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North’s Testimony True to Form, but Is Truth Missing?

<i> Alan Dershowitz is a criminal lawyer who teaches at Harvard Law School</i>

I was sitting around with a group of criminal lawyers the night before Lt. Col. Oliver L. North testified. We were speculating about what he would say. Surprisingly, for a group of contentious advocates, we all agreed. Even more surprisingly, we turned out to be right on the mark.

We had no crystal ball, or direct line into North’s conversations with his lawyers. We just had a lot of collective experience with “preparing” witnesses to testify.

Although the very concept of preparing a witness sounds vaguely suspect--why, after all, does anyone have to be prepared to tell the truth?--all lawyers are required to go through that exercise. Its principle purpose is to make certain that the witness is not surprised by hostile or trick questions from the cross-examining attorney on the other side.

Another important purpose, somewhat more suspect, is to help “shape” a witness’ testimony in the most exculpatory or least incriminatory manner. Lawyers employing this technique justify it by pointing out that facts are subject to varying interpretations, and that the witness has a right to present the facts so as to encourage the interpretation most favorable to his position.

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With this in mind, the first step in preparing the witness’ testimony is to set out the hard evidence against him that no one could possibly dispute--for example, tape recordings, documents signed by him, or the testimony of impartial observers. The second step is to fit your witness’ testimony around this hard evidence.

Thus, if a criminal defendant was caught by the police--or, even worse, on videotape--with a smoking gun in his hand and a dead body on the floor, his options would be severely constrained. He could hardly deny that it was he who was caught or that the body was dead. He could, however, claim self-defense, insanity or even--though this would be stretching it--that he came into the room after the shooting and innocently picked up the gun. (I once actually had a client who tried to make such a preposterous claim, but I talked him out of taking the witness stand.)

In the context of the North testimony, the hard evidence included the facts that (1) arms were sent to Iran and profits diverted to the contras in possible violation of law, (2) North had told various people that he had the President’s approval for such actions, (3) North had told the Iranians--in a conversation that was taped--that if the truth came out the President would be impeached, and (4) North shredded numerous documents relating to his activities.

When these hard facts are set out, it becomes fairly obvious how North’s testimony can be shaped around them to serve North’s goals, which are to avoid incriminating himself or blaming the President. North should testify that at the time he acted he assumed that the President had authorized his actions, but that it now turns out that his assumption was wrong. With respect to his statements to others that the President had in fact authorized the actions and would be impeached if the truth was disclosed, North should testify that he was deliberately dissembling as part of his job, but that he is now telling the truth.

This, of course, is pretty much what North told the committees. He also followed several other standard rules of testimony: Attribute as many conversations as possible to the dead man (in this case William Casey), use the fact that documents were admittedly shredded as a sword rather than just a shield (in this case by testifying that he kept detailed ledgers of every penny of cash and travelers checks, but then destroyed the ledgers at Casey’s insistence), and admit--indeed, proclaim--that you were wrong when there is no possible excuse or justification for what you did (phonying up the documents for his home security system).

The fact that North’s testimony coincided almost exactly with what experienced criminal lawyers predicted he would say does not prove that he was lying or even stretching the truth. It does suggest, however, that his testimony should be scrutinized quite carefully by the committees.

Nor does North’s testimony in any way impugn the integrity of his very able lawyers. Even if it were to turn out that North’s account was not the unvarnished truth, it would not necessarily mean that his lawyers participated in the varnishing process.

North is obviously smart enough to figure out how to fit his testimony around the facts. By his own account, North is a practiced fabricator. Dissembling to our enemies was part of his job description. He was the designated liar in dealing with the Iranians. He has admitted--indeed, boasted--that he would have done anything to serve his country’s interests and to protect his President.

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A man whose job it has been to deceive so many for so long may not even be aware that he is shading the truth. As Sir Walter Scott once said: “Oh, what a tangled web we weave,/when first we practice to deceive.” The task of the committees is not to be taken in by North the military hero doing his duty to protect the President, but to regard him as a suspect who is an admitted expert on deception and covert operations, in which half-truth and evasion are part of survival, and to subject him to rigorous cross-examination aimed at stripping away his carefully designed defenses.


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