“High Officials Cannot Be Tried For Their Crimes”

A letter written by the U.S. Office of the Independent Counsel before its dissolution is shedding new light on who helped cover up aspects of Iran-Contra and how senior officials are granted effective immunity. The letter, which was provided by someone who had been associated with the Independent Counsel’s investigation during the Iran-Contra aftermath, was written by Lawrence Walsh and addressed to President Bush. The three page letter was a diplomatic plea for justice. While much of the document dealt with Walsh’s attempts to investigate and prosecute Iran-Contra, it also reveals that the National Security Agency helped coverup aspects of it and forced charges against Oliver North to be dropped.

The first paragraph is simple; yet powerful in its statement of fact and its plea for intervention from the White House. “…We face the likelihood that former high officials cannot be tried for crimes related to their conduct in public office. The intelligence agencies, the Attorney General, and my office have been trying to deal with this problem without exposing intelligence secrets, and protecting government deniability of publicly known facts. It seems clear that if we continue to withhold this information we lose a much more important national value – the rule of law.” [Emphasis added] These sentiments and problems continue to be ones that challenge the United States, and much of the world, due to the increasing tension between secrecy and transparency.

The increased ability for people to hack or leak information is responsible for much of this tension, and has highlighted it in an unusual way. WikiLeaks has released and made available a lot of information, all of which has been confirmed so far, yet the release of the information doesn’t negate the government’s need for secrecy. The information is still classified, and some inside the government and military have faced concern about their security clearances due to reading publicly available documents on WikiLeaks or the New York Times. Some have even faced arrest for reading the Snowden documents. The problem that Walsh and his office faced, however, was more complex and wicked than this, and it had managed to worsen since Reagan’s administration.

Under the Reagan administration, Walsh enjoyed some level of cooperation. He worked closely with Ambassador Abshire and A.B. Culvahouse, who were competent liaisons. While Walsh didn’t always get the outcome he desired, the process was relatively unhampered. According to Walsh’s letter, however, not only was this relationship absent under the Bush administration – they were interfering with the efforts to prosecute former CIA Station Chief Joseph Fernandez (AKA Tomás Castillo, Thomas Castillo).

Fernandez’s case had Walsh in a bind, one he wasn’t happy to revisit after the trial of Oliver North. The court had ruled that Fernandez could present information about CIA programs as part of his defense, and that he could prove “the existence of CIA stations in certain Latin American countries as well as the location of a CIA installation in one of those countries.” According to Walsh, however, the Agency claimed “that although the existence of these stations is publicly known, this evidence may not be made public even though this refusal may force dismissal of the Fernandez case.”

Perhaps most frustratingly, he had already compromised during the Oliver North trial. During that trial, the National Security Agency compelled him to drop several major charges against North, claiming that the NSA reports he planned to cite in his defense were too secret to be used at trial. In exchange, the tacit understanding was that the NSA and other agencies would try to cooperate. For Walsh, history seemed to be repeating itself – but now he was getting even less support and cooperation. Without the direct intervention of the President, Walsh felt that “the rule of law will be subordinated to the intelligence effort. The tail has begun to wag the dog.”

wag-the-dog

To Walsh, the basic question that the Bush administration was faced with was “whether a group of high public officials shall be excluded from the reach of the law… The question is whether this Administration will tolerate the creation of an enclave of high public officers free from the rule of law simply because those public officers deal extensively with classified information… There is a serious danger that a ritualistic application of classification procedures will insulate most if not all of the officers responsible for national security from prosecution for crimes committed in office.”

serious-danger

For these problems, Walsh had a reasonable proposal: that the President provide “a higher level of review… particularly in cases where the Attorney General has been superseded by the Independent Counsel because of possible conflict of interest.” Otherwise, Walsh knew that “national security [will continue to be] used in exaggerated form and will defeat necessary prosecutions of high government officers.”

walsh-summary

After reviewing his reasons and his plea for intervention, the White House responded. It “would not be appropriate as the President is fully confident with the established procedures to handle the Iran/Contra litigation.” That these procedures were forcing charges to be dropped, and would interfere with upholding the law, did not seem to be a problem for the President’s confidence. This, along with President Bush’s later pardon of the people involved, reveals his notion of justice in the Iran-Contra case. The White House’s response, in a letter written by C. Boyden Gray, informed Walsh that he should continue to work with the Attorney General and no one else. Walsh responded curtly, accusing the White House of belittling the gravity of the problem. The Attorney General, after all, only came into the process after the intelligence agencies had refused to comply with a court order.

walsh-response

 

Unfortunately, Walsh didn’t receive the cooperation he needed. As a result, the trials were cut short and pardons eventually handed out. The tail had succeeded in wagging the dog, as Walsh had put it, and the government had successfully used graymail against itself. As a result, the unfortunate precedent was set and even today the U.S. struggles with the fact that its high officials can’t be tried for their crimes.

You can read the correspondence below:


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