly had notice of the factual basis for the charges'' in the new indictment. (Ibid.) The court expressed ``concern'' that the specific statements alleged to be false had not been underlined in the first indictment but did not find this point dispositive. (Ibid., pp. 4, 6.) Rather, the court went on to hold that even though the new indictment was premised on the same facts as the first indictment, it impermissibly broadened the original charges because the obstruction statute, as construed in Poindexter, does not include false statements. (Ibid., pp. 5-6.)
The Government's Case Against Weinberger
The Government's trial evidence would have demonstrated that, contrary to the impression created by his false testimony before Congress, Weinberger was a knowing participant in the initiative to send arms to Iran in return for the release of Americans held hostage in Lebanon. In the summer of 1985, Weinberger knew of President Reagan's decision to authorize Israel to send missiles to Iran and his commitment to replenish Israel's missile stocks. Beginning in late September 1985 and continuing through the end of 1986, Weinberger also received a sizeable quantity of highly classified intelligence reports regarding the Iran initiative.103 These intelligence reports provided detailed information regarding the pricing and delivery of missiles sold to Iran and the release of American hostages in Lebanon. In particular, in very late November and early December 1985, the reports revealed that HAWK missiles were shipped to Iran from Israel in connection with hostage-recovery efforts.
103 In his testimony before congressional committees, Weinberger falsely claimed that he had been cut off ``to a large extent'' from this intelligence until shortly before December 7, 1985, when he first received one of these reports. (Weinberger, SSCI Testimony, 12/17/86, pp. 6-9, 51; Weinberger, HPSCI Testimony, 12/18/86, pp. 39-41; Weinberger, Select Committees Testimony, 7/31/87, pp. 92-94.)
The Government's evidence also would have shown that Weinberger deliberately concealed from Iran/contra investigators his diary and meeting notes, which would have demonstrated the falsity of his testimony.
For simplicity of discussing the evidence supporting the individual counts, this Report begins with the evidence proving the falsity of Weinberger's denial of the existence of his notes, which was charged in the original Count One and Count Five. Because Count One was dismissed, this discussion begins with Count Five.
Count Five: Weinberger's Denial of the Existence of His Notes
Count Five charged Weinberger with making false statements in the October 10, 1990, interview with members of Independent Counsel's staff and a special agent of the FBI. Weinberger's attorney had been advised beforehand that the purpose of the interview was to discuss Weinberger's notes, and Weinberger brought to the interview a memorandum from his personal secretary that addressed this very issue. During the interview, Weinberger was asked repeatedly, in several different ways, about his note-taking practices. He insisted that he rarely took notes; that, as a rule, he did not take any notes when he met with the President or other Cabinet members; and that he specifically did not take any notes during meetings concerning the Iran arms sales. Weinberger also stated that he did not make a record of his meetings when he returned to the Pentagon and did not take notes of telephone conversations. He stated that he had always followed President Reagan's instructions to turn everything over to Iran/contra investigators and said that he was not aware of any relevant notes that had not been turned over. He insisted he had not deliberately withheld anything from Iran/contra investigators.104
104 Weinberger, FBI 302, 10/10/90. Weinberger later claimed that he believed the OIC was inquiring only about notes he took during meetings and therefore did not understand the questions to include his diary notes. (Weinberger Interview, ABC ``This Week with David Brinkley,'' 12/27/92, NEXIS Tr. at 12). This explanation is disingenuous, because Weinberger stated in his October 10, 1990, interview that he very rarely took notes during meetings -- which was, in itself, false -- and also denied that he made any other record of meetings when he returned to his office or that he took notes of telephone conversations. In fact, Weinberger's diary notes consist primarily of notes of telephone conversations and of meetings, made after the fact.
To establish the deliberate falsity of Weinberger's statements, the Government would have proved at trial that (1) Weinberger maintained voluminous notes of meetings and phone calls, many of which were relevant to Iran/contra; (2) Weinberger knew in 1987 of congressional requests for his notes and diaries but produced none of them, and went so far as to lie under oath to conceal their existence from congressional investigators; 105 and (3) on his retirement as secretary of defense, Weinberger privately deposited his notes in the Library of Congress where no one could see them without his permission.
105 Weinberger filed a motion in limine on December 14, 1992, seeking to prevent the Government from introducing at trial any evidence regarding the Select Committees' requests for Weinberger's notes and diaries. The Government opposed this motion on the ground that evidence that Weinberger had deliberately concealed his notes from Congress was admissible as intrinsic evidence of the falsity of his statements to the OIC and as extrinsic evidence under Federal Rule of Evidence 404(b) to show Weinberger's motive to lie to the OIC. The district court had not yet ruled on the motion at the time of the pardon.
Weinberger's Note-Taking Practices
Throughout his career, Weinberger regularly took detailed notes, primarily in pencil, of his daily activities, including summaries of his meetings and telephone conversations. While secretary of defense, Weinberger took more than 7,000 pages of these daily ``diary notes'' on 5" x 7" government-issue note pads.106 He took nearly 1,700 pages of such notes in 1985 and 1986 alone. During the same period, Weinberger compiled hundreds of pages of notes taken during White House and Cabinet meetings. More than 150 pages of these diary and meeting notes contain information relevant to Iran/contra, including information that contradicts Weinberger's sworn testimony concerning his knowledge of the Iran arms sales and of Saudi Arabian contributions to the contras.
106 The term ``diary notes'' was adopted by the Library of Congress archivists to describe Weinberger's daily notes. Although Weinberger apparently referred to these documents as his ``telephone logs,'' (Leisz, Grand Jury, 3/6/92, pp. 34-35), this report uses the Library of Congress terminology.
According to General Powell, who served as Weinberger's senior military assistant from July 1983 to March 1986, Weinberger kept the 5" x 7" note pads on his desk and jotted down entries throughout the day. Weinberger stored completed note pads in his desk drawer and transferred them to the bedroom attached to his office when the drawer was full.107 Powell's successor, Admiral Donald S. Jones, said there were ``better than one or two linear feet'' of papers, bound together with rubber bands, on the shelf in Weinberger's bedroom at DoD.108 Several witnesses stated that Weinberger intended to use his diary notes to write his memoirs.109 In 1988, while working on his book Fighting for Peace, Weinberger and his research assistant John C. Duncan reviewed some of the Weinberger diary notes that had been deposited at the Library of Congress.110 Duncan recalled that they joked about the illegibility of Weinberger's handwriting. They decided that Weinberger's handwritten notes would be too difficult to use as a source for Fighting for Peace but agreed that the notes would be useful when Weinberger wrote a more comprehensive memoir that tracked his daily experiences.111
107 General Powell described Weinberger's note-taking in detail in an affidavit obtained by Weinberger's attorneys before the indictment. (Powell, Affidavit, 4/21/92,
3-4, ALZ 0045089.) Powell also stated that he regarded these notes as Weinberger's personal diaries and expressed the opinion that ``it is entirely possible that it would not have occurred to [Weinberger] to associate or link these private notes on the 5 x 7 pads with a governmental request for `notes' in the context of the Iran-Contra matter.'' (Ibid.,
3.) On two separate occasions in 1987, however, Powell told congressional Iran/contra investigators that he had no knowledge of Weinberger maintaining a ``diary.'' (Powell, Select Committees Interview Memorandum, 4/20/87, p. 9, AMY 000568; Powell, Select Committees Deposition, 6/19/87, pp. 54-55.) The inconsistencies in Powell's testimony are discussed below.
108 Jones, FBI 302, 12/22/92, p. 4. On one occasion, Jones noticed that Weinberger was taking notes of their conversation as they were talking. (Ibid.)
109 Smith, Affidavit, 4/29/92,
5, ALZ 0045122; Leisz, Grand Jury, 3/6/92, p. 35; Duncan, Grand Jury, 3/6/92, pp. 25-26; Taft, FBI 302, 4/8/92, p. 2; accord Weinberger, Fighting for Peace, p. 17 (expressing hope to write later book covering on a ``day-to-day basis'' his seven years as secretary of defense).
Weinberger's 1981 diary notes contain repeated references to discussions with the British scholar and biographer Janet Morgan regarding his ``biography + diaries.'' (Weinberger Diary, 3/16/81, ALZ 0060966; ibid., 3/17/81, ALZ 0060969; ibid., 3/27/81, ALZ 0060995; ibid., 3/30/81, ALZ 0061001; ibid., 4/4/81, ALZ 0061022; ibid., 4/9/81, ALZ 0061033; ibid., 10/24/81, ALZ 0061542.) Pentagon spokesperson Henry E. Catto, Jr. publicly identified Morgan in February 1982 as a prospective biographer of Weinberger. (DoD News Briefing, 2/2/82, pp. 1-2, ALZ 0070079-80.) Morgan denied in October 1992 that she had ever seen Weinberger's diary notes or discussed the notes with him as a possible basis for a biography or autobiography. (Morgan, FBI 302, 10/12/92, pp. 11-13; Morgan FBI 302, 10/14/92, pp. 2, 8. )
110 Weinberger signed the Manuscript Reading Room register on July 20, 1988. (AOZ 0000036.) Library call slips show that on the same day Duncan checked out boxes 580-85, which contain Weinberger's diary notes from his tenure as secretary of defense. (ALZ 0042861 (7-20-88, call slip); Memorandum from Teichroew to Wigdor, 12/22/92, AOZ 0000183-84 (explaining that 1980-87 diary notes were located in boxes 579-85 in 1988).)
111 Duncan, Grand Jury, 3/6/92, pp. 25-26, 34-35. Fighting for Peace nevertheless contains some references to Weinberger's notes. (See, for example, Weinberger, Fighting for Peace, pp. 96, 381.)
Weinberger also regularly took notes of meetings on White House note pads, on the backs of documents, and on other stray pieces of paper. In addition to his own meeting notes, many of which are identified by typed or handwritten notations made by Weinberger's secretaries, Weinberger saved notes and doodles passed to him by others, which he labeled and dated himself. Some of Weinberger's meeting notes were kept in a ``Handwritten Notes'' file maintained by his secretaries.112 The remainder, which include most of Weinberger's meeting notes relevant to Iran/contra, were maintained by Weinberger himself in the same manner as his diary notes.
112 See, for example, Smith, Affidavit, 4/29/92,
7, ALZ 0045122-23.
At trial, the Government would have shown that the sheer volume of Weinberger's notes, and the care he took in maintaining them for posterity, belied his contention that his notetaking was so habitual that he never thought of his notes.113 The Government also would have demonstrated that Weinberger could not have forgotten his notes, having recorded in his diary the very meetings in which he was asked by Iran/contra investigators about his notes or diaries.
113 Following the summary of a meeting in his diary notes, Weinberger would sometimes cross-reference his meeting notes by indicating parenthetically ``see separate memo.'' (Weinberger Diary, 9/28/84, ALZ 0063118; ibid., 6/24/85, ALZ 0039500; ibid., 10/27/86, ALZ 0040497; ibid., 11/10/86, ALZ 0040525; ibid., 11/12/86, ALZ 0040531; ibid., 11/25/86, ALZ 0040562; ibid., 9/15/87, ALZ 0046894.) These references further demonstrate Weinberger's consciousness of his notes.
Weinberger's Knowledge of Congressional Requests for His Notes and Diaries
Weinberger's notes and other contemporaneous documents show that he knew of the Select Committees' requests for handwritten notes and diaries. Despite his direction to others to cooperate fully with the congressional investigation, Weinberger deliberately withheld his own notes from Congress and falsely denied to congressional investigators that he had contemporaneous notes of meetings and phone calls.114
114 Both the House and Senate Select Committees considered contemporaneous notes to be particularly important to their investigation of Iran/contra. In a statement appended to the Select Committees' report on the Iran/contra investigation, Senators Inouye and Rudman -- the Chairman and Vice Chairman, respectively, of the Senate Select Committee -- praised President Reagan for making excerpts of his personal diaries available to the Select Committees and for instructing other executive branch officials similarly to make all of their relevant records available. Rudman and Inouye noted that administration officials had been asked to disclose personal documents and remarked that ``[t]hose of us who keep diaries appreciate the intensely personal and private nature of the entries we make in such books, confiding our innermost concerns, aspirations and thoughts.'' (Majority Report, p. 637.)
During Weinberger's March 11, 1987, interview with the staff of the Senate Select Committee, Chief Counsel Arthur L. Liman told him that President Reagan's diary excerpts had been very useful to the Select Committees' investigation and remarked that he hoped to use these diary excerpts at the hearings.115 Weinberger stated that his own record-keeping habits were poor and said that he regretted he did not keep copious records of meetings as Henry Kissinger had done.116 As staff counsel noted in a memorandum of the interview, Weinberger left the clear impression that he did not keep diaries or dictate his thoughts about a day's events.117 When the interview was over, Weinberger made the following entry in his daily diary notes: ``2 Senate staff of Special Iran Committee in office -- with Larry Garrett -- re my recollections of Iran events.'' 118
115 Weinberger, Select Committees Interview Memorandum, 3/11/87, p. 2, AMY 00205.
116 Ibid., pp. 4-5, AMY 00207-8. Weinberger repeated his Kissinger analogy when asked again about notes during his June 17, 1987, congressional deposition. (Weinberger, Select Committees Deposition, 6/17/87, p. 79.)
117 Weinberger, Select Committees Interview Memorandum, 3/11/87, p. 5, AMY 00208.
118 Weinberger Diary, 3/11/87, ALZ 0042242.
The Senate and House Select Committees made formal written requests on April 4 and April 13, 1987, respectively, for Weinberger's notes and diaries.119 The DoD General Counsel's office relayed these requests to DoD officials in a series of internal memoranda. At least one of these -- an April 14 memorandum regarding the Senate Select Committee's document request -- reached Weinberger's desk and was stamped ``SEC DEF HAS SEEN APR 20 1987.'' 120
119 Letter from Belnick to Shapiro, 4/4/87, ALZ 0041455-64; Letter from Naughton to Shapiro, 4/13/87, ALT 0001378-79.
120 Memorandum from Garrett to Under Secretary of Defense (Policy) [Ikle], Assistant Secretary of Defense (ISA) [Armitage], Assistant General Counsels (OSD), Assistants to the Secretary of Defense, et al., 4/14/87, p. 1, ALZ 0047336-51. Documents were stamped ``SEC DEF HAS SEEN,'' with the date, after Weinberger's secretary removed them from the out box on his desk. (Leisz, Grand Jury, 3/6/92, p. 8.)
A singularly incriminating document is an April 17, 1987, ``Action Memorandum'' from DoD General Counsel H. Lawrence Garrett III to Weinberger that described the Senate and House requests for notes and diaries.121 Garrett advised Weinberger:
121 Action Memorandum from Garrett to Weinberger Re: Document Request from Congressional Select Committee on Iran, 4/17/87, ALZ 0064947-48.
I know you understand the nature of the obligations placed upon us by this request. I understand that these materials, if any such exist, are highly personal and sensitive. Accordingly, I would of course insist that any provision of these materials to the Committees be conducted in as discreet and limited a manner as you wish.
The memorandum further advised Weinberger that Garrett would determine what ``the arrangements currently are for the review of any similar records of other top-ranking officials.'' It concluded by stating that Garrett would ``await further information/instructions from'' Weinberger. Weinberger underlined the reference to other officials and wrote a note below: ``Larry -- let's have a meeting after you hear what others are doing.'' 122
122 Ibid. The Garrett memorandum was stamped ``SEC DEF HAS SEEN'' on June 17, 1987, indicating that Weinberger placed the document in his out box on the same day that he stated falsely in his congressional deposition that he rarely took notes.
The Garrett memorandum discredits any claim that Weinberger's subordinates simply failed to ask him for his notes. In fact, Garrett told Weinberger, specifically and in writing, that Congress had requested his handwritten notes and diaries.123 The memorandum also belies Weinberger's claim that he had no reason to believe that the congressional document requests encompassed personal documents such as his diary notes.124 Not only did Garrett tell him that the requests included ``highly personal and sensitive'' papers, but Weinberger focused specifically on that part of the memorandum in asking Garrett to find out what other officials ``are doing.'' 125
123 Garrett's April 17, 1987, memorandum contradicts his 1992 affidavit, which asserted that he did not discuss with Weinberger ``the specific details'' of any Iran/contra document request and did not ask Weinberger ``about the existence of personal notes or diaries.'' (Garrett, Affidavit, 4/28/92,
7, 11, ALZ 0045034-36.) Similarly, although Weinberger's senior military assistant at that time, Gen. Gordon Fornell, asserted in an affidavit that he was ``unaware of anyone ever asking Secretary Weinberger to produce his informal jottings to any body investigating the Iran-contra affair,'' Fornell later identified his handwritten initial ``F'' in the margin of Garrett's April 17, 1987, memorandum to Weinberger, next to the paragraph noting that the House Select Committee ``has requested all . . . diaries . . . and handwritten notes kept by you'' relating to various topics, including Iran. (Compare Fornell, Affidavit, 4/24/92,
6, ALZ 0045025-26, with Fornell, Grand Jury, 10/28/92, p. 31.)
124 Weinberger, CNN Interview, 12/28/92, NEXIS Transcript p. 6; Weinberger, Fox Morning News Interview, 12/29/92, NEXIS Transcript p. 2.
Weinberger's secretary, Kay Leisz, said she had a general recollection that in connection with the Iran/contra document production ``someone'' told Weinberger that there was a distinction between ``personal'' and ``official'' documents, and it was her ``feeling'' that personal documents did not have to be produced. (Leisz, OIC Interview, 6/15/92, pp. 26-28.) Neither Weinberger nor his attorneys ever claimed that he had been advised that personal documents did not have to be produced to Iran/contra investigators. Garrett's memorandum reached the opposite conclusion, and he testified that he specifically advised Smith, in Leisz's presence, that the document requests included ``personal notes.'' (Garrett, Grand Jury, 4/22/92, pp. 18-19.) Garrett did not recall giving Weinberger advice to the contrary. (Garrett, Grand Jury, 10/28/92, p. 32.)
125 President Reagan's agreement to allow congressional investigators limited access to his personal diaries was also widely publicized. It also was widely known, at least by the time the congressional hearings were underway, that other Administration officials, including Shultz's executive assistant Charles Hill, had produced some of their relevant, personal notes to congressional investigators.
Weinberger's diary notes indicate that Garrett raised this subject with him again in a meeting on April 21, 1987, after which Weinberger wrote: ``Larry Garrett in office -- re demands by Sen -- House Committees for briefings on black programs -- + their demand for my diary[.]'' 126
126 Weinberger Diary, 4/21/87, ALZ 0042343. Weinberger's attorneys claimed that this note actually reads ``demand for my choices'' and refers not to Iran/contra but to some unspecified matter regarding ``black programs'' that may have been pending before the Senate and House intelligence committees in April 1987. They submitted a report from a private handwriting expert who concluded that it was ``highly probable'' that the disputed word was ``choices.'' (Document Examination Report, 5/27/92, ALZ 0047624.) The OIC would have established at trial, based on comparisons to other samples of Weinberger's handwriting, that the disputed word is ``diary.'' The ``black programs'' mentioned in Weinberger's note refers to an April 1, 1987, request from the staff of the Senate Select Committee for briefings on limited access (``black'') programs. (Letter from Saxon to Shapiro, 4/1/87, ALZ 0054812.)
There is also circumstantial evidence that Garrett raised the issue with Weinberger a third time, on April 30, 1987, and may have advised him of the arrangements that had been made for Iran/contra investigators to review President Reagan's diaries. On April 29, 1987, Garrett and Assistant General Counsel Edward J. Shapiro attended a White House meeting of the general counsels' group that coordinated Administration responses to the congressional and OIC Iran/contra investigations. The attorneys discussed the terms on which the Select Committees and the OIC were permitted to review excerpts of President Reagan's personal diaries.127 The same day, Garrett sent an ``Information Memorandum'' to Deputy Secretary of Defense William H. Taft IV regarding ``Congressional Request for Excerpts of Relevant Portions of the Diaries of the SecDef.'' The memorandum advised Taft that ``[w]e have been asked again by the senior legal staff of the Senate Select Committee on Iran whether the SecDef keeps diaries. . . .'' The memorandum then related to Taft that White House counsel had made transcribed excerpts of President Reagan's diaries available to the Select Committees and the OIC, subject to certain restrictions. The memorandum concluded: ``I do not know whether the Secretary keeps a diary, but it is obviously necessary to pursue this.'' 128
127 General Counsels' Coordinating Group Meeting Minutes, 4/29/87, ALU 140159-64.
128 Memorandum from Garrett to Taft Re: Congressional Request for Excerpts of Relevant Portions of the Diaries of the SecDef, 4/29/87, ALZ 0058007.
Taft recalled that he had told Garrett during the Iran/contra investigation that Weinberger had regularly kept notes during the Nixon Administration, and Taft had advised Garrett to go to Leisz and Weinberger to be sure that, if Weinberger still kept such notes, everything was produced to Iran/contra investigators.129 Although Taft could not fix the date of this conversation, Garrett's April 29 memorandum to Taft was stamped ``DEP SEC HAS SEEN'' on April 30, 1987. On the same day, Weinberger made the following entry in his daily diary notes: ``Larry Garrett in office re preparation for Senate House staff interview on Iran hgs -- also re papers to be turned over.'' 130
129 Taft, FBI 302, 4/8/92, p. 2; Taft, Grand Jury, 10/28/92, pp. 27-29. Taft said he also advised Garrett that Smith and Leisz would know if Weinberger kept notes. (Taft, FBI 302, 4/8/92, p. 2.) Garrett recalled a conversation in which he told Smith and Leisz that the document requests included personal notes and he was told that Weinberger had no notes. (Garrett, Grand Jury, 4/22/92, pp. 18-19.) Garrett purported not to recall such a conversation with Taft, however.
130 Weinberger Diary, 4/30/87, ALZ 0042366.
The day after Garrett's conversation with Weinberger, on May 1, 1987, Mark A. Belnick, executive assistant to the chief counsel of the Senate Select Committee, spoke to Shapiro and recorded in a file memorandum that Shapiro ``had been informed by Secretary Weinberger's office'' that Weinberger had ``no entries in his diaries responsive to [the Senate] requests,'' and that Weinberger had some ``but not many'' notes responsive to the requests.131
131 Memorandum from Belnick to the File, 5/1/87, AMY 000361 (emphasis added). The House Select Committee continued separately to pursue Weinberger's notes and diaries. On May 22, 1987, Joseph H. Saba, staff counsel to the House Select Committee, wrote to Garrett, noting that the House Committee had received few documents from Weinberger and asking for Weinberger's ``diaries, appointment books, records of meetings, and handwritten notes. . . .'' The letter further advised that the request ``is inclusive of [Weinberger's] personal diary entries made from October 1984 through 1987, pertaining to the Boland Amendment, Iran, Nicaragua, and the Contras.'' (Letter from Saba to Garrett, 5/22/87, ALZ 0054598-600.)
On June 10, 1987, Saba wrote again to Shapiro, reiterating the House Committee's request for access to Weinberger's calendars and diaries, ``and all other schedule-type records of the occurrence of meetings, events, and telephone conversations for the period July 1, 1985, through December 31, 1986.'' (Letter from Saba to Shapiro, 6/10/87, ALZ 0058754.) According to Weinberger's own diary notes, Gen. Fornell consulted him on June 15, 1987, two days before Weinberger's deposition, about ``data on my calendar to be turned over to Jt. Iran Committee[.]'' (Weinberger Diary, 6/15/87, ALZ 0042472.) The next day, Weinberger's official calendars and activity logs, but none of his diary or meeting notes, were produced to the House Select Committee. (Letter from Shapiro to Saxon, 6/18/87, ALZ 0055135-36 (enclosing documents produced to House Select Committee on 6/16/87 and memorandum describing documents)).
In his June 17, 1987, congressional deposition Weinberger testified falsely that he rarely made notes of meetings -- either contemporaneously or after the fact -- and had no records that could supplement his memory regarding Iran/contra events.132 As he made these statements under oath in his office, Weinberger was sitting only four feet from the desk drawer that contained his diary notes. After the deposition, Weinberger made the following entry in his daily diary notes: ``Gave deposition to Senate + House staff members on Joint Iran investigation. -- 10:35 AM -- 1:10 PM Larry Garrett & Mr. Shapiro there.'' 133 That same day, Weinberger also placed Garrett's April 17, 1987, memorandum regarding the congressional document requests into his out box.134
132 Weinberger, Select Committees Deposition, 6/17/87, pp. 79-80. Ironically, given Weinberger's subsequent contention that he did not understand his ``jottings'' to be within the scope of congressional requests for ``notes,'' (Weinberger, CNN Interview, 12/28/92, NEXIS Transcript p. 6), the following exchange occurred during Weinberger's congressional deposition:
Q: Do you ever take notes that are not dictated or make jottings when you get back [from meetings]?
A: Yes, occasionally, but comparatively rarely. I don't know that we kept those in any formal way. I don't think they have been filed or labeled. . . .
Q: If there is any chance there are -- --
A: I think we made this examination and whatever there is is in our so-called C&D, correspondence and directives. They have been asked to paw through everything.
Weinberger, Select Committees Deposition, 6/17/87, pp. 79-80. (emphasis added).) As discussed further below, the Government would have shown at trial that Weinberger was well aware that hundreds of pages of his diary notes and scores of pages of his meeting notes were stored in his desk and office bedroom and were not in the C&D files.
133 Weinberger Diary, 6/17/87, ALZ 0042476.
134 Memorandum from Garrett to Weinberger Re: Document Request from congressional Select Committee on Iran, 4/17/87, ALZ 0064947 (stamped ``SEC DEF HAS SEEN JUN 17, 1987'').
Weinberger's Deposit of His Notes at the Library of Congress
Weinberger personally packed his diary notes as he was preparing to leave office in November 1987. On that day, Roger Sandler, a free-lance photographer, was present to take photos for a magazine profile of Weinberger. These photos show Weinberger handling large stacks of his diary notes, neatly bundled together with binder clips and rubber bands. As Weinberger was taping boxes, he commented on his daily diary notes, and he and Sandler briefly discussed the fact that they both kept diaries.135 Weinberger's diary notes subsequently were transferred to the Library of Congress without being submitted for classification review.136
135 Sandler, FBI 302, 7/28/92, p. 3.
136 Receipt for 99 Unclassified Boxes of Secretary Weinberger's Personal Papers, 4/5/88, attaching Index of 14 Miscellaneous Boxes, including ``Telephone Logs 1980; 1981-87,'' (Grand Jury Exhibit No. 326, 5/8/92.)
Weinberger's meeting notes were transferred from the Pentagon to the Library of Congress in two sets. The ``set A'' notes arrived at the Library in April 1988 along with Weinberger's 1980-87 diary notes. The set A notes consist of original meeting notes by Weinberger and notes and doodles from others that were labeled and dated by Weinberger.137 These notes, which include most of Weinberger's meeting notes relevant to Iran/contra, were kept by Weinberger himself and were not submitted for classification review before being transferred to the Library.138
137 The index of 14 miscellaneous boxes included in the April 1988 accession also listed one box of ``Blank Note Pads; Notes from Meetings.'' (Ibid.)
138 The following evidence indicates that Weinberger maintained the set A notes himself, separately from his secretaries' handwritten notes file: (1) none of the notes is stamped ``SecDef Has Seen,'' indicating that they were never placed in his out box; (2) according to the Library of Congress archivist, these notes were bundled together under handwritten cover notes by Weinberger (ALZ 0040718-19) identifying them as miscellaneous notes of Cabinet and NSC meetings (Teichroew, OIC Deposition, 4/21/92, p. 37); and (3) the notes were not labeled or dated by anyone other than Weinberger. (Compare description of set B notes below.) Like the diary notes, the set A meeting notes are all originals and have no classification markings, even though they contain classified information.
The set A notes contain Weinberger's notes of the most significant Iran/contra meetings, including the December 10, 1985, White House meeting at which arms sales to Iran were discussed, the January 6 and 7, 1986, meetings on the Iran arms sales, a February 11, 1986, ``Family Group'' lunch meeting at which a schedule of arms transfers and hostage releases was outlined and the November 24, 1986, NSPG meeting regarding the Administration's response to public disclosure of the arms sales.
The ``set B'' notes, which arrived at the Library in August 1988, consist of copies of Weinberger's notes of other meetings.139 Many of the set B notes are identified by typed or handwritten notations made by Weinberger's secretaries at the top of the first page. Unlike the set A notes, the set B notes were individually indexed and reviewed for classified information before they left DoD for the Library of Congress. The index is titled ``SECRETARY Weinberger's HANDWRITTEN NOTES'' and identifies the source of the notes as ``VAULT.'' 140 Thelma Stubbs Smith, Weinberger's second personal secretary, described how the handwritten notes file maintained by Weinberger's secretaries (set B) was transferred to the vault in his inner office and that she packed these notes at the end of Weinberger's term, leaving the boxes with Defense Department C&D personnel to transfer to the Library of Congress.141 Boxes containing meeting notes were subsequently sent to the Executive Secretariat where they were copied, sorted and indexed for transmittal to the Library.142 Thus, contrary to Weinberger's suggestion during his congressional deposition, it appears that none of his meeting notes were stored in Defense Department C&D's files.143 Rather, both the set A and set B meeting notes were maintained outside DoD's recordkeeping system until Weinberger left office.
139 There is no overlap between the set A and set B meeting notes.
140 ALZ 0040721 (3 pages) (index to 1985 set B meeting notes); ALZ 0040722 (3 pages) (index to 1986 set B meeting notes); ALZ 0040723 (3 pages) (1985 index showing classified items removed); ALZ 0040766 (1986 index showing classified items removed). The August 1988 Library of Congress accession included the ``SecDef's Personal Library Vaulted Files (1981-87) and Complete Index.'' (ALZ 0042825 (8/9/88) (receipt for classified material).)
141 Smith, Affidavit, 4/29/92,
7, 8, 10, ALZ 0045122-24. Smith suggested that the meeting notes listed on the index of 14 miscellaneous boxes included in the April 1988 Library of Congress accession (which contained the set A notes) were from the handwritten notes file in the office vault. (Ibid.,
8.) The circumstantial evidence demonstrates, however, that the set B notes, rather than the set A notes, correspond to the handwritten notes file that Smith recalls packing: (1) only the set B notes were labeled by the secretaries; (2) only the set B notes contain documents stamped ``SEC DEF HAS SEEN,'' indicating that Smith or Leisz had originally retrieved them from Weinberger's out box; and (3) the set B notes include a cover note by Leisz, attaching a set of notes on the TWA hijacking (ALZ 0060091) and a cover note by Powell to Leisz, attaching another set of notes ``for your file'' (ALZ 0060174).
142 Lt. Col. Andrew Krepinevich, who worked in the Executive Secretariat in 1987-88, recalled receiving one or more boxes of material from Weinberger's vault, including a significant number of his handwritten meeting notes, to be processed for transfer to the Library. (Krepinevich, FBI 302, 3/16/92, pp. 2-3.) Krepinevich's description of these notes dovetails with Smith's description of the notes she packed, and the indices that accompanied the set B notes are identical to other indices generated by the Executive Secretariat. Although the OIC was not able to confirm the location of the original notes, Krepinevich said they would have been sent to storage at the National Archives and Records Administration's Washington National Records Center in Suitland, Maryland. (Ibid., p. 3.)
143 Weinberger, Select Committees Deposition, 6/17/87, p. 80. The indices prepared by DoD list individual documents with their C&D-assigned number, which has an X prefix; documents that do not have a C&D number have a blank space next to the X prefix. (See, e.g., DoD 1985 Subject Index A-I, ALZ 0043111-233.) None of the 1985 and 1986 set B meeting notes has a C&D number. ALZ 0040721 (3 pages) (index to 1985 set B meeting notes); ALZ 0040722 (3 pages) (index to 1986 set B meeting notes).
All of Weinberger's diary and meeting notes were deposited with the Manuscript Division of the Library of Congress as Weinberger's private property, under an agreement that provided expressly that no one could have access to Weinberger's papers without his permission.144 Weinberger's repeated public assertions that his notes were deposited in ``the most public depository in the United States'' 145 are therefore grossly misleading. In fact, Weinberger refused in February 1990 to allow even the General Accounting Office access to the papers when it was attempting to monitor former agency heads' compliance with laws governing the removal of Government records.146
144 Agreement of Deposit, 8/7/87, ALZ 0040904-6.
145 Weinberger, Press Conference, 12/24/92, NEXIS Transcript, p. 39.
146 General Accounting Office, Federal Records -- Document Removal by Agency Heads Needs Independent Oversight, August 1991, pp. 23-25.
In summary regarding Count Five of the Indictment, the Government would have proven at trial that Weinberger had, since 1987, deliberately concealed his notes from Iran/contra investigators and that his false statements to the OIC in October 1990 were simply a continuation of those efforts. The Government also would have shown that Weinberger's motive for concealing his notes was simple: The notes disclosed that, contrary to his sworn testimony, Weinberger had contemporaneous knowledge of the Reagan Administration's involvement in arms sales to Iran in 1985, which Weinberger himself had argued at the time was illegal, and that he had greater knowledge of the Iran arms sales in 1986 than he had disclosed in his testimony.
Weinberger's notes also reflect frank and potentially embarrassing exchanges between President Reagan and his advisers, including President Reagan's sweeping rejection of concerns about illegality at the December 7, 1985, meeting. They also record the Administration's efforts in November 1986 to insulate President Reagan from knowledge of the 1985 arms sales to Iran.147
147 See, e.g. Weinberger NSPG Meeting Notes, 11/24/86, ALZ 0040669 (20 pages).
Count Two: Weinberger's Denial of His Knowledge of Saudi Arabia's Financial Support for the Contras
Count Two of the Indictment charged Weinberger with making false statements to the Select Committees denying his knowledge that Saudi Arabia had contributed to the support of the Nicaraguan contras at a time when Congress had forbidden the use of appropriated funds for this purpose. One of the chief concerns of the congressional Iran/contra investigations was third-country assistance to the Nicaraguan contras.148 Weinberger's daily diary notes and other contemporaneous documents reveal that he knew in the spring of 1984 that foreign countries including Saudi Arabia were being solicited to provide funds for the contras, and that he knew in the spring of 1985 that Saudi Arabia was providing $25 million in assistance to the contras. Yet on June 17, 1987, when he appeared as a witness before the staff of the Select Committees, Weinberger made the following statement under oath:
148 See, e.g., Majority Report, pp. 15-16, 38-39, 44-47, 63, 69-71, 120-21.
Q: Do you recall learning at some point that the Saudis or some people connected with the Saudis provided funds for the contras?
A: No. I don't have any memory of any contra funding or of anything connected with [the Saudis] that I can remember now.149
149 Weinberger, Select Committees Deposition, 6/17/87, p. 74.
The Importance to Weinberger of U.S. Relations With Saudi Arabia and the Survival of the Contras
Weinberger's daily diary notes during his nearly seven years as secretary of defense demonstrate that Saudi Arabia and Nicaragua were foreign policy matters of great concern to him.
During the period 1984-1987, Weinberger's daily diary notes record at least 64 separate contacts with Prince Bandar bin Sultan, the Saudi Ambassador to the United States. These include 16 meetings, mostly private, in Weinberger's office; 150 telephone conversations on 18 separate days; 151 and 10 social events at which both men were present.152 The subjects of Weinberger's dealings with Bandar, as recorded in Weinberger's daily diary, range from the birth of one of Bandar's children 153 to political strategy for handling the revelation of the Iran arms sales,154 and include discussions of helping Saudi Arabia acquire United States weapon systems.155
150 Weinberger Diary, 1/6/84, ALZ 0062780; ibid., 5/21/84, ALZ 0062949; ibid., 6/27/84, ALZ 0063000; ibid., 8/17/84, ALZ 0063062; ibid., 10/9/84, ALZ 0063133; ibid., 11/2/84, ALZ 0063161; ibid., 1/10/85, ALZ 0039233; ibid., 5/1/85, ALZ 0039404; ibid., 6/18/85, ALZ 0039488; ibid., 9/11/85, ALZ 0039648; ibid., 6/2/86, ALZ 0040174; ibid., 10/31/86, ALZ 0040508; ibid., 11/23/86, ALZ 0040556; ibid., 2/9/87, ALZ 0042167; ibid., 6/30/87, ALZ 0042496.
151 Ibid., 2/6/84, ALZ 0062819; ibid., 2/9/84, ALZ 0062826; ibid., 5/20/84, ALZ 0062948; ibid., 6/5/84, ALZ 0062969; ibid., 10/8/84, ALZ 0063131; ibid., 11/5/84, ALZ 0063166; ibid., 7/29/85, ALZ 0039565; ibid., 10/9/85, ALZ 0039713A; ibid., 1/8/86, ALZ 0039887; ibid., 5/15/86, ALZ 0040157; ibid., 6/23/86, ALZ 0040228; ibid., 6/27/86, ALZ 0040243; ibid., 1/6/87, ALZ 0042084; ibid., 5/20/87, ALZ 0042416; ibid., 6/11/87, ALZ 0042462; ibid., 7/23/87, ALZ 0042551; ibid., 7/24/87, ALZ 0042555; ibid., 8/2/87, ALZ 0042574.
152 Ibid., 1/31/84, ALZ 0062811; ibid., 5/6/84, ALZ 0062935; ibid., 9/24/84, ALZ 0063111; ibid., 1/20/85, ALZ 0039248; ibid., 2/13/85, ALZ 0039276; ibid., 12/10/85, ALZ 0039842; ibid., 2/5/86, ALZ 0039948; ibid., 3/4/86, ALZ 0040006D; ibid., 7/1/86, ALZ 0040254; ibid., 4/3/87, ALZ 0042295; ibid., 7/26/87, ALZ 0042559.
153 Ibid., 7/11/87, ALZ 0042520.
154 For example, as the Iran/contra scandal was breaking publicly, Weinberger's diary contains these notes regarding his private meeting with Prince Bandar on Sunday, November 23, 1986:
Prince Bandar in office -- Nancy Reagan --
in a 11/2 hr. talk Friday with him -- he invited President to dinner at his Embassy -- sd [said] she thinks Shultz should go -- that he has been disloyal to the President -- he sd he recommended to her that I be named Secretary of State; that I could negotiate an agreement with Soviets because no one could say I was soft on them -- She feels that very few are being loyal to President + that Shultz should not have gone to Canada Friday + should support President -- She would like Baker to go in as Secretary of Defense!
(Ibid., 11/23/86, ALZ 0040556.)
155 E.g., 5/25/84, ALZ 0062956-57; ibid., 1/8/86, ALZ 0039887; ibid., 5/15/86, ALZ 0040157; ibid., 6/2/86, ALZ 0040174; ibid., 2/9/87, ALZ 0042167; ibid., 6/30/87, ALZ 0042496; ibid., 9/2/87, ALZ 0046865; ibid., 9/26/87, ALZ 0046921.
Weinberger's daily diary similarly records his concern for the Nicaraguan contras and events in Central America. On hundreds of separate occasions during 1985 and 1986, he made daily diary entries about formal meetings within the Administration, telephone calls or private meetings at the Pentagon concerning such things as the latest military and political developments in the region, the prospects for obtaining funding from Congress for the contras, recent trips to Central America by other officials and his own dealings with contra leaders.156
156 Weinberger's diary does not indicate, however, that he had any awareness of the contra resupply network in Central America or its connection to Oliver North during 1985 and 1986.
Weinberger's congressional testimony and statements regarding Saudi funding for the contras consistently protected the false position taken by the Saudi Arabian Government: total denial of such support. On October 21, 1986, Prince Bandar issued the following press release from the Royal Embassy of Saudi Arabia in Washington, D.C.:
Saudi Ambassador Denies
Nicaraguan Involvement
The Ambassador of Saudi Arabia to the United States today issued the following statement in response to press inquiries.
``Saudi Arabia is not and has not been involved either directly or indirectly in any military or other support activity of any kind for or in connection with any group or groups concerned with Nicaragua.'' 157
157 Press Release from Bandar, 10/21/86, ALW 0063258. In 1987, Prince Bandar refused Independent Counsel's request for a personal interview and declined to provide answers to Independent Counsel's interrogatories regarding financial support for the contras. (Letter from Bandar to Shultz, 5/1/87, ALW 0063255-57.) In his letter to Secretary of State Shultz communicating this refusal to cooperate, Prince Bandar said that Saudi Arabia's ``confidences and commitments, like our friendship, are given for not just the moment but the long run.'' (Ibid.) Prince Bandar also attached a copy of his October 21, 1986, public statement regarding the contras and asserted that ``it would not be appropriate or constructive in a diplomatic or other sense to elaborate further on that clear position.'' (Ibid.) To Independent Counsel's knowledge, no official representative of the Saudi Kingdom ever admitted publicly that it provided money to the contras during 1984 and 1985.
Weinberger's Knowledge of Saudi Arabia's Support for the Contras
Weinberger's notes and other contemporaneous documents reveal his direct knowledge that Saudi Arabia had agreed to give financial support to the Nicaraguan contras during the period when U.S. funds for the contras were virtually exhausted and Congress had refused to appropriate additional funds.158
158 For a more complete discussion of third-country funding for the contras, see McFarlane chapter.
In May 1984, Prince Bandar informed National Security Adviser Robert C. McFarlane that Bandar would provide $1 million per month to the contras.159 Weinberger's diary notes show that, on Sunday, May 20, 1984, Prince Bandar asked Weinberger for an appointment.160 Weinberger's very next diary note states that he
159 E.g. McFarlane, FBI 302, 4/15/87 (morning session), p. 3 (placing Bandar's announcement in ``June 1984''); McFarlane, Select Committees Testimony, 5/11/87, pp. 34-36.
160 Weinberger Diary, 5/20/84, ALZ 0062948.
Called Bud McFarlane -- re g722agreed f above -- he wants to be sure there's no gap. . . .161
161 Ibid.
Although Weinberger's diary entry regarding his meeting with Prince Bandar shows discussion of topics other than the contras, Weinberger's diary the next day shows that he and McFarlane spoke about U.S. officials soliciting foreign countries to aid ``Central America:''
Called Bud McFarlane -- rhc [returned his call] -- he doesn't want [Under Secretary of Defense for Policy Fred] Ikle working to get any Israeli, etc. aid for Cent Am
Called Colin Powell -- re above 162
162 Ibid., 5/22/84, ALZ 0062950.
On June 20, 1984, during a ``Contra Money'' meeting at the Department of State that was attended by senior Reagan Administration officials,163 Weinberger stated his views on ensuring the survival of the contras:
163 Charles Hill, the executive assistant to Secretary of State Shultz, took detailed notes during this meeting. Hill's notes indicate that the meeting was attended by Shultz, Weinberger, Ikle AE1, Kirkpatrick, Casey, McMahon, McFarlane, Poindexter and North, among others, and that Shultz, Weinberger, Kirkpatrick and McFarlane had a private meeting after the larger meeting had ended. (Hill Notes, 6/20/84, ANS 0000679-81.)
Don't give up on the Congr chance, altho slim. But plan for other sources for $. Keep US fingerprints off.
* * *
g008even if Congr turns us down, we g008must not let collapse happen 164
164 Ibid., 6/20/84, ANS 0000680 (emphasis in original). Weinberger's corresponding diary entry is the following: ``Attended meeting w/ Shultz, Jeane Kirkpatrick -- Bill Casey, Bud McFarlane[,] Ikle -- at State -- re funding for Nicaragua -- urged that we tell the Senate to stand fast on their vote despite Speaker's refusal to go along with George's requests for less. + then try to get the best we can in conference.'' (Weinberger Diary, 6/20/84, ALZ 0062989.)
Weinberger's diary notes also show his knowledge of Saudi Arabia's continuing, and expanded, support for the contras during 1985. On March 13, 1985, Weinberger made the following entries in his daily notes after a private meeting with General John W. Vessey, Jr., Chairman of the Joint Chiefs of Staff:
Jack Vessey in office alone -- after meeting [with others] -- Bandar is giving $25 million to Contras -- so all we need is non-lethal aid
Called Bud McFarlane -- out; l.w. [left word]
* * *
Called Bud McFarlane -- passed on to him Jack Vessey's report that Bandar is giving $25 million to Contras -- + suggested that if so -- we go for covert non-lethal aid of $14 mil.165
165 Ibid., 3/13/85, ALZ 0039320B-C.
Weinberger's daily notes indicate that he spoke with McFarlane again the following day about Saudi aid to the contras:
Called Bud McFarlane -- No further news on Saudis gifts to Contras 166
166 Ibid., 3/14/85, ALZ 0039323.
The following morning, March 15, 1985, Weinberger and Deputy Secretary of Defense William Howard Taft IV had their regular Friday breakfast with CIA Director Casey and Deputy Director John N. McMahon. McMahon's memorandum for the record, created that same day, documents the following discussion of the contras, including Saudi support:
Question of the support to the Contras came up. The Director [Casey] noted that we should have another meeting on it but following last week's meeting of the LSG [Legislative Strategy Group] we tended to be leaning towards non-lethal aid. I [McMahon] described the assignment given to [Assistant Secretary of State] Motley to develop different options which could be packaged and then played against Senators Lugar and Durenberger to see what combination of options in a single package might be acceptable to Congress. But I noted at the meeting that there was no agreement that we would be limited to non-lethal aid. The Director [Casey] said that McFarlane was to meet with Lugar and Durenberger today. In closing the Secretary [Weinberger] stated that he had heard that Bandar, Ambassador of Saudi Arabia, had earmarked $25 million for the contras in $5 million increments.167
167 Memorandum for the Record from McMahon, 3/15/85, ER 26,187-88 & ER 92-00116-17.
Credible witnesses corroborated Weinberger's knowledge of Saudi Arabia's support for the contras. General Vessey, who served as Chairman of the Joint Chiefs of Staff until he retired in September 1985, recalled that Bandar informed him on two occasions that the Saudis were funding the contras.168 On each occasion, Vessey immediately reported Bandar's statements to Weinberger, who responded that he did not want this issue to become public.169 Vessey recalls that he or Weinberger, during a White House conversation they had with McFarlane, urged McFarlane to support a proposed arms sale to Saudi Arabia because the Saudis were funding the contras.170 McMahon confirmed two meetings in which Weinberger reported to McMahon and Casey that the Saudis were funding the contras.171 McFarlane recalled a number of discussions with Weinberger regarding the Saudi contributions to the contras during 1984 and 1985. McFarlane testified that in May 1984, he told Weinberger and Shultz that an unnamed foreign country had agreed to ``provide for'' the contras through the end of the year.172 McFarlane also recalled Weinberger telling him in spring 1985 that Weinberger had received information that Prince Bandar had given $25 million to the contras.173
168 Vessey, FBI 302, 6/11/92, pp. 6-7; accord Vessey, Select Committees Deposition, 4/17/87, pp. 5-8 (testimony regarding one occasion when Bandar told Vessey, who then reported to Weinberger, of a contribution to the contras).
169 Vessey, FBI 302, 6/11/92, p. 7; Vessey, FBI 302, 2/11/87, p. 1.
170 Vessey, FBI 302, 6/11/92, p. 7; cf. Vessey, Select Committees Deposition, 4/17/87, pp. 8-9 (``. . . . I have wracked my mind trying to think of a conversation with McFarlane. And it seems to me that at one time we came out of a National Security Council or National Security Planning Group meeting in the NSC wing of the White House, and that some conversation with McFarlane took place about the Saudis, about them helping the contras. But I don't recall the substance of it or anything other than it being sort of a casual thing as we went out.''). Although General Vessey stated in 1992 that this incident at the White House had occurred after Prince Bandar had informed him for the second time that the Saudis were funding the contras, Vessey also recalled that the subject of his and Weinberger's meeting with McFarlane was a specific classified proposal involving arms sales to the Saudis. (Vessey, FBI 302, 6/11/92, p. 7; see also Classified Appendix.) Based upon Vessey's recollection of the subject matter, contemporaneous records indicate that this conversation occurred on the morning of May 25, 1984, when Vessey accompanied Weinberger to a White House meeting on this subject. (Weinberger Diary, 5/25/84, ALZ 0062956 (``Jack Vessey in office -- wants to go to meeting with President -- also re [Classified Arms Sale Proposal] . . . Attended Meeting in Oval Office -- with President, Bud McFarlane, g722Shultz, Vice President, Shultz, Ed Meese, Baker -- [specific classified weapons systems] OK for Saudi -- '').)
171 McMahon, FBI 302, 5/23/88, p. 4.
172 McFarlane, Select Committees Testimony, 5/11/87, pp. 38-39; accord generally McFarlane, FBI 302, 4/15/87 (morning session), pp. 3-5; McFarlane, Select Committees Testimony, 5/12/87, p. 133. This probably occurred on May 24, 1984. Weinberger's diary notes indicate that he, McFarlane and Shultz discussed a classified arms sale proposal to Saudi Arabia that was pending at that time. (Weinberger Diary, 5/24/84, ALZ 0062955 (``Breakfast with Bud McFarlane, Shultz, Rich Armitage -- etc -- at State -- re [Classified Arms Sale Proposal] for Saudi''); see also Classified Appendix.) Other evidence indicates that Prince Bandar made his decision to support the contras in the second half of May 1984.
173 McFarlane, FBI 302, 3/10/87, p. 10; McFarlane, FBI 302, 4/15/87 (morning session), p. 5; accord Weinberger Diary, 3/13/85, ALZ 0039320C.
Throughout the 1987 period when Weinberger was testifying that he had no recollection that the Saudis had supported the contras, specific events continued to give Weinberger vivid reminders on that very subject. On January 14, 1987, for example, a reporter drew an angry response when he publicly confronted Weinberger, who denied knowing about Saudi aid to the contras.174 Similarly, Vessey told Weinberger on February 11, 1987, that he had just told an FBI Agent of his conversations with Bandar and Weinberger about Saudi aid to the contras. Weinberger replied that he had forgotten about the conversations but agreed with Vessey's recollection.175 Weinberger recorded this meeting in his daily diary as follows:
174 Ibid., 1/14/87, ALZ 0042107.
175 Vessey, FBI 302, 6/11/92, p. 8.
Jack Vessey in office -- he remembers telling McFarlane about Saudi claim they had sent funds to contras -- also he has been asked to do a mission to Hanoi on POW's by Frank [Carlucci] -- OK
Discussed Secretary of Navy vacancy 176
176 Weinberger Diary, 2/11/87, ALZ 0042173. Less than three weeks after this meeting with Vessey and their discussion of the information they had received in 1985 regarding Saudi assistance to the contras, Weinberger made a curious diary entry:
Jack Vessey -- re reference to Tower Report to Saudis helping contras -- neither of us know anything about that
(Ibid., 2/27/87, ALZ 0042210.) Weinberger's note appears to refer to McFarlane's written statement, which is quoted in the Tower Commission Report issued the previous day, that he ``was separately informed by the Secretary of Defense and General Vessey that the total amount of the contribution [by a ``foreign official'' (Prince Bandar) to the contras] during 1985 was 25 million.'' (Report of the President's Special Review Board, 2/26/87, p. C-5.)
When Vessey was confronted with Weinberger's note in 1992, he said that he had no idea what it referred to and denied that he and Weinberger ever agreed to cover up their knowledge of the Saudi contribution. (Vessey, FBI 302, 6/11/92, p. 9.) Vessey also pointed out that he would not have told Weinberger on February 27, 1987, that he (Vessey) had no knowledge of the Saudi contribution because he had told the FBI, and then Weinberger, exactly the opposite only a few weeks earlier. (Ibid.)
Weinberger's Previous False Testimony Regarding the Saudi Contribution
As early as the summer of 1986 Weinberger concealed from Congress his knowledge of Saudi Arabian support for the contras. On September 4, 1986, in response to a letter of inquiry from Representative Dante B. Fascell, Chairman of the House Committee on Foreign Affairs, Weinberger wrote that he ``regarded [a press] allegation of Saudi funding of U.S. assistance to anti-government forces in Nicaragua as so outlandish as to be unworthy of comment from the Department [of Defense].'' 177
177 Letter from Weinberger to Fascell, 9/4/86, ALZ 012492. The press report that prompted Fascell's letter alleged that a slush fund, built into the Airborne Warning and Control Systems (AWACS) sale to Saudi Arabia, provided funds for the contras. (Ibid.)
Later in 1986, Weinberger continued to conceal his knowledge from Congress. On December 17, 1986, during sworn testimony in closed session before the Senate Select Committee on Intelligence, Weinberger gave the following answers to Sen. Bill Bradley's detailed and persistent questions:
Q: Have you been in any meeting since December -- well, in the last 2 years -- that discussed the funding for the contras outside of a direct congressional act?
A: No. I did spend a lot of time trying to persuade various Members of the Senate and House that the $100 million was required, and -- --
Q: But outside of -- --
A: Not outside; no, sir. No.
Q: You've had no discussions with any third party about provision of equipment or money to the contras?
A: No, sir.
Q: You've been in no meeting where it was discussed?
A: To get -- from outside assistance?
Q: Uh-huh.
A: No, I don't have any recollection of that. I know that there were a lot of attempts to get aid to the contras, but my efforts were concentrated entirely on trying to get the $100 million bill passed.
Q: But prior to that, in 1985 or early 1986 you had no discussions with anyone about providing funds or equipment to the contras?
A: I have no recollection of anything of that kind at all, Senator; no. I concentrated, as I said, entirely on the trying to get the Congress to approve the $100 million appropriation, which I thought then and think now was very necessary.
Q: You were in no meeting in which this was discussed?
A: I don't have any recollection of it, Senator, I really don't; no.178
178 Weinberger, SSCI Testimony, 12/17/86, pp. 67-68.
By the time that Independent Counsel had discovered Weinberger's notes and the falsity of his testimony, the five-year statute of limitations had run on this testimony, so it was not, in itself, a basis for prosecution.179
179 At Weinberger's trial, evidence of this false testimony would have been admissible under Federal Rule of Evidence 404(b) and on other bases to show the motive and intent for his later lies on the same topic.
In Weinberger's public testimony before the Select Committees on July 31, 1987, his denial of knowledge of Saudi support to the contras was categorical:
Q: . . . Mr. McFarlane testified that in the spring of 1985 there was a large contribution from [Saudi Arabia]. You were asked in your deposition whether you were aware at or about that time of the contribution. Do you recall being aware?
A: No. I was not aware.
Q: Let me just ask you, . . . if you would turn to . . . a memorandum for the record by John McMahon. It is dated March 15, 1985, and on the second page in paragraph 7 it refers to a meeting that you had with Director Casey at or about that time. It indicates, ``Question of the support the contras came up.'' This is reporting on a meeting that had taken place between yourself and Director Casey. The very last line reads, ``In closing, the Sec -- '' -- meaning the Secretary of Defense -- `` -- stated that he had heard that -- '' -- I will tell you what is under [the black redaction mark] there is an official [Prince Bandar] -- `` -- had earmarked 25 million for the contras in $5 million increments.'' Do you have any recollection of seeing -- --
A: Well, I don't really. These were regular breakfast meetings that I had every week with the Director of CIA and they were very free-form discussions and meetings. The Director [Casey] and his Deputy [McMahon] and Mr. Taft and I went to these breakfasts every week and there was a lot of discussion back and forth and reports passed on and this statement that I had heard that, I don't remember saying it, but I did frequently joke with Mr. Casey to the effect that I frequently picked up things from his rival intelligence agency, which was one of the morning radio stations, and I may very well, simply been passing on that kind of report. I don't have any specific memory of it, but John McMahon is a good reporter so he probably heard this statement made.
Q: John McMahon was Deputy Director of the CIA at the time?
A: He was indeed.
Q: But you don't have any recollection of being advised by Mr. McFarlane or -- --
A: No.
Q: -- -- the President or anyone else that there had been such a large contribution from [Saudi Arabia]?
A: No. The reason I am quite sure about it is that we were all making major efforts at that time to get funding for the contras from the Congress and I think probably many of the gentlemen here remember that I made lots of calls in support of various bills and particularly trying to get the $100 million appropriation which ultimately was voted.180
180 Weinberger, Select Committees Testimony, 7/31/87, pp. 133-35. Although Weinberger's attorneys later claimed that this testimony showed that Weinberger did not deny making the statement recorded in McMahon's contemporaneous memorandum, the full transcript demonstrates Weinberger's calculated denial that he knew anything about Saudi assistance to the contras. The core of the testimony was Weinberger's statement that he was ``quite sure'' that no one had advised him of the Saudi contribution to the contras. The OIC verified the exact phrasing of the questions and Weinberger's answers throughout his testimony from videotape recordings of the Select Committee proceedings.
This testimony in July 1987 simply repeated Weinberger's false testimony from the June 17, 1987, deposition. To avoid unnecessary proliferation it was not included in the indictment as a separate charge.
Count Three: Weinberger's Denial of His Knowledge of the Planned HAWK Missile Shipment in November 1985
Count Three of the Indictment charged Weinberger with perjury for stating falsely under oath that he had no knowledge that the November 1985 HAWK missile shipment to Iran was to take place. Weinberger repeatedly denied to congressional investigators and to the OIC that he had contemporaneous knowledge of the planning for the November 1985 HAWK missile shipment. Yet his daily diary notes demonstrate his detailed and contemporaneous knowledge. Although Weinberger opposed the shipment and warned that it would be illegal under the Arms Export Control Act, his notes indicate that, in furtherance of President Reagan's decision to proceed, Weinberger took steps to identify adequate U.S. HAWK missile inventories to replenish the Israelis.
As the Indictment states, Weinberger was asked directly about the HAWK shipment while testifying under oath before the Select Committees on July 31, 1987:
Mr. Eggleston: The Committee has also received testimony that on that weekend of November 23 and November 24, [1985,] there was a shipment of 18 HAWK missiles from Israel to Iran. This [exhibit] was a paper that was written immediately prior to that time. Let me just ask you: Did you have any knowledge that that transfer was to take place?
Secretary Weinberger: No, I did not.
But his contemporaneous notes reveal that Weinberger was notified on November 9, 1985, by McFarlane of a new phase in the arms-for-hostages plan. After their conversation, Weinberger made the following note in his diary:
Bud McFarlane . . . wants to start ``negot.'' exploration with Iranians (+ Israelis) to give Iranians weapons for our hostages -- I objected -- we'll talk later on secure.181
181 Weinberger Diary, 11/9/85, ALZ 0039774.
The next day, after speaking again with McFarlane, Weinberger made this diary note:
Bud McFarlane . . . -- negotiations are with 3 Iranian dissidents who say they want to overthrow government. We'll demand release of all hostages. Then we might give them -- thru Israelis -- Hawks but no Phoenix.182
182 Ibid., 11/10/85, ALZ 0039775.
One week later -- when McFarlane was in Geneva with President Reagan for a summit meeting with Gorbachev, and Weinberger was in Washington -- McFarlane again telephoned Weinberger. Weinberger made a diary note of McFarlane's specific request for 500 HAWK missiles from DoD stocks:
Bud McFarlane fm [from] Geneva -- update on [summit] meetings -- all OK so far -- Also wants us to try to get 500 Hawks for sale to Israel to pass on to Iran for release of 5 hostages Thurs.183
183 Ibid., 11/19/85, ALZ 0039795.
Weinberger informed Pow