- SENATE SELECT COMMITTEE TESTIMONY & DEPOSITIONS
- Memos of John F. McCreary April 27, 1992
-
- Memorandum for: Vice Chairman, Senate Select Committee
on Prisoners of War and Missing in Action
- From: John F. McCreary
- Subject: Legal Misconduct and Possible Malpractice in
the Select Committee
-
- 1. As a member of the Virginia State Bar, I am obliged
by Disciplinary Rule DR-1-103(a) to report knowledge of misconduct by an
attorney "to a tribunal or other authority empowered to investigate
or act upon such violations." Under Rule IV, Paragraph 13, of the
Rules for the integration of the Virginia State Bar, this obligation follows
me as a member of the Bar, regardless of the location of my employment,
for as long as I remain a member of the Virginia State Bar. Therefore,
I am obliged, as a matter of law and under pain of discipline by the Virginia
State Bar, to report to you my knowledge of misconduct and possible prima
facie malpractice by attorneys on the Select Committee in ordering the
destruction of Staff documents containing Staff intelligence findings on
9 April 1992 and in statements in meetings on 15 and 16 April to justify
the destruction.
-
- 2. The attached Memoranda For the Record, one by myself
and another by Mr. Jon D. Holstine, describe the relevant facts, which
I summarize herein:
-
- a. On 9 April 1992, the Chairman of the Senate Select
Committee, Senator John Kerry of Massachusetts, in response to a protest
by other members of the Select Committee, told the Select Committee members
that "all copies" would be destroyed. This statement was made
in the presence of the undersigned and of the Staff Chief Counsel who offered
no protest.
-
- b. Later on 9 April 1992, the Staff Director, Frances
Zwenig, an attorney, repeated and insured the execution of Senator Kerry's
order for the destruction of the Staff intelligence briefing text. I personally
delivered to Mr. Barry Valentine, the Security Manager for SRB-78, the
original printed version of the intelligence briefing text. I also verified
that the original was destroyed by shredding in the Office of Senate Security
on 10 April 1992, along with 14 copies.
-
- c. On 15 April 1992, the Staff Chief Counsel, J. William
Codinha of Massachusetts, when advised by members if the Staff about their
concerns over the possible criminal consequences of destroying documents,
minimized the significance of the act of destruction; ridiculed the Staff
members for expressing their concerns; and replied, in response to questions
about the potential consequences, "Who's the injured party,"
and "How are they going to find out because its classified."
Mr. Codinha repeatedly defended the destruction of the documents and gave
no assurances or indications that any copies of the intelligence briefing
text existed.
-
- d. On 16 April, the Chairman of the Senate Select Committee,
Senator John Kerry, stated that he gave the order to destroy "extraneous
copies of the documents" and that no one objected. Moreover, he stated
that the issue was "moot" because the original remained in the
Office of Senate Security "all along."
-
- e. I subsequently learned that the Staff Director had
deposited a copy of the intelligence briefing text in the Office of Senate
Security at 1307 on 16 April.
-
- 3. The foregoing facts establish potentially a prima
facie violation of criminal law and a pattern of violations of legal ethics
by attorneys in acts of commission and omission.
-
- a. It is hornbook law that an attorney may not direct
the commission of a crime. In this incident two attorneys, one by his own
admission, ordered the destruction of documents, which could be violation
of criminal law.
-
- b. Neither the Staff Chief Counsel nor any member of
the Select Committee made a protest or uttered words of caution against
the destruction of documents, by admission of the Chairman, Senator Kerry.
The Chief Counsel has an affirmative duty to advise the Staff about the
legality of its actions, and, in fact, had earlier issued the general prohibition
to the Staff against document destruction.
-
- c. The Chief Counsel's statements during the 15 April
meeting to discuss the document destruction showed no regard for the legality
of the action and displayed to the Staff only a concern about getting caught.
By his words and actions, he presented to the Staff investigators an interpretation
of the confidentiality and security rules that the rules of the Select
Committee may be used to cover-up potentially unethical or illegal activity.
-
- d. The Staff Director's action in placing an unaccounted
for copy of the intelligence briefing text in the Office of Senate Security
on 16 April constitutes an act to cover-up the destruction. Throughout
the 16 April meeting, all three attorneys persisted in stating that the
document had been on file since 9 April. This is simply not true.
-
- 4. I believe that the foregoing facts establish a pattern
of grave legal misconduct - possibly including orders to commit a crime,
followed by acts to justify and then to cover-up that crime. Even absent
criminal liability, the behavioral pattern of the attorneys involved plays
fast and loose with the Canons of Legal Ethics and establishes that one
or more of the attorneys on the Select Committee are unfit to practice
law. I am obliged to recommend that this report be filed with the appropriate
disciplinary authorities of the State Bars in which these attorneys are
members.
-
- (Signed)
- John F. McCreary, Esquire
-
- October 30, 1992
- Memorandum for the Record
-
- From: John F. McCreary
- Subject: Obstruction of the Investigation
-
- 1. I am concerned that recent lines of investigation
have been seriously compromised by leaks of sensitive information by the
Committee Staff Director to the Department of Defense. Leaks to the Department
of Defense or other agencies of the Executive Branch of my Memoranda for
the Record are interfering with follow-up discussions with useful witnesses.
Moreover, they are endangering the lives and livelihood of two witnesses.
-
- Leak of Information on Jan Sejna
-
- 2. Irrespective of leaks outside the government, Bill
LeGro, attended a meeting of the US-Russia Joint Commission group in Washington
on 28 October 1992 at the Department of State. The discussion featured
information provided by Sejna. LeGro stated that Ambassador Malcolm Toon
called for his dismissal. DIA personnel defended Sejna as to his expertise
on Central Europe, but not as to his information on other areas, particularly
POW related.
-
- 4. On 30 October 1992, I learned from Bill LeGro that
he was directed to read a letter from the Central Intelligence Agency to
the Select Committee that discredits Sejna's information. The letter reportedly
indicates that Sejna's information has been checked and not been confirmed
by his former government. At the time this letter was received, the Staff
had decided to take Sejna's deposition but had not yet scheduled a deposition
of Sejna. In addition, my MFR was written from memory, and did not do justice
to all that Sejna stated, either in detail or in context. As of this writing,
we do not know what Sejna knows or will say under oath, yet his testimony
has already been written off. This anticipatory discrediting of a Select
Committee potential witness is tantamount to tampering with the evidence.
-
- Suspected Leak of Information on Le Quang Khai
-
- 5. The second issue of suspected misconduct concerns
witness Le Quang Khai. Although Le made a public statement concerning POWs
on 12 September 1992, no agency of the US government contacted him concerning
his POW information. He told me on 26 October that some men who represented
themselves as FBI agents contacted him to attempts to recruit him to return
to Vietnam as a US intelligence agent for six months. After which his request
for asylum would be favorably considered.
-
- 6. On 30 October, Mr. Robert Egan of Hackensack, New
Jersey, who is a close friend of Mr. Le and the intermediary whereby the
Committee Staff met Mr. Le, informed McCreary and LeGro that the FBI had
again contacted Mr. Le. A person representing himself as an FBI person
called on 30 October to set up a meeting with Le to discuss Le's working
as an intelligence agent for the FBI's POW/MIA office.
-
- 7. So far informal checks indicate there is no such office.
Secondly, this contact occurred three days after my return from taking
Le's deposition in Hackensack on 26 October. I observed a copy of the MFR
with apparent routing designators written in the top margin on the desk
of Frances Zwenig on 28 October.
-
- 8. The contact with Le two days after preparation of
my MFR, despite the passage of a month since his public declarations, is
highly suspicious and more than coincidental. The circumstances of both
contacts in which persons identifying themselves as FBI without showing
credentials or other evidence of authenticity or authority and also making
a pitch to recruit Le are also highly suspicious.
-
- 9. An internal Department of Defense Memorandum identifies
Frances Zwenig as the conduit to the Department of Defense for the acquisition
of sensitive and restricted information from this Committee. Based on the
above sequences of events, I must conclude that Frances Zwenig continues
to leak all of my papers to the Defense Department. Her flagrant disregard
of the rules of the Senate and her oath of office are now jeopardizing
the livelihood, if not the safety, of Senate witnesses. In addition, the
Department of Defense's continuing access to sensitive Committee Staff
papers is resulting in obstruction of the investigations by the Senate
Select Committee by various agencies of the Executive Branch.
-
- (Signed)
- John F. McCreary
-
-
- May 3, 1992
-
- Memorandum for:
- Vice Chairman, Senate Select Committee on Prisoners of
War and Missing in Action
-
- From: John F. McCreary
-
- Subject:
- Possible Violations of Title 18, U.S.C., Section 2071,
by the Select Committee and Possible Ethical Misconduct by Staff Attorneys.
-
- 1. Continuing analysis of relevant laws and further review
of the events between 8 April and 16 April 1992 connected with the destruction
of the Investigators' Intelligence Briefing Text strongly indicate that
the order to destroy all copies of that briefing text on 9 April and the
actual destruction of copies of the briefing texts plus the purging of
computer files might constitute violations of Title 18, U.S.C., Section
2071, which imposes criminal penalties for unlawful document destruction.
Even absent a finding of criminal misconduct, statements, actions, and
failures to act by the senior Staff attorneys following the 9 April briefing
might constitute serious breaches of ethical standards of conduct for attorneys,
in addition to violations of Senate and Select Committee rules. The potential
consequences of these possible misdeeds are such that they should be brought
to the attention of all members of the Select Committee, plus all Designees
and Staff members who were present at the 9 April briefing.
-
- 2. The relevant section of Title 18, U.S.C., states in
pertinent part: Section 2071. Concealment, removal, or mutilation generally
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates,
or destroys, or attempts to do so, or, with intent to do so takes and carries
away any record, proceeding, map, book, paper, document, or other thing,
filed or deposited with any clerk or officer of any court of the United
States, or in any public office, or with any judicial or public officer
of the United States, shall be fined not more than $2,000 or imprisoned
not more than three years, or both. (June 25, 1948, ch. 645, 62 Stat. 795)
-
- 3. The facts as the undersigned and others present at
the briefing recall them are presented in the attached Memorandum for the
Record. A summary of those facts - and others that have been established
since that Memorandum was written - follows.
-
- a. On 8 April 1992, the Investigators' Intelligence Briefing
Text was presented to Senior Staff members and Designees for whom copies
were available prior to beginning the briefing. Objections to the text
by the Designees prompted the Staff Director to order all persons present
to leave their copies of the briefing text in Room SRB078. Subsequent events
indicated that two copies had been removed without authorization.
-
- b. On 9 April 1992, at the beginning of the meeting of
the Select Committee and prior to the scheduled investigators' briefing,
Senator McCain produced a copy of the intelligence briefing text, with
whose contents he strongly disagreed. He charged that the briefing text
had already been leaked to a POW/MIA activist, but was reassured by the
Chairman that such was not the case. He replied that he was certain it
would be leaked. Whereupon, the Chairman assured Senator McCain that there
would be no leaks because all copies would be gathered and destroyed, and
he gave orders to that effect. No senior staff member or attorney present
cautioned against a possible violation of Title 18, U.S.C., Section 2071,
or of Senate or Select Committee Rules.
-
- c. Following the briefing on 9 April, the Staff Director,
Ms. Frances Zwenig, restated to the intelligence investigators the order
to destroy the intelligence briefing text and took measures to ensure execution
of the destruction order. (See paragraph 3 of the attachment.) During one
telephone conversation with the undersigned, she stated that she was "acting
under orders."
-
- d. The undersigned also was instructed to delete all
computer files, which Mr. Barry Valentine witnessed on 9 April.
-
- e. In a meeting on 15 April 1992, the Staff's Chief Counsel,
J. William Codinha, was advised by intelligence investigators of their
concerns about the possibility that they had committed a crime by participating
in the destruction of the briefing text. Mr. Codinha minimized the significance
of the documents and of their destruction. He admonished the investigators
for "making a mountain out of a molehill."
-
- f. When investigators repeated their concern that the
order to destroy the documents might lead to criminal charges, Mr. Codinha
replied "Who's the injured party." He was told, "The 2,494
families of the unaccounted for US Servicemen, among others." Mr.
Codinha then said, "Who's gonna tell them. It's classified."
At that point the meeting erupted. The undersigned stated that the measure
of merit was the law and what's right, not avoidance of getting caught.
To which Mr. Codinha made no reply. At no time during the meeting did Mr.
Codinha give any indication that any copies of the intelligence briefing
text existed.
-
- g. Investigators, thereupon, repeatedly requested actions
by the Committee to clear them of any wrongdoing, such as provision of
legal counsel. Mr. codinha admitted that he was not familiar with the law
and promised to look into it. He invited a memorandum from the investigators
stating what they wanted. Given Mr. Codinha's statements and reactions
to the possibility of criminal liability, the investigators concluded they
must request appointment of an independent counsel. A memorandum making
such a request and signed by all six intelligence investigators was delivered
to Mr. Codinha on 16 April.
-
- h. At 2130 on 16 April, the Chairman of the Senate Select
Committee, convened a meeting with the intelligence investigators, who
told him personally of their concern that they might have committed a crime
by participating in the destruction of the briefing texts at the order
of the Staff Director. Senator Kerry stated that he gave the order to destroy
the documents, not the Staff Director, and that none of the Senators present
at the meeting had objected. He also stated that the issue of document
destruction was "moot" because the original briefing text had
been deposited with the Office of Senate Security "all along."
Both the Staff Director and the Chief Counsel supported this assertion
by the Chairman.
-
- i. Senator Kerry's remarks prompted follow-up investigations
(See paragraphs 4 through 9 of the attachment) and inquiries that established
that a copy of the text was not deposited in the Office of Senate Security
until the afternoon of 16 April. The Staff Director has admitted that on
the afternoon of 16 April, after receiving a copy of a memorandum from
Senator Bob Smith to Senator Kerry in which Senator Smith outlined his
concerns about the destruction of documents, she obtained a copy of the
intelligence briefing text from the office of Senator McCain and took it
to the Office of Senate Security. Office of Senate Security personnel confirmed
that the Staff Director gave them an envelope, marked "Eyes Only,"
to be placed in her personal file. The Staff Director has admitted that
the envelope contained the copy of the intelligence briefing text that
she obtained from the office of Senator McCain.
-
- 3. The facts of the destruction of the intelligence briefing
text would seem to fall inside the prescriptions of the Statute, Title
18, U.S.C., Section 2071, so as to justify their referral for investigation
to a competent law enforcement authority. The applicability of that Statute
was debated in United States v. Poindexter, D.D.C. 1989, 725 F. Supp. 13,
in connection with the Iran Contra investigation. The District Court ruled,
inter alia, that the National Security Council is a public office within
the meaning of the Statute and, thus, that its records and documents fell
within the protection of the Statute. In light of that ruling, the Statute
would seem to apply to this Senate Select Committee and its Staff. The
continued existence of a "bootleg" copy of the intelligence briefing
text - i.e., a copy that is not one of those made by the investigators
for the purpose of briefing the Select Committee - would seem to be irrelevant
to the issues of intent to destroy and willfulness; as well as to the issue
of
- 4. As for the issue of misconduct by Staff attorneys,
all member of the Bar swear to uphold the law. That oath may be violated
by acts of omission and commission. Even without a violation of the Federal
criminal statute, the actions and failures to act by senior Staff attorneys
in the sequence of events connected with the destruction of the briefing
text might constitute violations of ethical standards for members of the
Bar and of both Senate and Select Committee rules. The statements, actions
and failures to act during and after the meeting on 15 April, when the
investigators gave notice of their concern about possible criminal liability
for document destruction, would seem to reflect disregard for the law and
for the rules of the United States Senate.
-
- (Signed)
- John F. McCreary
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- Senate Select Committee Testimony & Depositions
-
- Memos of John F. McCreary
- April 27, 1992
-
- Memorandum for:
- Vice Chairman, Senate Select Committee on Prisoners of
War and Missing in Action
-
- From:John F. McCreary
-
- Subject:Legal Misconduct and Possible Malpractice in
the Select Committee
-
- 1. As a member of the Virginia State Bar, I am obliged
by Disciplinary Rule DR-1-103(a) to report knowledge of misconduct by an
attorney "to a tribunal or other authority empowered to investigate
or act upon such violations." Under Rule IV, Paragraph 13, of the
Rules for the integration of the Virginia State Bar, this obligation follows
me as a member of the Bar, regardless of the location of my employment,
for as long as I remain a member of the Virginia State Bar. Therefore,
I am obliged, as a matter of law and under pain of discipline by the Virginia
State Bar, to report to you my knowledge of misconduct and possible prima
facie malpractice by attorneys on the Select Committee in ordering the
destruction of Staff documents containing Staff intelligence findings on
9 April 1992 and in statements in meetings on 15 and 16 April to justify
the destruction.
-
- 2. The attached Memoranda For the Record, one by myself
and another by Mr. Jon D. Holstine, describe the relevant facts, which
I summarize herein:
-
- a. On 9 April 1992, the Chairman of the Senate Select
Committee, Senator John Kerry of Massachusetts, in response to a protest
by other members of the Select Committee, told the Select Committee members
that "all copies" would be destroyed. This statement was made
in the presence of the undersigned and of the Staff Chief Counsel who offered
no protest.
-
- b. Later on 9 April 1992, the Staff Director, Frances
Zwenig, an attorney, repeated and insured the execution of Senator Kerry's
order for the destruction of the Staff intelligence briefing text. I personally
delivered to Mr. Barry Valentine, the Security Manager for SRB-78, the
original printed version of the intelligence briefing text. I also verified
that the original was destroyed by shredding in the Office of Senate Security
on 10 April 1992, along with 14 copies.
-
- c. On 15 April 1992, the Staff Chief Counsel, J. William
Codinha of Massachusetts, when advised by members if the Staff about their
concerns over the possible criminal consequences of destroying documents,
minimized the significance of the act of destruction; ridiculed the Staff
members for expressing their concerns; and replied, in response to questions
about the potential consequences, "Who's the injured party,"
and "How are they going to find out because its classified."
Mr. Codinha repeatedly defended the destruction of the documents and gave
no assurances or indications that any copies of the intelligence briefing
text existed.
-
- d. On 16 April, the Chairman of the Senate Select Committee,
Senator John Kerry, stated that he gave the order to destroy "extraneous
copies of the documents" and that no one objected. Moreover, he stated
that the issue was "moot" because the original remained in the
Office of Senate Security "all along."
-
- e. I subsequently learned that the Staff Director had
deposited a copy of the intelligence briefing text in the Office of Senate
Security at 1307 on 16 April.
-
- 3. The foregoing facts establish potentially a prima
facie violation of criminal law and a pattern of violations of legal ethics
by attorneys in acts of commission and omission.
-
- a. It is hornbook law that an attorney may not direct
the commission of a crime. In this incident two attorneys, one by his own
admission, ordered the destruction of documents, which could be violation
of criminal law.
-
- b. Neither the Staff Chief Counsel nor any member of
the Select Committee made a protest or uttered words of caution against
the destruction of documents, by admission of the Chairman, Senator Kerry.
The Chief Counsel has an affirmative duty to advise the Staff about the
legality of its actions, and, in fact, had earlier issued the general prohibition
to the Staff against document destruction.
-
- c. The Chief Counsel's statements during the 15 April
meeting to discuss the document destruction showed no regard for the legality
of the action and displayed to the Staff only a concern about getting caught.
By his words and actions, he presented to the Staff investigators an interpretation
of the confidentiality and security rules that the rules of the Select
Committee may be used to cover-up potentially unethical or illegal activity.
-
- d. The Staff Director's action in placing an unaccounted
for copy of the intelligence briefing text in the Office of Senate Security
on 16 April constitutes an act to cover-up the destruction. Throughout
the 16 April meeting, all three attorneys persisted in stating that the
document had been on file since 9 April. This is simply not true.
-
- 4. I believe that the foregoing facts establish a pattern
of grave legal misconduct - possibly including orders to commit a crime,
followed by acts to justify and then to cover-up that crime. Even absent
criminal liability, the behavioral pattern of the attorneys involved plays
fast and loose with the Canons of Legal Ethics and establishes that one
or more of the attorneys on the Select Committee are unfit to practice
law. I am obliged to recommend that this report be filed with the appropriate
disciplinary authorities of the State Bars in which these attorneys are
members.
-
- (Signed)
- John F. McCreary, Esquire
-
-
-
-
- October 30, 1992
-
- Memorandum for the Record
-
- From: John F. McCreary
- Subject: Obstruction of the Investigation
-
- 1. I am concerned that recent lines of investigation
have been seriously compromised by leaks of sensitive information by the
Committee Staff Director to the Department of Defense. Leaks to the Department
of Defense or other agencies of the Executive Branch of my Memoranda for
the Record are interfering with follow-up discussions with useful witnesses.
Moreover, they are endangering the lives and livelihood of two witnesses.
-
- Leak of Information on Jan Sejna
-
- 2. Irrespective of leaks outside the government, Bill
LeGro, attended a meeting of the US-Russia Joint Commission group in Washington
on 28 October 1992 at the Department of State. The discussion featured
information provided by Sejna. LeGro stated that Ambassador Malcolm Toon
called for his dismissal. DIA personnel defended Sejna as to his expertise
on Central Europe, but not as to his information on other areas, particularly
POW related.
-
- 4. On 30 October 1992, I learned from Bill LeGro that
he was directed to read a letter from the Central Intelligence Agency to
the Select Committee that discredits Sejna's information. The letter reportedly
indicates that Sejna's information has been checked and not been confirmed
by his former government. At the time this letter was received, the Staff
had decided to take Sejna's deposition but had not yet scheduled a deposition
of Sejna. In addition, my MFR was written from memory, and did not do justice
to all that Sejna stated, either in detail or in context. As of this writing,
we do not know what Sejna knows or will say under oath, yet his testimony
has already been written off. This anticipatory discrediting of a Select
Committee potential witness is tantamount to tampering with the evidence.
-
- Suspected Leak of Information on Le Quang Khai
-
- 5. The second issue of suspected misconduct concerns
witness Le Quang Khai. Although Le made a public statement concerning POWs
on 12 September 1992, no agency of the US government contacted him concerning
his POW information. He told me on 26 October that some men who represented
themselves as FBI agents contacted him to attempts to recruit him to return
to Vietnam as a US intelligence agent for six months. After which his request
for asylum would be favorably considered.
-
- 6. On 30 October, Mr. Robert Egan of Hackensack, New
Jersey, who is a close friend of Mr. Le and the intermediary whereby the
Committee Staff met Mr. Le, informed McCreary and LeGro that the FBI had
again contacted Mr. Le. A person representing himself as an FBI person
called on 30 October to set up a meeting with Le to discuss Le's working
as an intelligence agent for the FBI's POW/MIA office.
-
- 7. So far informal checks indicate there is no such office.
Secondly, this contact occurred three days after my return from taking
Le's deposition in Hackensack on 26 October. I observed a copy of the MFR
with apparent routing designators written in the top margin on the desk
of Frances Zwenig on 28 October.
-
- 8. The contact with Le two days after preparation of
my MFR, despite the passage of a month since his public declarations, is
highly suspicious and more than coincidental. The circumstances of both
contacts in which persons identifying themselves as FBI without showing
credentials or other evidence of authenticity or authority and also making
a pitch to recruit Le are also highly suspicious.
-
- 9. An internal Department of Defense Memorandum identifies
Frances Zwenig as the conduit to the Department of Defense for the acquisition
of sensitive and restricted information from this Committee. Based on the
above sequences of events, I must conclude that Frances Zwenig continues
to leak all of my papers to the Defense Department. Her flagrant disregard
of the rules of the Senate and her oath of office are now jeopardizing
the livelihood, if not the safety, of Senate witnesses. In addition, the
Department of Defense's continuing access to sensitive Committee Staff
papers is resulting in obstruction of the investigations by the Senate
Select Committee by various agencies of the Executive Branch.
-
- (Signed)
- John F. McCreary
-
-
- May 3, 1992
-
- Memorandum for:
- Vice Chairman, Senate Select Committee on Prisoners of
War and Missing in Action
-
- From:John F. McCreary
-
- Subject:
- Possible Violations of Title 18, U.S.C., Section 2071,
by the Select Committee and Possible Ethical Misconduct by Staff Attorneys.
-
- 1. Continuing analysis of relevant laws and further review
of the events between 8 April and 16 April 1992 connected with the destruction
of the Investigators' Intelligence Briefing Text strongly indicate that
the order to destroy all copies of that briefing text on 9 April and the
actual destruction of copies of the briefing texts plus the purging of
computer files might constitute violations of Title 18, U.S.C., Section
2071, which imposes criminal penalties for unlawful document destruction.
Even absent a finding of criminal misconduct, statements, actions, and
failures to act by the senior Staff attorneys following the 9 April briefing
might constitute serious breaches of ethical standards of conduct for attorneys,
in addition to violations of Senate and Select Committee rules. The potential
consequences of these possible misdeeds are such that they should be brought
to the attention of all members of the Select Committee, plus all Designees
and Staff members who were present at the 9 April briefing.
-
- 2. The relevant section of Title 18, U.S.C., states in
pertinent part: Section 2071. Concealment, removal, or mutilation generally
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates,
or destroys, or attempts to do so, or, with intent to do so takes and carries
away any record, proceeding, map, book, paper, document, or other thing,
filed or deposited with any clerk or officer of any court of the United
States, or in any public office, or with any judicial or public officer
of the United States, shall be fined not more than $2,000 or imprisoned
not more than three years, or both. (June 25, 1948, ch. 645, 62 Stat. 795)
-
- 3. The facts as the undersigned and others present at
the briefing recall them are presented in the attached Memorandum for the
Record. A summary of those facts - and others that have been established
since that Memorandum was written - follows.
-
- a. On 8 April 1992, the Investigators' Intelligence Briefing
Text was presented to Senior Staff members and Designees for whom copies
were available prior to beginning the briefing. Objections to the text
by the Designees prompted the Staff Director to order all persons present
to leave their copies of the briefing text in Room SRB078. Subsequent events
indicated that two copies had been removed without authorization.
-
- b. On 9 April 1992, at the beginning of the meeting of
the Select Committee and prior to the scheduled investigators' briefing,
Senator McCain produced a copy of the intelligence briefing text,
- with whose contents he strongly disagreed. He charged
that the briefing text had already been leaked to a POW/MIA activist, but
was reassured by the Chairman that such was not the case. He replied that
he was certain it would be leaked. Whereupon, the Chairman assured Senator
McCain that there would be no leaks because all copies would be gathered
and destroyed, and he gave orders to that effect. No senior staff member
or attorney present cautioned against a possible violation of Title 18,
U.S.C., Section 2071, or of Senate or Select Committee Rules.
-
- c. Following the briefing on 9 April, the Staff Director,
Ms. Frances Zwenig, restated to the intelligence investigators the order
to destroy the intelligence briefing text and took measures to ensure execution
of the destruction order. (See paragraph 3 of the attachment.) During one
telephone conversation with the undersigned, she stated that she was "acting
under orders."
-
- d. The undersigned also was instructed to delete all
computer files, which Mr. Barry Valentine witnessed on 9 April.
-
- e. In a meeting on 15 April 1992, the Staff's Chief Counsel,
J. William Codinha, was advised by intelligence investigators of their
concerns about the possibility that they had committed a crime by participating
in the destruction of the briefing text. Mr. Codinha minimized the significance
of the documents and of their destruction. He admonished the investigators
for "making a mountain out of a molehill."
-
- f. When investigators repeated their concern that the
order to destroy the documents might lead to criminal charges, Mr. Codinha
replied "Who's the injured party." He was told, "The 2,494
families of the unaccounted for US Servicemen, among others." Mr.
Codinha then said, "Who's gonna tell them. It's classified."
At that point the meeting erupted. The undersigned stated that the measure
of merit was the law and what's right, not avoidance of getting caught.
To which Mr. Codinha made no reply. At no time during the meeting did Mr.
Codinha give any indication that any copies of the intelligence briefing
text existed.
-
- g. Investigators, thereupon, repeatedly requested actions
by the Committee to clear them of any wrongdoing, such as provision of
legal counsel. Mr. codinha admitted that he was not familiar with the law
and promised to look into it. He invited a memorandum from the investigators
stating what they wanted. Given Mr. Codinha's statements and reactions
to the possibility of criminal liability, the investigators concluded they
must request appointment of an independent counsel. A memorandum making
such a request and signed by all six intelligence investigators was delivered
to Mr. Codinha on 16 April.
-
- h. At 2130 on 16 April, the Chairman of the Senate Select
Committee, convened a meeting with the intelligence investigators, who
told him personally of their concern that they might have committed a crime
by participating in the destruction of the briefing texts at the order
of the Staff Director. Senator Kerry stated that he gave the order to destroy
the documents, not the Staff Director, and that none of the Senators present
at the meeting had objected. He also stated that the issue of document
destruction was "moot" because the original briefing text had
been deposited with the Office of Senate Security "all along."
Both the Staff Director and the Chief Counsel supported this assertion
by the Chairman.
-
- i. Senator Kerry's remarks prompted follow-up investigations
(See paragraphs 4 through 9 of the attachment) and inquiries that established
that a copy of the text was not deposited in the Office of Senate Security
until the afternoon of 16 April. The Staff Director has admitted that on
the afternoon of 16 April, after receiving a copy of a memorandum from
Senator Bob Smith to Senator Kerry in which Senator Smith outlined his
concerns about the destruction of documents, she obtained a copy of the
intelligence briefing text from the office of Senator McCain and took it
to the Office of Senate Security. Office of Senate Security personnel confirmed
that the Staff Director gave them an envelope, marked "Eyes Only,"
to be placed in her personal file. The Staff Director has admitted that
the envelope contained the copy of the intelligence briefing text that
she obtained from the office of Senator McCain.
-
- 3. The facts of the destruction of the intelligence briefing
text would seem to fall inside the prescriptions of the Statute, Title
18, U.S.C., Section 2071, so as to justify their referral for investigation
to a competent law enforcement authority. The applicability of that Statute
was debated in United States v. Poindexter, D.D.C. 1989, 725 F. Supp. 13,
in connection with the Iran Contra investigation. The District Court ruled,
inter alia, that the National Security Council is a public office within
the meaning of the Statute and, thus, that its records and documents fell
within the protection of the Statute. In light of that ruling, the Statute
would seem to apply to this Senate Select Committee and its Staff. The
continued existence of a "bootleg" copy of the intelligence briefing
text - i.e., a copy that is not one of those made by the investigators
for the purpose of briefing the Select Committee - would seem to be irrelevant
to the issues of intent to destroy and willfulness; as well as to the issue
of responsibility for the order to destroy all copies of the briefing text,
for the attempt to carry out that order, and for the destruction that actually
was accomplished in execution of that order.
-
- 4. As for the issue of misconduct by Staff attorneys,
all member of the Bar swear to uphold the law. That oath may be violated
by acts of omission and commission. Even without a violation of the Federal
criminal statute, the actions and failures to act by senior Staff attorneys
in the sequence of events connected with the destruction of the briefing
text might constitute violations of ethical standards for members of the
Bar and of both Senate and Select Committee rules. The statements, actions
and failures to act during and after the meeting on 15 April, when the
investigators gave notice of their concern about possible criminal liability
for document destruction, would seem to reflect disregard for the law and
for the rules of the United States Senate.
-
- (Signed)
- John F. McCreary
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