THE PATRIOTISM DEFENSE: SOMETIMES IT WORKS, SOMETIMES IT DOESN'T

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00901R000500140009-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 19, 2016
• Document Release Date: December 1, 2000
• Sequence Number: 9
• Content Type: NSPR

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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
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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.
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1)/j 0
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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."
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