Colonel North's orders - 12 May 1989

At the end of an American criminal trial it used to be almost a routine for the judge to thank the jury, say they had rendered a just verdict, discharge them, and then tell them to speak to no one and go to their homes.

I don’t know when this final injunction was abandoned or fell into disuse but so long as 40 years ago, at the end of the first trial of Alger Hiss, the state department officer accused of denying he had passed documents to a Communist agent, the verdict was no sooner in than I wrote for my paper “now we were down in the press room where, to the naive astonishment of the softer Europeans, three or four of the jury were sounding off as freely as a revival meeting. Since there is apparently no rule against advertising the holy secrets of the jury room they can be put down in this report”.

Well the custom is evidently long gone and in the case of Oliver North, the former marine colonel, I must say I’m glad of it, because once that trial started and it became known that the first qualification of the jury was to have read nothing, seen nothing, heard nothing about the Iran-Contra scandal many people expressed disbelief verging on outrage that the only jury thought fit to serve was one that somehow had remained deaf and blind to a case that for over two years had rocked this nation and many others.

In much commentary that went on in the papers and on radio and on television the jury of twelve blacks, nine women and three men, was discreetly presumed to be incompetent, if only from its declared ignorance. "Civic illiterates" they were dubbed, civic vegetables. By nightfall of the day the verdict was brought in, those of us who had said such things were obliged to eat our words.

All but three of the jury were eager to talk about their problems and their view of the case and the other three did not hold out on principle – they were just not talkative types. They were quite willing to have the others speak for the whole 12 and what came out of it was a revelation of a jury that had sweated away for over 60 hours, not – as we were inclined to guess because they were baffled and bewildered – but because they did not shirk grappling with the evidence in each of 363 documents.

They started each session with a prayer. They then discussed the relative force of the evidence given by witnesses and the evidence recorded in the documents, the orders from Mr North’s superiors, the innumerable memoranda shuffling between the higher members of the National Security Council and Mr North, the reports of meetings with the representatives of several nations, the records of fund-raising occasions with individuals, the bills and orders for arms to Iran, the secret bank accounts, the tally of monies promised or sent to the Contras.

As everybody except the jury must have known, the main charge against Mr North was that he had knowingly helped in selling arms to Iran and diverting some of the profits to the use of the Contras, the Nicaraguan rebels at a time when any aid to the Contras was forbidden by act of Congress.

The jury decided early on to discount, for the time being, most of the testimony of the witnesses other than Mr North as being contradictory, self-serving, full of hearsay. They then divided the documents between them, six of them poring over the prosecution documents, the others over the defence documents.

They soon found that this didn’t work – they were arguing from different texts and often had nothing in common to agree or disagree about. So they abandoned that system and chose the more laborious job of rearranging the whole pile of documents according to each of the 12 counts of the indictment. At the end, they found Mr North not guilty on the nine counts that involved lying to Congress and/or to federal agents. The government’s main argument was that Mr North was consciously breaking the law and acting on his own. The jury soundly disagreed.

They decided, in effect, that Mr North was not running his own foreign policy, was not – as the saying went – "a loose cannon" but was a cannon fired on orders from on high. How high?

It came out in talks with the jury afterwards that they soon developed a suspicion, hardening into a conviction, that Mr North was, as they put it, a scapegoat, he wasn’t the boss.

The forewoman said “They put him out in the cold and closed the door on him.” A young woman who was a civilian clerk with the army put it as succinctly as anyone, “he was just the low man on the totem pole”.

The jurors did not identify the men on high who called the tune. They had no need to, the daily testimony was riddled with the names of Mr William Casey, head of the CIA, now dead who, alive, would most certainly have been in the dock, for the evidence is overwhelming that he was running the whole exercise in diverting the arms sale funds to the Contras.

There is Admiral Poindexter who is the next of four other men to come on trial. He was the one who, in a Machiavellian moment before the Congressional committee, admitted telling Mr North that he had been chosen as the "deniability link", a phrase that may go down in the history books along with Winston Churchill’s "terminological inexactitude".

It means the same thing – to be appointed a deniability link meant that you’d been picked as the man to lie if any of these goings-on came out. And who was Admiral Poindexter acting for or did he, as he said, take on the main responsibility of a policy for which he did not want the president to be blamed?

Three of the jury were at one stage in favour of quashing all the counts, declaring Mr North innocent of everything on the ground that it is Mr Reagan, not Mr North, who ought to have been on trial.

The rest never went so far and in the end the three recanted and settled with the other nine at finding Mr North guilty on three counts to which Mr North himself had not pleaded guilty but had confessed to mistakes or stupidity.

The jury called the three charges evidence of guilt. They were that he had accepted an illegal gratuity of over $13,000 in order – at a time when he felt conspirators were threatening his family – in order to install a home security system. He knew this was wrong, he had backdated letters in a clumsy attempt to cover up the deal.

The second count found him guilty of working up a false chronology of events in order to deceive the congressional investigators. Thirdly, when the scandal broke open he began to shred or destroy incriminating documents, an act his lawyer said showed a natural instinct of anybody running a covert operation.

Certainly, it’s an instinctive procedure for any spy, intelligence agent, when he suspects that the enemy has picked up the trail but this covert operation was not directed at a foreign government. It was being done by an American in violation of a law of Congress and the people who had picked up the culprit’s trail and were on their way to Mr North’s office were the FBI. So he was found guilty on these three counts only.

On the other nine – which embody the whole charge of running a foreign policy in violation of the law – he was found not guilty. That unanimous decision alone showed a remarkable act of independence on the jury’s part, for in his final instructions the judge had anticipated the argument that Mr North was only carrying out the orders of his superiors. Whoever gave the orders, the judge said, if indeed they had been given, was also breaking the law and Mr North’s obedience was no excuse. Nevertheless, the jury said not guilty.

This affair, you may groan to be informed, is by no means over. Admiral Poindexter is coming up for trial. There were documents introduced into this trial which the congressional investigation never saw and some congressmen want to know why.

There is, too, the nasty pending question of President Bush’s role when he was vice president on a trip to Honduras, the chief purpose of which was to offer that country $70million in aid as an incentive to funnelling some of it to the Nicaraguan Contras.

But for the time being the man who must take least comfort from the verdict is Mr Reagan. At least nine of the jury said later that he’s the one who is most accountable for the Iran-Contra mess.

In a national poll taken after the trial a question was put that was answered so long ago as the spring of 1987 – do you think Ronald Reagan was more involved in the Iran-Contra affair than he has said or not? Two years ago 59 Americans in 100 said yes, today, 82 in 100.

Long ago the late, great Mr Justice Holmes said about juries, “In my experience I have not found juries specially inspired for the discovery of truth. I have not found them freer from prejudice than an ordinary judge would be”.

But juries, he believed, served a social function which might be considered a grave defect from the point of view of their theoretical function – that they will introduce into their verdict a certain amount, a very large amount so far as I’ve observed, of popular prejudice and thus keep the administration of the law in accord with the wishes and feelings of the community.

Well, nine jurors out of 12 indicated that they thought the most accountable higher-up in the Iran-Contra affair was Ronald Reagan and now 82% of the people feel the same, just about the same proportion – so the North jury, which we once feared was so ignorant, so unsophisticated, so unrepresentative – can justly claim that it has kept the administration of the law in accord with the wishes and feelings of the community.

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