What were CIA's legal and regulatory responsibilities during the Contra program regarding the reporting of potential drug trafficking crimes?
Reporting Potential Crimes to Department of Justice
Background. For over 20 years, CIA had broad discretion to report or not report information that came to its attention regarding potential violations of federal law by its employees, assets and other persons. According to a 1954 memorandum from CIA General Counsel Lawrence Houston to the DCI, Houston discussed the issue of reporting Federal criminal violations to the Department of Justice (DoJ) with Deputy Attorney General William P. Rogers on February 18, 1954. According to that memorandum, Rogers and Houston agreed that CIA would be responsible for determining whether a potential violation of criminal law by persons associated with CIA would be referred to DoJ for prosecution. This arrangement was based on the belief that CIA was in the best position to determine whether classified information might be revealed in the course of such a prosecution. The memorandum also stated that CIA would be obligated to refer to DoJ potential criminal matters that could be prosecuted without revealing classified information, and that any doubts would be resolved in favor of referring the matter to DoJ. Finally, Rogers and Houston agreed, according to the memorandum, that it was not necessary at that time to enter a formal agreement of any kind that would embody these understandings.
In the mid-1970s, this arrangement became more widely known and was subject to criticism by the Congress(6) and others. Then-Assistant Attorney General for DoJ's Criminal Division Richard Thornburgh wrote CIA General Counsel John Warner on July 24, 1975 to remind CIA of its duty to comply with 28 U.S.C. 535, a provision of law that imposes a duty on every department and agency in the Executive Branch to report promptly to the Attorney General any information, allegations, or complaints relating to possible violations of Title 18 of the United States Code by officers and employees of the U.S. Government. Warner responded on July 29 and acknowledged that "any other informal referral agreement that may have been in effect in the past was abrogated." At the same time, however, Warner noted that the DCI was charged under the National Security Act of 1947 with "protecting intelligence sources and methods from unauthorized disclosure" and that CIA would be seeking DoJ's advice as to fulfilling this responsibility in regard to "cases that will be reported."
CIA Regulation Regarding Crimes Reporting. As of November 28, 1975, CIA's policy for reporting information regarding potential violations of federal criminal law by employees and others was set forth in Headquarters Regulation (HR) 7-1 a(7). That regulation provided:
Information, allegations, or complaints of violations of the criminal provisions of the United States Code by CIA officers and employees, or relating to CIA affairs, shall be reported immediately by an employee to the Inspector General, who shall inform the General Counsel. Information, allegations, or complaints of violations of Title 18 of the United States Code involving Government officers and employees shall be expeditiously reported to the Attorney General by the General Counsel in compliance with 28 U.S.C. 535. Such report to the Attorney General shall include an evaluation of the impact, if any, of a prosecution on the national security or foreign relations of the United States, including intelligence operations which may be jeopardized or intelligence sources and methods which may be compromised thereby. CIA will not exercise a prosecutorial function.
- E.O. 11905. A presidential directive that CIA report information to DoJ concerning potential violations of certain federal criminal laws by employees and non-employees was first established by President Gerald Ford in Executive Order (E.O.) 11905, dated February 18, 1976. The pertinent part of E.O. 11905--Section 4(a)--stated:
In carrying out their duties and responsibilities, senior officials [including those at CIA] . . . shall: . . . .
(5) Report to the Attorney General that information which relates to detection or prevention of possible violations of law by any person, including an employee of the senior official's department or agency:
. . . .
The preamble to Section 4 stated that:
Unless otherwise specified within this section, its provisions apply to activities both inside and outside the United States, and all references to law are to applicable laws of the United States.
The reporting obligations imposed upon CIA and other U.S. intelligence agencies by this provision exceeded those required of other federal agencies. Whereas the responsibilities of other agencies in this regard are limited by 28 U.S.C. 535 to potential violations of Title 18 by U.S. Government employees, E.O. 11905 required CIA and other intelligence agencies to report all possible violations of any law by any person.
- A May 7, 1976 opinion by DoJ's Office of Legal Counsel confirmed the breadth of Section 4(a)(5) of E.O. 11905 by concluding that it required reports of possible violations of any law, civil or criminal, with respect to which DoJ had either investigative or prosecutorial jurisdiction. This opinion also noted, however, that the agencies were required to report such information to the Attorney General only when such information was acquired by them in the exercise of their functions under the E.O.
E.O. 12036. On January 26, 1978, President Jimmy Carter signed E.O. 12036, "United States Intelligence Activities," which superseded E.O. 11905. Section 1-7 of E.O. 12036 contained the following language regarding the obligation to report federal crimes:
The senior officials of each of the agencies within the Intelligence Community shall:
. . . .
(1-706) Report to the Attorney General evidence of possible violations of federal criminal law by an employee of their department or agency, and report to the Attorney General evidence of possible violations by any other person of those federal criminal laws specified in guidelines adopted by the Attorney General. . . . .
Section 4-204 of the E.O. defined "employee" as:
Employee means a person employed by, assigned to, or acting for an agency within the Intelligence Community.
E.O. 12036 thus narrowed the CIA's responsibilities with respect to reporting employee violations because it expressly limited the requirement to federal criminal violations. On the other hand, E.O. 12036 continued to require that intelligence agencies report any federal criminal violation by their employees, not just Title 18 violations. For example, most narcotics violations fall under Title 21 and would not be reportable by other U.S. Government agencies under a literal reading of 28 U.S.C. 535. Moreover, E.O. 12036 did not alter the fact that only the Intelligence Community agencies were required to report federal crimes by non-employees, although it did recognize that the scope of this portion of the reporting requirement could be narrowed by Attorney General guidelines.
On September 15, 1978, CIA amended HR 7-1 to incorporate the changes required by E.O. 12036. With respect to the obligation for reporting potential crimes, the revision read:
. . . .
Information, allegations, and complaints of possible violations of Federal criminal law by CIA employees or any other person shall be reported immediately by any employee to the Inspector General who shall inform the General Counsel. The Inspector General shall provide to the General Counsel an evaluation of the impact, if any, of a prosecution of such a violation on the national security or foreign relations of the United States, including intelligence operations which may be jeopardized or intelligence sources and methods which may be compromised. Pursuant to 28 U.S.C. 535 and Section 1-706 of Executive order 12036, evidence of possible violations of Federal criminal law shall be reported expeditiously to the Attorney General by the General Counsel in accordance with procedures and guidelines adopted by the Attorney General.
. . . .
Attorney General Procedures for Crimes Reporting. On August 15, 1979, pursuant to section 1-706 of E.O. 12036, Attorney General Griffin Bell promulgated two sets of guidelines. One guideline pertained to the reporting of federal crimes committed by employees of agencies in the intelligence community. The other related to the reporting of federal crimes committed by non-employees.
The August 1979 Attorney General employee crimes reporting guidelines defined "employees" to include not only persons covered by the definition of that term in Section 4-204 of E.O. 12036 (i.e., those who were employed by, assigned to, or acting for an intelligence agency), but also any former employees when the offense was committed during their employment or related to potential violations of statutory restrictions on the post-employment activities of former employees. With respect to employees of intelligence agencies, the guidelines required the General Counsel to refer to DoJ any "allegations, complaints, or information tending to show that any officer or employee may have violated a federal criminal statute that the agency cannot establish as unfounded within a reasonable time through a preliminary inquiry."
The August 1979 Attorney General guidelines for reporting crimes committed by non-employees set forth several categories of federal crimes as to which reporting would be required:
Crimes involving intentional infliction or threat of death or serious physical harm (e.g., homicide, kidnapping);
Crimes impacting on the national security, defense, or foreign relations of the United States (e.g., espionage, sabotage, violations of the Trading with the Enemy Act, neutrality offenses); and
Crimes involving foreign interference with the integrity of United States Government institutions or crimes committed on behalf of a foreign power or in connection with international terrorist activity (e.g., bribery, election contributions, aircraft piracy, transportation of explosives).
Potential violations of federal criminal provisions relating to narcotics trafficking were not included among the categories of reportable crimes by non-employees. The guidelines did, however, include language also authorizing the General Counsel to report information concerning any offense that the General Counsel believed should be reported to the Attorney General.
On November 21, 1979, following the adoption of the August 1979 Attorney General guidelines, CIA amended HR 7-1. HR 7-1a (7) of that regulation stated:
Any employee who, in the course of official duty, becomes aware of any information, allegation, or complaint of possible violations of Federal criminal laws by any person, including a person employed by, assigned to, or acting for the Agency, is required to report immediately such information, allegation, or complaint to the General Counsel. The Office of General Counsel shall consult with the Office of Security and the Office of Inspector General when necessary in conducting a preliminary inquiry to determine whether a basis for referral exists and shall obtain from concerned Agency components an evaluation of the impact, if any, of a prosecution of such a violation on the national security or foreign relations of the United States, including intelligence operations which may be jeopardized or intelligence sources and methods which may be compromised. Pursuant to 28 U.S.C. 535 and Section 1-706 of Executive Order 12036, evidence of possible violations of Federal criminal law shall be reported expeditiously to the Attorney General by the General Counsel in accordance with procedures and guidelines adopted by the Attorney General
. . . .
This major revision of HR 7-1 established a requirement that CIA employees report information, allegations and complaints regarding possible violations of federal criminal law by any person directly to the General Counsel instead of indirectly through the Inspector General.
On November 21, 1979, CIA issued Headquarters Notice (HN) 7-39, "Supervisors' and Managers' Responsibility to Report Evidence of Crimes to the Attorney General--Executive Order 12036, Section 1-706." Section 4 of the HN addressed the issue of reporting potential crimes by employees:
. . . .
a. Employees. Senior officials of the Intelligence Community are required to report to the Attorney General evidence of possible violations by an employee of their department or agency of any Federal criminal law. The Executive order defines "employee" more broadly than the general or dictionary meaning of the word. "Employee" for the purpose of reporting crimes means a person employed by, assigned to, or acting for an agency within the Intelligence Community. Thus, for example, an agent, a safehousekeeper, a contract employee, or an independent contractor performing services for CIA is considered an employee.
In view of these obligations, all employees have been instructed to report to the Office of General Counsel when, in the course of official duty, they become aware of (a) any information, allegation, or complaint that an employee may have violated any Federal criminal law, and (b) any facts or circumstances that raise a suspicion in the employee's mind that a Federal criminal offense has been committed by a nonemployee
. . . .
On the same day, CIA issued a companion notice, HN 7-38, "Employee Responsibility to Report Evidence of Crimes to the Attorney General--Executive Order 12036, Section 1-706." This HN provided the following guidance to employees:
. . . .
3. In summary, all employees are instructed to report to the Office of General Counsel when, in the course of official duty, they become aware of (a) any information, allegation, or complaint that an employee may have violated any Federal criminal law, and (b) any facts or circumstances that raise a suspicion in the employee's mind that a Federal criminal offense may have been committed by a nonemployee.
. . . .
HN 7-38 did not define the term "employee," but referred to HN 7-39 and noted that it dealt with the same subject in much greater detail. HN 7-38 also advised employees who wished further clarification to contact their supervisor or Office of General Counsel (OGC).
- E.O. 12333. On December 4, 1981, President Ronald Reagan signed E.O. 12333, "United States Intelligence Activities," which revoked E.O. 12036. The provision of E.O. 12333 requiring reporting of crimes to the Attorney General was not revised in any substantive way, except for adding a specific reference to protecting intelligence sources and methods. Unlike the two previous Executive Orders, however, E.O. 12333 required the head of an intelligence agency and the Attorney General to agree on crimes reporting procedures.
- Section 1.7(a) of E.O. 12333 stated that heads of departments and agencies in the Intelligence Community should:
Report to the Attorney General possible violations of federal criminal laws by employees and of specified federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department or agency concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures.
Section 3.4(c) of the E.O. defined "employee" in the same way as that term had been defined in E.O. 12036:
Employee means a person employed by, assigned to or acting for an agency within the Intelligence Community.
As had been true under E.O. 11905 and E.O. 12036, the reporting obligations imposed upon CIA and other U.S. intelligence agencies by these provisions exceeded the obligations of other federal agencies. Whereas the responsibilities of other agencies in this regard are limited by 28 U.S.C. 535 to potential violations of Title 18 by U.S. Government employees, E.O. 12333 requires CIA and other intelligence agencies to report all possible violations of any law by any person.
1982 DoJ-CIA Memorandum of Understanding. To implement section 1.7(a) of E.O. 12333 and replace the August 1979 guidelines promulgated by Attorney General Bell under E.O. 12036, a MOU between CIA and DoJ regarding crimes reporting was signed by Attorney General William French Smith on February 11, 1982 and DCI William Casey on March 2, 1982. (See Exhibit 1 for the full text of this Memorandum.) The MOU defined "employee" for crimes reporting purposes as:
A staff employee or contract employee of the Agency; Former officers or employees of the Agency, for purposes of offenses committed during their employment; andFormer officers or employees of the Agency, for offenses involving a violation of the statutory limits on activities of former U.S. Government employees.
This definition of "employee" was narrower than the definition of that term in Section 3.4(c) of E.O. 12333 which included any person "employed by, assigned to or acting for an agency within the Intelligence Community." (Emphasis added.) The effect of this omission was to move persons "acting for," but not employed by or assigned to, CIA from the "employee" to the "non-employee" category for crimes reporting purposes.
- The list of non-employee crimes that were required by the 1982 DoJ-CIA MOU to be reported to the Attorney General was essentially the same as had been included in the August 1979 Attorney General guidelines. The only substantive change was that the 1982 MOU added certain violations of the Atomic Energy Act. As was the case with the 1979 Attorney General guidelines, the 1982 MOU did not include any type of narcotics violation among the lists of reportable crimes by non-employees. However, in language similar to that used in the portion of the 1979 Attorney General guidelines that applied to non-employees, Section IV D. of the 1982 DoJ-CIA MOU stated:
Notwithstanding any of the above provisions, the General Counsel may report any other possible offense when he believes it should be reported.
- On February 11, 1982, Attorney General Smith sent a letter to DCI Casey notifying him that he had approved the MOU and was sending it to Casey for his signature. (See Exhibit 2 for the full text of this letter.) The letter stated, in part:
I have been advised that a question arose regarding the need to add narcotics violations to the list of reportable non-employee crimes . . . . 21 U.S.C. §874(h) [sic](7) provides that "when requested by the Attorney General, it shall be the duty of any agency or instrumentality of the Federal Government to furnish assistance to him for carrying out his functions under [the Controlled Substances Act] . . . ." Section 1.8(b) of Executive Order 12333 tasks the Central Intelligence Agency to "collect, produce and disseminate intelligence on foreign aspects of narcotics production and trafficking." Moreover, authorization for the dissemination of information concerning narcotics violatons [sic] to law enforcement agencies, including the Department of Justice, is provided by sections 2.3(c) and (i) and 2.6(b) of the Order. In light of these provisions, and in view of the fine cooperation the Drug Enforcement Administration has received from CIA, no formal requirement regarding the reporting of narcotics violations has been included in these procedures. We look forward to the CIA's continuing cooperation with the Department of Justice in this area.
The letter did not request that DCI Casey concur in the expectations expressed by Attorney General Smith. On March 2, 1982, Casey signed the MOU.
- The first part of the Attorney General's letter referred to 21 USC 873(b). That statute provides:
When requested by the Attorney General, it shall be the duty of any agency or instrumentality of the Federal Government to furnish assistance, including any technical advice, to him for carrying out his functions under this subchapter [Title 21 of the United States Code]. . . .
The authority of the Attorney General to prosecute and litigate is not contained in Title 21 but rather is found generally in sections, 509, 516, 519, and 547 of Title 28. Those sections do not create a requirement to report narcotics violations to the Attorney General.
- The second part of the Attorney General's letter referred to Section 1.8(b) of E.O. 12333. Section 1.8(b) states that the CIA shall "Collect, produce and disseminate intelligence on foreign aspects of narcotics production and trafficking." That section also does not create a requirement to report narcotics violations to the Attorney General.
- The third part of the Attorney General's letter referred to sections 2.3(c) and 2.6(b) of E.O. 12333. Section 2.3(c) states that DCI and Attorney General-approved collection procedures shall permit an intelligence agency to collect, retain and disseminate "Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation." Section 2.6(b) states that an intelligence agency is authorized to:
Unless otherwise precluded by law or this Order, participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities.
Those sections do not create a requirement to report narcotics violations to the Attorney General.
The Attorney General's letter also stated that:
In light of these provisions [discussed above] and in view of the fine cooperation the Drug Enforcement Administration has received from CIA, no formal reporting requirement of narcotics violations has been included in these procedures.
However, reporting of narcotics intelligence information to the Drug Enforcement Administration would not satisfy the requirement of section 1.7(a) of E.O. 12333 that potential criminal violations be reported to the Attorney General. While the 1979 Attorney General Guidelines under E.O. 12036 permitted reporting of potential federal crimes to appropriate law enforcement agencies in certain circumstances in lieu of reporting to the DoJ Criminal Division, the 1982 CIA-DoJ MOU required notification to the Criminal Division of any such referral to an investigative agency or to a United States Attorney.
- On March 2, 1982, DCI Casey wrote to Attorney General Smith stating that he had signed the procedures. DCI Casey's letter did not refer to the issue of reporting narcotics violations and did not indicate whether he agreed or disagreed with the statements in the Smith letter.
- On February 8,1985, A. R. Cinquegrana, Deputy Counsel for Intelligence Policy at DoJ, wrote a memorandum to Mark M Richard, Deputy Assistant Attorney General, Criminal Division, in which he stated:
Pursuant to our discussion yesterday, attached are copies of the procedures governing CIA's reporting of crimes and the transmittal letters between the [Attorney General] and the DCI. As you can see, alleged violations of Title 21 [narcotics violations] by non-employees are not covered by the procedures to be reported. In lieu of formal reporting, however, the Attorney General's letter notes "the fine cooperation the Drug Enforcement Administration has received from CIA" and the Department's expectation of "continuing cooperation . . . in this area." Accordingly, it would appear that if CIA and DEA can work out a mutually satisfactory arrangement regarding the kinds of offenses at issue, there would be no need to modify the procedures, at least so far as non-employees are concerned.
(Emphasis in original.)
- On January 5, 1988, in a letter to William F Weld, Assistant Attorney General for the Criminal Division that provided information regarding a possible violation of U.S. narcotics laws by Adolfo Chamorro, CIA General Counsel David Doherty noted that "Although this non-employee crime is not required to be reported under the Attorney General-approved guidelines, I am making this report because of the serious nature of the alleged offense." No information has been found to indicate that DoJ responded to this statement by the General Counsel.(8)
- On December 23, 1987, the CIA's HR 7-1 was revised to incorporate the changes that had been established six years earlier by E.O. 12333. With regard to crimes reporting, Section d of the revised HR stated:
. . . .
(5) All employees shall report to the General Counsel via their components facts or circumstances that appear to indicate the commission of a criminal offense . . . . Pursuant to Section 1.7(a) of E.O. 12333, CIA is obligated to report, through its General Counsel, to the Attorney General possible violations of Federal criminal laws by employees and of specific Federal criminal laws by any other person as provided in the crimes reporting procedures in Annex D.
Annex D of the revised HR 7-1 consisted of the 1982 MOU between CIA and DoJ. The February 11, 1982 letter regarding narcotics violations that had been sent by Attorney General Smith to DCI Casey along with the 1982 MOU was not included in Annex D.
1995 Revision of the DoJ-CIA MOU. In August 1995, DoJ, CIA and other Intelligence Community agencies agreed to a revised MOU governing the reporting of crimes that superseded the 1982 MOU on that subject. This revised MOU remains in effect.
Section II.A of the 1995 MOU defines an "employee" as follows:
. . . a staff employee, contract employee, asset, or other person or entity providing service to or acting on behalf of any agency within the intelligence community.
Thus, the broad requirement to report any potential violation of law by any "employee" has been extended once again beyond persons employed by CIA and to include those who are "acting on behalf" of the Agency. Also, for the first time, potential violations of U.S. laws related to narcotics trafficking are specifically included by the 1995 MOU in the categories of potential violations by non-employees that are required to be reported to DoJ.
Coordination with DEA. On April 25, 1984, DEA and CIA revised an August 1978 MOU between them. The revised 1984 version of the DEA/CIA MOU, entitled "Procedures Governing Conduct and Coordination by CIA and DEA of Narcotics Activities Abroad," focused on the collection and sharing of strategic narcotics intelligence and the issue of coordination at the field level. It did not mention CIA's crime reporting responsibilities under the 1982 MOU between DoJ and CIA.
The introduction of the revised MOU states that:
[The MOU is] intended to promote coordination between the DEA Special Agent in Charge (SAC) and the CIA Chief of Station (COS) in matters of mutual interest, timely sharing of strategic narcotics intelligence and the prompt resolution at the Headquarters level of difficulties or disagreements. CIA and DEA have legitimate functions with regard to monitoring and countering international narcotics trafficking and production.
The revised MOU defines "strategic narcotics intelligence" as:
. . . includ[ing] information regarding the influence of narcotics production and trafficking on the economy of a country, possible corruption of government officials, geographic areas of narcotics production, narcotics trafficking routes, financial intelligence (movements of funds attributable to narcotics production and trafficking) and estimates of narcotics production.
Individual Views of CIA Responsibility to Report Narcotics Violations Under E.O. 12036 and the 1979 Attorney General Guidelines. Bernard Makowka, an attorney in OGC from 1975-1989 and Chief of the Intelligence Law Division in 1982, states that narcotics violations by agents or assets did not have to be reported under E.O. 12036 and DoJ guidelines that existed at the time. According to Makowka, both CIA and DoJ were comfortable with this arrangement. Makowka says CIA did not want to be involved in law enforcement issues while DoJ did not want "tainted leads" from CIA which could not be used in criminal prosecutions because of national security concerns.(9)
- Makowka also states that E.O. 12036 restricted CIA from disseminating information on U.S. persons and therefore certain narcotics violations could not even be reported to DoJ. Makowka further states that the definition of "employee" in HN 7-39 is not consistent with the way that the OGC interpreted the term "employee" as it applied to E.O. 12036. According to Makowka, HN 7-39 could be read so as to require the reporting of agent crimes only when an agent was acting on behalf of CIA and that when the agent was acting on his own, no report would have to be made.
- Edmund Cohen, an OGC attorney and Chief of the Administrative Law Division in 1982, states that there had been an agreement between CIA and DoJ under E.O. 12036 that CIA would not necessarily have to report crimes, including narcotics violations, if such crimes involved classified information.
- The OGC attorney who served as Makowka's deputy in 1982 remembers being told by senior attorneys in OGC that there was a distinction made for reporting narcotics violations under E.O. 12036 in which the CIA would only report major narcotics violations to DoJ. He also notes that, in the late 1970s, CIA was not heavily involved in the collection of narcotics intelligence and it was not a high priority.
- A. R. Cinquegrana, Deputy Chief of DoJ's Office of Intelligence Policy and Review (OIPR) from 1979 to 1991, states that he does not believe that the 1979 guidelines required CIA to report narcotics trafficking violations as potential crimes by non-employees since the definition of "employees" under those guidelines included agents and assets.
- Negotiation of 1982 DoJ-CIA Crimes Reporting MOU. According to the OGC attorney who served as Makowka's deputy in the Intelligence Law Division in 1982, CIA and DoJ entered into discussions over an MOU to establish crimes reporting procedures shortly after E.O. 12333 was issued by President Reagan. Approximately two months transpired between the issuance of E.O. 12333 and an agreement between the CIA and DoJ.
- The OGC attorney who served as Makowka's deputy in the Intelligence Law Division in 1982 states that CIA General Counsel Daniel Silver assigned him the task of writing the first draft of the MOU. He says that he used the Attorney General guidelines under E.O. 12036 as a starting point regarding the list of reportable crimes. He did not add any new crimes to the list in his draft MOU and instead simply took the list of crimes from the 1979 guidelines. He also states that he received specific instructions from Cohen to narrow the definition of "employee" in the draft MOU from the definition in E.O. 12333. He recalls that there were not many changes between his draft MOU and the final MOU.
- Makowka remembers that the negotiations for all the E.O. 12333 procedures took a long time to complete. Makowka oversaw the MOU negotiations for CIA but was one step removed from the day-to-day activities. Those responsibilities were handled by Cohen and his deputy for OGC, and says Makowka, the DO/Policy and Coordination Staff also was involved. Makowka also recalls that DoJ questioned everything in the E.O. 12333 procedures and says he assumes that DoJ carefully reviewed the MOU as well.
- Cohen recalls that the MOU was thoroughly coordinated with DoJ. Cohen says that the negotiations over the MOU involved the competing interests of DoJ and CIA. DoJ's interest was to establish procedures while CIA's interest was to ensure that the MOU protected CIA's national security equities.
- George Clarke, OGC's Chief of Intelligence Community Affairs in 1982, remembers that there were many discussions between CIA and DoJ but does not recall the specific issues. Clarke does not recall any interagency disagreement over the crimes listed in the 1982 MOU.
- While personnel from the DoJ's Criminal Division were not involved in the day-to-day negotiations, Cinquegrana says that OIPR kept them fully advised and consulted with them regularly as the draft developed. Cinquegrana says he and Mark Evans represented DoJ in the negotiations.
- Mark Evans and Jerry Schroeder, both of whom were OIPR staff attorneys in 1982, state that they have no recollection of having worked on the 1982 Crimes Reporting MOU, although both worked on other aspects of implementing other provisions of E.O. 12333. Neither had any idea of who else may have worked on this issue. Cinquegrana states that Deputy Assistant Attorney General Mark Richard and OIPR Chief Mary Lawton(10) participated in some of the MOU discussions.
- Richard says he probably had some input into the MOU, but that it was negotiated by Cinquegrana, as Lawton's deputy.
- Exclusion of Narcotics Violations from Scope of Reportable Non-employee Crimes. Makowka remembers that the issue of narcotics violations was thoroughly discussed between DoJ and CIA before the MOU was signed.
- According to Makowka, DoJ questioned everything in the MOU and was very particular about every procedure listed in the MOU. He recalls that DoJ and CIA discussed the issue of whether narcotics violations should be in the list of reportable crimes and the parties arrived at an understanding where CIA would only report "serious, not run-of-the-mill, narcotics violations." Makowka believes that this represented a decision by CIA and DoJ to continue the practice established under the previous Executive Order in which only significant violations would be reported. Subsequently, Makowka added that DoJ and CIA agreed that significant narcotics transactions would continue to be reported even though not technically required under the MOU.
According to Cohen, CIA's main concern was the collection of intelligence on narcotics, not law enforcement. He recalls that the only discussion between CIA and DoJ in terms of reporting narcotics violations to DoJ was in the context of Agency employees and the Agency reporting potential violations of law picked up through applicant and employee polygraphs. The deputy to the Chief of OGC's Intelligence Law Division in 1982 believes that the 1982 MOU was intended to be a continuation of existing practices under E.O. 12036.
- Cinquegrana states that DoJ's Criminal Division reviewed and concurred with the non-employee criminal violations listed in the MOU. He believes that the Criminal Division had a better appreciation than OIPR for the kinds of crimes that should be included in the MOU. According to him, the list of crimes in the MOU seemed to represent at the time the categories of crimes that DoJ might expect to come to the attention of an intelligence agency during the course of its business. Cinquegrana does not remember any disagreements between DoJ and CIA relative to specific types of violations. From his perspective in OIPR, he believes the failure to include narcotics on the list of reportable non-employee crimes was an omission and not a conscious decision to exclude such matters.
- Mark Richard, Deputy Assistant Attorney General with responsibility for General Litigation and International Law Enforcement in 1982, states that he probably had some input into the MOU. He was unable, however, to explain why narcotics violations were not on the list of reportable crimes except that the MOU had "other deficiencies, not just drugs."
- Purpose of the February 11, 1982 Smith Letter. Cinquegrana says he remembers getting a telephone call "at the last minute" from Makowka who pointed out to him that the MOU failed to include the reporting of narcotics violations by non-employees. The draft MOU had already been cleared by all DoJ components--and was about to be signed by the Attorney General--when Cinquegrana reportedly found out about this omission. Instead of reopening the negotiations and clearing a revised MOU, Cinquegrana states that he and OIPR's Mark Evans prepared a letter from the Attorney General to DCI Casey. The letter was designed to show the importance of the subject of reporting narcotics trafficking without reopening negotiations, and that it was DoJ's expectation that CIA would understand DoJ's intent. Evans has no recollection of working on such a letter.
- Cinquegrana states that the letter was designed to create an expectation in the CIA that narcotics violations would be treated in the same way as the listed reportable crimes would be treated. Cinquegrana says that at that time DoJ hoped CIA would include guidance on narcotics trafficking reporting along with any guidance disseminated to its employees with respect to the MOU. Cinquegrana states that "we [DoJ] were trying to build the best case. . . . We anticipated that [narcotics violations] would be hard for the Agency to say 'no' to in terms of accepting the need to report such violations. And that 'responsible officials' would so realize." However, when asked about the specific effect of the Smith letter, Cinquegrana states that it would be going "too far" to conclude that the Smith letter added narcotics trafficking to the list in the MOU.
- For his part, Makowka has no recollection of having a conversation with Cinquegrana about the fact that the 1982 draft MOU did not include narcotics violations as reportable crimes. He attributes the Smith letter to someone at DoJ becoming uncomfortable at the prospect of the MOU not including any mention of narcotics. Makowka believes that the letter reflects the understanding between DoJ and CIA that only serious, not run-of-the-mill, violations would be reported. Makowka does not believe that the letter changed the list of violations that were required to be reported to DoJ.
Cohen believes that the failure to add narcotics to the list of reportable crimes was an oversight by DoJ and that someone at DoJ became embarrassed on realizing that DoJ forgot to include narcotics violations in the list of crimes reportable to DoJ. Cohen speculates that the letter from DoJ was a "cover your ass type of document." His interpretation of the letter is that it implies CIA should keep doing what it had been doing before the signing of the MOU. Cohen believes that the language was vague and did not add narcotics trafficking to the list of crimes CIA is required to report, although as a practical matter he believes that it was better to err on the side of reporting.
Clarke believes the intent behind the letter was that it was an oversight not to include narcotics violations in the list of reportable crimes. Thus, DoJ sought to make it clear that it expected the Agency to report such violations.
Makowka's deputy in OGC's Intelligence Law Division in 1982 believes that the intent of the letter was for the Agency to continue its past practice of reporting certain non-employee narcotics violations. He also thinks the Smith letter may have been a compromise in which CIA would report only major narcotics activities.
Defining "Employee" in the 1982 MOU. Makowka recalls that his deputy and Cohen worked very hard to define the term "agent" during the MOU negotiations. He believes that an independent contractor is not a contract employee and therefore is not an employee for purposes of the MOU.
Makowka's deptuy states that he was given explicit instructions from Cohen to develop a narrower definition of "employee" for the MOU than the language in E.O. 12333. The reason for doing so was to make a distinction between those people with staff-like access over whom CIA has a high level of control and agents and assets over whom CIA has limited control. He does not know whether DoJ was aware of CIA's reasoning for narrowing the definition. As previously noted, Makowka states that the definition of "employee" in HN 7-39 was not consistent with OGC's interpretation of "employee" and that the 1982 MOU was a joint effort by DoJ and CIA to refine language that would reflect the existing practice between CIA and DoJ under E.O. 12036.
Cohen says he believes the term "contractor" as defined in the 1982 MOU means a person with staff access. It was not intended to cover assets or agents.
According to Clarke, CIA wanted to make crimes reporting procedures less onerous on CIA. Clarke believes that "employees" were considered to be individuals who were processed by CIA's Office of Personnel. Clarke says that crimes reporting requirements concerning employees did not cover anyone with whom the DO dealt operationally.
Cinquegrana states it was his understanding that agents would not be considered employees under the MOU, although he would consider independent contractors as being covered under the category of "employee." At that time, he considered agents to be similar to informants used by law enforcement agencies. Cinquegrana also notes that OIPR "only knew what the Agency told us" regarding the status and duties of agents and assets.
Gary Chase, Chief of OGC's Administrative Law and Management Support Division from 1986 to 1989, says the term "contract employee" is a term of art and did not include an asset and probably did not include an independent contractor.
View of CIA Requirements Under the 1982 MOU to Report Narcotics Violations by Non-employees. OGC attorneys involved in the MOU negotiations--Makowka, his deputy, and Cohen--agree that the Smith letter did not--in the case of non-employees--have the effect of adding narcotics violations to the list of reportable crimes under the MOU.
Prior to the 1982 MOU, Makowka states, CIA could report potential violations to the Federal Bureau of Investigation (FBI) or DEA and meet its crimes reporting obligations to DoJ. Under the E.O. 12333 and the 1982 MOU, it was, however, no longer sufficient for the CIA to report crimes to DEA or FBI. Such violations would also have to be reported to DoJ, even if reported to the FBI or DEA. Makowka believes that OGC would take into account statute of limitations issues when deciding whether to report an allegation to DoJ.
Cohen, who was in charge of making crimes reports to DoJ in the early 1980s, has no recollection of using the statute of limitations to avoid reporting a matter to DoJ. His view of erring on the side of caution was also the view of General Counsel Stanley Sporkin that, when in doubt, refer the matter to DoJ. Even though narcotics violations by non-employees were not covered by the MOU, Cohen states he would report a matter because not to do so might come back to haunt the Agency. On the other hand, he says that reporting of a matter really made no difference because DoJ never acted on the information.
Gary Chase, responsible for CIA's crimes reports to DoJ between 1986 and 1989, states that he is not familiar with the February 11, 1982 Smith letter and had not seen the 1982 letter prior to 1997. For him, the 1982 MOU was the definitive document that established CIA's responsibilities. Chase states that the 1982 MOU imposed no obligation on CIA to report narcotics violations by non-employees to DoJ.
Cinquegrana states that he would have expected OGC to report narcotics violations by non-employees and not to look for reasons not to refer a matter. He also believes that CIA has no authority to make statute of limitation determinations because such responsibility lies with DoJ.
Summation. Between August 15, 1979 and March 2, 1982, CIA was required by the April 15, 1979 Attorney General's guidelines under E.O. 12036 and HN 7-39 to report to DoJ any narcotics trafficking allegations relating to individuals, assets, or independent contractors who were associated with the Contras because assets and independent contractors were considered "employees" for crimes reporting purposes.
As of March 2, 1982, the terms of the 1982 CIA-DoJ Crimes Reporting MOU under E.O. 12333 no longer required that CIA report to DoJ narcotics trafficking allegations regarding individuals, assets, or independent contractors associated with the Contras because assets and independent contractors were not considered "employees" for crimes reporting purposes.
The February 11, 1982 letter from Attorney General Smith to DCI Casey that accompanied the CIA-DoJ Crimes Reporting MOU, did not create an additional requirement that CIA report to DoJ narcotics trafficking allegations regarding individuals, assets, or independent contractors associated with the Contras. However, Section IV. D. of the 1982 CIA-DoJ Crimes Reporting MOU gave OGC discretion to report any offense to DoJ in addition to those crimes specified in the MOU, including narcotics trafficking allegations regarding individuals, assets, or independent contractors associated with the Contras.
The April 25, 1984 CIA-DEA MOU and its August 28, 1978 predecessor defined and established procedures for the conduct, coordination and sharing of strategic narcotics intelligence information between CIA and DEA abroad.
In August 1995, the 1982 CIA-DoJ Crimes Reporting MOU was revised. Under that revised MOU, assets and independent contractors are considered "employees" for crimes reporting purposes, and narcotics violations are included among the list of "non-employee" crimes that must be reported to DoJ. The 1995 revision of the DoJ-CIA MOU specifically includes narcotics violations among the lists of potential offenses by non-employees that must be reported to DoJ.
Maintenance of Relationships with Persons Suspected of Involvement in Drug Trafficking. The Department of Defense and Military Construction Appropriations Act for Fiscal Year 1987, which authorized $100 million for Agency support to the Contras, included a prohibition on the provision of any assistance to any group that, among other things, retained in its ranks any individual "who has been found to engage in . . . drug smuggling . . . ." See Public Law 99-500, October 18, 1986, Section 204(b)(2). This prohibition was made known to CIA personnel in three Latin America Division Stations in March 1987. In January 1988, personnel in those Stations and three other Latin American Division Stations were informed of the prohibition.
What policies and guidelines governed CIA's contacts during the Contra program with persons and organizations alleged to be involved in drug trafficking?
CIA's DO developed a draft DO Handbook in December 1980 that included a section that focused on restrictions and prohibitions concerning contacts with individuals who might be involved in narcotics trafficking. The instructions were not applicable to the Contra-related individuals or independent contractors discussed in Volume II, however, since none of those individuals or independent contractors were involved in the collection of narcotics intelligence. A summary of the 86-page draft DO Handbook was sent to all DO field stations in July 1982 and stated that the draft had been approved by the DCI and represented Agency policy. The DO Handbook was not formally issued until January 1996, however, more than 15 years later.
Headquarters sent a cable on December 14, 1981 to all DO Stations and Bases notifying Agency personnel that President Reagan had signed E.O. 12333 on December 4, 1981, thereby superseding E.O. 12036. The main discussion in the cable concerned "the conduct of intelligence activities involving U.S. persons." In that context, the cable included reference to the E.O.'s authority for CIA to collect, retain and disseminate "information obtained in the course of a lawful . . . international narcotics . . . investigation."
On June 26, 1982, Headquarters sent a cable to all DO Stations and Bases noting that Attorney General Smith had approved a variety of procedures implementing E.O. 12333 and governing CIA activities abroad. The cable transmitted a complete set of these procedures and noted that training teams would be dispatched to the field to brief personnel concerning the new procedures. Agency personnel associated with this training confirm that it took place. One officer associated with the training sessions recalls that questions regarding Agency dealings with drug traffickers were routinely raised in these training sessions in the field.
January 4 and April 9, 1985, Headquarters cables to Central and South American Stations outlined a training program that was to be delivered by visiting teams of CIA personnel. The cable explained that the training would cover, among other things, the topics of "accomplishing goals within the parameters of the law and sensitivity to legal and political considerations." In a section of the cable addressing reporting of crimes, the cable noted that "reporting of narcotics violations is not mandatory but [CIA] policy is to report strategic narcotics movements." (Emphasis added.) The training also was to address the interface between DEA and CIA outside the United States.
On April 9, 1987, Acting DCI (ADCI) Robert Gates sent a memorandum to Deputy Director for Operations (DDO) Clair George concerning air flights to Central America. In this memorandum, Gates addressed the standards for dealing with air crew members who were operating as contractors or subcontractors for the Agency. Paragraph two of the memorandum stated:
. . . .
While several former senior Agency officials recall its substance, no information has been found to indicate that this memorandum, in its entirety, was disseminated to anyone at CIA Headquarters other than DDO George. With one isolated exception, no information has been found to indicate that the text or a summary of this memorandum was cabled to Agency field personnel who were involved in the Contra program. Nonetheless, the content of the memorandum was apparently widely known. For example, then-Central America Task Force (CATF) Chief Alan Fiers and CATF legal advisor Louis Dupart state that they were well aware of the ADCI's memo and interpreted it to apply broadly. A July 1987 exchange of cables between Headquarters and a Central American Station, while not citing the memorandum, did cite Gates' prohibition against using suspected drug traffickers.
It is absolutely imperative that this Agency and our operations in Central America avoid any kind of involvement with individuals or companies that are even suspected of involvement in narcotics trafficking. This must be true not only of those with whom we contract, but also their subcontractors. I believe it is essential that we obtain the names of all air crew personnel who have had any association with Agency contractors or subcontractors and vet those names through DEA, Customs, and the FBI--even though this is likely to be an onerous and occasionally inconvenient undertaking--and perhaps even hamper operations at times.
. . . .
- A March 6, 1987 Headquarters cable concerning Department of State (DoS) actions regarding Adolfo Chamorro described the statutory provision barring assistance to a group with members who were found to be involved in drug trafficking:
Section 204(8) [sic] of the Military Construction Appropriations Act of FY-87 which authorizes aid to the Nicaraguan Resistance forbids the provision of any aid to an organization which retains in its ranks any individual who has been found to engage in drug smuggling.
On January 21, 1988, Headquarters sent a cable to Central American Stations summarizing congressionally-imposed restrictions on the Contra program. The cable urged that it be read by all field personnel and included the statement:
. . . .
What do CIA Headquarters and field personnel recall regarding alleged drug trafficking by the Contras?
No assistance . . . may be provided to any group that retains in its ranks any individual who has been found to engage in . . . drug smuggling . . . . As [addressees] are aware, some individuals within the [Contra] resistance have been excluded from further participation due to their past and well documented contact with drug smuggling or drug smugglers. [Addressees] are reminded that should evidence of involvement of drug use or smuggling come to their attention, they should report it to [Headquarters] and aggressively follow up.
. . . .
A large number of CIA personnel and other individuals acting on behalf of CIA were involved in implementing the activities to support the Contras. The following are the views of individuals concerning--from a Headquarters or field perspective--what they observed, what they did or what they thought they were supposed to do in connection with allegations of narcotics trafficking by the Contras. Those commenting range from an Acting DCI, DDOs, Chiefs of CATF, and COSs, who dealt with substantial strategic and management issues, to an independent contractor operations officer who lived with the Contras in their military camps.
- The Headquarters Environment. Headquarters personnel assigned to the CATF during the 1980s indicate that CATF perceived itself as a group of dedicated officers who had one overriding priority: to oust the Sandinista Government. This task was, in their view, complicated by the actions taken by Executive Branch officials, intense scrutiny from Congress and the media, changing congressional restrictions, and independent activities undertaken through the auspices of the National Security Council (NSC). CATF personnel say it was understood that congressional restrictions had to be honored to preserve the program and the Agency's integrity. At the same time, they were determined that the various difficulties they encountered not be allowed to prevent effective implementation of the Contra program.
- Senior Agency and CATF managers indicate that they were aware of restrictions regarding Agency dealings with persons or organizations known to be involved in, or suspected of, drug trafficking. Further, these officers recall being aware that, if a crime were discovered, it had to be reported to Headquarters.
- Robert Gates, who served as Deputy Director of Central Intelligence (DDCI) from April 1986 to January 1987 and May 1987 to March 1989 and ADCI from January to May 1987, says that it was his position that CIA had to determine whether the Contras were involved in drug trafficking. It was "a matter of self preservation," not only for the Contra program, but for the Agency. In general, Gates says that the Agency had an obligation to terminate its relationship with any asset who was suspected by U.S. law enforcement agencies to be engaged in drug trafficking. Furthermore, Gates states that the Agency had an obligation to determine whether its assets had past or present involvement in drug trafficking. Gates says that allegations of drug trafficking had to be checked out.
- Gates states that the intent of his April 1987 memorandum to DDO George was to instruct the DO not to have anything to do with known or suspected drug traffickers.(11) Gates believes that the policy from his office concerning narcotics trafficking was clear and consistent.
- John McMahon, who served as DDO from 1978 to 1981, DDI from 1981-1982, Executive Director in 1982, and DDCI from 1982 to 1986, recalls that CIA was obligated to report individuals who were suspected of narcotics trafficking. As DDCI, McMahon says that any criminal violation, including narcotics, had to be reported to the DoJ. Agency relationships with assets associated with the Contra effort who were suspected of drug trafficking should have been terminated and the information reported to DEA, McMahon says. The Agency had an obligation to determine whether individuals or organizations with which it became involved were engaged in drug trafficking. It was not enough just to terminate a relationship when narcotics trafficking was suspected, states McMahon.
- John Stein, who was the Associate Deputy Director for Operations (ADDO) from 1978 to 1981, DDO from July 1981 to July 1984, and Inspector General from 1984 to 1985, recalls that specific laws governed reporting of possible criminal activity. Stein says that Station officers and managers were supposed to report on narcotics matters and that "narco-trafficking had to be reported in all conditions." Stein says it would then be up to the DDO to decide how, but not whether, the information should be disseminated. "[Dissemination] is the only wise thing to do bureaucratically," states Stein.
- Former CATF Chief Fiers stated in his written response to CIA/OIG questions that the April 1987 Gates memorandum prohibiting use of suspected drug traffickers was ". . . seen as a clear, direct instruction. It was understood to apply broadly, but it was equally understood that the area of concern was the logistics chain--also known as the Contra supply network. The memo was taken seriously."
- Louis Dupart, CATF's legal advisor from mid-1985 to mid-1988, says that documents such as the 1982 CIA-DoJ MOU regarding crimes reporting served as guidelines, but CATF took a "common sense approach" on the issue of crimes reporting. According to Dupart, directives are written for those who do not exercise good judgment, those "who operate too close to the edge." Dupart states that criminal activity would have been reported by CATF to the OGC lawyer who served as principal legal advisor to the DDO and the information would then have been referred to DoJ or the FBI.
- According to Dupart, CATF did not want anything to do with "tainted people," so it would not have to explain later why it dealt with such people. He points out that, beginning in the fall of 1986, the Iran-Contra scandal had broken and "we knew we could not deal with anyone who was tainted. Everyone was looking for drug involvement by the Contras: Congress, law enforcement, the media, everyone." Dupart says that, although the April 1987 Gates memorandum to DDO George was adhered to, the memorandum had little real impact because it merely reflected previously established CATF policy.
- An officer who served as Chief of CATF/Nicaraguan Operations Group (NOG) from 1985 to 1986 and as CATF Deputy Chief from 1986 to July 1987, recalls that CATF management regarded drug trafficking as a "peril" to the Contra program because of the persons with whom CATF had to deal. However, he says that information relating to drug trafficking was not considered a collection or operational priority per se.
- An officer who served in the CATF from 1984 to 1985 as Executive Officer and the first NOG Chief recalls that there was "no time to pursue drug-related leads or information" due to the "press of business." He recalls that he just tried to stay ahead of the cable traffic and Bill Casey's desire to be more creative.
- An officer who was assigned to CATF in late 1987 and was CATF Chief from 1989 to 1991, notes that the top priorities were implementation of the Contra programs as well as foreign intelligence collection. As he recalls, Headquarters expected the Stations to report any information they acquired concerning the possible involvement in drug trafficking of individuals or organizations affiliated with the Contras or the Agency's Contra program. However, he says there was no requirement at the time to seek out such information systematically and aggressively.
- This officer states that the narcotics issue was a target of opportunity. He observes that all of the Central American Stations were seeking information that would link the Sandinistas to drug trafficking. The goal was to diminish the image of the Sandinistas.
- An officer who was LA Division Chief from 1986 to 1989 and CATF Chief from 1982 to 1983, stated in his written response to CIA/OIG questions:
During the time I was C[hief]/CATF . . . , I recall there was little evidence of significant drug trafficking in the areas where the Contra forces were active (Honduras, Nicaragua, Costa Rica) except perhaps for some involvement by the Sandinistas. Later in the decade, cocaine from South America began to move more substantially into the US through the Central American area as pressure on trafficking in the Caribbean and other blue water areas increased. . . . Given the lack of credible data regarding Contra involvement in narcotics trafficking during the earlier years, however, I believe the primary focus with respect to drug trafficking was the continual monitoring required by our long-standing policy of insuring no involvement with any individuals or organizations involved in narcotics trafficking.
The only rumors or reports I recall hearing of alleged Contra involvement in drug trafficking were anecdotal remarks I heard upon returning to LA Division in . . . 1986 from CATF personnel, particularly C/CATF [Alan Fiers] (who had direct responsibility for management of the Nicaraguan and Central American programs), to the effect that there had been some credible reporting of narcotics trafficking in the Southern Front (Costa Rica) . . . .
While I cannot recall the existence of any reporting on any alleged Contra involvement in drug trafficking, I do not believe there were any requirements for special handling of such reporting nor do I recall any opposition or reluctance on the part of Agency officers to report on such topics.
The officer also recalled:
Everyone in LA Division and CATF was aware of the controversial political nature of the Nicaraguan and Central American programs, and everyone knew that special vigilance was required to ensure that there were no violations of law or policy guidelines in the implementation of the program, particularly regarding criminal activity, narcotics trafficking, human rights abuses, etc., on the part of members of the Contra movement. Further, no . . . programs ever conducted by the Agency during my tenure was [sic] ever run as transparently as the Central American and Nicaraguan programs. Congressional members and staffers traveled frequently throughout the area and received extensive and detailed briefings on virtually every aspect of the program. Over a period of years the staffers became intimately familiar with the Contra program, and they would have been the first to call our attention to any problems in reporting on allegations of drug trafficking by Contras or Contra-related individuals. Further, State Department officers were deeply involved in political aspects of the program and were equally attuned to the sensitivities involved.
The 1987 funding resolution requiring a funds cutoff to any organization involved in drug trafficking had no special impact other than to reinforce a policy that was already in effect to eschew any contact with groups or persons credibly suspected of involvement in drug trafficking. I believe our principal reaction to the resolution was to re-emphasize the importance of remaining vigilant to this danger.
The Gates memo in April 1987, insofar as it referred to drug trafficking, repeated and reinforced a policy already in effect. As I recall, the memo was written in the aftermath of a problem involving an Air Branch proprietary or contractor and US Customs.
- The officer who was LA Division Deputy Chief from 1980 to 1981 and LA Division Chief from 1984 to 1986, recalls that narcotics allegations regarding assets would be reported and the relationship with the asset would be terminated. "Handling assets with narcotics allegations in Central America [was] a no-no," he recalls. He says "Narcotics was a large issue with Latin America Division. What was not large was Contra involvement with narcotics."
- An officer, who served as NOG Chief from 1986 to 1988, says that "the general thing about people who would cause trouble was not to deal with them." However, there needed to be a basis for suspicion and a threshold, i.e., "suspected by whom and on the basis of what."
- The OGC attorney who succeeded Dupart in 1987 as the CATF legal officer states that the Agency decision regarding whether to use an individual who was subject to a drug trafficking allegation depended on the strength of the allegation and the reliability of the source.
- Despite this general understanding of Agency policy regarding drug allegations, CATF managers' recollections of the impact of the April 1987 Gates memorandum prohibiting the use of contractors or subcontractors who were involved in CIA air operations and were even suspected of drug trafficking indicate no specific implementation of that policy. The former NOG Chief, for example, does not recall anything specific about the April 1987 Gates memorandum, but recalls that it was around that time that CATF began to use more restrictive criteria for recruiting and maintaining relationships with individuals associated with the Contra program. He states that the instructions left no room for interpretation and that it was clear that CIA had to terminate its relationship with individuals who were suspected of drug trafficking. He notes that such decisions would have been made by CATF Chief Fiers in almost all cases.
- One of the former Deputy Chiefs of CATF does not recall any specific discussion in CATF about the April 1987 Gates memorandum, nor does he recall a change in policy or more restrictive vetting criteria for assets and contractors. Two branch chiefs who served in CATF from 1986 to 1988 and 1987 to 1991, respectively, also do not recall any specific discussions about the Gates memorandum. One of the former Chiefs of CATF says he recalls the Gates memorandum and also that Agency relationships with some pilots may have been terminated as a result. He believes that the policy of vetting contractors and subcontractors was strictly adhered to.
- The Chief of CATF's Special Activities Branch from 1986 to 1988 recalls Fiers discussing the Gates memorandum and that the general thrust of the discussion was that CATF could not deal with any subcontractors or purchase any aircraft that had previously been implicated in drug trafficking. He says that Fiers did not express displeasure with these guidelines during the discussion, and that Fiers said the Agency had to be totally clean with regard to individuals and aircraft. He indicates, however, that the Gates memorandum had little practical impact because CATF "already had [relationships with] the FDN pilots," meaning that new pilots were not needed.
- Procedures for Vetting Contractors and Others. The April 1987 Gates memorandum included a requirement that contractors and subcontractors be vetted through DEA and Customs as well as the FBI. On March 31, 1988, CATF sent a memorandum to then-DDCI Gates regarding use to support the Contra program of pilots and companies that may have been involved in drug trafficking. The memorandum, among other things, set forth CATF's approval criteria for individuals and companies that were involved in transporting equipment for the Contra program and indicated that, per Gates' instructions of "a year ago [that] the Agency has been extremely careful to properly vet all pilots, mechanics, and companies . . .," and explains that if "some derogatory information is found or alleged, but the various agencies do not believe it would be a problem for the U.S. Government to have a contract with the individual or company, a special approval is required which is signed by the chief of the division."
- A former Chief of CATF does not recall that a focused, "across-the-board" policy for vetting Contras with respect to drug trafficking was ever established. He states that, if there had been information supporting drug trafficking allegations against an individual, CIA would have "pulled out all the stops" to collect more information about the allegations. He recalls that there was a well established policy in CATF to vet Contra pilots to ensure that they were not linked to drug trafficking. He says, "The Agency has been extremely careful in properly vetting all pilots, mechanics, and companies."
- The former Deputy Chief of CATF says that, if someone had a background in narcotics or there were allegations of narcotics activities, the information was "checked out." He says that the narcotics problem was particularly difficult to deal with when it came to the leasing of aircraft. He observes that it was hard to find a plane without a drug record and most DC-6s had been placed on watch lists by DEA.
- The Chief of CATF's Special Activities Branch from 1986 to 1988 was responsible for vetting air crews and other support personnel. He says that he does not recall any specific guidelines regarding the use of pilots who were known or suspected drug traffickers. In fact, he recalls that the whole policy was "bizarre" because the vetting process was focused on ensuring that the aircraft that were being used had no prior history of involvement in drug trafficking. He recalls that there was great sensitivity to making sure the aircraft were "clean" so as not to run afoul of the congressional oversight committees and that it was as if the planes, not the individuals, were the narcotics traffickers.
- The former NOG Chief says he does not recall the specific criteria for terminating a relationship with an individual who was alleged to be involved in drug trafficking. In his view, CATF was obligated to consider all derogatory information to be accurate. Back then, according to him, derogatory information from DEA or Customs, even if not substantiated, would have been enough to cause termination.
- The Field Environment. Managers and officers who were assigned to Central America during the 1980s recall that the overriding priority task of their Stations and Bases was to support the Contras. In the field, CIA sought to develop and support military forces that could successfully engage the Sandinista Army. This effort, along with the maintenance of relationships with the Contra leaders, dominated Station and Base efforts and resource allocations. Recollections are mixed regarding the extent to which drug trafficking allegations became known and were reported.
- A Central American Station's officers, who were responsible for handling Contra paramilitary activities in the 1980s, recall that the Station's main priority was to support the war effort. A former Deputy Chief of Station (DCOS) and Acting COS, says that "the Station was focused 99 percent on the [Contra] war effort" and that the "focus was always on the program." A Station officer states, "The focus was to get the job done, get the support and win the war." Another officer assigned to this Station adds that "the primary mission at [the] Station was supporting the Contras [and two other missions]." Another officer who was assigned to the Station in the mid-1980s says, "There was a war going on. The primary mission for seven years was fighting the Sandinistas." A paramilitary officer assigned to the Station in the mid-1980s recalls that his "only job was to train [Contras] in camps."
- Most Station officers state that they would have reported to their supervisors or Headquarters for appropriate action any narcotics trafficking or criminal information they acquired. Most officers recall no allegations of trafficking by the Contras, although some do recall unsubstantiated rumors concerning individuals associated with Eden Pastora.
- A Central American COS states that "narcotics was not something [Station personnel] were looking for in the 1980s, but that does not mean they would have ignored it if they had seen it." He says that his understanding of crimes reporting obligations since 1980 was that anything that looked to be criminal in nature should be reported to Headquarters.
- The COS says he became aware of drug trafficking allegations against the Contras "fairly early" during his assignment. He says there was a group of "ne'er-do-well" people surrounding Eden Pastora who had histories that included criminal activity. He continues that "there was a range of derogatory information that may have included narcotics activities. Early traces revealed these folks should be treated carefully. Some were scoundrels." He indicates that the Headquarters reaction to derogatory information concerning Pastora's associates has to be considered in the context of DCI William Casey's overriding political objectives. As the COS explains:
. . . yes, there is derogatory stuff and we would be careful in terms of counterintelligence and operational security, but we were going to play with these guys. That was made clear by Casey and [then-LA Division Chief Duane] Clarridge.
The COS says he is fairly certain that there was never any large infusion of drug money to the Contras because they "never hit the jackpot" in a way that would have indicated drug money or a substantial contribution.
- A Central American Station DCOS recalls that he "did not know anyone with drug connections."
- Another Central American Station DCOS states that he has "no knowledge of any Contras who were alleged to be involved in narcotics trafficking." He adds that, "if narcotics trafficking had been conducted by the Nicaraguan Contras, Agency officers would have found out." He emphasizes that Station officers "would have jumped out of their skin had allegations of trafficking into the U.S. been made."
- An officer who served as an Acting COS states that he did not recall any enunciation of a specific reporting policy regarding narcotics trafficking, noting that "if there was a crime, it was reported."
- An officer who served as DCOS, recalls that "counternarcotics was dealt with within the context of the Contra Program; when it came across the Station's screen it was reported, but otherwise it was not a factor."
- An operations officer assigned to a Central American Station recalls that "it went without saying that if one came into a situation involving a serious criminal allegation, it would be raised with Headquarters and made a matter of record." He also says that he did not at any time believe that Pastora or anyone associated with the Contras was involved in drug trafficking.
- An officer assigned to a Central American Station states that information on aircraft and personnel--including Contras--possibly involving in drug trafficking was reported to Headquarters and the DEA office in 1984-85. He recalls that the "CIA policy on drug-related information was [to] report the matter to CIA Headquarters, develop the information, run traces where possible and that CIA Headquarters was supposed to forward the information to the DEA." Another Station officer says, "Narcotics was just not on the radar screen at the time and [the country where he was assigned] was not a big transshipment point." He adds, however, that standard worldwide DO practice was to report any criminal activity to the COS who would then be responsible for forwarding the information to Headquarters.
- An officer assigned to a Central American Station recalls that she "never heard any rumors of drug trafficking" by the Contras. Another officer assigned to the Station recalls no allegation of trafficking by the Contras. He adds that "Contras may have been doing things we weren't aware of and we always didn't know what they were doing," but he didn't believe they were involved in narcotics.
- The former Acting COS says that he does not recall the procedures for vetting assets and contractors, but that "it was not normal to check automatically with law enforcement agencies."
- One Station officer recalls that, in effect, there was not much vetting of Nicaraguan assets. The officer recalls that she was not aware that any drug trafficking was taking place.
- An independent contractor operations officer, who was assigned to train and support the Contras in their camps, recalls that he never saw anything to indicate drug trafficking on the part of the Contras with whom he dealt. He says that in every place he served in connection with the Contra program he had access to everything about the Contras. Although there were a few individuals who used marijuana personally, he says he never saw anything that suggested drug trafficking.
- The independent contractor operations officer recalls that he was never tasked by the CIA officers with whom he dealt to determine whether there was any narcotics trafficking in the Contra camps. However, the officer also says that he believes that the allegations of narcotics trafficking by the Contras were "just something someone made up to cover up something else." He states that it was too evident that the Contras were getting money and help during the U.S. funding hiatus from somewhere and that narcotics trafficking allegations stemmed from efforts to explain the source of the support. In this light, he notes that Contra logistical personnel with whom he worked speculated that the flights that were sponsored by the U.S. private benefactors to support the Contras, must have been funded from the profits of narcotics trafficking. The independent contractor operations officer says that the Contra logistical personnel, noting that the Contras continued to receive food, medicine, ammunition and other aid during the U.S. Government cut-off of funds, "probably made the assumption that narcotics was paying for this."
- The independent contractor says he believes that these suspicions were unfounded. He describes the Contra logistics personnel suspicions as "just comments" and says:
. . . it was an ideal situation to send drugs from [Central America] to the United States, but the Americans were too professional and had no reason to do so. Narcotics trafficking allegations were just rumors. If there was narcotics trafficking, it was probably from Nicaragua to the United States conducted by the Medellin cartel.
An officer, who was a Central American COS and later Deputy Chief of LA Division in the late 1980s, says that Honduras was not an attractive location for drug traffickers during this time period. A war was going on, it was a poor country, there were large numbers of U.S. military forces at Palmerola Air Base and elsewhere, there was a large U.S. radar system in operation that tracked aircraft throughout the region, and Airborne Warning and Control System aircraft operated in the area. Additionally, he recalls that the Contras controlled few, if any, airfields in Honduras. The geography of the country also was not conducive to drug trafficking by air. He notes that, for the most part, the land resembled a crumpled sheet of paper with few flat spots for landing strips. He says that, in his opinion, Guatemala, southern Mexico, or the Yucatan Peninsula were more desirable transshipment and refueling points for drug traffickers than Honduras.
- He says he recalls reports that members of Eden Pastora's Southern Front organization may have engaged in drug trafficking activities and that Pastora may have later made admissions to that fact. There were also rumors that Mario Calero, the brother of Contra Northern Front leader Adolfo Calero, may have been involved in drug trafficking. He notes:
The rumors that Mario Calero may have been involved with drug trafficking while running an [aircraft] from Louisiana were not believed to be true and no credible reporting on any such activity was ever received.
He says it was his understanding that the U.S. Customs Service and possibly the Immigration and Naturalization Service (INS) inspected all Contra-sponsored flights into and out of the United States to ensure there was no contraband, such as narcotics and weapons, on board.
He notes that Adolfo Calero and Enrique Bermudez had modest homes in Miami during this time period. In Honduras, they lived even more modestly. He says he once visited Bermudez' home in Miami and was struck by the fact that Bermudez' wife had set up a hair salon in their home as a means of producing income. He comments that they certainly did not live as if they had access to large amounts of drug money.
- He says that, if CIA or other U.S. Government organizations operating in Honduras had acquired information indicating that the Contras were engaged in narcotics trafficking, it would have--or should have--been disseminated in intelligence reports. He makes clear that CIA was not alone in its intelligence collection and reporting efforts in Honduras and that large amounts of intelligence were collected by other U.S. Government agencies. Reports of Contra drug trafficking, he says, would probably have been a topic of discussion at the Interagency Working Group that was run by DoS official Elliott Abrams. For example, according to him, there may have been discussions at the Interagency Working Group concerning a Contra who was caught by the Contras growing a patch of "pot." The offender, as he recalls, was court-martialed by the Contras.
- An officer who was a Central American COS in the late 1980s and LA Division Chief from 1989 to 1993, recalls in his written response to OIG questions that a case involving Juan Rivas, a.k.a. "Quiche," was:
. . . the only instance [he] can remember of a member of the [Contra's] Northern Front being tied to narcotics trafficking. [Northern Front leader Enrique] Bermudez himself . . . had never been accused to [his] recollection of carrying out or tolerating trafficking or traffickers. [He] recall[s] no sign that the Northern Front received money from traffickers. In fact they owed lots of money to the Hondurans for food during periods when we could not support them.
An officer who served as a Central American Acting DCOS in the mid-1980s does not remember the provision in the FY87 $100 million funding legislation for the Contras directing that no funds could be provided to organizations whose members engaged in drug trafficking. Further, he does not recall receiving any special briefing regarding this condition for the funding. He observes, however, that such a condition would have been closely adhered to since such programs were very strict about compliance issues.
- A Station operations officer in the mid-1980s says he does not recall any rumors of Contra involvement in drug trafficking during his tour. Another Station officer says that there is "no way" the allegations contained in the San Jose Mercury News can be true.
- A logistics officer assigned to Central America in the mid-1980s says he once heard a rumor that the Contras had included marijuana in an air drop of supplies to troops in Nicaragua, but says he heard nothing more about the allegation. He says that it was his impression that the Contras were "military/ideological people rather than a criminal element." He observes that, from a logistical point of view, Contra operations were not conducive to drug trafficking. The material all came from "the North to the South." He does not recall any cargo going "from the South to the North" and believes the media allegations "sounded preposterous."
- An operations officer says that he never heard anything about drug trafficking and never saw any evidence of drug trafficking. In fact, he recalls that the Contra camps did not even have alcohol available and no drinking was allowed. A Station staff officer says that she does not recall hearing anything about drug trafficking in connection with the Contras at that time.
- An operations officer says that he obtained no information and heard no rumors during his tour about Contras engaging in drug trafficking. Noting that he had been a law enforcement officer prior to joining CIA, he says he saw no sign of drugs, "not even one marijuana cigarette," during his assignment. An officer assigned to Central America says that he was unaware of any Contra being involved in drug trafficking. The officer who served an Acting DCOS also says that he does not remember hearing any rumors or obtaining any information during his tour that linked the Contras in the country where he was assigned with drug trafficking.
- A Station operations officer says that he did not hear any rumors of drug trafficking by Contra members. However, he vaguely remembers hearing about the lack of security at one of the air bases and how easy it would have been to move drugs in and out of the base. However, he says he cannot recall the name of the base.
- A Station operations officer says that any information regarding drug trafficking by Contra leaders or any other asset would have been passed to Headquarters. He also states that he is unaware of any suppression by his supervisor or colleagues of information concerning Contra drug trafficking.
- A Station operations officer recalls that CIA personnel serving in the country "clearly understood we were to have nothing to do with anyone involved in narcotics trafficking and to my knowledge no one ever did." He says that any drug trafficking information would have been handled in regular intelligence reporting channels. He says he recalls no management resistance at all to processing any reporting on drug trafficking and adds, "If someone attempted to hide such information, I would report them."
- Finally, a Station operations officer says he does not believe that information regarding drug trafficking was ever suppressed by his colleagues or supervisors.