‘The 5th’ Is a Shield for All : Compelled Testimony Violates North & Co. Rights

Constitutional law sometimes makes for strange bedfellows. Probably no stranger pairing of interests has occurred in recent years than that of the American Civil Liberties Union and Oliver North. From the first hints of the cover-up in the Iran-Contra affair, the ACLU repeatedly called for prosecution of those who broke the law and revision of procedures that would allow a renegade branch of government to operate unchecked.

In fact, the Iran-Contra scandal sharply defined many of the issues on which the ACLU has vigorously campaigned in the years during and since Watergate--opposition to covert operations, the need for public disclosure and congressional oversight of government intelligence activities.

Even when the goal is bringing the government out of the shadows and into public view, our constitutional system requires that the public’s right to know--even one office of government’s right to know what another is doing--must be balanced against every individual’s fundamental right not to be compelled to give witness against himself or herself.

This rule of law is embodied in the Fifth Amendment. And in the case of Lt. Col. Oliver L. North, Rear Adm. John M. Poindexter and businessman Albert Hakim, this right was violated when they were compelled to testify before Congress. (Failure to respond could have meant going to jail.)

They received a limited form of protection called “use” immunity that guaranteed that what they said could not be used against them. This is clearly less than the promise intended by the Bill of Rights.

The burden in any criminal prosecution is on the government to prove its case. It is the government’s task to find the evidence. No one expects, nor does our system allow, the government to compel a defendant to deliver evidence to the government.

Admittedly, a grant of use immunity by one body of government, in this instance Congress, presents difficulties for the prosecutor, who represents another branch. But for those accused of a crime and forced to testify against themselves, anything less than complete immunity is a mockery of the Fifth Amendment. Even those whom we suspect of breaking the law are entitled to this protection.

More important, tampering with the Fifth Amendment can have dangerous implications on every sort of political activity. Imagine, if you will, that Congress holds hearings on discriminatory immigration treatment for refugees from El Salvador. As part of nationally televised hearings, and after granting use immunity, Congress compels testimony from individuals believed to be associated with the sanctuary movement on their activities helping refugees to enter this country unlawfully. They are forced to identify churches and individuals in cities where sanctuaries exist. They are forced to tell when and who they helped.

Based on this testimony, “witnesses” would come forward to provide the U.S. attorney with “independent” evidence of criminal wrongdoing that they now “recall,” and prosecution begins for harboring and transporting refugees. The taint would be as real as if the prosecutor had used the immunized testimony directly.

Despite the obvious violations of the Fifth Amendment that have occurred in the Iran-Contra case, and undoubtedly angered by the possibility that North and the others would go unpunished, many people have said that we should just take a wait-and-see attitude. After all, how do we know that this compelled testimony will be used against North and the others. And, if the prosecutor can’t introduce it as evidence, why worry?

The answer is simple. Each of the co-defendants has already declared that he will use the testimony to shift blame, and each has had full use of the forced statements of the others to prepare his defense.

But it is not simply the potential for future abuse. The testimony has already been used against them. In statements made to the trial judge, the special prosecutor has admitted that immunized testimony was used to prepare witnesses for grand jury appearances and interviews with the independent counsel.

Even if a court were to rule today that this testimony could not be used, it is already inextricably interwoven with subtle memories, suggesting, refining, correcting a tale of intrigue, arrogance and, above all, unlawful activity. So, the critical question becomes, “What did the witnesses know and when did they know it?”

We will probably never know the answer, and never to the level of certainty required by the law. In this case, the trial judge has already conceded that it would be impossible now, because of the witnesses’ widespread exposure to this testimony through the special prosecutors and through its dissemination in the media, to separate what the witnesses actually remembered and what they “recalled” after these defendants were forced to testify before Congress.

In a series of decisions, the U.S. Supreme Court has ruled that it is a judge’s task to examine every piece of evidence, whether it comes in through documents or witness testimony, and make the government prove that this evidence did not result from immunized testimony of the defendant. At a minimum, it is the court’s job to hold a full-scale hearing to ensure that none of the evidence, including the witnesses’ testimony, derives from the immunized statements. Admittedly, it is a heavy burden. The only alternative is to dismiss the indictments.

Perhaps implicitly recognizing that the independent prosecutor could not meet that burden in this case, the trial judge held the government to a lesser standard of proof and looked only to where the special prosecutor got his information. This limited scope falls far short of delivering on the promise of the Fifth Amendment.

As for the Iran-Contra trials, it is certainly too late to overcome the effects of compelled testimony. Obviously, this was something that the special prosecutor anticipated when he asked Congress to postpone its hearings until he had time to complete his work. But Congress, perhaps fearing that court proceedings would not be swift enough, went ahead with its hearings.

Prosecuting wrongdoers and having an important story told must must be balanced by the constitutional demand against self-incrimination. To shrink from that responsibility would pose as great a threat to our civil liberties as any posed by the Iran-Contra scandal.