From a panel discussion at the Hofstra University Conference on the Reagan Presidency moderated by William F. Levanstrosser. Papers by Eric M. Freedman, Andrew S. Merrifield , David Mervin, and Frank J. Smist Jr. and John P. Meier. Mark Danner, Elliott Abrams, Charles J. Cooper, Michael A. Ledeen, and Susan Page, discussants. Papers and transcript published in President Reagan and the World, Eric J. Schmertz, Natalie Datlof, Alexej Ugrinsky, eds. (Greenwood Press, 1997)

Discussant: Mark Danner

I feel a bit shell-shocked. When I got out of the car not long ago on this bright, sunny campus, I was greeted by a publicity man from the conference who asked on what panel I would be participating, and when I said Iran-Contra, he visibly brightened. “Oh my gosh, we’re going to have a demonstration!”he said. “It’s very exciting.”I had visions of tomatoes coming at me from the back, and I told him I’d agree to be excited if he would agree to seat me as far as possible from Mr. Abrams, who I assumed would be the target.

I think I’d like to begin by asking about Iran-Contra the question the Jesuits like to ask when they see a difficult problem, which is: What is its quiddity? What is its “whatness”? What separates it from everything else ““ in particular, from other scandals? And I would suggest to you that what separates Iran-Contra from other scandals, and what makes it remarkable, is the fact that we’re still, almost seven years later, talking about it. Not only here ““ where one would expect to be talking about it ““ but within the political system itself. We have had an amazing inability to be quit of it. The political system has not been able to be quit of it, nor has the judicial system.

I think, then, its duration is probably Iran-Contra’s most significant attribute, at least as a key to understanding how it differs from other scandals. Nor do I ascribe its long duration to the inequities of Lawrence Walsh. I think we have to look at the crimes, or the alleged crimes, and, again, ask what makes them different. I don’t agree with Professor Merrifield that we learn very much by comparing these to, or putting them in the same basket with, what happened during Watergate. I think the actions are quite different. One had to do with domestic political affairs, and largely resulted from a siege mentality ““ even a paranoia ““ within the Nixon White House, a paranoia that had been exacerbated by the controversy over the Vietnam War.

Iran-Contra was different. To call it a “strategy of malfeasance”may be going a bit far, but it’s certainly true that officials in the Reagan administration adopted unusual methods to get by what they considered unfair restrictions imposed on the president’s inherent powers by Congress. If we’re going to understand Iran-Contra, we have to look at the particular moment in history when it took place. After Watergate, after Vietnam ““ the first really can’t be understood without the second, I don’t think ““ Congress began passing a series of laws that together constituted a fairly significant revision of what had been, since the National Security Act of 1947, the national security system of this country. The War Powers Resolution, which was passed in 1973 over President Nixon’s veto, is probably the best known of these laws. Others include the Arms Export Control Act, as amended during the late “˜70s, and the Intelligence Oversight Act of 1980.

Now, during Iran-Contra, it was almost as if Reagan officials were trying to work their way through an obstacle course ““ avoiding this law, avoiding that law; and I think understanding the need to avoid these laws is the key to understanding the peculiarities of many of the Reagan policies. The arms-for-hostages exchange was the most peculiar and the most regrettable: to avoid the Congressional Intelligence Committees and the Arms Export Control Act, President Reagan conducted his Iran initiatives through staff members on the National Security Council, who ““ in order to avoid the 1984 Boland Amendment, which forbade aid to the Contras ““ hired amateur covert operators, or former professional covert operators, to do the leg work.

While this was going on, the president reduced himself and other high officials to the position of personally soliciting aid from foreign leaders. Now I’m not a lawyer, but what always seemed to me to be disgusting about this ““ and I emphasize disgusting ““ is there has to be an implied quid pro quo in asking for money from a foreign leader when you happen to be a head of state. King Fahd did not give his millions to the Contras as a personal favor to Ronald Reagan ““ because he liked Ronnie Reagan, private citizen, or Ronald Reagan’s movies or whatever; the king gave that money because he expected some sort of consideration ““ maybe not a specific consideration, but something from the administration in return. It is in this that administration officials were, in effect, selling their positions, cashing in on them, to escape Congress’ control of the purse. That has always been the most troubling aspect of it.

I would include in this “list of offenses,”if you will, President Reagan’s and President Bush’s aid to Iraq. Though this aid was not a crime, these presidents did funnel billions of American dollars to Iraq through the Agriculture Department and through the Export-Import Bank, and at least a couple of those billions were sent to Saddam Hussein’s regime after professionals within those institutions had concluded that Iraq would never be able to pay this money back.

Now we come to the second part of this problem: Congress, having passed the laws that it passed, found itself confronted in 1981 with a vigorous administration that didn’t recognize or didn’t accept these prerogatives of Congress; the congressmen and senators were now put in the awkward position of having to see that their own laws were enforced. They didn’t do a very good job of this. Congress discovered very quickly that passing bold laws in a time of presidential unpopularity and congressional supremacy was one thing; enforcing them against a popular, strong president was quite another. Though I agree with those who have said how outraged they were when they found out what had gone on in secret and so on, I believe it’s impossible to understand this affair without acknowledging that, in its behavior throughout the eighties and especially in its hearings in 1987, the Congress did not do its job. Among the many sins of the hearings were the setting of an unrealistic deadline (which meant the administration was able to stonewall successfully on documents), playing to television, and coddling witnesses ““ most obviously to Colonel Oliver North.

A good many of the problems Lawrence Walsh has had derive from the fact that he had dumped upon him political problems he was not equipped to resolve. In this sense ““ a different sense than the one President Bush intended ““ I agree that there has been a “criminalization of policy differences.”Out of those hearings should have come legislation intended to readjust the balance between the executive and the legislative branch. I believe the country is in dire need of a new National Security Act, a comprehensive law that will provide for consultation between the legislature and the executive, that will restore secrecy to its proper place, and that will ensure that, before Americans are sent abroad to fight, the Congress must go on record about it. To me, if such a law had come out of those committee hearings, we might see Iran-Contra in a very different light today.

In the time left, a couple of comments about the papers: I agree, obviously, with some of what Professor Mervin said about the Congress. It is not good at acting quickly; it is not good at deciding; it must reach consensus, which means that often when there are two alternatives ““ a bad and a worse ““ Congress will choose the third, which is the worst. This happened again and again throughout the eighties. I can’t follow Professor Mervin very far in his conclusions, however, which I take to be rather extreme. If you’re going to hold that the president, when confronted with a supreme national emergency, can act despite the will of Congress and the public, then there must be at least some way to ensure that the national emergency is indeed serious. Professor Mervin says that he thinks the crisis Reagan talked about with respect to Central America was far-fetched, but that, still, it’s not his place to make judgments like that. Well, I frankly think that statement is ridiculous ““ or I would, if it didn’t carry with it such serious implications for the expansion of presidential power.

One clue that the Reagan administration somehow realized that they couldn’t get away with doing what Lincoln had done ““ or doing, arguably, what Roosevelt had done ““ was that the Reagan people did what they did in secret. They did not face Congress and say, “Well, we’re going to keep sending aid to the Contras and we dare you to do something about it.”Instead, they kept the aid going in secret, because they knew that the American public, despite all the efforts of the Reagan administration, had never come to agree with them that the Sandinistas posed the extreme threat the administration claimed.

My last comment is about Professor Freedman’s paper ““ and I apologize to the audience, because this concerns his paper rather than his remarks here. He went on at interesting length about whether a president can be indicted rather than impeached, or indicted before he’s impeached. I think this is an interesting question. One of the matters that perplexes me most about Iran-Contra is that I attribute the failure of Congress’s hearings not, in the end, to the incompetence of congressmen and women, but to their realization that serious hearings might well have led, as Lawrence Walsh has recently said, to “timely impeachment proceedings”against the president. The fact is, no one wanted that. The Democrats saw an election coming up that they thought they could win; they were afraid of Reagan’s popularity, so they came up with hearings that, in their flaws, were, in the end, detrimental to this affair. Certainly, the whole question of whether there might have been a part-way option in Congress ““ I have mentioned passage of legislation ““ deserves consideration. The vast gulf between doing nothing and impeachment is, I think, a real problem in our system. In 1987 we confronted that problem and, I’m afraid, didn’t do very well.

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Open Legal Questions Remaining after Iran-Contra

Eric M. Freedman

INTRODUCTION

The modest purpose of these remarks is to discuss two of the critical areas of constitutional law that require further work in the wake of the Iran-Contra scandal, and to indicate within those areas which problems I see as legitimately open and which can fairly be considered as having been laid to rest.

PRESERVING AND IMPROVING THE INSTITUTION OF INDEPENDENT CONTROL

The independent counsel statute¹ was not renewed when it expired on December 15, 1992. Since then, renewal legislation has moved only slowly through Congress because of the controversy sucessfully generated by a number of Republican spokesmen about the work of Lawrence Walsh.

In my view, a number of the issues that they have raised are spurious and have had the unfortunate effect of diverting the discussion from the real problems that should be addressed. Hence I review a few fundamental propositions before I move onto the more legitimately controversial material.

To begin at the most basic level—so basic, indeed, that I would skip this point except for the presence at our discussion of Mr. Elliott Abrams and Mr. Charles Cooper, whose views in this area can be objectively described as out of the mainstream—the institution of independent counsel is constitutional.

The constitutional objection is that because the independent counsel is not under the control of the president, his or her exercise of power violates the exclusive presidential function of controlling prosecutions.

The Supreme Court rebuffed that argument 7-1 in 1988.² In so doing, the court reached a correct conclusion, but wrote an opinion whose reasoning has

properly been the subject of widespread criticism.³ The court rejected the attack by accepting its premises, and then saying that the independent counsel was sufficiently under control of the president so there was no constitutional violation. Since the whole purpose of the statute was to insulate the independent counsel from residential influence, this rationale was, to say the least, unconvincing.

What the Supreme Court should have done was to reject the premise. There is no warrant for the proposition that the prosecutorial role is exclusively presidential. Historically, that function has been shared not only with other parts of the executive branch but also with the judiciary.⁴ In upholding the independent counsel statute, the Supreme Court ignored this history. Looking at the matter afresh, the court should have assessed the institution in light of the goal of the separation of powers doctrine—namely, promoting representative non tyrannical government—and should have said that having an independent counsel to investigate potential wrongdoing by high executive branch officers promotes rather than retards those purposes. Instead of seeing the office of independent counsel as a constitutionally suspect device to be reluctantly upheld, the court should have viewed it as an implementation of the ideal of the rule of law.

The benefits of the office are well illustrated by the events of the Iran-Contra investigation. The administration’s major concern in the affair was that President Reagan had authorized the shipment of HAWK missiles to Iran in November 1985. The only possible source of authority for him to do that was the National Security Act. But to conduct covert operations under the authority of the act requires a presidential finding and then congressional notification. Those, however, did not exist. President Reagan had simply told his national security advisor, Robert McFarlane, to go ahead. Understandably, Attorney General Edwin Meese believed that this conduct had been illegal.

As it turned out, he underestimated the ingenuity of Mr. Charles Cooper, who later came up with the novel legal theory that once President Reagan said, “Go ahead, Bud,”that was an “oral finding,”and so the National Security Act had never been violated at all. This was a truly creative interpretation of the act, since the precise reason for writing the statute in the first place had been to end the practice of “plausible deniability,”under which covert operations were authorized by a wink and a nod, and if they went wrong no one ““ least of all the president ““ was responsible.

In any event, no one had thought of that theory either at the time the events happened, or when they were revealed. Thus when counsel Stanley Sporkin of the Central Intelligence Agency heard about the shipment a month after it happened, he drafted a retroactive finding to authorize it. But when the scandal became public, Admiral John Poindexter, the national security advisor, tore that finding up. Why?

Thanks to the much-maligned Mr. Walsh, the answer to that question is now plain. ⁵ Once Mr. Meese decided that the president might be impeached if it came out that he had authorized the arms transfers, he went around to each of the major cabinet officials, with Mr. Cooper accompanying him, to talk about the events. (In Mr. Meese’s view, this was his investigation; in Mr. Walsh’s view, this was Mr. Meese teaching them the cover story.)

When Mr. Meese got to Secretary of State George Shultz, he delivered the same pointed message as in his other conversations: “If the president knew about the November 1985 HAWK missile shipment, then he would have been committing a crime in authorizing it, But he didn’t know. Got it?”

Everyone else in the administration did get it, including Admiral Poindexter, who had to tear up the retroactive finding to stay consistent with this new version of events, and Chief of Staff Donald Regan, who now admits that he knew this story was false.

But Mr. Shultz told Mr. Meese bluntly that the attempt to deny that the president knew, and blame the whole thing on Mr. McFarlane, would never fly. After all, Mr. Shultz said, just two days previously lie had talked the whole thing over with the president, who had said, in substance, “Sure, I remember that I was in Geneva and authorized that shipment, but that wasn’t arms for hostages, that was policy.”

Of course, as Mr. Walsh has observed, the president’s conversation with Mr. Shultz occurred before his old friend Ed Meese got to him with legal advice, and from then on he didn’t remember things so clearly any more. But the point for present purposes is that the president’s old friend Ed Meese was also the attorney general. And only in the topsy-turvy world of the opponents of the independent counsel would the country be better off if he were now in charge of investigating whether lie had engaged in a cover-up.

Moreover, to look at the matter more generally, it is hard to make a case that overall the investigative power of independent counsel has been abused. Since Watergate, there have been thirty-three preliminary investigations opened by the Justice Department under the statute, and twenty-two times ““ including most recently Iraqgate ““ the attorney general has determined not to go forward, which puts an end to the inquiry. (Indeed, it was Mr. Meese who decided to authorize Mr. Walsh’s investigation. Of course, Mr. Meese was under political pressure to do so. But with or without a statute, that political pressure will exist, as the Watergate inquiry itself showed.)

The great advantage of the statutory mechanism is that it provides a credible means for bringing dispassionate prosecutorial judgments to bear on situations enveloped in political suspicions. Eleven independent counsels have been appointed, and seven have not returned any indictments, including, notably, James McKay. Mr. McKay filed an 814-page report which concluded that a factfinder would probably decide beyond a reasonable doubt that Mr. Meese violated federal conflict of interest and tax laws with respect to telephone company stock he owned. Still, Mr. McKay declined to prosecute because an ordinary prosecutor exercising prosecutorial discretion would probably not file criminal charges in such circumstances.

On the other hand, Mr. Walsh, whom Republicans have recently been criticizing for wasting taxpayers’ money, has indicted fourteen people. Two cases did not go to trial because of the pardons issued by President Bush. Of the remaining twelve, eleven have concluded; four resulted injury convictions, and seven in guilty pleas. Two of the convictions were overturned, however, because (with the strong support of the American Civil Liberties Union) the United States Court of Appeals for the District of Columbia Circuit decided to breathe new life into the rules protecting witnesses who had been granted immunity. A fair assessment would be that the system worked just as it should.

And if, indeed, there remain cases of abuse, then, as in all criminal cases, there is always the pardon power—which, as the dénouement of the IranContra affair showed, is likely to be especially accessible to those who are within the reach of the independent counsel’s authority.

Thus the open questions about the institution of the independent counsel are not whether it is fundamentally sound, legally and practically. Rather, they concern whether any new statute can be drafted so as to overcome some vexing problems that the Iran-Contra prosecutions revealed.

Independent counsel Walsh was forced to drop key charges—including the entire indictment against CIA agent Joseph Fernandez, the most important accusations against Colonel North, and a portion of the case against Admiral Poindexter—because executive branch officials, many of them political intimates of the defendants, were in a position to block the release of classified information. ⁶ (In the case of Mr. Fernandez, the classified information in question was that there was a CIA station in Costa Rica, and that he was its chief.)

Once the government (i.e., the Justice Department) had deprived the defendants of information relevant to their defenses, the prosecutor (i.e., the independent counsel) could not constitutionally proceed against them. Since the very purpose of the independent counsel statute is to prevent the executive branch from controlling the prosecution of cases in which it may be laboring under a conflict of interest, the impropriety is manifest. ⁷ At first glance, the remedy may appear simple: since the independent counsel represents the United States for purposes of the prosecution, the independent counsel should represent the United States for the purposes of determining whether the classified material should be released.

That resolution, however, raises a constitutional concern. If “the power to protect national security information were vested in a prosecutor not fully accountable to the President,”⁸ then the president’s control over foreign relations would certainly be diminished, and, if one were to misread some of the Supreme Court’s broadest dicta in the area, ⁹ unconstitutionally so.

But it is a mistake to consider the power over foreign relations as exclusively presidential. In this area, the Supreme Court has done better than some of those (like Colonel Oliver North in the Iran-Contra hearings) who quote it out of context. Even on its most expansive days, the court has recognized that Congress does have a role in the setting of foreign policy and in determining how much discretion the president is to have in carrying it out. ¹⁰ Thus the president need not be the sole decision maker on the issue of whether or not the

overall interests of the United States are best served by the disclosure of classified information or by the dismissal of an indictment; the president’s discretion can properly be limited by legislative criteria.

Viewing matters from this perspective, a seemingly intractable problem may become less so. Congress should create, and the courts should uphold, solutions that are faithful to the reality of shared powers. For example, if, as one veteran of the Iran-Contra prosecutor’s office has suggested, the relevant statutes were to be amended so that an independent counsel were given the power to challenge on substantive grounds the decision of an attorney general to block disclosure of classified information, ¹¹ this procedure should be upheld as constitutional.

Similarly, judicial doctrines that call for a high degree of deference to executive branch secrecy decisions ¹² are just that—judicial doctrines. They are subject to modification by Congress, which might, for example, require the attorney general to demonstrate to the satisfaction of the court “by a preponderance of objective evidence that the disclosure would cause irreparable harm to the United States.”¹³

I turn now to the second set of open questions.

Almost all of the response to the Iran-Contra revelations, both from the White House and the congressional investigating committees, was driven by the perception that if Ronald Reagan really did know about the November 1985 arms shipment, and approved it in violation of law, he could be impeached. No one seems to have seriously considered the possibility that he could be indicted, because no one has ever thought seriously about whether a sitting president can be indicted. Yet in the case of Iran-Contra, there might have been much to be said for going that route. Indeed, in the words of Mr. Abrams, one could view the indictment of Ronald Reagan in this situation as achieving “a certain poetic justice.”

Although the question has never been judicially resolved, the country will sooner or later have to face the issue of whether an incumbent president or vice president is subject to indictment. My proposal is that this question has a straightforward answer: yes. This reply is based upon considerations of history, principle, and pragmatism.

As is so often the case, we are lacking in any definitive evidence of the framers’ intent on the question. The Constitution merely provides: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to Law.”¹⁴

The sequence of the clauses, together with an explanation of them by Alexander Hamilton in the Federalist papers in which he apparently contemplated that criminal proceedings would follow an impeachment trial,¹⁵ has been thought by some to suggest the order in which the government must proceed against the officeholder.

However, this inference is a weak one. The Constitution specifically grants federal legislators a limited immunity from arrest but says nothing about a similar executive privilege. According to the later report of one delegate, this omission was deliberate; the framers, mindful of the abuses caused in England by the maxim that the king could do no wrong, decided (although the discussion is not recorded in any surviving notes of the Philadelphia Convention) to reject such a presidential privilege.¹⁶ Thus the dichotomous structure of the impeachment provision is more plausibly explained as designed merely to protect officials against the prior practice in England, where conviction in a parliamentary impeachment trial resulted without further ado in draconian criminal penalties.

At any rate, although the original intent may be obscure,¹⁷ our historical practice is not. In 1804 Aaron Burr, then the vice president, was indicted by the State of New Jersey for killing Alexander Hamilton in their duel. ( New York had already charged him, leading Burr to comment that the episode had sparked “a contention of a very singular nature between the states of New York and New Jersey,” over which one of them would “have the honour of hanging the vice president.”)¹⁸ In response to the New Jersey indictment, a group of senators sent the governor a letter urging that the prosecution be discontinued. They argued that this course would “facilitate the public business by relieving the President of the Senate from the peculiar embarrassments of his present situation, and the Senate from the distressing imputation thrown upon it, by holding up its President to the world as a common murderer.”¹⁹ But neither the senators, nor President Thomas Jefferson, nor Secretary of State James Madison—both of whom were treating Burr with great solicitude at the time—suggested that the Constitution granted Burr immunity from the prosecution.

In the intervening years, high federal officials have repeatedly been the subjects of criminal charges while still in office. Congressmen and senators have frequently been indicted, and the courts have uniformly adhered to the position taken by the Supreme Court in 1906: despite the importance of the legislator’s function, there is no constitutional barrier to such prosecutions. ²⁰ Similarly, there have been six indictments of sitting federal judges since 1974. In each case, the courts recognized the vital importance of an independent judiciary but nonetheless adopted the view, first taken by the attorney general of the United States in 1796, that the prosecution was permissible. ²¹

And when Ronald Reagan’s secretary of labor, Raymond Donovan, became the first sitting cabinet member ever indicted, the idea of claiming an exemption from prosecution apparently did not even cross his mind. ²²

This is not surprising. To be sure, the courts have sometimes invented doctrines of official immunity—but only in civil cases, not criminal ones. And, even then, the courts have consistently attempted to tailor the rulings in such a way as to encourage officeholders to perform their duties diligently and fearlessly, without shielding them from the consequences of deliberate wrongdoing.

This uniform course of practice is consistent with what we know of the philosophy underlying the structure of our government. The framers had no faith in the goodness of human nature, particularly the human nature of officeholders. On the contrary, they believed that power tends to corrupt. Those who wrote the Constitution would be saddened but by no means shocked to hear us discussing matter-of-factly the possibility that the country’s highest officials might be guilty of criminal behavior. For the framers, the primacy of law was the basic instrument by which the inevitable tendency of public officials to abuse their positions would be curbed. No one doubts, therefore, that, to control the predictable misconduct of those who would hold high office, the practical politicians who wrote our Constitution provided for two separate checks on our most powerful public officials.

Impeachment was designed to curb behavior undermining the president or vice president’s fitness to continue governing. As Hamilton wrote in The Federalist, the impeachment power was vested in Congress because the purpose of the procedure is to reach those offenses “of a nature which may with peculiar propriety be denominated political,”that is, those which “proceed from the abuse or violation of some public trust,”rendering the offender unworthy of continued public confidence. ²³

Thus, although the Constitution speaks in terms of “high crimes and misdemeanors,”it has long been settled that impeachable abuses of power are not limited to crimes. As then-Representative Gerald R. Ford said while seeking the impeachment of Justice William O. Douglas, “About the only thing that the authorities can agree upon in recent history…is that an offense need not be indictable to be impeachable.”²⁴ When Richard Nixon bombed Cambodia and concealed it from Congress, this was an impeachable offense, even if not a crime, and could properly have led to his removal from office.

Criminal sanctions serve a different social purpose. The criminal code, defined in statutes and applied by a neutral judiciary, embodies a minimum standard of behavior which society requires of all citizens. If, for instance, Lyndon Johnson drove drunk, he should have been convicted of drunken driving-not impeached. In this way, society would have expressed its disapprobation of his conduct, while retaining a leader who had done nothing to undermine his political legitimacy.

But the dual force of these checks is largely lost if they are available only sequentially; hence, in light of our deep-rooted commitment to the principle that officeholders must abide by the rule of law, the soundest way to view the relationship between the impeachment and criminal sanctions is that they are available simultaneously.

Thoughtful opponents of the view presented here rarely quarrel with the ideas presented so far. Rather, they raise three much more practical arguments, which we may label the “harassment objection,”the “intrusiveness objection,”and the “functional removal objection.”

The Harassment Objection. If presidents and vice presidents were amenable to criminal prosecutions, the argument goes, they might be subjected to endless harassment by local prosecutors. Nearly two centuries of experience demonstrate that this concern is overblown.

In 1807, when Aaron Burr (by this time a private citizen) was charged in federal court with treason, Chief Justice John Marshall wrote a landmark opinion affirming the defendant’s right to seek possibly exculpatory documents and testimony from President Thomas Jefferson.²⁵ Ever since then, as United States v. Nixon²⁶ resoundingly reaffirmed, the law has required that presidents and vice presidents give evidence in criminal proceedings. Yet the courts have enforced this duty with considerable deference to the demands of the president’s office, thus protecting the incumbent from harassment while making evidence available in appropriate cases.

The courts’ evidentiary rulings in the Iran-Contra prosecutions illustrate this pattern. In the prosecution of Colonel Oliver North, the trial judge ruled that the presidential materials sought were not necessary to the defense, thus mooting any questions concerning the mode of compliance. ²⁷ In the prosecution of Admiral Poindexter, the trial judge ruled: (1) the materials sought from President George Bush (who had been vice president during the period in question) were irrelevant or cumulative;²⁸ (2) the court would conduct an in camera inspection of portions of the diary kept by Ronald Reagan while he was president to determine whether they had to be turned over to the defense;²⁹ and (3) the defense was entitled to take the videotaped deposition of former president Reagan concerning his conduct in office, but under the supervision of the trial judge, at a time and place convenient to the witness, and in secret, so that the government would have the opportunity to move for redactions from the testimony before it was made public.³⁰

Since there are presumably many more situations in which it might be plausibly claimed that the president has relevant evidence than ones in which it might be plausibly claimed that the president has committed a crime, the case for testimonial immunity is—from the point of view of safeguarding against harassment—stronger than the case for criminal immunity. The fact, therefore, that the courts have for almost two hundred years been able to reach appro

priate accommodations in the testimonial context strongly supports the view that they would be able to do so in the criminal context, where an indicted president or vice president would have all the protections afforded to any criminal defendant. ³¹

In light of the ample legal resources available to the leaders of the executive branch, and their power to mobilize public opinion, subjecting them to the infrequent need to defend themselves in the courts is greatly preferable to turning each allegation of criminal conduct into the traumatic struggle of an impeachment battle. Yet a rule of absolute immunity would have just this effect. Only a single congressman is needed to set the impeachment machinery in motion, and if there is reason to believe that a president or vice president has committed a crime—particularly one for which the statute of limitations may expire before the end of the incumbent’s term—such a congressman will surely be found.

The Intrusiveness Objection. This objection differs from the harassment objection in focusing on the claimed disruption to the functioning of the president resulting from potential, as opposed to actual, prosecutions. The concern is that, intimidated by the prospects of criminal liability, the officeholder would be deterred from the appropriately energetic exercise of duty.

The answer is as pragmatic as the objection. The argument advanced here is simply that the president is amenable to prosecution and has no “generalized”criminal immunity. But after that threshold has been crossed, there might well be a particularized substantive privilege if in a specific case there is some concrete reason to believe that indeed the imposition of liability for some particular criminal conduct (e.g., ordering the assassination of a foreign leader, as opposed to beating one’s butler during an argument) would chill the president’s legitimate exercise of discretion. To be sure, any such formulation leaves a zone of uncertainty, but, as the courts have recognized in similar contexts, there is no empirical support for the intuitively unlikely proposition that this will impair the vigor with which public servants discharge their duties. ³² As a result, application of the criminal law will be restricted to just the area in which it is needed, controlling venality.

The Functional Removal Objection. The “functional removal”argument is equally unavailing. Special Prosecutor Leon Jaworski apparently believed that since the president or vice president could not run the country from a prison cell, incarceration would be tantamount to removal from office, which is the exclusive prerogative of Congress.

This argument is doubly flawed. First, it rests on an attenuated chain of hypotheticals. Common sense suggests that an indicted president or vice president will in all likelihood resign or be impeached. If he or she retains the political support to resist doing so, it is highly improbable that he or she will be sentenced to serve a prison term while in office.

Second, the argument is in any event legally invalid. Not only has it already been rejected in the cases of federal legislators and judges, but, in fact, impeachment is not the only constitutional mechanism for removing the president from office. The unlikely event of a president being sentenced to jail (assuming that modern technology did not indeed permit one to run the country from a prison cell) would be a perfect occasion for the invocation of the Twenty-Fifth Amendment, which specifically provides mechanisms for the president either to relinquish or to have taken away executive power in case of a temporary disability to perform his or her duties.

I conclude that the second set of questions left open after the Iran-Contra affair can be definitively answered: having the indictment of a president heard in a court of law, just as in the case of any other citizen, would serve rather than violate the Constitution.

Notes

The author gratefully acknowledges the support given to his efforts by research funding from Hofstra University, and the devoted secretarial assistance of Nancy A. Grasser. The author has previously addressed the second question presented by this paper in Eric M. Freedman, “The Law as King and the King as Law: Is a President Immune from Criminal Prosecution before Impeachment?”Hastings Constitutional Law Quarterly 20 ( 1992): 7.

[1.] 28 U.S.C 595©] ( 1987).

[ 2.] See Morrison v. Olson, 487 U.S. ( 1988). Similarly, despite the valiant efforts of President Bush in his signing statement to suggest the contrary, there is little doubt that what is probably the most significant legislative by-product of the Iran-Contra affair to date, Title VI of the Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 10288, 105 Stat. 429, which strengthens the obligations of the president to report covert activities to Congress, is constitutional. See Paul Gumina, “Title VI of the Intelligence Authorization Act, Fiscal Year 1991: Effective Covert Action Reform or “˜Business as Usual’?”Hastings Constitutional Law Quarterly 20 ( 1992): 149.

[ 3.] In addition to Justice Antonin Scalia’s dissent, which gained cogency from being aimed at an easy target, see, e.g., Stephen L. Carter, “The Independent Counsel Mess”, Harvard Law Review 102 ( 1988): 105, 113-16.

[4.] See Stephanie A. J. Dangel, Note, “Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers’Intent”, Yale Law Journal 99 ( 1990): 1069.

[5.] See “Birth of a Scandal and Mysteries of Its Parentage”, New York Times, December 25, 1992, p. A23; “Meese Testifies That Impeachment Was a Worry”, New York Times, March 29, 1989, p. A17. The final round of inquiries conducted by independent counsel Lawrence Walsh ““ which was aborted by the pardons issued by President Bush (see “Bush Pardons 6 in Iran-Contra Affair, Aborting a Weinberger Trial; Prosecutor Assails “˜Cover-Up,'”New York Times, December 25, 1992, p. A1) ““ was aimed at determining whether President Reagan or any of his top aides lied during the effort to absolve him of responsibility. See “Walsh Is Said to be Mulling Reagan Charges”, Wall Street Journal, July 27, 1992, p. A12; “In Iran-Contra Inquiry, New Interest in Reagan Aides’ Actions”, New York Times, July 12, 1992, p. A17; “IranContra Inquiry Turns to Top Reagan Officials”, New York Times, June 26, 1992, p. A17.

[ 6.] See “Two Charges against Poindexter Dismissed”, New York Times, July 26, 1989, p. B6; “U.S. Drops Part of Its Case against Iran-Contra Figures”, New York Times, June 17, 1989, p. A7; “Key North Counts Dimissed by Court”, New York Times, January 14, 1989, p. A1. See also “Justice Delays Iran ““ Contra Justice,”New York Times, October 21, 1989, p. A24 (editorial criticizing Justice Department performance).

[7.] In the case of the Iran-Contra prosecutions, the situation was not aided in the least by the fact that the “classified”information that attorneys general Meese and Dick Thornburgh sought to protect was both innocuous and widely known. See Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, House Select Committee to Investigate Covert Arms Transactions with Iran, Report of the Congressional Committees Investigation of the Iran-Contra Affair, S. Rep. No. 216, H.R. Rep. No. 433, 100th Cong., 1st Sess., p. 144 ( 1987); Anthony Lewis, “Government of Laws?”New York Times, November 30, 1989, p. A31.

[ 8.] United States v. Fernandez, 887 F.2d 465, 471 (4th Cir., 1989).

[9.] See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 ( 1936).

[10.] See ibid., p. 320.

[11.] Sandra D. Jordan, “Classified Information and Conflicts in Independent Counsel Prosecutions: Balancing the Scales of Justice after Iran-Contra”, Columbia Law Review 91 ( 1991): 1651.

[12.] E.g., United States v. Reynolds, 345 U.S. 1 ( 1953).

[13.] Jordan, “Classified Information and Conflicts,” p. 1674.

[14.] U.S. Constitution, art. I, sec. 3, cl. 7.

[15.] See The Federalist, nos. 65, 69.

[16.] See Ten Annals of Congress, pp. 72-74 (1800) (Remarks of Charles Pinckney).

[17.] In fact, members of the founding generation disagreed sharply on precisely our question both in formal debate on the Senate floor during its first session. See Kenneth R. Bowling and Helen E. Veit, eds., The Diary of William Maclay and Other Notes on Senate Debates(Baltimore: Johns Hopkins Press, 1988), pp. 445-49 (notes of Vice President John Adams), 464-67 (notes of Senator William Samuel Johnson of Connecticut), 483-89 (notes of Senator William Paterson of New Jersey); and in more informal political discussion, see Edgar S. Maclay, ed., Journal of William Maclay, U.S. Senator from Pennsylvania, 1789-1791( New York: D. A. Appleton & Co., 1890), pp. 166-67.

[18.] “Letter from Aaron Burr to Theodosia Alston”, December 4, 1804, in Matthew L. Davis , ed., Memoirs of Aaron Burr with Miscellaneous Selections from his Correspondence ( New York: Harper & Bros., 1836-37), pp. 351-52.

[19.] The text of the letter is to be found in J. S. Biddle, ed., Autobiography of Charles Biddle, Vice President of the Supreme Executive Council of Pennsylvania, 1745-1821 ( Philadelphia: E. Claxton & Co., 1883), pp. 306-8.

[20.] See Burton v. United States, 202 U.S. 344, 365-70 ( 1906). The subsequent cases are canvassed in Freedman, “The Law as King”, pp. 30-32.

[21.] For a description of these cases, see Freedman, “The Law as King,” pp. 25-29.

[22.] Donovan was indicted by a New York State grand jury in September 1984 on charges relating to alleged fraud in connection with public works performed by a company with which he had previously been connected. He resigned in March 1985, and, after unsuccessfully seeking to remove the charges to federal court (see Application of Donovan, 601 F.Supp. 574 [S.D. N.Y. 1985]), eventually won a complete acquittal (see “Donovan Cleared of Fraud Charges by Jury in Bronx”, New York Times, May 26, 1987, p. A1).

[23.] The Federalist, no. 65.

[24.] 116 Congressional Record, H3113-14 (daily ed., April 15, 1970).

[25.] United States v. Burr, 25 F.Cas. 30 (C.C.D. Va., 1807) (No. 14, 692d)

[26.] 418 U.S. 683 (1974).

[27.] United States v. North, Cr. No. 88-0080-02, 1989 U.S. Dist. LEXIS 2903 (D.D.C., March 31, 1989)(refusing to enforce subpoena issued to ex-president Reagan and noting that court had previously quashed subpoena issued to ex-vice president, and sitting president, Bush; court had power in both cases, but defendant had failed to show that subpoenas likely to yield relevant evidence). See Comment, “Legitimacy: The Sacrificial Lamb at the Altar of Executive Privilege”, Kentucky Law Journal 78 ( 198990): 817, 832-33 (agreeing with decision insofar as it affirmed power, but criticizing it for imposing an excessively heavy threshold burden on defendant).

[28.] United States v. Poindexter, 725 F.Supp. 13, 30 (D.D.C., 1989).

[29.] United States v. Poindexter, 727 F.Supp. 1501, 1511 (D.D.C., 1989). After conducting this examination, the court initially determined that some of the entries were relevant (see United States v. Poindexter, 732 F.Supp. 135 [D.D.C., 1990]; “Reagan Is Ordered to Provide Diaries in Poindexter Case”, New York Times, January 31, 1990, p. A1), but ultimately refused to provide them to the defense in light of the government’s assertion of executive privilege and Admiral Poindexter’s opportunity (described in the text) to take the former president’s testimony. See United States v. Poindexter, Cr, No. 88-0080-01, 1990 U.S. Dist. LEXIS 2881 (D.D.C., March 21, 1990); Poindexter Loses Fight for Reagan Notes”, New York Times, March 22, 1990, p. A20.

[30.] See United States v. Poindexter, 732 U.S. 165 (D.D.C., 1990); United States v. Poindexter, 732 F.Supp. 142 (D.D.C., 1990). Rulings (2) and (3) were both made over vigorous objection (see “Reagan Asks Court to Kill Subpoena”, New York Times, December 7, 1989, p. A27), but former president Reagan complied without seeking appellate review (see “Reagan Testifies He Did Not Order Any Illegal Acts”, New York Times, February 23, 1990, p. A1). In mid-1992 he also met voluntarily with the independent counsel for an all-day private interview that was transcribed by a court reporter (see New York Times, October 10, 1992, p. A6).

[31.] Moreover, quite apart from any additional protections that Congress might choose to grant, these officials would be likely to enjoy special safeguards: the right of removal to federal court, and the right to federal injunctive relief against harassing prosecutions. See Freedman, “The Law as King”, pp. 65-66.

[32.] See United States v. Nixon, 418 U.S. 683, 712, n. 20 ( 1974) (“[W]e cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such disclosures will be called for in the context of a criminal prosecution”); see also United States v. Gillock, 445 U.S. 360, 373 ( 1980) (while allowing federal prosecutors to use evidence of state legislators’ official acts “may have some minimal impact on the exercise of his legislative function,”the court will not “impair the legitimate interest of the Federal Government in enforcing its criminal statutes [for] only speculative benefit to the state legislative process”).

Iran-Contra: Circumvention in Historical Perspective

Andrew S. Merrifield

The “President’s Special Review Board”on Iran-Contra, popularly known as the Tower Commission, looked primarily at the operation of the National Security Council (NSC) and its staff, following the dictates of its assignment when created by President Reagan at the end of 1986. It completed its assign­ment quickly and submitted a report for public consumption by February 1987. The study looked in more detail at the Iranian arms deals and the subsequent diversion of profits to aiding the Contras than it did at the rest of the Contra program. Much of the evidence for the report was provided by the executive branch. The letter included with the report stated, “In general, we received a positive response to our inquiries from every agency, including the White House.”¹ The commission concluded that the affair was a disaster and at­tempted to explain why.

The report found, as summarized by a New York Times editor, “a National Security Council led by reckless cowboys.” ² It further laid substantial blame on President Reagan’s management style. “He did not force his policy to undergo the most critical review available….At no time did he insist upon account­ ability and performance review.” ³ It did not recommend massive changes in the National Security Council structure or operations, because it claimed that the organization was, by necessity and tradition, a reflection of the particular president. ⁴ Rather, it looked at the situation as failure that was first and fore­most related to problems of aberrant behavior and management style.

Later investigations in Congress, in the courts, and among various journalists and scholars have subsequently uncovered far more material, and this led to some reassessment of the initial finding of the Tower Commission. President Reagan apparently knew substantially more than reported to the commission. ⁵ Likewise, the material presented by some of the participants in Iran-Contra suggested that the aberrant nature of the scandal may not have been so aberrant after all. Testimony by such people as Lt. Colonel Oliver North and his secretary, Fawn Hall, shared an eerie similarity to the testimony of executive department employees involved in the earlier presidential scandal, Watergate. Fawn Hall, for example, testified, “I believed in Colonel North, and there was a very solid and very valid reason he must have been doing this for, and sometimes you have to go above the written law, I believe.”⁶ John Ehrlichman, chief domestic advisor to Richard Nixon, took the position that if the president approved certain actions in the name of national security, then it was not illegal. He also argued that such niceties as the Fourth Amendment protection against illegal search and seizure “has been considerably eroded over the years, has it not?”⁷ Other testimony also seemed to share parallel interpretations and meanings as to what could be done by members of the executive in the name of national security.

This strongly suggests that one of the most important observations about the Iran-Contra affair, the uniqueness of it, is not accurate. The affair seems to represent an example of an evolving tradition of circumvention as an executive governance strategy in a hostile political environment. The issue is worth more detailed study. Is circumvention a new strategy? What are some of its general characteristics?

The basic ingredients of this argument are that circumvention is a recognizable political strategy employed in the modern presidency. Specifically, circumvention exists when there is a conscious, systematic violation of either the spirit or the letter of the law to accomplish long-term strategic goals, and that this activity is done in secrecy. Circumvention need not be a convictable or impeachable offense. It does not have to be part of an overt conspiracy; it often may be related to a mind-set. It can include evasions, half-truths, attempts to mislead, doctoring the facts for maximum spin, as well as lying. In Iran-Contra it may have been, at times, “a very thin line,” as Robert Owen, an aide to Lt. Colonel North said, or “a fine line,”as Vice President Bush said. ⁸ Circumvention can occasionally meet the test of ethical administrative behavior laid out by John Rohr—the low road. Here “ethical behavior is reduced to staying out of trouble.”⁹ This can include bending the facts to fit the desired outcome and avoidance of wrongdoing by such action. This, according to Rohr, “runs the risk of developing a dangerous attitude of pharisaism.”¹⁰ The hostile political environment, as built into the system by the authors of the Constitution of 1787, exists whenever an individual or group ““ either formal or informal ““ has potential power to deny the president what he wants. This argument accepts Clinton Rossiter’s assertion that the president cannot be separated from the men around him. ¹¹

Circumvention, therefore, is not simple political corruption in the presidency, either for personal enrichment or for short-term reelection goals, for example. The corruption associated with Tea Pot Dome is not circumvention in this sense. Neither was the search of the passport files of Bill Clinton or his mother by members of the Bush White House. One is greed; the other is a result of getting caught up in the heat of the moment near the end of a presidential campaign.

Circumvention is also not open defiance of hostile political actors, like President Lincoln’s abuse of the writ of habeas corpus and the use of the military in civilian trials during the Civil War, or President Franklin Roosevelt’s actions on Lend Lease in the autumn of 1941. Lincoln and Roosevelt both assuredly violated at least the spirit of the law, but their actions were not secretive. Finally, circumvention is not altering long-established policies through executive reinterpretation of their meanings, as Nixon’s attempts to change civil rights enforcement by the Department of Justice in school desegregation cases. ¹² Again, Nixon did not work to violate the law secretly, but to reinterpret it, more or less publicly.

Circumvention is worth studying in the Iran-Contra affair for three interrelated reasons. First, Iran-Contra was certainly the largest black mark against the Reagan administration discovered during his term. It created the largest drop in both the president’s popularity and his effectiveness. ¹³ This black mark also led to U.S. engagement in the Persian Gulf in 1987, with the reflagging of the Kuwaiti tankers and the subsequent deaths of both U.S. military personnel and Iranian civilians.

Second, circumvention suggests a pattern of presidential behavior and a governance strategy that is underreported, understudied, and important. Circumvention is not based on cooperation between the executive and the potentially hostile political world, as is capitulation or Richard Neustadt’s discussions on bargaining. ¹⁴ Nor is it overtly confrontational, as are strategies related to the use of the media to take the case directly to the people, like Samuel Kernell’s “going public”; ¹⁵ strategies based on reinterpretation of statutes and administrative directives; or the defiance strategies of Franklin Roosevelt and Lincoln. It is based on avoiding compliance of existing laws and practices with the highest possible level of secrecy.

Finally, the circumvention in Iran-Contra is worth studying because of what it does to the U.S. presidency as an institution. Presidents seem to be unable to control the presidency, leading to unsuccessful administrations and rising distrust and cynicism about the office, the officeholder, and the seeker of the office. Ronald Reagan as the chief administrator had restored faith in the office and the officeholder for millions of Americans after the failures of Lyndon Johnson, Richard Nixon, Gerald Ford, and Jimmy Carter. He had made mistakes and not captured the hearts and minds of whole segments of the population, but he had made inroads with some of the disenchanted. Sincerity and principle seemed to be his greatest stock-in-trade, and he seemed to have more of it than most of his immediate predecessors. So the realization that he had played a game very differently than the one the people thought he played added to the cynicism.¹⁶

Circumvention seems to exist: it hurt Ronald Reagan, and it hurts the modern presidency. It should be looked at. The whole issue of circumvention in the Iran-Contra affair is both too large and too complex to try to even outline in a brief paper. Instead, this paper will look at a few examples that show some of the characteristics of circumvention, and that suggest that they are not unique to the Reagan presidency. For the sake of brevity, I will not deal with some of the more notorious actions that led to convictions, public humiliations, and so on.

During 1984, members of the NSC staff, including the president’s advisor, Robert McFarlane, worked to supply weapons to the Contras in an effort to circumvent the Boland Amendment. McFarlane, North, and others at various times attempted to get arms captured by the Israelis in Lebanon transferred to the Contras. They also contacted the U.S. Department of Defense (DOD) and the CIA. They hoped that the DOD could give arms to the CIA, and then the CIA could give those arms to the Contras. This latter scheme ran afoul of DOD legal counsel, who determined that it would be illegal. This killed the plan. ¹⁷ Later in the same year, Admiral John Poindexter, then an aide to McFarlane, tried to have weapons sent from El Salvador to the Contras. ¹⁸ At the end of the year, Colonel North also worked on plans to aid the Contras from such diverse locations as China, through Guatemala, and through Chile. ¹⁹

In 1985 various additional attempts were made to arm the Contras through indirect aid, including trips to Central America by Vice President Bush. Bush tried to persuade Central American leaders that Contra aid would be beneficial to all parties—the United States, the Contras, and the other Central American countries. ²⁰ In February 1985, President Reagan suggested that Honduras could give weapons to the Contras, and the United States would reimburse them. The next day, North sent a memo to McFarlane recommending that the deal be kept from Congress. ²¹

These are only a few brief examples of the attempts to get aid to the Contras through indirect aid. The level of secrecy alone does not point to circumvention of the law. Clearly, when discussing a great deal of both policy and political strategy, one can expect confidentiality in the presidency. However, evidence from Colonel North’s trial suggests that certain participants at meetings where Bush’s trip to Central America was discussed wondered about the Boland Amendment and any promises made. ²²

Former President Bush has refused to discuss much of his role in the scandal on the basis that he will not divulge the content of any conversation he had with President Reagan. He did say, however, during the 1992 campaign, that “he had “˜nothing to explain.'”He also claimed “nobody has suggested that I’ve done anything wrong at all.”²³ His precise role in the affair became muddier in December 1992, when he sent additional documents to the special prosecutor Lawrence Walsh, long after he claimed he had turned over all relevant material. In addition, his pardon of Caspar Weinberger, before the beginning of the trial, on Christmas Eve 1992, made it more likely that some information about key players would be more difficult to get hold of. ²⁴

In addition to questions surrounding Vice President Bush’s role and the call for secrecy from North, James Baker III, as Reagan’s chief of staff, also expressed explicit concern about impeachment if certain indirect efforts were made on the Contras’ behalf. ²⁵ The knowledge of the possible illegality of indirect aid suggests that these actions are consistent with a circumvention strategy.

Sometime, probably in early 1984, President Reagan told McFarlane that he expected the NSC to do what was necessary to keep the Contras together “body and soul.”²⁶ To accomplish this, members of the administration turned to third countries to supply the money for the Contras that Congress had cut off. CIA Director William Casey asked King Fahd of Saudi Arabia to help underwrite both the Contras and the rebels in Angola as well. ²⁷ Duane Clarridge, a Casey assistant, wanted to make similar requests from South Africa in 1984, but the revelations about the mining of Nicaraguan harbors by the CIA destroyed any chance to make such a request then. ²⁸

In addition to public officials attempting to raise money from third country governments, quasi-independent fund-raising organizations were also established. One organization, headed by Carl Channell, used a letter from Adolfo Calero, a prominent Contra, to meet and solicit notable U.S. anti-communists like Joseph Coors and Bunker Hunt. ²⁹ An assistant to Channell even suggested that they solicit funds from Ross Perot, but apparently North nixed that idea by arguing that it would be difficult to keep the fund-raising secret if Perot became involved. ³⁰

Retired General John Singlaub also opened a private fund-raising organizations for the Contras in 1984. At first he tried to work through the CIA, but Casey told him directly that such overt contact would violate the Boland Amendment. ³¹ Singlaub nonetheless did deal with both North and Assistant Secretary of State Elliot Abrams. Singlaub testified that his lawyer told him that it was legal to deal with NSC staff like North, because Boland did not cover the NSC. He also testified that he believed people at the State Department above Abrams, probably including Shultz, knew of what he was doing.

Singlaub received help from North, but did not play too large a role in “private funding”because Casey and others thought that he kept too high a profile. ³² The fact that they wanted to squeeze out a man of his stature and dedication to the cause, and Casey’s apparent overt statement that CIA involvement, even with “private”fund-raising, violated the Boland Amendment, seem to demonstrate that key members of the administration knew that they were on potentially shaky ground. Both types of third party funding exemplify a circumvention strategy.

THE COVER-UP OF IRAN-CONTRA IN OCTOBER AND NOVEMBER 1986

The Iran-Contra affair began to unravel in the fall of 1986 as a result of two

only marginally related incidents: the shooting down of an Enterprise plane over Nicaragua, and the publication of information on McFarlane and North’s trip to Teheran in the Lebanese press. The pilot and the co-pilot of the downed plane were both killed, but with the capture of crew member Eugene Hasenfus, a former Marine with Vietnam experience, members of the administration began to work quickly on damage control. Assistant Secretary of State for Latin American Affairs Elliot Abrams testified before the House Intelligence Committee, along with two members of the CIA, and all led Congress to believe that the administration had played no role in supplying the airplane or knew much about its activities. ³³ In 1991 Mr. Abrams plead guilty to “two misdemeanors charges of withholding information from House and Senate committees during testimony.”³⁴ Abrams was pardoned for his misdemeanor convictions at the same time that Weinberger was by Bush, at the end of 1992. North later also admitted that he had worked to cover up government involvement after this incident. ³⁵

Before the heat of the plane crash died down, a story appeared in a Lebanese weekly newspaper that discussed McFarlane’s trip to Teheran in May 1986. With the release of this story, the senior-most officials in the administration began to assess the damage. Secretary of State Shultz sent a telegram to Admiral Poindexter that argued that minimal information should be given out to the public, in the most flattering light, about the actions being taken in Iran. ³⁶ Poindexter answered the next day saying that after consulting with several other top advisors, including both Secretary of Defense Weinberger and Vice President Bush, that they believed they should not expose the administration’s role in the whole affair. ³⁷

During the next couple of weeks, the White House continued to send out false information about the Iranian hostage situation. President Reagan himself misled the public during a nationally televised speech in which he denied that there had been any dealings of arms for hostages, and in which he undercounted the amount of weapons sent to Iran by at least 50 percent. These evasions were publicly exposed in a press conference within a matter of days. ³⁸

These few examples show characteristics of a circumvention strategy: evasions, half-truths, letting the facts dribble out, attempting to put the best face forward, as well as direct deceptions. The activities of Iran-Contra were not as orchestrated from the top, as much of the Watergate cover-up was. They were instead part of a mind-set that apparently saw other institutions of government, and in some cases—as in the battles within the administration between Shultz and some others—even within the executive branch, as disloyal or dangerously wrongheaded. Under these circumstances, circumvention apparently seemed to be the best method of accomplishing the tasks at hand.

As stated above, these are brief examples of this governance strategy in the

Iran-Contra affair. Taken together, they suggest that this is far more than “cowboys”running amuck. Compared with the other major executive branch scandal of the last generation, Watergate, they flesh out the contention that this type of strategy did not begin with the Reagan presidency and that it appears to be a “strategy.”

Watergate is a scandal that appropriately fits as a comparison to IranContra. It is well documented and recent enough to be relatively coherent without lengthy explanation. These two ingredients are valuable for this type of brief exposition.

Starting in early 1969, the Nixon presidency began illegal wiretaps on the telephones of journalists, employees of their own government, and even on the president’s brother. In all cases, they were interested in the gathering of political intelligence and chose to bypass the normal processes. ³⁹ Ehrlichman created a “private detective” agency in the office of White House Counsel to gather political intelligence on politicians and private citizens. This office continued under John Dean, and one “stringer”of the “agency,”Anthony Ulasewicz, became a key player in the Watergate cover-up. Ulasewicz met with Ehrlichman only once, and received money from leftover campaign funds, so that there would always be a distance between him and the White House. This would make it easier to deny White House culpability. ⁴⁰

These two examples and numerous more, ranging from extortion-like campaign fund-raising techniques, trying to use the IRS to investigate political opponents, and burglaries, exemplify systematic activity to circumvent the normal political process of open bargaining or overt conflict. The strategic considerations in both the campaign organization and the Nixon presidency parallel the strategic considerations of Iran-Contra. Together they build a prima facie case for studying circumvention. The Nixon administration, like the Reagan administration, believed that the other branches of government were often hostile to their aspirations, and that even much of the executive branch could not be trusted to do what they should in serving the president. Key members of the administration, in their memoirs and reminiscences of their White House service, regularly point to their frustration with Congress and the bureaucracy as partial justification for what happened. ⁴¹ Nixon himself argued that what he did was not different from what Democrats had done before and had done to him. ⁴²

The Gulf of Tonkin Resolution in August 1964 became the de facto declaration of war for the United States in Vietnam. Though the actual facts surrounding the encounter between the two U.S. destroyers, the USS Maddox and the C. Turner Joy, and patrol boats from North Vietnam are somewhat confused, the Johnson administration used the incident to ask Congress for authorization to pick up the fighting in the region.

The resolution followed a period of “progressively escalating pressure”on North Vietnam under a covert program, Operation Plan 34 A.⁴³ The plan was authorized on February 1, 1964, by President Johnson, “on the recommendation of Secretary of Defense [Robert] McNamara.”⁴⁴ Under Operation 34 A, the United States spied from naval vessels off the coast of North Vietnam; supplied U.S. warplanes to Thai pilots that bombed North Vietnamese targets before the Gulf of Tonkin incident; and drew up a battle plan to use against North Vietnam at least two months before the naval confrontation.⁴⁵

None of the facts concerning the covert war that had taken place for the previous six months were given to Congress when President Johnson asked for the resolution. The issue was presented as overt aggression, “unprovoked attacks…[against] routine patrols.”⁴⁶ Later, one observer admitted that the call for U.S. bombing of North Vietnam in retaliation for the incident was based on “ex post facto [italicized in the original] intelligence.”⁴⁷ Johnson himself, in a rare moment of candor well after the fact, said, “For all I know, our Navy was shooting at whales out there.”⁴⁸

The Gulf of Tonkin Resolution, like both many features of Iran-Contra and the Watergate affair, shares many of the traits of circumvention. The administration sold Congress on a policy with half-truths and limited information, information that they were entitled to before they could make such a commitment. In the case of the Gulf of Tonkin Resolution, the administration did not withhold information because they feared Congress or portions of their own executive branch, as were the cases in the other two incidents of circumvention. President Johnson calculated his actions in Vietnam based on what he hoped to accomplish domestically ““ civil rights policy and the Great Society ““ and because he was concerned about the upcoming presidential elections.⁴⁹

WHY STUDY CIRCUMVENTION AS PART OF THE REAGAN LEGACY?

The Gulf of Tonkin Resolution, Watergate, and Iran-Contra are not the only three incidents of circumvention in the last two generations since World War II. A pattern of deceit in peacetime evolved as part of the Cold War mentality. This pattern was defended by such luminaries as Thomas Bailey, the Stanford historian, who argued in 1949, “Because the masses are notoriously shortsighted and generally cannot see danger until it is at their throats, our statesmen are forced to deceive them into an awareness of their own long-run interests.”⁵⁰ These same sentiments were also echoed by Samuel Hunington: “You may have to sell [intervention or other military action] in such a way as to create the misimpression that it is the Soviet Union that you are fighting.”⁵¹ Hunington’s recommendation came in 1981, but the fact that circumvention has become part of U.S. presidential governance strategy does not make it either sound policy nor unimportant. The Reagan presidency had a profound impact

on the U.S. system and the American presidency. It demands continued research and thought because not all of the questions raised about the administration have been answered. Among these important unanswered questions are the ones surrounding this scandal.

President Bush referred to the prosecution of Iran-Contra participants as “the criminalization of policy differences”in his presidential pardon of Weinberger, McFarlane, and the rest.⁵² Journalist Alexander Cockburn wrote, a few days later, that Iran-Contra was part of a secret attempt “to inflict criminal terror on Nicaragua.”⁵³ Obviously, the controversy continues as both part of the legacy of this important administration and as part of the study of the modern presidency. Ronald Reagan’s presidency is important for its own sake and for its impact on the office. Circumvention had a critical impact on his presidency, a fatal impact on Nixon’s, and significantly altered the Johnson administration as well.

In looking, however briefly, at the three cases, there are differences in perceptions of how the system worked between the three administrations, and there were differences in what each administration wanted to accomplish. Likewise, the human element is different. Presidents Johnson and Nixon are more stylistically compatible, more secretive and calculating than President Reagan. But in all three cases, the administrations, by opting to circumvent the processes of the U.S. system of bargaining and cooperating with the legislature, of confronting this same legislature, and of keeping the players and citizens informed of policy goals, followed policies that led to disasters. They also helped create and solidify a feeling of cynicism in the U.S. body politic.

Most of the people involved in these three affairs did not break laws; at times, they took great care to insure that the letter of the law was followed. Most did not even employ circumvention strategies. But circumvention strategies seem to follow only the ethical low road of not actually breaking the law—at its strategic best. It fails to strive for the ethical high road for both elected officials and those appointed to carry out public policy. The evidence of these scandals suggests, without demonstrating conclusively, that there are changing strategies within the presidency. These changes are too profound to ignore.

Notes

This is a revised paper from the one originally presented to the conference participants and from the scaled-down and modified paper actually delivered at the conference. In the original paper and the paper actually delivered at the conference, the word “malfeasance”was used to describe activities in the various administrations under discussion. Some of the discussants on the panel maintained in effect that “malfeasance”is a word with strict legalistic meaning, In this revision I have deleted the word, because this is not an indictment or legalistic document, but a discussion of an emerging and identifiable executive strategy. Instead I have used the word “circumvention”to describe the activities under discussion: a seeming occasional willingess to skirt the intent of the Constitution and the laws of Congress passed under it.

[1.] John L. Tower, et al., The President’s Special Review Board on the National Security Council: The Tower Commission (New York: Bantam Books/New York Times Books, 1987), p. i

[ 2.] Ibid., p. xv

[3.] Ibid., p. 79

[4.] Ibid., p. 3

[5.] Theodore Draper, A Very Thin Line: The Iran-Contra Affairs ( New York: Hill and Wang, 1991), pp. 108-9; and Ann Wroe, Lives, Lies, and the Iran-Contra Affair (London: I. B. Tauris, 1991), p. 279.

[6.] Fawn Hall, in The Joint Hearings before the House Select Committee to Investigate the Covert Arms Transactions with Iran and the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, 100th Congress, 1st sess., vol. 1004(Washington, D.C.: Government Printing Office, 1987) (hereafter cited as ICJH), pp. 496-97.

[7.] John Ehrlichman, Hearings before the Select Committee on the Presidential Campaign Activities of the United States Senate, 93rd Congress, 1st sess. ( Washington, D.C.: Government Printing Office, 1973-74), p. 2600.

[8.] Draper, A Very Thin Line, p. xiii.

[9.] John Rohr, Ethics for Bureaucrats: An Essay on Law and Values ( New York: Marcel Dekker, 1978), p. 54.,

[10.] Ibid.

[11.] Clinton Rossiter, The American Presidency ( Baltimore: Johns Hopkins University Press, 1956; repr. 1987), p. 28.

[12.] See Gary Greenberg, “Revolt at Justice”, in Amy Gutmann and Dennis Thompson , eds., Ethics and Politics: Cases and Comments, 2nd ed. ( Chicago: NelsonHall, 1990), pp. 94-103.

[13.] Jane Mayer and Doyle McManus, Landslide: The Unmaking of the President, 1984-1988 ( Boston: Houghton Mifflin, 1988) p. 386.

[14.] See Richard Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990).

[15.] See Samuel Kernell, Going Public: New Strategies of Presidential Leadership ( Washington, D.C.: Congressional Quarterly Press, 1982).

[16.] Mayer and McManus, Landslide, p. 316.

[17.] Report of the Congressional Committees Investigating the Iran-Contra Affair of the House and Senate, 100th Congress, 1st sess. (Washington, D.C.: Government Printing Office, 1987) (hereafter cited as ICR), pp. 35-35.

[18.] National Security Archives Document Set (microfiche), The Iran-Contra Affair, 1983-1988: The Making of a Scandal, ed. Peter Kornbluh (Arlington, Va.: ChadwyckHealey, 1990) (hereafter cited as NSA, ICA), “Stipulations of the Facts of the United States v. North”, pp. 16, 38.

[19.] NSA, ICA, North memos, doc. 644, 664.

[20.] Draper, A Very Thin Line, p. 108.

[21.] NSA, ICA, Reagan letter, doc. 855; North memo, doc. 859.

[22.] Los Angeles Times, April 13, 1989; and Draper, A Very Thin Line, p. 77.

[23.] San Francisco Chronicle, December 26, 1992, p. A19.

[24.] Ibid., p. A1

[25.] Lou Cannon, President Reagan: The Role of a Lifetime (New York: Simon & Schuster, 1991) p. 355.

[ 26.] Draper, A Very Thin Line, p. 33.

[27.] NSA, ICA, CIA memo, doc. 376.

[28.] ICR, p. 38.

[29.] Joseph Coors, The Report of the Congressional Committees Investigating the lran-Contra Affair: Depositions Before the Staff of the Joint Senate Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and the House Select Committee to Investigate Covert Arms Trafficking with Iran, 100th Congress, 1st sess., 1987-1988, Vol. VII, Appendix B, p. 724 (hereafter cited as Depositions).

[30.] Ibid.; Donald Conrad, Depositions, Vol. VI, Appendix B, p. 299.

[31.] John Singlaub, ICJCH, vol. 100-3, p. 174.

[32.] Ibid., pp. 186, 188-89, 950.

[33.] Wroe, Lives, p. 253.

[34.] New York Times, October 8, 1991, p. A6.

[35.] ICR, p. 144

.[36.] NSA, ICA, Shultz telegram, doc. 3691.

[37.] NSA, ICA, Poindexter telegram, doc. 3698.

[38.] George Shultz, Turmoil and Triumph: My Years as Secretary of State (New York: Scribner’s Sons, 1993), pp. 818-20, 827-28; Mayer and McManus, Landslide, pp. 302-3, 312-14; and Draper, A Very Thin Line, pp. 473-83.

[39.] See Theodore White, Breach of Faith: The Fall of Richard Nixon ( New York: Atheneum, 1975); and Stanley Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon ( New York: Alfred Knopf, 1990).

[40.] See John Ehrlichman, Wiftiess to Power: The Nixon Years ( New York: Simon & Schuster, 1982); John Dean, Blind Ambition: The White House Years ( New York: Simon & Schuster, 1976); and Anthony Ulasewicz with Stuart A. McKeever, The President’s Private Eye (Westport, Conn.: MASCAM Publishing, 1990).

[41.] See Ehrlichman, Witness to Power, H. R. Haldeman, The Ends of Power ( New York: New York Times Books, 1978); and Jeb Stuart Magruder, An American Life: One Man’s Road to Watergate ( New York: Atheneum, 1974).

[42.] Richard Nixon, RN: The Memoirs of Richard Nixon ( New York: Grosset and Dunlap, 1978), pp. 512, 515.

[43.] Larry Berman, Planning a Tragedy: The Americanization of the War in Vietnam ( New York: W. W. Norton, 1982), p. 32.

[44.] Neil Sheehan, The Pentagon Papers, as Published by the New York Times ( New York: Bantam Books, 1971), p. 235.

[45.] Berman, Planning a Tragedy, p. 33; and Sheehan, The Pentagon Papers, p. 235.

[46.] George C. Herring, “The War in Vietnam”, in Robert A. Divine, The Johnson Years, Vol. I ( Lawrence: University of Kansas Press, 1987) p. 28

[47.] Joseph Goulden, Truth Is the First Casualty: The Gulf of Tonkin Affair—Illusion and Reality ( Chicago: Rand McNally, 1969), p. 15

[48.] Ibid., p. 160.

[49.] Berman, Planning a Tragedy, p. 3.

[50.] Noam Chomsky, The Culture of Terrorism ( Boston: South End Press, 1988), p. 2.

[51.] Ibid., p. 2

[52.] San Francisco Chronicle, December 25, 1992, p. A1

[ 53.] San Francisco Chronicle, December 27, 1992, p. A17.

The President and National Security: Ronald Reagan’s Attempt to Aid the Contras

David Mervin

The Iran-Contra affair arouses strong feelings among many Americans. It is widely regarded as one of the great calamities of the Reagan years, involving shameful law-breaking on a grand scale by senior public officials from the president downwards. In its emotional impact, this affair bears some resemblance to the trauma of Watergate, and it might be thought presumptuous for a foreign scholar to enter the debate on such an intensely controversial issue. However, while there are many disadvantages to studying a political system from the outside, there is one advantage—that of perspective. Coming from another political culture and being detached from the emotional and partisan implications of highly contentious political issues can, ideally, allow outsiders to offer insights less readily apparent to those more intimately involved. I will return in the concluding paragraphs of this paper to the possible merits of an external perspective.

The Iran-Contra affair is a vastly complicated subject, and this discussion focuses on only one, narrow, yet central, element—the legitimacy of Ronald Reagan’s intentions in attempting to aid the Contras. This raises a number of questions, the most crucial being whether there are circumstances where a president is entitled to take initiatives in defense of the national security, even in the face of congressional and public opposition.

There can be no doubt that presidents have a special responsibility for dealing with immediate national security crises. The framers of the Constitution were originally inclined to reserve exclusively to Congress the right to make war, but they eventually agreed that this was to go too far; the legislature should have the right to declare war, leaving to the executive, in the words attributed to James Madison and Elbridge Gerry, “the power to repel sudden attacks.”¹ The latter position was reaffirmed twenty years ago when the War Powers Resolution included a provision recognizing that a president must be allowed to respond unilaterally, in the short term, to any “national emergency created by attack on the United States, its territories or possessions, or its armed forces.”²

It is clear then that, in emergencies, chief executives are entitled to take action without waiting for Congress to meet and to agree on a course of action. However, there is more to this than the founding fathers could have anticipated; a responsibility for dealing with “sudden attacks”is not met simply by mobilizing forces once an attack has begun. Despite the awesomely grave implications for the Constitution, it is difficult to avoid the conclusion that, in the modern age, in some circumstances, presidents have to be allowed to take unilateral initiatives as a way of preventing attacks from occurring at all. In other words, a dutiful chief executive today must be alert not just to immediate threats at the nation’s borders, but also to those that may be gestating thousands of miles away. Moreover, having identified such a threat, a president is surely obliged to attempt to meet it, even in the face of apathy and opposition in Congress and among the public at large.

This was Franklin Roosevelt’s situation in the 1930s. He observed with increasing alarm the unchecked advance of the Third Reich in Europe, and repeatedly warned the American people that they could not afford to ignore what was happening on the other side of the Atlantic. In a fireside address before the United States entered World War II, the president reassured his listeners that the nation was:

mustering its men and its resources only for purposes of defense—only to repel attack. …But we must be realistic when we use the word “attack”; we have to relate it to the lightning speed of modern warfare…it would be suicide to wait until [enemies] are in our front yard. When your enemy comes at you in a tank or a bombing plane, if you hold your fire until you see the whites of his eyes, you will never know what hit you. Our Bunker Hill of tomorrow may be several thousand miles from Boston. ³

Nevertheless, prior to the attack on Pearl Harbor at least, Roosevelt’s freedom to act was constrained by the powerful aversion to foreign entanglements that persisted in Congress and among the public. The reluctance of members of Congress to see the United States enter the war, even as late as 1941, is reflected in the famous 203-202 vote in the House of Representatives to approve an extension of the draft. Similarly, the lack of enthusiasm among the public for intervention was shown by innumerable polls. One, taken on September 17, 1941, two years after hostilities had begun between Britain and Germany, had 87 percent of Americans answering no to the question, “Should the United States go into the war now and send an army to Europe to fight?”⁴

FDR was, accordingly, obliged to move with stealth in 1940 and 1941, concealing his true purposes and often acting in a manner contrary to the letter and the spirit of the Constitution. Thus the exchange of American destroyers for British bases, the dispatch of American troops—first to Greenland and then, much more controversially, to Iceland—were all put into effect by executive agreements. These and other actions by Roosevelt—such as the issuing of
“shoot on sight”orders to Navy ships escorting convoys in the Atlantic, and the signing of the Atlantic Charter, with its reference to “the final destruction of the Nazi tyranny”—were hardly consistent with neutrality.

The crux of Roosevelt’s strategy at this time was support for the British. He was convinced that if Britain and its navy fell into German hands, the United States would become fatally vulnerable. To put it another way, the president, in meeting his responsibility “to repel sudden attacks,”concluded that he must do everything possible to help the British “keep body and soul together,”and he was not unduly troubled by constitutional niceties in doing so.

Even if the parallels are by no means exact, there are surely important similarities between Roosevelt’s situation and Ronald Reagan’s forty years later. Reagan saw Communism in Central America as a burgeoning threat to U.S. national security that he was obliged to confront, much as Roosevelt had viewed the advance of Nazism in Europe; and support for the Contras in Nicaragua became the sine qua non of Reagan’s policy in the region in a manner comparable to Roosevelt’s support for the British.

Like Roosevelt, Reagan’s freedom to respond to what he saw as a developing crisis was limited by public opinion and isolationism in Congress. Whereas Roosevelt had had to contend with a legislature and a public with jaundiced memories of American intervention in World War I, Reagan was obliged to battle against the even more bitter legacy of Vietnam. FDR found it necessary repeatedly to reassure Americans, “Your boys are not going to be sent into any foreign wars,”a refrain that Reagan echoed, with “there is no thought of sending combat troops to Central America.”⁵ Both these presidents were frustrated in their efforts to alert the public to the dangers they perceived, and each excoriated his opponents in Congress for playing politics with vital matters of national security and denounced fifth columnists and propagandists acting on behalf of the enemy within the United States.

These were two presidents who, forty years apart, perceived a threat to the national security of the United States and sought to respond to it in the face of opposition that they believed to be based on apathy, ignorance, misinformation, and partisanship. Whereas Roosevelt’s leadership has been widely praised, however, and doubts as to the constitutionality of his actions have long since disappeared, Reagan has been roundly condemned, with some even suggesting he should have been impeached for his efforts to circumvent the Boland Amendment.

There is little doubt that Reagan deserves severe condemnation for mismanagement in this affair. Apart from a general desire to halt the spread of Communism in Central America, the objectives of his policy remained unclear, and he failed abysmally to resolve rampant divisions on the issue among his senior advisors. In the circumstances, his notoriously detached managerial style became a disastrous weakness with policymaking hijacked, in Lou Cannon’s words, by “self-important advocates of covert action who were contemptuous of congressional opposition and American public opinion.”⁶ In that regard, Reagan’s inept performance was far removed from FDR‘s skillful leadership in the earlier period. On the other hand, it is difficult to see that President Reagan’s intentions in trying to help the Contras “keep body and soul together”were, in principle, any less legitimate than Roosevelt’s determination to aid the British.

Some would argue that both of these presidents were guilty of acting unconstitutionally, but even if that charge can be sustained, that is by no means the end of the matter. Notwithstanding the ominous implications for democratic government, some eminent authorities have argued that occasions do arise where political leaders are entitled to act outside the framework of statutory and constitutional law. As John Locke put it, in some situations, the national interest requires that “the laws themselves…give way to the executive power. …This power to act according to discretion for the public good, without the prescription of law and sometimes even against it, is that which is called “˜prerogative.'”⁷

There has been a tendency to discount the importance of John Locke’s influence on the framers of the Constitution, but what of Thomas Jefferson?⁸ In a famous passage, the latter gave powerful support to chief executives presuming to venture outside the law in defense of the security of the nation:

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.⁹

This is surely an unanswerable argument. However much the rule of law and the sanctity of the Constitution are cherished, in some circumstances, they have to take second place to the ultimate purpose of government: the preservation of the nation and the safety of the people.

It is notable that there is no mention of either Locke or Jefferson in Harold Koh’s influential book, described on its cover as “the definitive historical and constitutional analysis of the Iran Contra affair.”In that same work, the precedents set by Abraham Lincoln are also treated as being of no account. Lincoln’s many violations of the Constitution under the press of civil war are not relevant, we are led to believe, to questions of foreign policy.¹⁰ However, Lincoln acted as he did out of a concern for the “public safety,”and he reasonably enough bracketed together “cases of rebellion or invasion”as threats to the public safety.¹¹ It seems reasonable, therefore, to construe “public safety”as being synonymous with the more modern expression, “national security.”

The Iran-Contra affair is seen by Koh as an unacceptable, “nearly successful assault upon the constitutional statutes and norms”which make up the “National Security Constitution.”This consists of a “normative vision,”or political culture, based upon the text of the Constitution, judicial decisions, certain statutes and historical precedents. At the heart of this culture is the

assumption that foreign policy should be the outcome of “balanced institutional participation”rather than being made exclusively by president.¹² Historically, there had been many violations of the norms of this culture, but these were aberrations rather than amendments to the National Security Constitution that had persisted over time, and could be seen in its purest form in Justice Robert Jackson’s concurring opinion in Youngstown Sheet and Tube Company v. Sawyer ( 1952), the case where, by a majority of 6-3, the United States Supreme Court denied Truman’s right to seize steel mills on national security grounds. Koh found in Jackson’s opinion wording especially pertinent to the Iran-Contra affair: “When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”¹³

Presidents and other public officials undoubtedly do operate in a context shaped by a “normative vision of the foreign policy-making process,”but it is questionable whether that phenomenon is adequately represented by one opinion of one Supreme Court justice who, in any case, had previously held quite different views. To this foreign observer, at least, it is to engage in constitutionalism carried to excess to place so much weight on one such opinion, however impressive the reasoning it contains may be to constitutional lawyers. Surely questions as to the acceptability and legitimacy of how presidents respond to national security crises have to be dealt with in broader terms? In particular, due account must be taken of the precedents set by widely revered former presidents. Lincoln’s response to the rebellion of the South is surely of relevance, and Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John Kennedy, and others can hardly be disposed of as deviant cases—as presidents who acted illegitimately outside the framework of the national security constitution. It is also difficult to take too seriously the suggestion that William Howard Taft’s “strict constructionist”theory of presidential leadership is the one most appropriate for foreign policy purposes.¹⁴

It would be difficult to identify two more powerful influences on the American political culture than Abraham Lincoln and Franklin Roosevelt. Historians and political scientists have praised them elaborately, while members of the public, who may, at best, be only dimly aware of who William Howard Taft was, have perceptions of Lincoln and FDR as exceptional leaders who overcame great odds to confront successfully two of the greatest crises of American history. The fact that both strayed a fair distance from the path of constitutional righteousness in doing so has had little effect on the significance of their monumental contributions to American perceptions as to how presidents should meet their responsibilities.

When Ronald Reagan and his staff sought to get aid to the Contras in the face of popular and congressional opposition, they could draw comfort from the awesome precedents set by giants of American history like Lincoln and Roosevelt, to say nothing of those many other presidents who have not adhered strictly to the Constitution when taking action in defense of the national security.

Some would argue, however, that Reagan’s crime was more heinous than that of other chief executives in that he persisted with his policy even after Congress had passed legislation, the Boland Amendment, supposedly specifically designed to terminate that policy—”the administration’s activities in support of the Contras were conducted in direct contravention of the will of Congress.”¹⁵ One problem with this line of argument is that it hardly makes sense to speak of a “will of Congress”on any issue, and on the matter of aiding the Contras, as is so often the case, Congress was divided and confused. As Senator Orrin Hatch observed, “In contrast to President Reagan’s consistent policy of support for the Nicaraguan freedom fighters, Congress enacted an inconsistent series of amendments. From 1982 to 1987, Congress changed its collective mind virtually every other year ““ offering support one year and withdrawing it the next ““ with no consistency even among the Boland amendments themselves.”¹⁶

Similar confusion and incoherence existed in Congress in the early 1940s, with some members supporting Roosevelt’s policy of aiding the British, others appalled by the implications of that policy, while yet another group complained that the president’s responses to the crisis in Europe were unduly timid. Unlike Reagan, however, Roosevelt had the advantage of large majorities in both the House and the Senate to help him fend off partisan assaults.

The United States Congress is, in many respects, an impressive institution, particularly by comparison with some of its counterparts elsewhere. It is close to the American people, it carries real clout within the political system, it is well staffed, and it is possible for members to become highly effective specialists rather than remaining largely impotent generalists. Nevertheless, Congress shares some of the problems of all legislatures. It lacks the information sources available to the executive, it is incapable of swift response, and secrecy cannot be guaranteed. More specifically, members of Congress are notoriously individualistic; they are likely to be partisan and they are vulnerable to parochial pressures and special interests, making it especially difficult for them to develop policies in the national interest. They can often become professional oppositionists; lacking any responsibility for the execution of policy, they can make careers out of harrying those on whom that duty falls. ¹⁷

Those who rail against presidents exceeding their constitutional powers in the making of foreign policy often appear to suggest that policy outcomes would be vastly improved if only Congress was allowed to play a fuller part. “For better or worse, the Constitution does not confer on the executive sole power over the country’s foreign policy; when a President behaves as if it did, the result tends to be policies that are ill-conceived and corrupt.”¹⁸ The inadequacies of Congress discussed above, and the record of the interwar period when the legislature last dominated the foreign policy process, do little to suggest that a greater role for Congress would make for better policy.

It is also important to remember that chief executives have been repeatedly encouraged to take the reins of national security policy into their own hands by leading members of the legislature itself. Senior members of both houses and both parties have dwelt at length on congressional weaknesses and the need to defer to the executive in the making of national security policy. Among the more notable members who have argued in these terms at some stage of their careers can be included Senators Arthur Vandenberg, Paul Douglas, Wayne Morse, William Fulbright, Herbert Lehmann, Tom Connally, Lyndon Johnson, Barry Goldwater, John Tower, and Charles Mathias, as well as House leaders such as one-time Speaker Sam Rayburn and, more recently, former minority whip, Richard Cheney.¹⁹

Congress and the courts are regularly castigated by their critics for their lack of will in restraining “imperial”presidents bent on seizing control of the foreign policy process.²⁰ However, these alleged failings are perhaps best understood as arising from the reluctant recognition by many legislators and judges of the hard realities of the situation. They have come to accept that, whatever the high priests of constitutional law may say, Congress is illequipped to be a co-partner in these matters; that its role is bound to be a subordinate one; that, ultimately, the president is responsible for the national security and must be given an appropriate degree of freedom to meet that most daunting of all his obligations.

Such assumptions may not square completely with the intent of the framers and, without doubt, they are quite unacceptable to many academics. As scholars, however, we deal with these matters in a theoretical context where we are able to linger over constitutional exegesis and can enjoy the luxury of pontificating fearlessly from the sidelines.²¹ Presidents, on the other hand, operate in the real world; on them falls the responsibility for making the desperately difficult decisions upon which the fate of the nation and millions of lives may depend.

The question that needs to be faced is, what do we expect a president to do when he identifies a threat to the national security, but is unable to convince either Congress or the people that such a threat exists? Can we realistically ask him to interpret the Constitution literally? Must we really insist that he study the fine print of the Youngstown decision, defer to Congress at every turn, and adopt President Taft as his role model? Is it really his duty to do nothing?

Any president worthy of the job will reject such a course of nonaction. He will seek to exercise leadership, drawing sustenance from the towering examples of Lincoln, Franklin Roosevelt, and others, and declining to accept passively the restraints on his freedom of action that Congress may well attempt to impose. Obviously, it is highly desirable for there to be a consensus in Congress and the country behind whatever policy the president pursues; yet, if that support is lacking, he cannot be expected to surrender, to abdicate his responsibility to lead.

Like Lincoln and Franklin Roosevelt and many other presidents before him, Reagan, in struggling to get aid to the Contras in the face of congressional and popular opposition, was endeavoring to exercise leadership. However imperfectly he performed the role, he was trying to do the job he was elected for in the first place. As Theodore Sorensen observed some years ago:

A President cannot afford to be modest. No one else sits where he sits or knows all that he knows. No one else has his power to lead, to inspire, or to restrain the Congress and country. If he fails to lead, no one leads….The nation selects its President, at least in part, for his philososphy and his judgment and his conscientious conviction of what is right—and he need not hesitate to apply them. He must believe in his own objectives. He must assert his own priorities.²²

As I argued earlier, Reagan’s policy objectives lacked clarity, but vague though they were, he was attempting to impose his priorities rather than meekly accepting those of his opponents. He sought, in other words, to break out of the gridlock—that tendency toward ungovernability that constantly afflicts the American political system.

Some find laughable the very idea of bracketing Reagan with such eminent predecessors as Lincoln and Roosevelt; how, it is asked, can Reagan’s diagnosis of the situation in Central America in the 1980s possibly be equated with the undeniably dire emergencies posed by civil war and the advance of Nazism? ²³ Few doubt that presidents are entitled to act outside the Constitution in some circumstances, but for such behavior to be acceptable, it seems, the emergency must be genuine in the eyes of the observer. However, the crucial questions of whether a crisis exists at all, or of how desperate the situation really is, are matters of subjective judgment. Scholars, at least, are obliged to avoid the use of double standards and should not be drawn into analyses where President A’s unconstitutional actions are condoned because, in our view, he faced a real crisis, whereas President B is denounced for violating the Constitution in circumstances which we believe did not constitute a crisis.

For what it is worth, I happen to believe that Reagan’s policy toward Nicaragua was, from the beginning, misconceived and ill-judged. It seems to me that he overreacted to communist activity in the region, that his fears of a threat to the national security of the United States were far-fetched, and that a crisis, therefore, did not in fact exist.²⁴ However, my opinion in that regard is separate from my role as an academic student of politics, and does not provide an appropriate basis for any judgment by me as to the legitimacy of President Reagan’s intentions in trying to get aid to the Contras. In common with some other political scientists, I take the view that the focus of our attention should be the policy process, while leaving to others pronouncements as to the desirability of the policies being pursued.²⁵

It also seems to me undeniable that the president and Congress cannot be co-equals when it comes to the making of foreign policy. His is the primary or leading role, and his oath of office plus his constitutional position as the repository of executive power and commander in chief, to say nothing of his “power to repel sudden attacks,”all combine to place upon him a particular, paramount responsibility for the safety of the nation. This is not to suggest that the legislature in the United States should not play a large part in the foreign policy process. Mechanisms such as the appropriation and treaty processes guarantee that Congress is in no danger of being reduced to a position comparable to that of the House of Commons in such matters. But there has to be a willingness on the part of the legislature and others to recognize that circumstances may arise where it is legitimate for a president to act unilaterally in response to what he perceives as a threat to the national security. Undeniably, such a position carries with it grave implications for democratic government which Americans, in particular, find deeply alarming. The attitudes and values inherent in their political culture cause them to react with horror to the idea of chief executives being allowed to decide for themselves when the national security is at risk and to take initiatives in response. No one has stated these concerns with greater effect than Congressman Abraham Lincoln in writing to his friend William Herndon in 1848:

Allow the President to invade a neighbouring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose—and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect….[If] he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, “I see no probability of the British invading us,”but he will say to you, “Be silent; I see it, if you don’t.”²⁶

The logic of this statement is unassailable; moreover, it eloquently reiterates one of the central concerns of the founding fathers: the need to insure that no one man held in his hands the power to commit the United States to war. The letter to Herndon has also been seen as virtually the last word in the perennial arguments over the allocation of war powers in the American system. It is possible, however, to look at Lincoln’s famous comment in a different light—to see it as a classic statement of the dilemma that all democratic polities face in providing chief executives with the freedom they must have to deal with national security emergencies. Lincoln unerringly puts his finger on the risks that flow from such arrangements, but I would argue that these are risks that have to be borne.

No one has seriously suggested that under no circumstances should a president embark on military action of his own volition. As we have seen, the founding fathers were obliged to concede to the president the freedom to “repel sudden attacks,”whereas both Locke and Jefferson maintained that, in emergencies, political leaders could draw on the power of prerogative and act outside the law if necessary in defense of the preservation of the state. In the White House, Lincoln invoked this same prerogative power in responding to rebellion in the South; and in the twentieth century, FDR, in the early 1940s, acted unilaterally and preemptively to meet what he believed was an emergency situation, and John Kennedy followed down the same path during the Cuban Missile Crisis.

As a member of Congress, Lincoln had been apalled by the implications of allowing presidents to decide for themselves when to embark on preemptive action. Similarly, delegates to the Constitutional Convention were anxious to ensure that offensive war remained under the control of the legislature, even if the executive had to be conceded a larger role in deciding on defensive war. However, the distinction between offensive and defensive war has long been difficult to maintain, and it has become especially so in the light of technological advances in this century. In the modern age, the chief executive’s information advantages over the legislature are enormous, and no one is better placed than he to determine whether threats to the national security requiring a response are developing elsewhere in the world. As Richard Neustadt aptly remarked, “When it comes to action risking nuclear war, technology has modified the Constitution: the President, perforce, becomes the only man in the system capable of exercising judgment under the extraordinary limits now imposed by secrecy, complexity and time.”²⁷

Unilateral, preemptive action by presidents such as Franklin Roosevelt and John Kennedy has largely escaped the condemnation that scholars have heaped on other chief executives for similar behavior. The former have been exonerated on the grounds that they faced what were allegedly genuine rather than fabricated emergencies. But what are the consequences of such exceptions for Congressman Lincoln’s concerns? He appeared to say that, if under any circumstances a president is allowed to decide by himself whether to take preemptive action, the central intention of the framers to make it impossible for any one man to take the country into war would be fatally compromised. Surely Lincoln was right, and once it has been conceded that circumstances may arise where unilateral, preemptive action can be legitimate, arguments on constitutional grounds lose their relevance. The key questions to be answered in any given case, then, are not, as such, constitutional questions at all. They are, is this really an emergency, and is it sufficiently dire to justify the president acting without consulting Congress, or even in the face of legislative and popular opposition? With regard to the Iran-Contra affair, Reagan’s critics have answered such queries with a resounding no. But the question of who was right, the president or his opponents, is a matter of subjective judgment which, in my view, lies outside what should be the boundaries of political science.

It has been put to me with some force that matters cannot reasonably be left as open-ended as my analysis appears to infer. One constitutional law authority insists that “there has to be a line beyond which [the power to repel sudden attacks] cannot be stretched,”while another maintains that there needs to be a “benchmark against which to discover unconstitutional acts.”²⁸ Both of these responses seem to reflect an unwillingness to accept (in theory at least) that there may be occasions when presidents are entitled to act outside the framework of rules that otherwise contain them. Beyond the requirement that a president should act in good faith, it is difficult, if not impossible, to draw lines or establish benchmarks suitable for all situations where the national security may be threatened. Temporarily, at least, the president has to be allowed to call the shots. I am as horrified as any other democrat by the thought of giving anything like a carte blanche to politicians in regard to infinitely important questions of war or peace, yet I do not see how it is possible to avoid going some way down this road, if the greater good of preserving the state is to be secured. Difficult though it may be to accept, in a country where democratic values assume such importance, democracy has its limits.

There are occasions in the history of any society where it is no longer possible to take refuge in rules, whether they be “benchmarks,” “lines,”statutory law, or a constitution. In the United States, one such occasion occurred in 1861, and others arose in 1940-41 and 1962. Most would accept that these were legitimate emergencies, but what about the dangers of chief executives abusing their powers, of fabricating crises in order to escape the ties that bind them? Given their heritage, Americans are unlikely to rest content with the suggestion that, in the final analysis, they have to have trust in those whom they elect to high office, but this is surely part of the answer. By electing a president, the people have, for better or worse, placed their trust in his leadership and judgment, and they have to be prepared to live with the consequences of that, drawing what comfort they can from the thought that if he makes mistakes, retribution can be visited upon him and/or his party at the next election.

In extreme cases, there is also the possibility of making use of the impeachment procedure, although it would have to be established that the president was guilty of “treason, bribery, or other high crimes and misdemeanors.”The Iran-Contra affair, in my view, did not provide a case for impeachment. In that instance, like others before him, the incumbent president perceived a threat to the national security and moved to meet it notwithstanding his failure to gain the agreement of the public or the legislature. I have argued here that Reagan was justified in taking this action. In his support, he could draw on the Constitution itself, on interpretations by the Supreme Court, and on some notable precedents. We may question Reagan’s judgment, we may doubt that Nicaragua represented a real threat to the security of the United States, but provided the president acted in good faith, there is no case for impeachment.

As I explained at the beginning, the view expressed in this paper is that of a foreign observer, but most will accept that comparative perspectives can be useful; that one nation can learn from another about how to conduct its affairs. My views on these matters have undoubtedly been influenced by the fact that the United Kingdom has no constitution at all in the American sense.²⁹ Furthermore, the decision to take the country into war can sometimes rest with a handful of ministers, excluding not only the legislature, but also most members of the cabinet. ³⁰ This may be to take things to an unacceptable extreme, yet is it not also the case that constitutionalism in the United States is sometimes carried to excess? Are there not dangers in turning almost every political issue into a constitutional question? Is it not a fact that the Constitution is regularly used as a stick with which to beat opponents who hold different policy positions? FDR‘s enemies used the Constitution in this way, much as Reagan’s foes did forty years later. Constitutional cant, in other words, often provides a cover for what are, in truth, policy differences.

An external perspective may also be useful in another respect. The war powers debate in the United States has been profoundly influenced by the ghastly experience of Vietnam. Many who, in the past, took a charitable view of presidents claiming wide-ranging powers in the name of national security crises underwent a radical change of mind in the light of Vietnam.³¹ Viewed from the outside, however, it seems that too much has been read into this tragic conflict. This is not to underestimate the consequences for the American mind arising from national humiliation and the loss of so many lives, but to suggest that it is incorrect to see that war largely as a consequence of excesses of presidential power. Without going into the argument in any detail, I would suggest that the war in Southeast Asia was a collective misjudgment involving at least four administrations, the foreign policy establishment, both houses of Congress, and for a long time the majority of the American people. It also occurs to me that it hardly makes good sense for constitutional questions to turn on whether wars are won or lost. Nor is it sensible to set aside weighty precedents and longstanding rational arguments on emotional grounds.

Finally, I would like to come back to the matter of trust. Americans entertain a healthy suspicion of the motives of those who hold positions of authority, but this can be taken too far. Edmund Burke argued that legislators owed their constituents their best judgment rather than subservience to their wishes, and it may be that chief executives need to be accorded the same freedom. However daunting the implications may be, the president cannot always be held in a constitutional straitjacket. Given his ultimate responsibility for the fate of the nation and the safety of its people, he cannot be bound hand and foot by rules; he has to have some leeway, there has to be some place for trust. Rather than reviling presidents on what are so often partisan rather than constitutional grounds, it might make more sense to concentrate on ensuring that those elected to this virtually impossible office are qualified to assume that trust.

Notes

I am most grateful to my friend Dean Alfange of the University of Massachusetts, Amherst, for his trenchant criticisms of an earlier draft of this paper. Professor Alfange totally disagrees with the argument advanced here, but the exchanges between us have been of great benefit to my thinking on this topic. I also owe thanks for helpful comnents to Peter Burnell of the University of Warwick and Richard Hodder-Williams of the University of Bristol.[1.] Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1937), vol. 2, pp. 318-19.

[ 2.] As quoted in Louis Fisher, Constitutional Conflicts between Congress and the President (Princeton: Princeton University Press, 1985), p. 312.

[3.] The Public Papers and Addresses of Franklin D. Roosevelt (New York: Russell and Russell, 1950), vol. 10, pp. 188-89.

[4.] Hadley Cantril, Public Opinion 1935-46 (Princeton: Princeton University Press, 1951), p. 976.

[ 5.] The Public Papers and Addresses of Franklin D. Roosevelt(New York: Russell and Russell, 1969), vol. 9, pp. 499-517. President Reagan’s address before a joint session of Congress, April 27, 1983.

[ 6.] Lou Cannon, President Reagan: The Role of a Lifetime ( New York: Simon & Schuster, 1991), p. 350. See also The Tower Commission Report(New York: Bantam Books, 1987), passim.

[7.] Thomas Peardon, ed., The Second Treatise of Government (New York: Liberal Arts Press, 1952), p. 159.

[ 8.] Only one delegate to the Constitutional Convention, Luther Martin of Maryland, made reference to Locke during several months of debate. See Max Farrand, ed., The Records of the Federal Convention (rev. ed.) ( New Haven: Yale University Press, 1937), vol. 1, pp. 437-38. The conventional understanding of Locke’s references to prerogative has also been challenged; see Thomas S. Langston and Michael Lind, “John Locke and the Limits of Presidential Prerogative”, Polity 24 (Fall 1991): 49-68.

[9.] Thomas Jefferson to John B. Colvin, September 20, 1810, in Thomas Jefferson: Writings ( New York: Library of America, 1984), p. 1231.

[10.] Harold Koh, The National Security Constitution ( New Haven: Yale University Press, 1990), p. 85.

[11.] Abraham Lincoln to Erastus Corning, June 12, 1863, in Roy Basler, ed., Abraham Lincoln: His Speeches and Writings ( New York: World Publishing, 1969), p. 705.

[12.] Koh, Constitution, pp. 2, 4.

[13.] Ibid., p. 108

[14.] This seems to be implicit in Koh’s argument, ibid., p. 105

. Theodore Draper is similarly taken with Taft’s stance. See “The Constitution in Danger”, New York Review of Books, March 1, 1990, pp. 41-47.

[15.] U.S. Congress, Report of the Congressional Committees Investigating the IranContra Affair, November 1987 ( Washington, D.C.: Government Printing Office, 1987), p. 406.

[16.] Ibid., p. 665. Lou Cannon similarly says, “Congress contributed to the problems by on-again, off-again support for Contra aid and by a post-Vietnam inclination to micro-manage foreign policy.”Cannon, The Role of a Lifetime, p. 360.

[17.] See Robert Dahl, Congress and Foreign Policy ( New York: W. W. Norton, 1950), pp. 135-36.

[18.] “Talk of the Town”, New Yorker, August 17, 1992, pp. 21-22.

[19.] See, for example, Arthur Schlesinger Jr., The Imperial Presidency (London: André Deutsch, 1974), pp. 122, 133, 138, 160-61, 170; Paul Douglas, In the Fullness of Time (New York: Harcourt Brace Jovanovich, 1972), p. 497; A. Robert Smith, The Tiger in the Senate: Tire Biography of Wayne Morse (New York: Doubleday, 1962), pp. 129, 228; Barry Goldwater, Foreign Affairs (Winter 1981-82): 229-46; Charles Mathias, “Ethnic Groups and Foreign Policy”, Foreign Affairs 5 (Summer 1981): 975-98; The Washington Version (television program on foreign policy decision making and the Gulf War), American Enterprise Institute/BBC, 1991.

[20.] See, for example, Koh, Constitution, chapter 5.

[21.] The academic life is remarkably risk-free, apart from the perils of being assailed in print or at conferences!

[22.] Decision-Making in the White House (New York: Columbia University Press, 1963), pp. 83-84.

[23.] Draper, in “The Constitution in Danger”, scornfully observes that Reagan “apparently mistook himself for Lincoln and the covert operation against Nicaragua for file Civil War.”

[24.] Reagan was, of course, by no means alone in being alarmed by the situation in Central America. Even if they did not all agree with his strategy, there were many others who shared his fears, including Jeane Kirkpatrick, Alexander Haig, William Casey, and Henry Kissinger. Such concerns, moreover, were not restricted to conservatives. The Kissinger Commission, for instance, included people such as Lane Kirkland, Richard Scammon, Potter Stewart, and Robert Strauss. The report of the commission noted, “The use of Nicaragua as a base for Soviet and Cuban efforts to penetrate the rest of the Central American isthmus, with El Salvador the target of first opportunity, gives the conflict there a major strategic dimension. The direct involvement of aggressive external forces makes it a challenge to the system of hemispheric security and, quite specifically, to the United States. This is a challenge to which the United States must respond.”Cannon, The Role of a Lifetime, p. 379.

[25.] Among those who have argued that political science analysis requires the scholar to set aside his or her personal policy preferences can be included Frederick Watkins; see his “Comments on Professor Van Dyke’s Paper”, in James Charlesworth, ed., A Design for Political Science: Scope, Objectives, and Methods (Philadelphia: American Academy of Political and Social Science, 1966), pp. 28-33. See also Aaron Wildavsky, “President Reagan as a Political Strategist”, Society ( May-June 1987): 56-62; Barbara Kellerman, The Political Presidency (New York: Oxford University Press, 1984), p. x; and my Ronald Reagan and the American Presidency (London and New York: Longman, 1990), chapter 1.

[26.] Letter to William Herndon, Febuary 15, 1848, in Basler, Abraham Lincoln, pp. 285-86.

[ 27.] Presidential Power and the Modern Presidents (New York: Free Press, 1990), pp. 180-81. Note with reference to the president’s information advantage in the modern age, according to one authoritative source, no less than a half million cables a day pass to and from the executive branch and embassies and other overseas posts. Furthermore, 25 miles of film were taken by U.S. reconaissance aircraft over Cuba on October 25, 1962. Bradley H. Patterson Jr., The Ring of Power (New York: Basic Books, 1988), pp. 48, 66.

[28.] Letters to the author from Dean Alfange, University of Massachusetts, Amherst, August 3, 1993; and from Richard Hodder-Williams, University of Bristol, August 30, 1993. The fragments that constitute our so-called unwritten constitution are not, given the sovereignty of Parliament, “higher law”in the manner of the U.S. Constitution.

[30.] See Colin Seymour-Ure, “British “˜War Cabinets’ in Limited Wars: Korea, Suez and the Falklands”, Public Administration 62 (Summer 1984): 181-200. See, for example, Schlesinger, The Imperial Presidency.

Ronald Reagan and Iran ““ Contra:
The Consequences of Breaking Campaign Promises

Frank J. Smist Jr. and John P. Meiers

In the summer of 1986, President Ronald Reagan had reached the pinnacle of his popularity and success, enjoying a 67 percent approval rating.[1] Having defeated President Jimmy Carter in 1980 with a mandate to rebuild U.S. standing in the world, Reagan had fulfilled many of his campaign pledges. U.S. military might was restored through a costly defense buildup, and was used through several operations that restored American confidence and resolve. The nation’s economy had pulled out of recession and had entered a stage of protracted recovery. Indeed, Reagan’s leadership as president was so popular that he was reelected to a second term over Democratic candidate Walter Mondale in an electoral landslide in 1984.

In 1980, candidate Ronald Reagan pledged to restore American resolve in foreign policy by being tough on the nation’s international foes. As president, Reagan used military force several times in the pursuit of foreign policy objectives. In 1983 he dispatched U.S. forces to Grenada to eject Cuban forces; in 1985 he utilized U.S. airpower to apprehend the terrorists who had hijacked the passenger ship Achille Lauro; and in 1986 he ordered the bombing of several Libyan targets in retaliation for Libyan terrorism. The Reagan administration took a tough stance on Iran, labeling it a terrorist nation in 1984. Reagan proved to be a president who backed up harsh rhetoric with military muscle, bolstering U.S. credibility around the world.

Yet the triumph that Reagan enjoyed in the summer of 1986 proved to be short-lived, as the events that unfolded in the fall of 1986 unraveled the seemingly impregnable Reagan record. With the disclosure that the Reagan administration was involved in an arms-for-hostages deal with Iran, public faith in Reagan’s leadership plummeted. U.S. credibility fell as the duplicity of Iran-Contra was revealed to U.S. allies. It soon became apparent that the Reagan administration had contradicted its own stated policy of not negotiating nor dealing with terrorists. In the successive months, as congressional heatings exposed the entire affair, reverberations from the debacle affected the Reagan administration, Prime Minister Margaret Thatcher, U.S. allies in the Middle East, and U.S. credibility in foreign affairs.

One of the most visible effects of Iran-Contra was that Reagan’s approval ratings fell dramatically. Despite all of the accomplishments of the Reagan term in office, his presidency was irrevocably marred by Iran-Contra and all the negative baggage it entailed. This paper will detail the consequences when a president breaks solemn campaign pledges to the American people, as well as the reverberations it has on U.S. foreign policy and on U.S. allies around the world.

MAKING PLEDGES: THE 1980 CAMPAIGN

When Republican candidate Ronald Reagan ran against incumbent President Jimmy Carter in 1980, America was mired in severe crisis. Islamic fundamentalists under the tutelage of the Ayatollah Khomeini held fifty-three American hostages captive in Iran, sapping American morale and monopolizing attention. The Soviet Union had invaded neighboring Afghanistan and was instilling the iron-fist of communist rule through military force. Desert One, the Carter administration’s attempt to extract the American hostages from Teheran militarily, ended disastrously in a fiery accident in the Iranian desert. Coupled with mounting domestic economic problems and another energy crisis, the American electorate chose Ronald Reagan to lead the nation as president.

During the 1980 presidential campaign, Ronald Reagan made several pledges to rebuild American military and economic strength. One of the pledges candidate Reagan made was a “get tough”policy concerning terrorists. During the presidential debate between Carter and Reagan on October 28, 1980, Reagan stated, “I believe it is high time that the civilized countries of the world made it plain that there is no room worldwide for terrorism. There will be no negotiation with terrorists of any kind.”[2] After the election, the Reagan administration continued to make pledges of not dealing with terrorists. These pledges, while politically opportune at the time, dealt U.S. credibility a serious blow after the revelation of U.S. arms shipments to Iran in exchange for hostage release in November 1986.

MAKING PLEDGES AND ACCUSATIONS: 1981 to 1985

From 1981 to November of 1986, President Reagan continued to repeat his pledge of non-negotiation with terrorists or terrorist nations for hostage release, and he intensified his rhetoric toward Iran. On January 27, 1981, as he greeted the arrival of the American hostages from Iran President Reagan stated: “Let terrorists be aware that when the rules of international behavior are violated, our policy will be one of swirl and effective retribution.”[3] In January 1984 the Reagan administration placed Iran on the list of countries sponsoring terrorism, formally classifying it as a terrorist nation. On June 30, 1985, following the release of thirty-nine Americans from an airline-hijacking incident in Lebanon, Reagan stated: “The United States gives terrorists no rewards and no guarantees. We make no concessions; we make no deals.”[4]

In 1985 Reagan’s tough talk continued unabated. One of the toughest speeches delivered by Reagan against terrorist activity occurred on July 8, 1985. In remarks given to file Annual Convention of the American Bar Association, Reagan stated that, in 1983, the Central Intelligence Agency had confirmed Iranian involvement in fifty-seven terrorist attacks.[5] Pontificating on the evils of terrorist nations, President Reagan went on to say that “Colonel Qadaffi’s outrages against civilized conduct are, of course, as infamous as those of the Ayatollah Khomeini.”[6] Equating the activity of terrorist nations like Iran and Libya to open warfare, Reagan went on to state:

Iran, Libya, North Korea, Cuba, Nicaragua…all of these states are united by one simple criminal phenomenon ““ their fanatical hatred of the United States, our people, our way of life, our international stature…these terrorist states are now engaged in acts of war against the government and people of the United States….So, the American people are not ““ – I repeat ““ – not going to tolerate these attacks from outlaw states run by the strangest collection of misfits, loony tunes, and squalid criminals since the advent of the Third Reich…

There can be no place on earth left where it is safe for these monsters to rest or train or practice their cruel and deadly skills. We must act together, or unilaterally if necessary, to ensure that terrorists have no sanctuary anywhere. [7]

Two months later, on September 14, 1985, the first U.S. shipment of weaponry was sent to Iran. This shipment was the first of three sent to Iran as part of a negotiation process to gain the release of American hostages held in Lebanon by pro-Iranian factions.

MOUNTING DUPLICITY: 1985 TO 1986

Even after the first U.S. arms shipment was sent to Iran in September 1985, the Reagan administration continued its pledges not to deal with terrorists. On October 10, 1985, President Reagan ordered U.S. F-14 fighter planes to intercept an airliner containing the terrorists who had hijacked the Achille Lauro cruise ship, killing Leon Klinghoffer, an American citizen. The U.S. F14s forced the airplane to land in Italy, where the terrorists were apprehended. In the announcement of the military maneuver, Press Secretary Larry Speakes reiterated the antiterrorist pledge by stating, “the United States government made clear to all governments involved our firm opposition to negotiations with the terrorists or concessions to them.”[8] President Reagan stepped up the rhetoric by quipping, “You can run, but you can’t hide,”[9] in reference to the military action taken by the jets. On April 14, 1986, in response to Libyan terrorist attacks on U.S. servicemen in West Germany, President Reagan ordered the bombing of several sites in Libya by U.S. F-111 bombers from American bases in England. Addressing the nation that evening, Reagan stated: “I warned that there should be no place on Earth where terrorists can rest and train and practice their deadly skills. I meant it. I said that we would act with others, if possible, and alone if necessary to ensure that terrorists have no sanctuary anywhere.”[10]

After the Libyan strike, the United States participated in a summit meeting in Tokyo on terrorism in May 1986. Shortly thereafter, on July 3, 1986, the second U.S. arms shipment to Iran occurred, followed by another shipment in October 1986.

THE CONSEQUENCES OF BREAKING CAMPAIGN PROMISES: FOREIGN POLICY AND U.S. CREDIBILITY

The revelation that the Reagan administration had sold weaponry to the terrorist nation of Iran as part of a hostage negotiation deal damaged U.S. credibility with many of its allies in Europe and in the Middle East. Around the world, file United States was rebuked for its foreign policy duplicity.

The Reagan administration had publicly called for an international arms embargo against Iran for its terrorist activity.[11] In light of the evidence that the United States itself had knowingly sold arms to Iran, many lenders around the world were quick to attack U.S. duplicity. Prime Minister Jacques Chirac of France stated: “Those who give morality lessons would do well to sweep in front of their door before criticizing others.”[12] (During the U.S. raid on Libya, France and Spain were chastised by American media and government officials for their refusal to allow U.S. bombers to fly over their respective airspace, thus adding 1,200 nautical miles to the flight paths of the U.S. planes.) When presented with the evidence of the U.S. action regarding Iranian arms shipments, Italian Defense Minister Giovanni Spadolini commented: “I condemn that system of trying to free the hostages.”[13] In London, Labor Party spokesman Denis Healy asserted that Reagan had “broken ranks”with other Western nations.

British Prime Minister Margaret Thatcher, the principal defender of Ronald Reagan in Europe, suffered immense political damage from the revelation of the secret U.S. arms ““ for ““ hostages arrangement with Iran. Throughout the 1980s, Thatcher was a strong supporter of Ronald Reagan’s foreign policy moves, even participating in Reagan’s Strategic Defense Initiative and allowing the deployment of U.S. cruise missiles in the United Kingdom in 1984.

Thatcher had recently come under fire from her opposition opponents in the Labor Party for allowing U.S. F-111 bombers to take off from Britain in their attack against Libya. During and after the U.S. raid on Libya, the Thatcher government was the only European government to support the United States. Moreover, Prime Minister Thatcher’s leadership was crucial in quelling British qualms about the presence of American bases on British soil and recent American corporate takeovers of British companies.[14] Thatcher’s decision to allow the United States to use Britain as a staging ground for the bombers was supported by only 25 percent of the British public, and she was attacked by the Labor Party for her “political infatuation”with Ronald Reagan.[15] One Labor member of Parliament stated to Thatcher: “Your political infatuation with President Reagan is leading you to all the misjudgments of a giddy girl.”[16]

It was thus no surprise that, when the Iran-Contra affair was revealed, Thatcher endured several attacks from her opponents in Parliament for her “special relationship”with Reagan. In a heated session of Parliament, Labor Party leader Neil Kinnock directly addressed Thatcher: “A special relationship is one thing. Sycophancy is another altogether.”[17] Other hecklers called Thatcher “Reagan’s poodle,”[18] in reference to Thatcher’s dogged loyalty to Ronald Reagan. Another Labor official reminded Thatcher that when Reagan asked for use of the bases in Britain for the Libyan raid, he had already authorized the secret contacts with Iran. The political consequences for Thatcher were enormous, given the fact that she was facing another election. The reverberations of Reagan’s decision to initiate covert weapons shipments to Iron rocked the political tides against ally Margaret Thatcher, basically leaving her hung out to dry. The Iran-Contra debacle also had far-reaching implications for U.S. foreign policy and credibility beyond its staunch ally of Britain. At the same time that the U.S. arms shipments to Iran were revealed, the United States announced that it was cutting arms aid to some of its allies. Responding to congressional reductions in foreign aid, the administration announced that it was cutting arms aid to Spain, Portugal, South Korea, Thailand, the Philippines, Jordan, and Oman for fiscal year 1987.[19] In the Middle East, Iron was viewed as a strategic threat by moderate Arab states like Saudi Arabia, Kuwait, and Oman. The failure of the United States to furnish weapons systems to these Arab states while simultaneously supplying weaponry to their nemesis across the Persian Gulf stirred feelings of betrayal. Another double-crossed ally in the Middle East was Saddam Hussein of Iraq, engaged in a bloody war with Iran. Among the weapons supplied to Iran by the covert arms shipments were TOW anti-tank missiles and spare parts for HAWK surface-to-air missile systems, weapons that could have tipped the strategic balance in the Iran-Iraq war in Iran’s favor.[20] It is no surprise that Saddam Hussein had little qualms about turning against the United States when he invaded Kuwait in 1990, given the fact that the Reagan administration had supplied his enemies in Teheran with offensive weaponry during the Iran-Iraq war.

In support of the covert arms initiative to Iran, President Reagan stated that his goals were to gain the release of the U.S. hostages in Lebanon, bolster moderate elements in the Iranian government, and bring Iran back “into the family of nations.”[21] Many allies of the United States around the world were shocked that Reagan would hold an olive branch out to a terrorist nation whom Reagan himself had equated with the Third Reich.

One of the stated objectives of the covert weapons shipments to Iran was the release of American hostages held in Lebanon by pro-Iranian terrorist factions. Yet, although the arms shipments to Iran coincided with the release of three Americans from terrorist captivity in Lebanon, an additional three Americans were abducted. The prospect of securing additional military supplies from the United States, which Iran desperately needed in its war against Iraq, could have served as an incentive for hostage-taking by Iran and its surrogates.

POLITICAL CONSEQUENCES OF BREAKING CAMPAIGN PLEDGES: REAGAN’S POLL STANDINGS AND IRAN ““ CONTRA

Throughout most of his tenure in office, Ronald Reagan enjoyed strong approval ratings from the American public. According to CBS/New York Times poll data conducted throughout the duration of his presidency, Reagan’s poll standings fell on two occasions: the 1981-82 recession and during the Iran Contra scandal. In January 1983, Reagan’s poll standings hit its nadir of 43 percent because of the economic recession. But, with the subsequent economic recovery, Reagan’s approval ratings soared into the 65 percentile range. At the height of his popularity in July 1986, Reagan’s job approval rating was at 67 percent. [23]

Following the revelation of the Iran arms sale in November 1986, Reagan’s approval rating plummeted to 46 percent, and stayed below the 50 percentile range for the next two years. Public confidence in the leadership of President Reagan slowly returned after the Iran-Contra affair had played itself out. In the fall of 1988, Reagan’s job approval rating began to rise, and Reagan managed to leave office with a 60 percent approval rating, the highest final approval rating for a president since Franklin Delano Roosevelt.[24]

After leaving office, Reagan’s poll ratings concerning how he handled his job slowly withered down to a 46 percent favorable rating in August 1992.[25] Recent poll data finds that 50 percent of the voters say they disapprove of the way Reagan handled his job,[26] with a majority of the public claiming Reagan was just an average president.[27] Yet, while Reagan’s favorable ratings have fallen, his personal appeal remains. Political analyst William Schneider explains this appeal by stating: “People remember Reagan as a man who did what he was elected to do. He curbed inflation and restored the nation’s military security – though at a price, creating a mountain of debt and other problems.”[28]

Four years since he left the Oval Office, the man many considered to be the most successful U.S. president in modern history has found that high poll ratings are about as durable as secret agreements with Iran.

IRAN ““ CONTRA AND THE EXECUTIVE RELATIONSHIP WITH CONGRESS

The Iran-Contra affair strained executive relations with the Congress, and violated oral commitments the Reagan administration made to keep Congress informed of covert action taken by the administration.

The relationship between CIA Director William Casey and the House and Senate Intelligence Oversight Committees had always been a precarious one at best. In April 1984, the members of the Senate Intelligence Committee became irate when they discovered that they were not informed of a covert CIA operation to mine the harbors of Nicaragua. To rectify the problem of congressional access to covert information, the “Casey Accord”was signed on June 6, 1984, by Casey, Senate Intelligence Committee Chairman Goldwater, Senate Intelligence Committee Vice Chairman Moynihan, and National Security Advisor Robert McFarlane. The accord stipulated that the CIA director was to keep the committee “fully and currently”informed of all intelligence activities.[29] Iran-Contra violated the commitment of the “Casey Accord,”as the executive branch once again left the congressional intelligence oversight committees in the dark.

With the convening of the 100th Congress in January 1987, both the Senate and the House of Representatives created select committees to investigate the Iran-Contra affair. On January 6, 1987, the Senate created an eleven-member select committee, while the House created a fifteen-member select committee on January 7, 1987. The ensuing hearings exposed the administration’s lack of respect for Congress’ oversight role in foreign policy, and showed that the National Security Council excluded Congress and the Joints Chief of Staff from the decision-making process in regard to the Iran operation.

The House and Senate select committees conducted joint hearings beginning on May 5, 1987. The joint hearings were concluded on August 3, 1987, after more than 300,000 documents were reviewed and more than five hundred witnesses were interviewed. The joint public hearings consumed over forty days of time, and were a draining process on the resources and time of the Congress.

The investigations revealed the bizarre nature of the entire Iran-Contra affair, and raised serious questions about the competence of the administration’s foreign policy. When President Reagan sent a secret delegation to Teheran in May 1986 to formulate a new relationship with Iran, the consequences were a dismal failure. National Security Advisor Robert McFarlane summed up the visit to Iran by stating: “It may be best for us to try to picture what it would be like if after nuclear attack, a surviving Tatar became vice ““ president; a recent grad student became secretary of state; and a bookie became the interlocutor for all discourse with foreign nations.”[31] Emerging from the White House after a briefing on Iran-Contra on November 12, 1986, House Intelligence Committee member Dave McCurdy stated: “It’s one of the dumbest things I’ve ever heard of. If Jimmy Carter pulled that stunt, he would have been hung from the rafters.”[32] Iran-Contra thus destroyed the commitment made by the Reagan administration in the “Casey Accord”and heightened the level of distrust between the executive and legislative branches.

CONCLUSIONS

When the duplicity of Iran-Contra was exposed, its reverberations created a myriad of problems in Washington and around the globe. U.S. credibility was damaged among its NATO and Middle Eastern allies. Foreign political leaders were politically and militarily compromised because of their loyalty to the Reagan administration. Congress discovered that it was not always a team player in the foreign policy decision-making process. In essence, the Reagan administration’s arms-for-hostages escapade with Iran created more problems for the administration. Americans continued to be held hostage in the Middle East, and administration relations with both allies abroad and the Congress at home were damaged.

One of the biggest casualties in the Iran-Contra affair was the legacy of Ronald Reagan as a candidate and as a president. Candidate Reagan utilized his skills as the “Great Communicator”to inspire a nation in a time of crisis. President Reagan used the presidency as a bully pulpit to take a tough stand on terrorism. Yet, with the revelation that the president’s words on Iranian statesponsored terrorism were tougher than his actions, the public soured to his political leadership. Although Reagan managed to leave office with high approval ratings, public cynicism toward the duplicity of events like Iran-Contra has backlashed against the Reagan legacy.

Although history will be the final judge of the Reagan presidency, there are valuable lessons to be gained from the consequences of Iran ““ Contra. Future politicians will think twice before breaking solemn pledges they make to the American public, as the consequences are disastrous, both at home and abroad.

Notes

[1.] CBS/New York Times Poll.

[2.] “Transcript of the Presidential Debate between Carter and Reagan in Cleveland”, New York Times, October 29, 1980, p. A26.

[3.] “Remarks at the Welcoming Home Ceremony for the F reed American Hostages”, January 27, 1981, Public Papers of the President: Ronald Reagan, 1981 (Washington, D.C.: Government Printing Office, 1988), p. 41.

[4.] “Remarks Announcing the Release of the Hostages From the TransWorld Airlines Hijacking Incident”, June 30, 1985, Public Papers of the President: Ronald Reagan, 1985 ( Washington, D.C.: Government Printing Office, 1988), p. 886.

[5.] “Remarks at the Annual Convention of the American Bar Association”, July 8, 1985, Public Papers of the President: Ronald Reagan, 1985, p. 895.

[6.] Ibid., p. 896.

[7.] Ibid., pp. 897 ““ 99.

[8.] “Statement by Principal Deputy Press Secretary Speakes on the Achille Lauro Hijacking Incident”, October 9, 1985, Public Papers of the President: Ronald Reagan, 1985, p. 1216.

[9.] “The President’s News Conference”, January 7, 1986, Public Papers of the President: Ronald Reagan, 1986 (Washington, D.C.: Government Printing Office, 1988), p. 19.

[10.] “Address to the Nation on the United States Air Strike against Libya”, April 14, 1986, Public Papers of the President: Ronald Reagan, 1986, p. 469.

[11.] Bernard Weinraub, “President Defends Iranian Contacts: Arms Not “˜Ransom,'”New York Times, November 14, 1986, p. A1.

[12.] Europe Faults Reagan Talk; A Briton Calls It “˜Incredible,'”New York Times, November 15, 1986, p. A5.

[13.] Ibid.

[14.] Joseph Lelyveld, “Intense Talks Led to Thatcher Ruling”, New York Times, April 16, 1986, p. A14.

[15.] Tom Wicker, “After the Raids”, New York Times, April 18, 1986, p. A35.

[16.] Karen DeYoung, “Thatcher Stands Firms in Support of U.S.”, Washington Post, April 16, 1986, p. A1.

[17.] Joseph Lelyveld, “Foes Rebuke Thatcher for Stand on Iran Affair”, New York Times, November 19, 1986, p. A6.

[18.] Ibid.

[19.] John H. Cushman Jr., “U.S. to Cut Arms Aid to Allies, Some with American Bases”, New York Times, November 14, 1986, p. A1.

[20.] Richard M. Pierce, “Arms Shipments to Iran”, Congressional Research Service Report IB87022, October 26, 1988, Congressional Research Service, Foreign Affairs and National Defense Division, p. 13.

[21.] Bernard Weintraub, “President Orders Sales of Weapons to Iran Stopped”, New York Times, November 20, 1986, p. A1.

[22.] “Remarks at the Annual Convention of the American Bar Association”, July 8, 1985, Public Papers of the President: Ronald Reagan, 1985, p. 898.

[23.] CBS/ New York Times Poll.

[24.] “Reagan Receives Highest Final Approval Rating since Franklin Delano Roosevelt”, Gallup Report, January 1989.

[25.] George Skelton, “Reagan Returns, Faces Difficult Role”, Los Angeles Times, August 17, 1992, p. A26.

[26.] Robert Reinhold, “Reagan Now: Traveling, Working, Clearing Brush”, New York Times, August 17, 1992, p. A7.

[27.] George Skelton, “Americans Rate Reagan as an Average President”, Los Angeles Times, November 4, 1991, p. A1.

[28.] Skelton, “Reagan Returns, Faces Difficult Role.”

[29.] Frank J. Smist Jr., Congress Oversees the United States Intelligence Community: 1947-1989 (Knoxville: University of Tennessee Press, 1990), p. 123.

[30.] Ibid., p. 259.

[31.] The Tower Commission Report (New York: Random House, 1987), p. 296.

[32.] Jolt Felton, “Reagan Tries to Put Out Fire on Iran Dealings”, Congressional Quarterly Weekly Report, November 15, 1986, p. 2883.

 

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I’ll try to go in the order of the speakers, which I think I can recall. To the Merrifield paper on malfeasance: I guess, just very briefly, my disagreement with you is that I think your definition of malfeasance has been expanded to constitute doing something Congress doesn’t like. Some of the things you refer to in the paper—for example, soliciting contributions from foreign governments—were specifically authorized by Congress.

Abe Sofaer, who I think was unfairly referred to more recently, but we’ll get back to that, I think correctly said that there was no way you could prevent that anyway. You didn’t need a congressional authorization. You really cannot have the Congress legislating what the president can say to a foreign leader. He can pretty much say what he wants to a foreign leader, including, “Hey, would you give us some help to a cause that we believe in?”So I really don’t accept the notion that every time you do something Congress doesn’t like, it’s malfeasance.

And I particularly think it’s bizarre to say that it is even malfeasance when the letter of the law is not violated but the spirit of the law is violated. And I would cite to you on that point the line of Dr. Mervin’s: one problem with this line of argument is that it hardly makes sense to speak of a will of Congress on any issue. And on the matter of aiding the Contras, as on most things, Congress was divided and confused. So I think you’ve got to narrow the focus a lot more than that.

I can save myself a minute or two on Professor Mervin’s comments because I think it’s a very interesting and very British view of the situation. I think there are two issues: one of which is, are you right legally; the other is, are you right politically? And I have to say, as a Republican, I find it very interesting that it is true that there are an awful lot of journalists and academics who think that what Ronald Reagan did was terrible, but didn’t seem to find the time to criticize actions by previous Democratic presidents which were really along the same lines.

With respect to the campaign promises, I think you’re on to something, but I think, again, you’ve taken it too far. I don’t think people mind that much if a president breaks his campaign promises. To some extent, that’s expected. For example, President Clinton and Haiti. I think a lot of Americans felt his campaign position may have been wrong. Secretary of State Christopher, when asked about this—”Didn’t you break a campaign promise?”—said: “Well, look, we said then what we thought was right. We have changed our minds. And we now have a different view. We know more about it, and we want to do what is in the interest of the United States.”I don’t see any very large diminution of credibility for President Clinton because he changed his mind on that.

I don’t think it’s the breaking of a promise per se; I think it depends on the nature of the promise. I think it depends on whether it is viewed as one of ten thousand issues on which the president spoke or on a matter of principle—and a big matter of principle. And I think, again, you’ve got to narrow down the focus more, because in the case of the arms for hostages thing, and some on the panel may disagree with me, but I think what President Reagan did was in violation of a principle that he had previously established—and your quotes indicate when it was established—that was more serious. That wasn’t a campaign promise. That was a big issue, and so people reacted as if it were a big issue. I think your approach is too formalistic.

Now we come to Professor Freedman: I guess Professor Freedman got lost on the way here and felt he was at the Elliott Abrams Conference instead of the Ronald Reagan Conference, and proceeded to give a speech which is largely unrelated to his paper. I do have to thank him for helping, I think, to sell my book, but other than that, I guess I don’t have to thank him.

I believe I heard him say ““ I may have gotten the note wrong ““ that I was indicted on felony charges of lying to Congress, and that is not true. Any law professor should know better than to make an error like that.

Now just a couple more points: one, I believe he also said that I did not happen to note in the book that the Supreme Court ruled that the Independent Counsel’s Office is constitutional in the case of Morrison v. Olson—notwithstanding a very nice dissent by Justice Scalia—but that is almost exactly what I said in the book. So, closer reading. I do agree with him that it’s a lousy opinion. We’re on common ground on that one. I also disagree with his view of the constitutionality. I guess the way that I put it is, the Supreme Court has held it to be constitutional, so it is. But that opinion, I think, was wrong. And it was wrong for a kind of a functional reason.

I would say that central to our system is the notion that we don’t have freefloating institutions. We have institutions which are checked and balanced by each other. I think there is hardly a more fundamental concept to the structure of our federal government than checks and balances and the rivalry between the branches which limits the power of each branch. My objection, both constitutionally and equitably, to the Special Prosecutor’s Office is that it is not checked and it is not balanced. The Supreme Court had to find, to find it constitutional that, well, no, it isn’t exactly a part of the judicial branch, and the special division of the court that chooses an independent counsel does not control the prosecution, but it also had to find that it is an independent counsel and, therefore, the Justice Department isn’t in complete control either—as obviously it is not. So the question is: Who is really in control? And the answer is: nobody. There is no checking or balancing. There is a floating institution that simply goes on forever doing what it wants. And that, I think, is alien to our system, and that is my objection to it.

I believe that the discussion of Morrison v. Olson in the paper is much too brief and really does not take into account some fundamental constitutional issues. I would conclude by saying that I don’t share the view that the independent counsel had a good record. I think any prosecutor can, in a certain sense, compile a good record if he is willing to face enough people with the choice, in essence, between endless years of prosecution and endless years of spending, or taking a plea to something. Most prosecutors, especially most federal prosecutors, would not call that a good record. They would call it a kind of judicial terrorism, which is what I call it.

 

I’m certainly pleased to be with you this afternoon, and I’m grateful to all of the presenters for the papers that they have prepared and presented to us today. I think all of them make an important contribution to a very important subject.

Our moderator has placed us under a five-minute time limit, of which he notified us several days ago, and cautioned us that he would be strict. I’m going to try to keep myself within it. That time limit, however, of necessity will require, I believe, that I focus my remarks not on all of the papers in some type of scatter-shot fashion, but rather on the paper with which I have the greatest quarrel.

Now, you probably think that that is Mr. Freedman’s paper. It is not. I do have some quarrels, to be sure, with what Mr. Freedman has said—particularly his comment that my views on the independent counsel statute’s constitutionality are outside of the mainstream. It is true that my view did not command a majority of the Supreme Court in Morrison v. Olson, and, indeed, even was not adopted by my former boss, Chief Justice William Rehnquist. But the position that we advanced was indeed successful in the Court of Appeals in the District of Columbia, and a number of very substantial legal scholars have embraced it, including Justice Antonin Scalia, who set forth the position, I think, very persuasively in his dissenting opinion in Morrison. Perhaps he had an easy target, frankly, in the majority opinion. I do agree with Mr. Freedman’s opinion on that score. But I must say that as unpersuasive as the majority opinion in Morrison is, the alternative analysis that Mr. Freedman offered today hardly exceeds it.

My chief quarrel, however, is with Professor Merrifield’s paper entitled “Malfeasance in Context.” The theme of his paper is that “malfeasance was an executive governing strategy,”in his words, of the Reagan administration. Now, he says—I’m going to share with you a little more of his paper than he did—that “malfeasance exists when there is a conscious, systematic violation of either the spirit or the letter of the law to accomplish long-term strategic goals and the activity (obviously) is done in secrecy.”

Mr. Merrifield seeks to paint Iran-Contra as comparable to and in the tradition of Watergate, although he has added today the Johnson administration’s handling of Vietnam, which was, as he mentioned, not in his paper. And as he describes Watergate, John Ehrlichman and other very high principal aides to President Nixon used illegal wire taps to gather political intelligence, employed extortion-like campaign fund-raising techniques, tried to use the IRS to investigate political opponents, and, indeed, committed burglaries. Obviously, those were serious offenses, and nobody denies the factual existence of them.

Mr. Merrifield launches his comparison of Iran-Contra with Watergate, however, by noting attitudinal similarities. He notes an eery similarity between the testimonies offered to Congress by members of each administration. The first one, John Ehrlichman, was chief domestic political advisor in the Nixon administration. He quotes Ehrlichman’s testimony to the effect that if the President has taken an action in support of national security, then it must be legal.

From the Reagan administration, he offers Fawn Hall—Fawn Hall, that high-ranking Reagan administration official—about whom we heard earlier from one of the participants. He quotes Fawn Hall’s congressional testimony as reflecting the Reagan administration’s attitudes. I hardly think that she is comparable to John Ehrlichman.

In his effort to find parallels to Watergate, Professor Merrifield offers three examples of “malfeasance.”I am going to deal with just two of them, because I think they are essentially the same thing, and I don’t know very much about the other one. The three are: first, indirect aid to the Contras; second, funding of the Contras by other countries; and third, the activities of the Office of Public Diplomacy for Latin America. Elliott Abrams is an expert on that, and I, frankly, am not, so I am going to pass over that. But the. other two—the alleged examples of malfeasance—concern the Reagan administration’s efforts to keep the Contras together “body and soul.”The Reagan administration did so in a manner that was consistent with the Boland Amendments, which prohibited the administration from providing direct financial aid or military aid to the Contras. And the activity involved not only actively soliciting and encouraging foreign countries to support the Contras with financial and/or military assistance, but also encouraging the efforts of private fund-raising organizations.

Two of the specific examples of alleged malfeasance cited by Professor Merrifield highlight what I believe is the fallacy of his comparison. According to him, “Bush tried to persuade Central American leaders that Contra aid would be beneficial to all parties—the United States, the Contras, and the other Central American countries.”He goes on to note that the evidence from Colonel North’s trial suggests that certain participants at meetings in which Bush’s trip to Central America was discussed wondered about the Boland Amendment. From this point as well as others, he concludes that the participants in these meetings had knowledge of the possible illegality of indirect aid, which makes their actions malfeasant.

What is the complaint here? That President Reagan sent representatives such as Bush to encourage third parties, including foreign countries, to support the Contras? Or is it that the Reagan administration inquired into the possible legal ramifications of Bush’s diplomacy before sending him? In other words, to avoid Mr. Merrifield’s charge of malfeasance in this example, what was the administration to do? Because it examined the possible legal ramifications of Bush’s trip, was it then required to decide against the trip, no matter how frivolous the legal arguments against the trip?

And the legal arguments against Bush’s diplomatic efforts to encourage support for the Contras by Central American leaders were indeed nothing short of frivolous—frivolous at two levels: First of all, the Boland Amendment did not purport to reach those types of communications with other countries, as Mr. Abrams has suggested. There was a legislative attempt to prohibit such diplomatic efforts, but it did not pass. But even if it had passed—and this is the key point—it would plainly be unconstitutional. The content of the president’s diplomatic discussions cannot be restricted by Congress, both as a matter of the separation of powers and as matter of the First Amendment. It is really that simple. It is as though Congress enacted a statute that restricted the president’s pardon power to Democrats or to white people. Such a measure would violate not only the separation of powers, because the president’s pardon powers are virtually illimitable by Congress, but also other constitutional provisions, such as the equal protection clause of the Fourteenth Amendment. And no selfrespecting president would give a moment’s thought to abiding by it. Likewise, no self-respecting president would surrender his office to Congress in terms of his foreign policy responsibilities either.

The second specific example of malfeasance cited by Professor Merrifield involves the only instance in which the Boland Amendment’s prohibition was truly implicated. To use his words: “McFarlane and North also contacted the U.S. Department of Defense and the CIA. They hoped that the Department of Defense would give arms to the CIA and then the CIA could give those arms to the Contras. This latter scheme ran afoul of the Defense Department legal counsel, who determined that it would be illegal. This killed the plan.”Well, I think that the Defense Department’s legal counsel was correct in its legal opinion that the Boland Amendment prohibited that scheme, and I believe that the Boland Amendment’s prohibitions in that respect were constitutional. I disagree with some of my colleagues in this area who think the Boland Amendment itself was unconstitutional.

The important point, however, is that lawyers looked at the plan, decided that it would not be consistent with the Boland Amendment, and killed it. So the president, having considered the views of Congress as reflected in the Boland Amendment and the other measures in this area, came firmly to a different policy view. He believed that the Contras were fighting a cause for freedom that his administration should support in every possible legal way. When Congress made direct United States assistance illegal, the president abided by that judgment even as he worked hard to have the restriction lifted through the political process. But he did not hesitate to exercise those powers that are exclusively his—from attempting to persuade the American people to support his policy of aid to the Contras, to encouraging other countries to join in that effort. That is why we elect presidents. That is why presidents have certain constitutional powers that are theirs and theirs alone. There was malfeasance connected with Iran-Contra—the malfeasance of a small group of men, led most notoriously by Mr. Poindexter and Mr. North, in connection with the diversion of proceeds from Iranian arm sales to the Contras. That effort was marked by secrecy—not secrecy by the president, though, but secrecy from the president.

Even when the president directed Ed Meese, my boss at the time, to investigate and gather all the facts relating to the entire affair, these men sought to keep facts about the affair—including the diversion—from Meese and, therefore, from the president, for Meese was acting at the president’s direct instruction. When the fact of the diversion was discovered and confirmed, Mr. Poindexter and Mr. North were immediately relieved of their responsibilities. And the fact of the diversion was immediately disclosed publicly.

Now one may criticize the management style or other circumstances that permitted this malfeasance to occur, but one cannot attribute the malfeasance to Ronald Reagan in any personal way. In other words, it did not reflect, as Professor Merrifield suggests, an “executive governance strategy”of the administration. Also, I believe that the malfeasance that did indeed occur in the Iran-Contra affair is a very thin basis for comparisons to what took place in the Watergate affair.

[Discussant: Mark Danner]

Discussant: Mark A. Ledeen

I, too, do not understand why Iran-Contra continues to fascinate people, because I would have thought that, by now, the big questions were over with. Take the question of criminality, for example. It should be clear to everyone by now that Iran-Contra was about error, not about crime. And the title I wanted to use for my own book was a quotation attributed to Talleyrand, who stole it from somebody else, which, referring to an act of Napoleon, said, “It’s worse than a crime; it’s an error. It’s a blunder.”And this is what Iran-Contra is about. After all, after a $100 million by Walsh, and who knows how many millions by journalists and Congress, so far the only crimes that people have come up with are not about things that were done but about the way people spoke about what they did. The only exceptions to that are cases of people in the [Richard] Secord network and elsewhere who lied about money that they made and didn’t declare any income tax. So what we’re talking about is blunders and, therefore, the context. And you see, inevitably, every time one talks about this, the proper context for Iran-Contra is politics, not law. That’s why lawyers have such a tough time dealing with Iran-Contra, because there are no crimes, and even if you passed all the laws you wanted—even all of Mr. Freedman’s laws—and forbade the national security institutions from protecting their secrets, you still wouldn’t come to grips with Iran-Contra because it has to do with politics.

Now, having said that, here are a few political points to consider: first is the issue of oversight. Did Congress do its job? Did it watch what was going on in government and so forth? Well, what did Congress know? And what did Congress lie about? Well, Congress lied about what it knew about the money for the harbors in Nicaragua, for example, because as of the time that they accused poor William Casey of failing to brief them, once the story broke, they had been briefed no less than six times. And this was said on the record by Senator Patrick Leahy; it’s not some invention by a desperate Reagan administration official. They knew about all these things; they chose to lie about them and to blame the administration for them. And, interestingly enough, the administration chose to accept blame. Casey apologized for having failed to brief the people that he really briefed, and I’m sure that if Casey were still alive and Walsh had a bit more money, he could indict Casey for lying to Congress about his admission of guilt for something which he hadn’t failed to do—or something like that. So that’s number one.

Number two is Boland. No one’s been indicted for Boland, for the simple reason that nobody violated Boland. And so we have in all these papers endless references to “Boland may have been violated”or “the spirit of Boland may have been violated,”and whatever. But I’m convinced by the addendum to the congressional report on this subject, written by a law professor in Virginia, in which he points out that there is a legislative history to the language used in Boland. And Boland has language in it that says: No institution, no agency involved in intelligence activity, shall spend money, etc., for these purposes.

Now, that language ““ “involved in intelligence activity””“ comes from the Intelligence Oversight Act. And the legislative history of that language is that it specifically exempted the personal staff of the president, which is to say the National Security Council. A whole slew of quite respectable lawyers looked at that language in Boland and decided that Congress knew what it was doing when it put those words in, because, after all, if Congress just wanted to stop the government ““ anybody in the government ““ from doing anything to help the Contras, all they had to do was say so. In Boland—or anywhere else—all they had to do was say: Nobody in the government shall do anything to help the Contras. Period. That would have been the end of it. They didn’t do that. They wrote very complicated language. And the reason, children, that they wrote that language is because, for political reasons, they wanted to tie the administration’s hands, but they didn’t want to accept responsibility for what might happen if the United States weren’t permitted to help democracy in Central America. And if there really were a vast communist conspiracy, and if Fidel [ Castro] and Brezhnev and all the rest were suddenly going to be giving speeches in Panama City and Guatemala and even Mexico City in a few years, they did what Congress always tries to do, which is to have it both ways. It’s what every sensible politician tries to do. Don’t be so surprised.

Now, in this regard, there is an amazing, amazing, amazing level of rhetoric in the Smist and Meiers paper about how shocked and horrified America’s allies were to discover that the United States government was saying one thing in public and doing the opposite in private. Imagine how shocked Italian, French, German, etc., political leaders were to discover that another political leader was doing such a thing. Truly horrifying. What world are we living in? They were doing the same thing themselves. They were shipping technology to Iran—some of it military, some of it civilian. Mrs. Thatcher knew full well what was going on. So, please, do not tell me that she was shocked. Her opponents attacked her. What else is new? I mean, all of this is perfectly normal.

Roosevelt: The one thing that no one talks about in connection with IranContra—I tried one night on “Nightline”with Senator Patrick Moynihan, but he raced away from it as fast as he could—the really amazing thing that Roosevelt did, in secret, in “˜39 to “˜41, was that he permitted the British government to secretly set up, in America, an entire intelligence network, utilizing all kinds of American institutions to spy on the Germans, in total violation of a whole series of laws—I mean, something for which impeachment, let alone a long jail sentence, would have been child’s play. Read Intrepid, Professor Freedman. I see you’re baffled. It’s all in there. That is what he did, and he did it because he knew that if he went to the public, they never would have accepted such a thing. Nobody could. But since we weren’t able to do it when we should have done it, and he wouldn’t and couldn’t take it to the public for political reasons, he did it secretly, just as Reagan reasoned in Iran-Contra.

Now, I believe that Reagan made a frightful mistake on Central America. I think, in fact, he never did make the case to the American public. I think he should have made it an election issue, in whatever year that was, and should have taken it to the public and said, “Please give me a Congress which won’t give me Bolands—which will give me support for this policy. And if you give me a Congress that’s going to vote against it, I’m going to have a real vote on Central American policy, and if they vote no, we’re not going to do it. And then they will bear the consequences.”That, for me, is the way policy should have been conducted. But he chose not to do it, and that was a blunder, in my opinion. But it was not a crime.

Last: Fawn Hall. It gets my dander up to hear people talk about Fawn Hall this way. It particularly gets my dander up because the people who talk about her this way are generally the same people who race to the defense of any woman who is slandered or libeled and referred to as some kind of sexual object. If there’s anything disgusting in the coverage of Iran-Contra, more than anything, it’s the treatment of Fawn Hall. Fawn Hall, a perfect exemplary person, conservative in her personal life, who never aspired to anything other than to be an excellent executive secretary, which she was. I speak from personal experience; she was my secretary as well as North’s. And for that famous line for which she has been so excoriated, about it’s sometimes necessary to go above the law, we can thank Professor Mervin for thoughtfully putting in his paper the quotation almost word-for-word from Thomas Jefferson which says precisely the same thing.

Discussant: Susan Page

As the last speaker on a nice day, I will try to speak briefly and, I think, in very broad terms about where the Iran-Contra affair fits in the legacy of Ronald Reagan. And, in some ways, I want to expand on the remarks Professor Merrifield, and Dr. Smist and Mr. Meiers have made.

I think that the Iran-Contra affair cost President Reagan dearly: in one way, by undercutting one of his most fundamental strengths as president—his connection with the American people and their belief that he was a straightshooter and a politician who could be trusted, really not a traditional politician at all. On the Iran side of this scandal, we found that, undeniably, President Reagan misled the American people—talking tough about terrorism, expounding an antiterrorist policy, while at the same time selling arms to Iran with the motivation, I believe, of freeing seven American hostages, the most fundamental motivation he had in getting this scandal started.

On the Contra side of this scandal, the effect was different. It seems to me it made damaging an aspect of Reagan’s presidency that previously hadn’t been damaging. Reporters who covered the White House had been writing for years about President Reagan’s disengagement from what the White House liked to call the details of government. But it didn’t really matter to people. These stories did not have the effect of undercutting President Reagan’s support, but I think the Contra side of this scandal made people worry about that aspect of his presidency. What was amazing to me was not that President Reagan could argue that he did not know about the diversion of funds to the Contras, but that that explanation seemed perfectly credible: that it is possible he didn’t know.

And President Reagan, I think, lost not only a lot of his public credibility to this scandal, but it also cost him some of his personal self-confidence and some of the buoyancy that made him such an appealing public figure. I know that the speech that the president gave in the immediate aftermath of the disclosure, and in the press conference that followed, was the first time that President Reagan, to me, had really seemed to be an old man, confused and uncertain. It was the first time he had really looked his age.

And I think there are costs in this affair to other institutions that were involved—first of all, to the Congress: Congress clearly failed in its oversight responsibilities. We had an arms sale going on that involved the U.S. government, foreign governments, private individuals, and Congress—the intelligence committees—seemed not to have a clue about it. Clearly, that is a failure on Congress’ part, apart from whatever things the administration itself had done not to keep the Congress fully informed. And the investigation, which I spent a year of my life covering, clearly also failed. They set an artificial deadline; they asked bad questions; they had a bad format. And, as Mr. Danner said, I think their biggest fear was not that they would not find out the truth, but that they would find out the truth, and that it would be so alarming that they would be forced to pursue impeachment proceedings.

There was also a handful of members of the House—the most liberal members of the House—who were talking about impeachment. And I think there was great concern on the part of the Democratic leadership of the Congress that they might find out something that would force them to actually consider that.

There were costs to President Bush. George Bush had to face questions about the Iran-Contra affair in his initial campaign in 1988, and in the last week of the 1992 campaign, he was still seeking to explain what his role had been. He has never really, I think, adequately explained his role, but clearly, there was a political cost to him, although, obviously, this wasn’t really the reason he didn’t win reelection.

Finally, I think there were costs to the press—something that none of the other panelists have talked about. There has been criticism of the press for not having found out about the Iran-Contra affair—the various aspects of it—before it was disclosed. And I think it’s true that that would have been very good if the press had uncovered this, but I think the real failure of the press came afterwards in exploring the details of the Iran-Contra affair coherently and over a long period of time, in a sustained way, and making it understandable. You know, we always have people who have very strong feelings and their own point of view-some of them on this panel-with their version of what happened. And it’s really one of the responsibilities of the press to take something that’s complicated and important like this and make it understandable to people who don’t know quite what to believe. I think that has not yet happened. And one of the things that happened during coverage of the hearings—and, you know, I plead guilty on this myself—is to ask the wrong questions. The thing the press was consumed with was the Watergate question: What did he know, and when did he know it? Did President Reagan know about the diversion of funds to the Contras? I think that was not a bad question, but it certainly wasn’t the only question. And still unexplored or still unanswered are more serious policy questions that involve both sides of that: What happened before the diversion, and what happened afterwards?

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WILLIAM F. LEVANSTROSSER, Moderator: Before we get to questions of the audience ““ and I appreciate your patience ““ I did have an agreement with the scholars that I would offer them a brief chance at rebuttal. I hope that they will be brief, and I’m wondering if any of them do wish to offer rebuttals. Would you perhaps be a little briefer than I had mentioned earlier? We’d like to get questions from the audience. Let’s go now to the rebuttals from the members of the panel, starting with Professor Merrifield.

MERRIFIELD: I’ll be very brief. I appreciate the feedback and this ongoing learning experience, and that is: don’t submit papers in advance to lawyers!

I listened to what was said, and I’m in the process of looking at this stuff. There’s actually really only one comment that I want to make. It’s a serious comment and should be taken as such: I’m not sure if Mr. Ledeen, when he was defending Fawn Hall, was suggesting that by my putting Fawn Hall in the paper, I was in any way making demeaning remarks about her. I was not. And I fall into that category ““ that guilty category ““ of people who are offended when women are attacked, so I was not attacking Fawn Hall as a woman, or as incompetent, or anything else. And I want to make that clear. That’s really the major thing I wanted to say. There’s a lot more I could say, but none of it is as important to me as that particular line.

LEVANSTROSSER: Let’s go to Professor Mervin.

MERVIN: Well, I won’t say very much. I’m a bit taken aback to be identified as extreme. I guess I have to live with it. The only thing I would plead is, of course, I did write an extended paper. We were first told we would get twenty minutes for the presentation; it was then reduced to fifteen; and when we got here, it was reduced to ten. So, possibly, some of the qualifications that are in the paper get left out, and it gives an impression of extremism. But, as I say, I’ll have to live with it. On the other hand, I would like just to respond to the point made by Mr. Danner, talking about my unwillingness to make judgments as being ridiculous. It seems to me, possibly, that reflects a difference of profession between us. I am an academic, a scholar, and I happen to believe that it’s incumbent on me to try and be impartial. I’m interested in the process whereby policy is made, political decisions are made, and I choose to leave to other people to make judgments about the content of the decisions, the merit of those decisions. I mean, not every academic takes that view, but certainly there are others who do take that view: that it’s reasonable for us to be studying the process and not getting involved in the substance of the decisions which are made.

LEVANSTROSSER: Dr. Smist, I presume you want to make a comment for your group?

SMIST: I have a few brief comments to make. I have difficulty as an educator explaining to my students today what Iran ““ Contra was all about. The press, the Congress, and the special prosecutor, up until this point, have done a very poor job in putting the whole incident in its context. And I wish that would be better done by folks. I’m disappointed in two things: Mr. Ledeen, in focusing on our comments about foreign leaders, totally ignored the central premise of our paper. In 1980 Ronald Reagan said he would be tough on terrorists, and those same terrorists that his own departments condemned as a terrorist nation ““ Iran ““ we sold arms to. America was held up to disgrace. That is something that Ronald Reagan himself has never answered to. I’m disappointed that the special prosecutor went after people like Elliott Abrams, because in the real context of things, they were second ““ raters. They were not the top people.

Now, there’s something else: in the Watergate hearings, the saddest moment for me was to hear the testimony of Gordon C. Strachan. Joseph Montoya ““ of whom Art Buchwald said, “The best time to go to the bathroom was when he started asking questions””“ asked the best question of all of Watergate, and the question was to Mr. Strachan: “What do you say to young people who are looking to come to Washington to work in public service?”And his response was, “Stay away.”

If you read Mr. Abrams’ book, his advice to young people today considering public service ““ there’s two passages: On page 87, he said to a group of interns in Washington in the late eighties, when they asked him what advice he had, “Do not buy a notebook, don’t take notes, and don’t write anything down.”And later on, on page 105, he says his advice to those considering public service would be, “Stay home; tend to your own garden.”And I think, after coming back from Russia less than two weeks ago, we here in the United States take for granted the freedoms that those people are struggling to get, that’s the most sad commentary of all on our political system.

Iran-Contra is a difficult issue. If you’d like to read a good account of it ““ in the book, which will come out next year, that John and I are writing ““ we’re going to go on at length about it. The time today has been a time, once again, to focus attention on the Reagan administration. There’s a lot of good and there’s a lot of bad that was done in that time.

The other thing that’s missing from our discussion has been the absolute contempt that a number of the Reagan people felt toward the United States Congress. Some of this, unfortunately, was extremely well deserved. And yet, if our system is to work, good people must get involved, must be active, and we must make sure that, unlike what we did in Iran ““ Contra, we hold our public officials accountable.

LEVANSTROSSER: Professor Freedman.

FREEDMAN: I should begin by apologizing, first of all, for anything that I might have inappropriately said with respect to the absent Fawn Hall, whom I plainly have no basis for wanting to make critical remarks about, and, secondly, to Elliott Abrams, not just for failing to say that he was “faced”with indictment on felony charges but, more seriously, because the time limits that we’ve all been complaining about resulted in his role being almost everything that I talked about, rather than a fairly small part of a bigger picture. And that’s too bad for a scholarly conference, because I think it would emerge in broader discussion that he and Mr. Cooper and I actually share a lot in common.

But, in this format, I do want to focus on something that Mr. Cooper said that I think is not only wrong but may perpetuate misperceptions. He said that the only legal problem arising from Iran-Contra was the diversion. The fact is that the administration’s big concern over lawfulness and the Iran ““ Contra initiative was that President Reagan had authorized the shipment of Hawk missiles to Iran in November 1985. And the only possible source of authority for that authorization, as Mr. Cooper said on a panel yesterday, was the National Security Act. But to conduct covert operations under the National Security Act, a presidential finding and then notification to Congress is required, and that didn’t exist. All that happened, as far as we know, is that Ronald Reagan told Bud McFarlane to go ahead.

Now Ed Meese correctly perceived that if that’s what happened, there would be an illegality. In that regard, he underestimated the legal ingenuity of Mr. Cooper, who later came up with the ingenious legal theory that if that’s what happened, then there had been an “oral finding,”and the National Security Act had never been violated at all. Now you really do have to admire the creativity of that, since the precise reason for creating this statute in the first place was to end the practice of plausible deniability by which covert operations were authorized with a wink and a nod, and then deny they ever happened. And no one was responsible, least of all the president, if they went wrong. So no one thought of that theory at the time, although Mr. Abraham Sofaer, whom I’m accused of maligning, signed onto it later.

In any event, when Ed Meese came around to discuss events with the cabinet members, the key thing that he wanted to communicate to them was, “You know, if the president knew about that shipment, then he would be committing a crime and authorizing it, but he didn’t know. Right?”And, except for George Shultz, who knew from a conversation with the president just two days earlier that that wasn’t so, they went along. Now that is a pretty good argument for why a special prosecutor, and not Ed Meese and his assistant, Mr. Cooper, should be in charge of investigating any illegalities.

And I’ll close with a slight tribute to Elliott Abrams: I do discuss in the paper at some length the idea that, although the White House feared impeachment, and Congress, as we have heard, feared impeachment, that may have been very distorted. Perhaps the route that they should have been looking at ““ which no one has seriously looked at until I have now published a very long paper on this issue ““ perhaps the route that they should have been looking at is indictment. And if they had looked at indictment ““ and, indeed, if any indictment had resulted ““ then, as Elliott Abrams said, at least there might have been a certain poetic justice.

LEVANTROSSER: You’ve been a very patient audience. If you would like to present a question, would you line up behind our first questioner, who, I believe, is Professor Ambrose.

AMBROSE: Let’s talk policy. We ended up with democracy in Nicaragua, which is a great thing. Now that came about because the Central American presidents got together and got a peace plan, and the Sandinistas said they would work with it. The Reagan administration said, “No, they won’t; they’re lying.”The Reagan administration said: “The way to overthrow the Sandinistas is to continue a policy of state-supported terrorism.”We have democracy now in Nicaragua, not because of, but in spite of, the policies of the Reagan administration. I’m not interested in who fiddled around with the law; I’m interested in what the national policy was. And this was a blunder, an error of the first magnitude, as we were to learn after the event.

I’d really very much like it, Mr. Abrams, if you and Mr. Cooper would tell us what you were thinking of ““ not in terms of the Boland Amendment, not in terms of special prosecutors, but in terms of a goal of bringing democracy to Nicaragua by sending guns down to the Contras.

LEVANTROSSER: Mr. Abrams.

ABRAMS: Well, I’ll tell you what we were thinking of: we were thinking of democracy in El Salvador, Honduras, Guatemala, Nicaragua, and Costa Rica ““ which there now is. You can stand up and say as many times as you’d like, state ““ supported terrorism, which, in my view is a really very foolish thing to say. What the United States did was to create the only possible leverage that would work with the Sandinistas. I read in the newspapers today columnist after columnist saying: “We need to put some tough, indeed military, pressure on the Serbians, because it’s the only pressure they will really respond to.”That was, in a sense, the situation we were involved in. People had been talking to the Sandinistas for a long time ““ beginning with Jimmy Carter ““ and all the talking hadn’t done any good. What did do some good ““ what did put real pressure on them ““ was the Contras. It was a successful policy. And if you look at Central America today, you can see that it was a successful policy.

LEVANTROSSER: Mr. Cooper?

COOPER: I can’t add to what Mr. Abrams has said on that subject, but I would like to make a brief response to a point that was made earlier by Mr. Freedman, when he made reference to my conclusion ““ my legal conclusion ““ that a covert action “finding”under the National Security Act can indeed be oral; that it does not have to be reduced to writing. Point number one: nothing in the statute says the finding must be reduced to writing. Point number two: there is a very elaborate scheme of statutes that do indeed require that executive branch decisions be formalized in written documents in certain instances. Those statutes quite clearly were not intended to apply to National Security Act “findings,”because they also require ““ at least the statute that is relevant in this instance ““ publication in the Federal Register. It seems unlikely, to say the least, that Congress intended that “findings”in the national security area for covert operations be published in the Federal Register. In any event, I would be interested in seeing the analysis that would support the notion that such a finding has to be put into writing.

But even if a finding does have to be put into writing, does the entire Iran-Contra illegality boil down to this? Is Mr. Freedman’s point that, yes, the president did authorize a November shipment of Hawks to Iran as the statute requires, and it was clearly the intent of the statute to ensure actual presidential authorization rather than [by] some subordinate, but he didn’t have a piece of paper close by? Is that all that we’ve come to, in terms of what the illegality of the Iran ““ Contra matter was? Is that what Mr. Freedman is renting his garments about over there?

LEVANTROSSER: Would you please identify yourself, and be brief with your question.

Q: My name is James O’Hara, and I come here as a private citizen, an opinionated Irishman from New Jersey, unattached to any organization, group, or school. My discussion of Iran-Contra is usually an argument in the office or in a gin mill with someone about the whole crux of the scandal. And the first thing I always ask the guy that I’m arguing with is, “Do you know what the Boland Amendment was?”And they usually say, “No.”Now, maybe it’s a reflection of who I hang out with, but I always say, “Do you know the Boland Amendment was named after a liberal Democratic Congressman named Edward Boland?”

And what I would like the panel to put on the line, or to bring forth, is how the Boland Amendment became law. This Congressman Boland didn’t walk into the Oval Office and sit down with President Reagan and say, “This is the Boland Amendment, sir; it’s going to preclude you or anyone in the government from aiding the Nicaraguan Freedom Fighters ““ the Contras. Would you please sign it?”No. From my understanding of how the Boland Amendment was enacted ““ and I’d like Mr. Elliott Abrams or Mr. Charles Cooper to maybe fill us in more ““ it was attached to a ten-pound document for the fiscal 1985 budget that President Reagan signed. He didn’t sign it as an individual law, and I think to the layman ““ to the guy that’s out golfing or fishing today who’s not here ““ it’s news to him, and I’d just like their comments on that.

LEVANTROSSER: Well, I think you pretty much answered your own question, but to each of the two gentlemen, would you make a brief comment, if you will, please?

ABRAMS: Maybe we should have had a paper on this panel ““ I would have loved to read it ““ called, “Why Did the President Sign It into Law?”At the very end of the administration, in “˜88, I remember we had a last staff meeting at the State Department, and Secretary Shultz noted there had been encroachment on executive power. The Boland Amendment is one example, but there are a number of others. And Abe Sofaer, who was the legal advisor, commented, “Yeah, but every one of those was signed into law.”And I think there is a real question as to why the president didn’t veto each of those. I think, in fact, that President Bush was better at defending the executive from the encroachments by Congress. And I think it was a mistake not to veto those bills.

LEVANTROSSER: Mr. Cooper, do you want to add something briefly?

COOPER: Only this: I think that our questioner has made a very important contribution to understanding the Boland Amendment and exactly how it did become law. It wasn’t a freestanding statute, for that could not have survived a presidential veto. It was an obscure provision in a ten ““ pound omnibus budget resolution, without which the entire federal government would have shut down. This was Congress’ routine practice during the Reagan years, if you will recall ““ something that the Office of Legal Counsel was very heavily involved in ““ because every year, when it came time for the budget resolution to be passed, we made preparations to shut the government down. Government must stop, obviously, without an appropriation. And Congress sent the entire federal government’s budget to the president in one ten ““ pound package, daring him to veto the whole thing because he didn’t like the Boland Amendment, or any of scores of other provisions that Congress was careful to include in that omnibus bill, which it viewed as virtually veto ““ proof. And, in political terms, it was. The budget resolution contained scores of provisions that Congress knew would never survive presidential scrutiny if they were sent up there by themselves.

LEVANTROSSER: Thank you. One other comment by Mr. Danner.

DANNER: I’m reminded of Al Haig, who used to say, whenever anyone mentioned the War Powers Resolution, “Well, you know it only passed by one vote,”as if that made it less of a law. (Actually, it passed over President Nixon’s veto ““ that is, by a two-thirds vote.) The Boland Amendment passed; it was the law of the land. You can criticize it for not being specific enough, perhaps for not specifying that the National Security Council was included in its strictures. There are various grounds on which you can criticize the Boland Amendment, but the fact that it was included in a ten-pound ““ or however-many-pound ““ resolution, I don’t believe is one of them.

And I want to add one thing to Mr. Cooper’s last comment, in which he asked, “Is this what it all comes down to? This is the great crime ““ that the President didn’t put in writing the finding?”I agree that we focused much too much, and the Congress focused much too much, on the diversion. As Oliver North later put it in his memoirs (borrowing, I think, from Christopher Hitchens), the diversion was the diversion. The arms sale to Iran was much more interesting and, I think, much more important. I think what made it dangerous and bad ““ appalling would perhaps be the right word ““ is that President Reagan made a decision to send arms in secret to a regime he had repeatedly denounced, a regime he had put on the list of terrorist nations. He made this decision knowing full well he was not going to reveal his finding ““ oral, written, or otherwise ““ to Congress in the near future. He wasn’t going to reveal it because, had he revealed it, the policy would have gone bottom-up immediately, for the simple reason that it was politically unsustainable. That was the crime ““ whether you want to call it “legal”crime or a “political”crime; that was the crime inherent in that sale of arms. And it was that sort of crime that the Intelligence Oversight Act and other laws were intended to prevent.

LEVANTROSSER: Next gentleman, please.

Q: There have been reports of renewed militarism by the Sandinistas in Nicaragua and increased Contra activity. I was wondering if one of the panelists could elaborate on the current situation, as well as the implications for national policy.

LEVANTROSSER: I think we’ve lost Mr. Abrams, but is anyone else here prepared to speak to that?

SMIST: I think the quick response to that is, in reading the New York Times here in New York the last three days, I’ve seen almost no reference at all to any country from Central America. Nicaragua has dropped off the scope, and for all the time and attention that was put into it in the 1980s, Americans today really don’t give a damn what happens there. And that’s very sad.

LEVANTROSSER: Okay, we have two or three minutes. Try to handle it very briefly. Sir, your name?

Q: My name is Tobias Bermant. I come here as a representative only of my generation. I am a little bit surprised at Mr. Meiers’ and others’ comparisons of what FDR did, and I will make the addition of what Bush did. In those two wars, we were fighting, visibly, aggression against nation states ““ legitimate nation states ““ who were our allies and sought our help. It wasn’t a dirty, secret war; it was very visible. And I remember all through high school and college debating the extent to which the United States should aid its allies. Bush did the same thing in Kuwait. It was a question of getting United Nations’ support. Now, the distinction ““ and I’ll ask my question after that ““ with the exception of the Vietnam War, that the Reagan legacy made is about military intervention in the internal affairs of a country before, or even after, any overt aggression against anybody else, least of all the United States. That was true of Nicaragua, El Salvador, Panama, and Grenada. And the question I have is: How do you reconcile that with the War Powers of Congress and the presidency, which I always understood to be declared wars against aggression and in self ““ defense and not intervention, and the United Nations’ charter, which similarly allows a nation only to go to war to prevent aggression? Are those not the open, legal questions of the Reagan legacy?

LEVANTROSSER: Would anyone like to respond to that?

FREEDMAN: I would, since I seem to be one of the few people who believes that there is no question that the War Powers Resolution is constitutional. Intriguingly, both Mr. Abrams and Mr. Cooper take the position that they abided by Boland, and said explicitly here that it was constitutional, and if anybody broke it, they didn’t know about it, and that was a terrible crime and that was illegal. Now, also intriguingly, what Mr. Cooper then says is, “Ah, so does the whole crime of Iran-Contra come down to the failure to do a written finding in a timely fashion?”Well, that in itself would have been serious enough since, as we have said, those statutes were put in place for a purpose. But, no, what I said was, it was the belief in the White House that that was a crime that put the president at political risk, which drove the succeeding layers of response, including the ones that Lawrence Walsh is now investigating as a cover ““ up. And that’s why that issue is so central. With respect, finally, to congressional control over policy, much as we make nasty remarks about Congress, I think the indication of the future is in an excellent recent article in the Heritage Foundation Journal, which exhorts conservatives: “Look, there is no future in beating up on Congress in foreign policy. The right way to go is to convince Congress to adopt our positions on foreign policy.”And, of course, in a democratic country, that is the right prescription.

LEVANTROSSER: Okay, sir, you have the last question. Your name?

Q: I’m John Prados. I’m an historian. I’m sorry Mr. Ledeen has left, because I think he does this audience a serious disservice by equating the British operation in the United States in 1939-1941 with the Iran-Contra affair. In fact, that was an instance of a country allowing another country to conduct intelligence operations on its territory; that kind of thing is commonly done ““ it’s done all the time. It’s being done today by many countries on the territory of the United States, and by the United States on the territory of many other countries. And no one suggests that anyone should be impeached for doing something like that. These two things are not of the same character. Now, my question is for Mr. Cooper, and it is this: Even if all of Iran-Contra was only a matter of Mr. Reagan’s decision to send weapons to Iran in September 1985 by a finding, isn’t that finding more than just a question of a decision on a minor arms sale? We’re talking here about the procedures for approval of covert operations in the United States. It’s a matter of War Powers; it’s a constitutional matter. It’s not just a matter of approval of a single anus sale. How would you, if you were president today, change or not change the provisions of the United States Constitution for War Powers, for covert operations, for these different kinds of activities?

LEVANTROSSER: Mr. Cooper, you get the last, brief word.

COOPER: I’m thankful for that. The National Security Act requires that any time the CIA is used in a covert operation, the president must “find””“ hence the term “finding””“ that it is in the national interest before the action can commence. That’s all it says. It doesn’t say it has to be in writing. It certainly isn’t a criminal statute, notwithstanding Mr. Freedman’s persistent effort to characterize a violation of it as a crime. It is in no sense a crime. However, if Mr. Freedman is right, and the act does require a written finding ““ notwithstanding the conclusion that I’ve come to ““ the president’s failure to do so would indeed constitute a violation of the National Security Act. The thing that, to me, is important, however, is to keep straight the difference between policy blunders ““ as Mr. Ledeen has suggested, and I think Mr. Danner has, in his last remarks, correctly noted ““ and crimes. And I am among those true loyalists to President Reagan, who thinks that the transfer of arms to Iran was indeed an unwise policy. But there is a great distance between unwise policies, which can be debated on their merit, and calling an administration or a president outlaws, or concluding that legal prohibitions or restrictions on the adoption of that policy have been deliberately violated. That is a much different matter. And that’s why so ““ called legal scholars and others endeavor so strenuously to say that these were legal violations. To the extent that they were legal violations, I repeat, they were done not as a matter of policy, not with respect to Ronald Reagan’s deliberate decisions.

LEVANTROSSER: I want to thank all of the members of the panel, including those who departed early for other engagements. I think they have contributed to a better understanding of this situation in our minds. And I hope you have a better chance now to evaluate it for yourselves.