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$Unique_ID{bob01091}
$Pretitle{}
$Title{Iran-Contra Affair: The Report
Chapter 27C Executive Order 12333, and NSDD 159}
$Subtitle{}
$Author{Various}
$Affiliation{}
$Subject{states
united
arms
iran
government
funds
president
congress
israel
sales}
$Date{1987}
$Log{}
Title: Iran-Contra Affair: The Report
Author: Various
Date: 1987
Chapter 27C Executive Order 12333, and NSDD 159
The procedures applicable to covert actions are governed not only by
statutes, but by executive orders and National Security Decision Directives
(NSDDs). These are written regulations signed by the President of the United
States, and are binding on the entire executive branch until they are
rescinded or changed by the President. They, too, were violated.
Executive Order 12333 issued by the President provides that "no agency
except the CIA . . . may conduct any special activity (elsewhere defined to
include covert actions overseas) unless the President determines that another
agency is more likely to achieve a particular objective."
There was no Presidential determination that the NSC staff should conduct
the Contra covert operation, and thus the NSC staff's covert action in support
of the Contras violated the President's executive order.
Similarly, National Security Decision Directive 159, promulgated by the
President, provides that no covert action overseas may be conducted by any
agency of Government unless it is authorized by a written Finding signed by
the President.
There was no written Finding signed by the President approving the covert
action by the NSC staff in support of the Contras. Thus the NSC staffs
activity violated this directive.
Violations of 18 U.S.C. Section 1001
We have described elsewhere (Part IV) the elaborate efforts by Government
officials to conceal their Contra-support activities from Congress.
It is enough to say here that, among other things, Congress was told by
an Administration official orally and in writing in 1985 that the NSC staff
was not engaged in fundraising or arranging military support for the Contras.
Congress was personally told by North in 1986 that he was not engaged in
fundraising or giving military advice to the Contras. Congress was told in
testimony by Administration officials in October 1986 that the Government had
no connection to the plane carrying Eugene Hasenfus. And Congress was told in
testimony by Administration officials in October, November, and December 1986
that the Administration was not involved in raising funds for the Contras from
foreign countries, including specifically funds from Country 2.
These statements were all untrue. They were made by officials who had
varying degrees of knowledge about the facts they discussed. Some of the
statements may have been unintentionally misleading and made by officials who
were themselves deceived; others were outright falsehoods.
Most of these statements were not under oath. But for the branches to
operate in a cooperative relationship, Congress must be able to rely on
statements even if unsworn. Congress and the executive branch are partners,
not adversaries.
The law recognizes this, and the false statement statute, 18 U.S.C. 1001,
provides felony criminal penalties for knowingly false, fictitious, and
fraudulent statements to Congress, even if not made under oath.
Some officials claimed they were forced to choose between making false
statements and revealing information they believed should remain secret.
Government officials may claim any valid privilege including executive
privilege, as a basis for refusing to answer questions or provide documents,
and thus set in motion procedures for lawfully resolving the claim. But under
the U.S. legal system, public officials do not have the option of making false
statements to Congress.
The Diversion - Boland Amendment
The Committees find that the diversion of arms sales proceeds to the
Contras' war effort was an evasion of the Boland Amendment no matter how
narrowly that noncriminal statute is construed.
The Boland Amendment provides that "no funds available to the Central
Intelligence Agency, the Department of Defense, or any other agency or entity
involved in intelligence activities" may be spent for military support of the
Contras.
The missiles that were sold to Iran in 1986 came from Department of
Defense stocks. The missiles had been purchased with money appropriated for
the Department of Defense by Congress, and the missiles belonged to the
Department of Defense. The Department of Defense sold the missiles to the
Central Intelligence Agency, and the Central Intelligence Agency sold the
missiles to Iran.
The memorandum to the President dated January 17, 1986, outlining the
arms sales the President approved that day spells this out very clearly. It
states that the CIA would purchase the missiles from DOD and would sell the
missiles "directly" to Iran, using an "agent" - i.e., the various Enterprise
companies - to handle the actual transactions.
Iran paid $28.5 million for those weapons. In the ordinary course, the
purchase price is paid to the seller, i.e., the CIA. In this case, however,
National Security Adviser Poindexter decided, on North's recommendation, that
only a portion of the money should go to the CIA, with the rest remaining in
the custody of Secord's companies before being used to support the Contras.
Thus, Poindexter testified:
Q: Who decided how that money would be used?
A: The - my guidance to Colonel North what he requested and I approved,
was that those funds should be used for support of the contras in Central
America so they could keep pressure on the Sandinistas.
Q: So the decision - and I think you said earlier in your testimony,
"the buck stops here" - the decision as to how that money was to be used was
made by you?
A: Was my decision; that is correct.
Poindexter could also have decided that all of the purchase price be
remitted to the CIA. North testified as follows:
Q: The question was, if those higher-ups in the U.S. Government from
whom you sought approval decided that the $10 million [residue] should not,
any part of it, be sent to the contras but should all come back to the U.S.
Treasury, that is what would have happened isn't it?
A: Yes.
Given the Enterprise's status as an agent, and the NSC staffs control
over the pricing and the proceeds of the arms sales, the full purchase price
was available to the CIA. These funds, generated from the sale of U.S.
weapons, could no more be diverted to the Contras than the weapons themselves.
Proceeds of Arms Sales - Funds of the United States
The Committees find that the full proceeds of the arms sales to Iran
belong to the U.S. Government. Consequently, these funds are governed by
statutes applicable to Government funds, including statutes prohibiting
conversion of U.S. Government funds to unauthorized purposes.
As already noted in the previous section, Secord's Enterprise received
the purchase price for the missiles in its capacity as agent for the United
States. This conclusion is strongly supported by the documentary and
testimonial evidence. The President approved the arms sales based on the
January 17, 1986, memorandum, which states that the purchase price "would be
transferred to an agent of the CIA," and that the CIA would "deliver the
weapons to Iran through the agent." That memorandum is consistent on this
point with other documents in the Committees' possession. [Other memorandums
confirm the Enterprise's role as agent in the Iran arms sales. The proposal
to sell missiles directly to Iran first appeared in a December 9, 1985,
memorandum from North to Poindexter, suggesting "using Secord as our
conduit." A memorandum by CIA General Counsel Stanley Sporkin dated January
15, 1986, makes three separate references to an "agent" who would supply the
weapons to Iran and "ac