Enclosed are the responses to the follow-up questions regarding the Judiciary Committee hearing on the Justice Department authorization from Senators, Metzenbaum, DeConcini, Leahy, Heflin, Kohl, Thurmond, Hatch, Grassley and yourself. Please do not hesitate to contact me if I may be of further assistance in this matter. Sincerely, Виш с Нанчий Bruce C. Navarro Acting Assistant Attorney General Enclosures cc: The Honorable Strom Thurmond Ranking Minority Member QUESTIONS FROM SENATOR BIDEN Q: As you know, several rather novel issues have arisen regarding the operation of the Classified Information Procedures Act (CIPA) in the context of the Iran-Contra prosecutions. Those issues have arisen, in part, because of the intersection between CIPA and the independent counsel statute. One issue relates to the affidavit that the Attorney General can file under Section 6 (e) of CIPA. Independent Counsel Lawrence Walsh has suggested that the Attorney General be required to make certain findings as part of the process of filing a Section 6(e) affidavit. Requiring such findings would, in my view, help ensure that the Attorney General undertakes a rigorous and independent analysis of all the circumstances, and does not simply defer to the national security agencies. What is your view of adding to CIPA the requirement that findings be made? A: We agree that the Iran-Contra cases presented novel issues under CIPA which were never envisioned by its framers in 1980. However, as we believe you will agree, this was not due to any lack of congressional foresight, but rather to the huge volume of classified documents and complexity of issues which characterized the Iran-Contra prosecutions. Indeed, upon attempting to craft a procedure for ruling on the relevance and materiality of classified items which several defendants had indicated they would use in their defense, Judge Gesell noted the unique qualities of the Iran-Contra cases: It will be impossible to conduct this case under the Unites States v. Poindexter, 698 F. Supp. 316, 319-20 (D.D.C. 1988). And, of course the Iran-Contra cases differ further from the "typical" CIPA case because they were prosecuted by an - 2 independent counsel, and not the Department of Justice. In a case involving classified information, but prosecuted by an independent counsel, the dual objectives of prosecuting an alleged violation of Federal criminal law and protecting national security secrets are bifurcated, with the independent counsel responsible for the former and the Attorney General for the latter. For these reasons, the Iran-Contra cases are, in our opinion, poor examples of how CIPA usually works. Indeed, since its enactment ten years ago, CIPA has greatly facilitated the prosecutions of over 100 cases, including major drug traffickers, terrorists, arms export violators and spies, while protecting sensitive national security information from unnecessary public disclosure and affording the defendants the opportunity to present a full and fair defense. In view of our decade-long success in applying CIPA in difficult cases, and the uniqueness of the Iran-Contra cases, we advise against amending CIPA at this time to address problems which have surfaced only in Iran-Contra. Accordingly, with this in mind the Department reiterates its general opposition to amending CIPA. Specifically, the Department opposes a requirement that the Attorney General make any additional findings in conjunction with the 6(e) affidavit. The Attorney General proceeds to fulfill his obligation to the President when he weighs national security concerns against the need for evidence by first receiving all the information available to him. He then makes a finding that the interest of national security requires the production of certain classified information or else he presents the case to go forward using that information. No purpose would be served in requiring the Attorney General to detail his deliberations process in affidavits that would be filed presumably under seal and perhaps ex parte with the court. The proposed additional required recitation of findings would not have any influence on the deliberation process and would serve no factor whatsoever in alleviating the tension between national security concerns and our interest in ensuring a fair trial. Q: Another possible change to CIPA could address a situation that arose in the Fernandez case. As you know, the trial judge made certain rulings under CIPA. The Justice Department attempted to take an immediate appeal of those rulings over Independent Counsel Walsh' s objections only to have the court of appeals rule that you did not have the authority to take such an appeal. Without getting into the specifics of any case, do you believe CIPA should be amended so that the Attorney General has a right to take an immediate appeal of a trial judge's CIPA ruling when an independent counsel refuses to do so? A: Currently three Iran-Contra prosecutions (North, Secord, and Fernandez) are on appeal, and one defendant (Poindexter) awaits sentencing. Upon the completion of these pending cases, Congress will have a more complete picture of how well, or how poorly, CIPA and the independent counsel statute interrelate. If it should be determined that the Iran-Contra prosecutions were hampered by institutional differences between the Attorney General and the Independent Counsel and that such circumstances are likely to recur, then legislation might be needed. One such issue is the one you raise concerning the Attorney General's ability to take an immediate appeal of a trial judge's CIPA ruling when an independent counsel refuses to go along. However, we believe that any such revisions, if needed, should be made to the independent counsel statute. We recommend against amending CIPA, a procedural statute of general application, to accommodate the peculiar, and probably unique, circumstances of the IranContra cases. Q: As you know, Section 13 of CIPA requires semi-annual reports to the Judiciary Committees and Intelligence Committees by the Justice Department concerning all cases where a decision not to prosecute a violation of federal law has been made because of classification concerns. The law does not specifically provide, however, that the committees will also receive reports when charges are dropped during the course of a trial due to classification concerns or when an affidavit is filed prohibiting the introduction of certain evidence on national security grounds. As a practical matter, when these situations have arisen, the department has made such information available at the request of the committees. Would you have any objection, therefore, to an amendment that would require such reports in the circumstances I've described? A: The Department would not support an amendment to Section 13 to require additional reporting. Because the Fernandez case is the first case in which a Section 6(e) affidavit was filed, we believe it is premature to decide if a general amendment to Section 13 is warranted. With respect to reporting the dropping of warrants, the Department would oppose such a requirement as well. Counts may be 'dropped from a case for any number of reasons, and we do not believe it is productive to obligate a prosecutor to decide whether national security concerns, as opposed to other prosecutorial concerns, were dominant or even marginal in the dismissal of counts in a negotiated plea. Section 13 was designed, in part, to provide Congress with a sense of the success or shortcomings of CIPA in accomplishing the demands of national security and due process. The Department believes that the current reporting requirements, and the informal cooperation provided by the Department to Congress, adequately serve the purpose. Crime and Drug Resources Q: What is the status of the FBI's plan to buy new 10 handguns for its agents? How many agents already have been issued these new guns? How many more are needed? How much is requested in the FBI's fiscal 1991 budget for this program? A: The FBI signed a contract with Smith and Wesson (S&W) on January 4, 1990 for 9,500 M1076 10 mm pistols. Fifty of the required 250 weapons for post-award, pre-production testing were delivered in February 1990. The remaining 200 will be delivered in May 1990 and will be distributed to every field office for field testing. The distribution of the weapons should begin by July 1990, at a rate of 100 per week. This rate of distribution is mandated by the ability of FBI armorers to process weapons for issue and still fulfill all their other responsibilities. Beyond the initial delivery of 9,500 weapons, the FBI will need approximately 1,000 weapons per fiscal year to arm new agents hired and to maintain an emergency/training reserve inventory of 200-300 weapons. The 1991 budget does not request additional funds for this program. Q: What is the status of the Department of Justice's study of the new National Drug Intelligence Center? When will the study be completed? Do you anticipate consulting with appropriate members of Congress before making recommendations on the specific structure and configuration of the new center? Do you anticipate consolidating any of the separate drug information systems operated by DEA, the FBI, Customs and other federal drug enforcement agencies in the new center or will the center simply be in addition to these existing systems? Is there any plan to co-locate the Treasury Department's Financial Crimes Enforcement Network (FINCEN) with the new center? - A: The Department of Justice's study of the new National Drug Intelligence Center is progressing well. Remaining field interviews and visits to a variety of existing intelligence centers will be completed shortly. The study team has started developing its findings and recommendations and will brief Department leadership this summer. Department of Justice recommendations growing out of the study will then be shared and discussed with involved executive branch departments and agencies. Once this process has been completed, consultation with members of affected committees will occur as appropriate. The Department of Justice's study is addressing issues involving the consolidation of information systems to support drug intelligence; however, it is premature to discuss them until |