Iran-Contra Immunity Argument Filed

WASHINGTON — In their testimony to congressional committees last year, Lt. Col. Oliver L. North and two other Iran-Contra defendants volunteered potentially crucial evidence that could be used against them in court, a special counsel for the prosecution said Thursday.

North, John M. Poindexter and Albert A. Hakim testified only upon assurances that their testimony would not be used to prosecute them. But Herbert J. Stern, the prosecution counsel, insisted in a court filing that the grants of immunity did not apply to information they volunteered to the committees.

Stern said the prosecution would not use such evidence if U.S. District Court Judge Gerhard A. Gesell allowed the case against North and his co-defendants to proceed to trial without further delays over defense claims that the prosecution had been irreparably tainted by information gathered from testimony at the televised congressional hearings.

But if there are further delays over the issue, Stern said, he will ask Gesell to rule that the prosecution may use “volunteered testimony,” such as Poindexter’s admission that he destroyed a key presidential finding on trading arms for hostages.

Such a ruling could open the door to new and broader charges against the defendants. The prosecution contends that it avoided relying on any congressional testimony, volunteered or not, in bringing charges of conspiring to illegally divert to Nicaragua’s rebels some of the proceeds from the secret sales of arms to Iran.

Poindexter was President Reagan’s national security adviser, North served on Poindexter’s staff and Hakim was a businessman who acted as a middleman in the Iran-Contra deals. Richard V. Secord, a business partner of Hakim, also is a defendant in the case, but he testified at the congressional hearings without immunity from prosecution based on what he said.

Testimony Not Seen

To avoid tainting the prosecution, most lawyers on the prosecution team have not seen the immunized testimony of North, Poindexter and Hakim. Stern was allowed to study it under instructions that he not divulge its contents to his colleagues.

Stern’s filing with the court provided the first indication of how voluminous and potentially incriminating the government contends the volunteered testimony might be.

Transcripts of the congressional hearings “reveal that the defendants intended to answer questions that were not asked, to volunteer information that they wished to disclose and to go beyond any fair reading of many of the questions that were asked,” Stern said.

“Defendants may not turn an immunity grant into a license to volunteer information in an effort to bar prosecution,” he said, citing federal court rulings on the Fifth Amendment’s protection against self-incrimination.

“Any possible taint that might inadvertently have affected government prosecutors is attributable at least as much, and probably to a greater extent, to the volunteered, unprotected testimony of the defendants as it is to media coverage of compelled testimony,” Stern said.

Congressional testimony that Stern contended could be used because it was voluntary included:

--North’s list of reasons he lied to the CIA, his description of Secord’s role, his admission that he shredded documents and his discussion of former CIA Director William J. Casey’s plans for other secret operations.

--Poindexter’s explanation of why he approved diverting arms proceeds to the Contras without telling Reagan and his statement that he intended to withhold information from the congressional committees.

--Hakim’s description of his profit motive and his admission of sloppy accounting practices.

Gesell has set the next hearing on the immunity issue for next Thursday.