Walsh Final Report, Part VIII: Officers of the Department of Defense (Weinberger Investigation)

Walsh Iran / Contra Report - Part VIII Officers of the Department of Defense (U.S. v. Caspar W. Weinberger and Related Investigations) Part VIII Officers of the Department of Defense (U.S. v. Caspar W. Weinberger and Related Investigations) 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 t