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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
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
[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
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 chat5
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
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
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
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
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 officer21 to represent the DoD at a meeting with Iranian representatives in Europe during that period.22
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
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
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
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:
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 violation39
Weinberger promptly passed this information to McFarlane in Geneva. McFarlane's response was non-committal.40
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
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
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.)
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
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.)
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
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
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
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
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
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
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
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
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
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
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 document86 -- indicated that Weinberger had not turned over relevant notes to Congress.
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.
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.
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 classified91 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.
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
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.
By late January 1992, Weinberger's conduct had become a focus of the OIC's investigation.95
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
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
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:
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.
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)).
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 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.
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 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
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.
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.
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
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. )
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.
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.
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
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
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
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:
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
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
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.)
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
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
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
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
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
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.
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
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
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.
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
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
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:
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
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 children153 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
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
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
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.)
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.
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.)