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ARTICLE APP R ON PAGE _-roved For Release 2006/01/12 : CIA-RDP91-00901 R00 YORK T1M~S tIAY 2 9 zn-Contra Affair The Patriotism Defense.? Sometimes It Works, Sometimes It Doesn't By PHILIP SHENON Spec'al to rM New York Ymme. WASHINGTON, May 28 eft Government officials In Washington re accused of a crime, history shows that they often wrap themselves tightly in the American flag. Often with good reason. it has been called the patriotism defense. Criminal suspects say they were only acting in the best interests of their country and at the behest of superiors. In the Iran-contra affair, it appears to be the e e s rategy of choice. "I have no doubt that we'll be seeing the greatest possible use of it," said Charles F. C. Ruff, a former United States Attorney in Washington. Although no Government officials have yet been charged with crimes in the Iran-contra affair, one former `Everything that I did was done in the best interests of the United States of America.' Lieut. Col. Oliver L. North National Security Council aide, Lieut. Col. Oliver L. North, has been named an unindicted co-conspirator in a tax conspiracy case related to the raising of funds for the Nicaraguan rebels, the contras. Colonel North has said almost noth- ing publicly since the Iran arms sales were exposed last November. But when a television reporter caught up with him at a horse show in Virginia earlier this month, Colonel North agreed to appear on camera and gave a glimpse of what appears to be his defense strategy. "I can tell you this," he said in a firm voice. "Everything that I did was done in the best interests of the 'This marine is never going to plead guilty to anything, ever." Before this, the broadest recent use of the patriotism defense occurred in the Watergate scandals. There, the defense flopped; almost everyone who was charged with a crime was convicted, and many went to prison. But the Iran-contra case is differ- ent, in part because a number of sus- pects are military officers with dis- tinguished records. Lawyers say the patriotism defense, used properly, could help keep some suspects out of court and others out of prison. Prosecutors are supposed to act as the conscience of a community, and they have broad discretion in bring- ing criminal charges. Suspects who demonstrate that they acted self- lessly and carried out a crime be- cause they thought it would help the country may persuade a prosecutor not to seek an indictment or persuade him to seek only minor charges. 'Huge Amount of Discretion' "it happens all the time, " said Wil- liam. W. Greenhaigh, a professor of law at Georgetown University who specializes in criminal law proce- dures. "Prosecutors have a huge amount of discretion. They're not going to go after marginal cases, and the patriotism defense can tip the scales." That is what ha Rich- ard a nos a former Director of ran- oral me ence who admitted in1'97T o ld Con r ss the full trot- a nuc entral Intelli?ence Agency's covert involvement in Chile. Mr. Helms argued that he did not have cut orit to dis Io de ' o t e o rat on n Mr. Helms could have faced per- jury charges, a crime that can carry a harsh prison term. Instead the Jus- tice Department and a Federal judge allowed him to plead no contest to two misdemeanor charges; the judge fined him $2,000 and suspended a two- year prison term. 'Outst&nding Public Service' At the time of the plea, the Justice Department praised Mr. Helms for a "most distinguished career" and "outstanding public service to the United States." In 1983 President Reagan presented him with the Na- tional Security Medal. Once criminal charges have been filed and a case goes to trial, the patriotism defense is trickier to use. The law is the law, and someone who commits a crime out of love of coun- try is usually held to be no less guilty than someone with selfish intentions. But luckily for defendants, trial juries are seldom predictable. "A jury is always going to look at the worth of a defendant's charac. ter," said Michael Tigar, a professor of law at the University of Texas. "Jurors can, and do, acquit a defend- ant regardless of a court's Instruc- tions." Appearances are important, and during trial, defendants are advised to appear confident but humbled, loyal but not zealous. A uniform al- most always helps; since the Iran- contra affair became news, Colonel North has made his court appear- ances in full uniform, complete with a chestful of ribbons for valor. A parade of well-known character witnesses is also of use, especially if they can testify about a defendant's past heroism under fire. In arguing the defense case, law- yers try to portray a client who did not personally' profit from the crime (Colonel North may have already lost on this point; Congressional investi- gators introduced evidence last week that he had cashed traveler's checks Approved For Release 2006/01/12 : CIA-RDP91-00901 R000500140009-23 4 E U R R E L L E S N E W S Approved For Release 2006/01/12 : CIA-RDP91-00901 R000500140009-2 The New York 11mes. Assnciaied Press Some who have said patriotism was their motivation bottom left, W. Mark Felt and Edward S. Miller, after actions taken in the name of the Government who authorized break-ins of homes, and Richard came into question: top, Lieut. Col. Oliver L. North; Helms, former Director of Central Intelligence. At trial, the advice is to look confident but humbled, loyal but not zealous. A uniform almost always helps. Approved For Release 2006/01/12 : CIA-RDP91-00901R0005001400 9-2 1)/j 0 Approved For Release 2006/01/12 : CIA-RDP91-00901 R000500140009-2 r',rawit. on contra, funds to buy such ihi gs as snuw tires.) And, if possible, the defendant is rtrayed as a scapegoat who was l,;u ing the orders of senior offi- ?..cls. 1 predict you'll see a lot of people arguing they were scapegoats, and I won't deny that it can be a fine de. fense," said a Washington lawyer who is representing a key figure in the Iran-contra affair. "Juries never like to punish a defendant if they think he's a scapegoat." No one is comparing the crimes of the Iran-contra affair with the hor- rors of the My Lai massacre of the Viotnam War, but the case that arose from that incident is instructive in showing how the patriotism defense may be instrumental in blocking criminal charges. The Army originally charged 25 officers and enlisted men with of- fcuses, including murder, linked t? the massacre, in which at least 22 Vietnamese citizens were killed in a three-hour raid by United States troops in 1968. A common defense offered in the court proceedings was that the de- fendants were loyal soldiers who had followed the orders of military su- periors. In the end, of all those charged, only one, William L. Calley Jr., a first lieu- tenant, was convicted of a crime, and his punishment was limited. Mr. Cal- ley argued that he had been trained by his superiors to "seek out and de- stroy human beings." Mr. Cailey was originally sen- tenced to life in prison at hard labor. That was cut to 20 years, then 10 years, and he eventually served three years of house arrest. A more recent example of the effec- tiveness of the patriotism defense concerned two former senior officials of the Federal Bureau of Investiga- tion, W. Mark Felt and Edward S. Miller, who were convicted in 1980 of conspiring to violate the constitu- tional rights of American citizens by authorizing illegal break-ins. 7 he break-ins occurred at homes in New York and New Jersey in the search for members of a militant an- tiwar group, the Weather Organiza- t ion. Mr. Felt and Mr. Miller acknowl. edged that they had not sought war- rants for the searches but insisted that the break-ins were a patriotic act - the Underground, they said, posed a threat to national security - and that they had the approval of their su- periors. Pardoned by Reagan The defense strategy apparently had its effect on the judge on the case, who agreed not to sentence the two men to prison and imposed relatively small fines. President Reagan- was clearly moved by their argument as well. in 1981 ;ie granted them pardons, saying that the two men "acted on high prin- ciple to bring an end to the terrorism that was threatening our nation." Mr. Felt and Mr. Miller, the Presi- dent said, "acted not with criminal in- tent, but in the belief that they had grants of authority reaching to the highest levels of Government." Approved For Release 2006/01/12 : CIA-RDP91-00901 R000500140009-2