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