Contragate, the Constitution and Covert Action – PDF

ContragateTV ContrgateContragate, the Constitution and Covert Action

DRAFT

INTRODUCTION

Many of us are disappointed and troubled by the course of the Iran-contragate hearings. The hearings are revealing the facts regarding the administration’s illegal sales of arms to Iran and the illegal funding of the contras as well as the massive attempt to cover-up these illegalities. Yet, these facts are not having the impact many of us hoped for and expected. The President has been damagedbut probably not sufficiently to stop his next nomination to the Supreme Court. There is no real discussion of impeachment. There is no foreseeable change in U.S. policy toward Nicaragua; the administration still hopes to fund the contras during the next fiscal year. And there has been no examination whatsoever of a U.S. policy bent on destroying national liberation struggles throughout the world. In fact, during the course of the hearings the Intelligence Committees of the Congress favorably reviewed several new covert operations.

THE PRESIDENT’S DEFENSE: A CONSTITUTIONAL CRISIS

Despite the dissatisfaction many of us feel with the course of the hearings we must not sell ourselves short or become defeatist. It must be remembered that the administration was forced into its illegal plan to aid the contras at least, in part, because of the work of activists in the U.S. who made continued support for the contras untenable.

It must also be understood that the administration and the nation are going through a profound crisis, a crisis which presents unique and historical opportunities for those who seek change in U.S. policies. This does not often happen; it is a period that must be taken advantage of. It is a crisis involving lying to Congress, falsifying records and chronologies, misleading the Attorney General, destroying key documents and misusing tax exemptions.

It is a constitutional crisis of the most serious sort. The President in defense of his actions has challenged the most fundamental precepts of the constitution. He has claimed the right to disregard laws passed by Congress, fight wars contrary to Congressional prohibitions and involve himself with privateers. Separation of powers and the system of checks and balances, the bedrock of the U.S. constitutional system, are considered by the President to be mere formalities waived aside in the interests of what he deems to be national security. Congress and the media seek to avoid dealing with this issue.

The President has offered three defenses to the revelations concerning arming and directing the contras. First, he claims he did not know and did not approve of the operation. Second, he says that even if he knew, it was not a violation of law and not a violation of the Boland amendment. Third, and most serious, he asserts his authority over foreign affairs, includes the war power and that Congress cannot limit him whether through the Boland amendment or otherwise.

His first defense – that he did not know of the efforts to arr the contras – is untenable in light of the evidence revealed at the hearings. In fact, he has been exposed as lying about his role in and knowledge of the raising of private and foreign monies for the contras at a time when such activities were prohibited by the Congress. The Tower Commission painted a picture of a President disengaged and remote who was not aware of the manner in which his subordinates carried out the funding of the contras. The President himself, at the commencement of the hearings, said “I have no detailed information.”

The hearings revealed a very different President, a president who encouraged aid to the contras. Former national advisor Robert McFarlane testified to briefing the President “dozens of times” about what he and his subordinates were doing to fund the contras. The President spoke with Saudi Arabia’s King Fahd about Saudi multi-million dollar contributions to the contras. Shortly after this meeting, the Saudis doubled their contribution to the contras to two million dollars per month. Frequently, the President was asked to meet with major fundraisers or give talks to potential donors.

To deflect attention from his role as described above, the President has claimed that the only issue of concern at the hearings is whether or not he had knowledge of the diversion of funds from the Iran arms sales to the contras. He has asserted a lack of knowledge regarding the diversion. As is obvious from the above discussion, this is not the only question. But even on this issue, there is evidence showing he may have had knowledge of the diversion and that elaborate measures have been taken to cover-up his knowledge.

On November 22, 1986 Justice Department investigators found in North’s files a five page memo from North detailing the steps necessary to divert 12 million dollars from Iran arms sales to the contras. The document was seen by National Security Advisor Poindexter and designed for Presidential approval or disapproval. When found, the document did not have attached to it the cover letter indicating that it went to the President, but North, when questioned, asked whether it had been found with a cover letter. The document was found the day after North had shredded hundreds of documents. It may be too late to ever prove conclusively that the document went to the President, but the indications are that it did.

As a result of these revelations and admissions the Presi­dent can no longer defend himself very well on the facts. He was the author of the policy to aid the contras, encouraged and planned it, and was a key participant. Congress has found the smoking gun that it looked for so hard and long during the Watergate hearings.

The President now relies upon a second defense. Although he and the National Security Council (NSC) raised funds and otherwise assisted the contras during a period when the Boland Amendment’s prohibitions were in effect, he argues that the law had no applicability to him and the NSC. This is an argument cut from whole cloth. Yet Congress and the media take this assertion seriously. If he is wrong, and he is, impeachment should follow as a matter of course.

The Boland Amendment, at least the legislation involved in the present scandal, provided that no monies available to the “CIA, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities” could be used to support, directly or indirectly, the contras. The Amendment was in affect for two fiscal years – from October 1984 through September 1986. For the latter half of this period, from approximately August 1985 until October 1986, the Boland Amend­ment contained the additional prohibition on soliciting funds from other countries for the contras; at least to the extent such solicitation was based upon an express or implied understanding that the donor country would receive military assistance from the U.S.

It was during this two year period when North, the CIA and others were carrying out the supply operation and when Carl Channell, with the President’s help, was soliciting money for the operations. Likewise, the President’s approach to the Saudis took place when such activities were illegal.

The President’s chief argument to escape from under the prohibitions of the Boland Amendment is that neither the NSC nor the President are agencies or entities involved in intelligence activities and that amendment, thus, has no application to them. The President claims he is supported in this argument by an opinion issued by an attorney with the Intelligence Oversight Board. The attorney who drafted the opinion admitted that he had spent only 5 minutes asking North about his activities and that North was a friend. The attorney was a novice who had flunked the bar exam four times.

The administration took an entirely different position on the meaning of the Boland Amendment before Congress in 1985. At that time both National Security Advisor McFarlane and Asst. Secretary Langhorne C. Motley assured Congress that the National Security Council and the entire administration were obeying the Boland Amendment’s prohibitions and that there was no assistance to the contras, direct or indirect. As Langhorne C. Motley stated:

Nobody is trying to play games with you or any other member of Congress. That resolution stands, and it will continue to stand; and it says no direct or indirect. And that is pretty plain English; it does not have to be written by any bright young lawyers. And we are going to comply with that.

Congress was also assured that monies were not being solicited from other countries. Abrams knowingly lied about this to Congress.

There is also no foundation for the President’s claim that the NSC is not an intelligence agency or entity. The statutory definition of an intelligence agency is “any department, agency or other entity of the United States involved in intelligence-related activities.” The functions of the NSC are set forth in an Executive Order signed by President Reagan in 1981:

The NSC shall act as the highest Executive Branch entity that provides review of, guidance for and direction to the conduct of all national foreign intelligence, counterin­telligence, and special activate, and attendant policies and programs.

In addition the NSC reviews all covert operations-and submits recommendations to the President for approval.

In view of the NSC’s role in directing all intelligence gathering, it is absurd to argue that it is not involved in “intelligence-related activities.” Obviously, Congress meant to cover the NSC in the Boland Amendment prohibitions. Any activities undertaken by it or its employees to support the contras were completely unauthorized.

The only remaining question is whether the President was covered by the prohibitions. To the extent he cooperated with, assisted, approved or directed the NSC in its contra-related activities he is a co-conspirator and is covered. It is known that he engaged in some or all of these activities. It is also known that he solicited funds from the Saudis and that this prohibition attached to all government officials.

The patent absurdity of the President’s argument that he and the NSC were not covered, can be seen in the following example. Congress desired to end all support to the contras. It outlawed aid from those agencies authorized to engage in covert operations of the type that were involved in Nicaragua. It did not need to outlaw aid from entities that were not permitted to assist covert operations. So, for example, there was no need for the law to cover the Department of Health, Education and Welfare or every other agency of the government. The President was never authorized on his own to aid or assist covert operations. There was no need for Congress to cover him. If the President’s argument is accepted, it would mean that HEW or any other entity of the U.S. not explicitly named by Congress could aid the contras.

The President, recognizing the frivolousness of his factual and legal position, relies in the end on what he calls his inherent power over foreign affairs which he asserts Congress cannot limit. This, according to him includes the power to assist the contras or, in other words, engage in war. In other words, the Boland Amendment limit his powers. This last defense is most dangerous. it is an assertion that the President is above the law and is contrary to the text of the Constitution and the clear intention of the framers. At a time when Attorney General Meese is telling us that the Constitution should have the meaning it was intended to have 200 years ago, this Presidential claim is especially spurious.

The Constitution could not be clearer on who has the war powers. Congress is given the power to declare war, grant letters of marque and reprisal, raise, support and regulate the armed forces and organize the militia. On the other hand, the President is simply named Commander-in-Chief and given the power to commission officers. He has the authority to conduct wars authorized or declared by Congress, but no power to start or continue them without congressional approval.

The drafting of the war powers clauses of the Constitution confirm the limited nature of the President’s role. The framers considered the war power to be extremely dangerous and particularly as a young and weak nation the U.S. had a strong interest in maintaining peace and neutrality. The framers felt that Congress would be less likely to get the nation into war than a President who might do so for self-aggrandizement. Requiring both houses of Congress to agree on war would make going to war difficult; as George Mason, one of the framers stated, he was “…for clogging rather than facilitating war, [but] for facilitating peace.” The only exception to the requirement that the Congress initiate war is the President’s authority to repel sudden attacks–an obvious need when Congress would have no time to meet.

Presidents have on more to initiate or continue wars without Congressional authority. Normally an excuse was given such as the need to protect U.S. lives and property. Assertions analogous to Reagan’s — that the President alone has the authority to make war against another country are few. President Truman made such a claim in Korea; Presidents Johnson and Nixon did so with regard to the Viet-Nam war. In one important respect President Reagan’s assertion of inherent authority to make war is novel. No President ever claimed that he, independent of Congress and contrary to its will, could raise the money to arm an army and fight wars completely on his own. It was hoped by many in Congress that such exercises of power were ended by passage of the War Powers Resolution, the reporting requirements of the Foreign Assistance Act and the Hughes-Ryan amendment. These latter Acts gave Congress some authority over the CIA. Because the President is asserting such authority despite this recent legislation and the Constitution, his claims represent a serious undermining of the Constitution as well as a grave danger.

Under the normal functioning of the Constitution the Con­gress need not pass a law restricting Presidential or CIA spending for a war. The Boland Amendment should not have been necessary. To engage in war, as has been said, some form of Congressional assent is necessary. The President as a creature of the Constitution has only the powers granted him by that document. His powers are particularly narrow in areas where authority is given to another branch.

To the extent the President can make any argument that there is loophole for small wars or war when U.S. soldiers are not doing the fighting (and incidently this argument is completely without foundation) the Boland Amendment removes even that spurious claim. It expresses a clear congressional intent to stop the support and funding of the contras. It specifies very clearly what is and is not allowed. It is one thing for the President to assert some authority when Congress has remained silent. It is quite another in the face of Congressional disap­proval. That is a most serious violation of the fundamental tenets of the constitution and a serious undermining of the separation of powers.

President Truman made an analogous argument when he seized and operated the steel mills of the nation in order to avoid a strike that he believed would cripple the U.S. war effort in Korea. Like President Reagan, Truman asserted that he had the inherent authority to seize the steel mills to protect the national security and prosecute the war. He claimed he did not need congressional authority to do so. The Supreme Court de­clared the seizure unconstitutional. Justice Jackson pointed out that whatever the President’s powers were when Congress had approved of his actions, Presidential authority to seize the mills, where Congress had disapproved was at its lowest ebb. To sustain seizure of the mills — or by analogy, contra funding the President would need to demonstrate that the Constitution gave him alone the particular power and that the Congress was disabled from acting. This is obviously not so with regard to the war powers.

IMPEACHMENT

Despite the serious nature of the President’s undermining of the Constitution, no one of the Select Committee has yet to utter the word impeachment. This is not for lack of evidence.

There are ample grounds for impeachment of the President and other high executive officials. Although only a year and one half is left in the President’s term, impeachment is not academ­ic. This administration should not be permitted to make de­cisions that have a permanent and adverse effect on our lives and those of others throughout the world. Impeachment proceedings would stop appointments to the Supreme Court; they might slow the war against Nicaragua and other covert operations now in the planning stage. They would expose the secret government that has taken over the White House. In the longer term impeachment would demonstrate that limitations on the President contained in laws and in the Constitution have meaning and cannot be violated with impunity. Impeachment hearings might also give us an opportunity to expose the deeper crimes of this and other administrations the making of aggressive war against countries struggling for self determination.

Article II, Section 4 of the Constitution provides that “the President, Vice President and all civil officers of the United States shall be removed from Office on Impeachment for, or Conviction of Treason, Bribery or other high Crimes and Misdemeanors.” An impeachable offense need not be a crime or an indictable offense. As Cooley, in his Principles of Constitu­tional Law stated:

They [high crimes and misdemeanors] are not necessarily offenses against the general laws… It is often found that offences of a very serious nature by high officers are not offences against the criminal code, but consist in abuses or betrayals of trust, or inexcusable neglects of duty…1

Thus, if the President or other high executive officials used their authority to violate the Constitution or other law of the land, impeachment’is appropriate. Pomeroy, in his treatise Constitutional Law writes that a President who has “knowingly and intentionally violated the express terms of the Constitution, or of a statute which charged him with an official duty…” is impeachable.2

There are are numerous grounds upon which the House of Representatives can draw up articles of impeachment. Representative Gonzalez of the House of Representative has taken an important first step and introduced a resolution of impeachment. It lists numerous violations of law in connection with the President’s failure to follow various statutes regarding the shipment of Hawk and TOW missiles to Iran and cites the President’s knowledge of or failure to prevent the diversion of funds to Nicaragua. However, both future public discussion and bills of impeachment should include more serious charges.

The President takes an oath to “preserve, protect and defend the Constitution.” This includes the Constitutional obligation “to take care that the Laws be faithfully executed.” The President cannot decide for himself which laws to obey. So, for example, his claim that the Boland Amendment unconstitutionally restricts his powers and that he need not have obeyed it is not a decision he was authorized to make; that decision is left to the courts. The President must obey the law until the courts permit him to do otherwise.

The claim that the President has the inherent power to continue the war against Nicaragua is an assertion that he has powers superior to and that override the Constitution. Such an assertion of executive authority must be permitted to stand. Impeachment is necessary if we are to have a President with limited powers who remains a creature of the Constitution. Assertions of inherent authority in the name of national security lead to imposition of martial law at home and war abroad. It is but a short step to the justifications used by the Argentinian generals to round up and disappear thousands.of Argentinian citizens. Recent revelations concerning a plan for martial law to combat civil unrest demonstrate that these fears are not fanciful.

While the President and others have committed serious violations of the Constitution, the most egregious crime they have committed is the international crime of initiating a war of aggression. A war of aggression constitutes a Crime against Peace which is a fundamental offense against the laws of civilization. The Nuremberg Judgment emphasized the serious nature of a crime against peace:

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

Some people may raise questions as to whether a crime against peace is an impeachable offense. Professor Falk answered this a number of years ago in discussing Nixon’s impeachment. He pointed out that impeachment should include the war of aggression Nixon carried out against Viet-Nam, Laos and Cambodia.

But surely the Constitution is flexible enough to embrace a range of activities that endanger national, even human survival and have long been reduced to legal form.3

There can be no real dispute regarding the President’s initiation of a war of aggression against Nicaragua. The World Court, in its June 1986 decision, ruled that by training, arming, equipping, funding and supplying the contras, the U.S. violated its obligations under customary international law not to use force against another state. In other words, the U.S. committed a war crime, a Crime against Peace, by its actions against Nicaragua. The World Court ordered the U.S. to immediately refrain and desist from all acts of war against Nicaragua.

Unfortunately, neither the President nor the Congress has done so. The Congress, by voting 100 million dollars in aid is in violation of international law and the World Court judgment. For this reason it is extremely unlikely that Congress will ever consider impeachment on the real reason for the present crisis — the illegal war against Nicaragua.

WHY THE HEARINGS HAVE FAILED

We must ask why the hearings have been such a bloodless affair. The hard questions are not asked. The serious constitutional issues are not addressed. Members of the Select Committee, particularly the Democrats, go out of their way to stress the bipartisan, neutral and non-prosecutorial nature of the hearings. The Congress is not blind. It is aware of the serious violations of law and violations of the Constitution committed by the President. It knows that the President is asserting unprecedented authority. Yet not a word about impeachment from the Select Committee.

The primary answer to the question is political and not legal. Although many of us would like to believe there are serious divisions in Congress regarding our Nicaragua policy, this is not so. While there are divisions about supporting the contras, at least at the present time, there is near unanimity about the nature of the Nicaraguan government and the importance to U.S. interests of changing that government. It was a Democratically controlled House that approved military assistance to the contras. The only debate in Congress concerns the method for making the Sandinistas cry “uncle.” Should the U.S. employ only economic and diplomatic pressure or military means as well?

The members of the Select Committee and other members of Congress bend over backwards to detail their abhorrence of the Sandinistas and the Nicaraguan government. The majority of the Select Committee voted in favor of contra aid. Legislation passed by Congress concerning Nicaragua reflects this consensus.

Frequently, it passes legislation outlining the alleged horrors of the Sandinistas. So, for example, even the legis­lation cutting off military aid to the contras for fiscal year 1986, the Boland Amendment, outlined the following supposed Sandinista horribles: Ortega’s 1985 trip to the Soviet Union; Nicaragua’s close military ties to Cuba, the Soviet Union and its Warsaw pact allies; the alleged failure to reduce Cuban military advisers in Nicaragua; the continuing military buildup considered threatening to Nicaragua’s neighbors; the curtailment of individual liberties, political expression, freedom of worship, and the independence of the media; the subordination of the military, judicial and internal security functions to the party and the efforts of the Sandinistas to spread its influence and ideology.

The consensus about Nicaragua has not changed despite the revelations at the hearings. In May 1987 the Democratically controlled House defeated legislation prohibiting military maneuvers in Honduras and Costa Rica and rejected an amendment prohibiting the building of military roads and airports in Honduras; roads and airports that are used to support the contras. In June 1981 the House passed the Walker-Smith Amendment limiting travel to Nicaragua by U.S. citizens if the purpose of the travel is to assist or aid the military operations of the government of Nicaragua. In opposing this Amendment, liberals who are against aid to the contras, found it necessary to condemn the Sandinistas.

As long as there is a consensus regarding the nature of the Nicaraguan government, it will be difficult to seriously modify U.S. policy. With a consensus about Nicaragua, the actions of the President, the NSC and the CIA are viewed as an attempt to achieve goals shared by Congress and many Americans. While the law and the Constitution may have been violated, they were violated for a good cause. Against such a backdrop, it is no wonder that talk of impeachment is non-existent.

Nor can it be forgotten that both before and after the two year ban on aid contained in the Boland amendment, Congress itself funded the contras. This year they have given the contras 100 million dollars. The goal of the President in funding the contras is hardly incompatible with the majority view of Con­gress. This means that many in Congress do not view the President, North or the CIA as having engaged in anything particularly evil. In fact, they were guilty at most of an excess of patriotism.

The consensus regarding Nicaragua is part of a larger consensus among the elites on the necessity of preventing or rolling back” communism. This consensus insures that the damage from Iran-contragate will be quite limited. As the editors of Monthly Review recently stated, this “global coun­ter-revolutionary policy and role …have dominated every government since the Second World War.” In his book The CIA: A  Forgotten History, William Blum documents CIA interventions in forty-nine countries since the end of World War II. Many of us are familiar with the most well known of these, e.g. The Congo, Chile, Guatemala, Iran, Jamaica, Grenada, El Salvador.

This policy on the need to prevent and defeat national liberation struggles and struggles for self determination limits the investigation in Washington to merely addressing some of the excesses of the policy and not the policy itself. It also means that institutions which carry out the program must be left substantially intact. There will be no heads rolling at the CIA as there were under President Carter. This is why, for example, Senator Boren insists that there was no systematic institutional involvement by the CIA. It is why the Tower Commission concludes that their “review validates the current National Security Council system.” Indeed, a lesson may have been learned from Watergate; a lesson about how far and deep and investigation should be permitted to go.

The Reagan Administration, however, has given us something different than we had under Carter. Reagan has returned us to the period of the 60’s and 70’s when covert operations were the normal course. We had hoped that at least the worst excesses of that period were over after the revelations regarding the attempts to kill Fidel Castro and the successful effort to overthrow Allende. Recently, Alfonso Chardy of the Miami Herald documented 50 such actions happening world-wide. Some of these have been exposed such as the efforts to support the rebels in Afghanistan, Angola, Cambodia and, of course, Nicaragua. Others are less well-known and include operations in Ethiopia, Chad, Guatemala, El Salvador and even the United States. In the U.S., through the Office of Public Diplomacy, the NSC conducted a three year propaganda campaign to influence media coverage including so called leaks that reflected badly on Nicaragua. The CIA, FBI and NSC have also cooperated to spy on and gather intelligence on those opposing the administration policies.

In addition to increased reliance on covert operations, this administration has used the NSC to carry out some of these operations. Chardy in his article stated that the NSC has engaged in at least ten such covert operations. We cannot look at the Nicaragua policy in isolation. It is part of a larger global policy to push back revolutionary change, and that policy is carried out covertly by the NSC to keep it hidden from public debate. Activities undertaken by the NSC have the added benefit of avoiding Congressional reporting requirements placed on the CIA. President Reagan has truly established a government of the Executive, by the Executive and for the Executive.

CONCLUSION

The Iran-contragate scandal demonstrates the erosion of Congressional authority and the unwarranted enhancement of Presidential powers that have occurred contrary to the Constitution. This increased power, a power exercised in secret without either Congressional accountability or public debate, poses grave dangers to peoples abroad and to Americans at home.

We have seen the damage this power can cause abroad. The dead and injured in Nicaragua, in the Mideast and elsewhere are a testament to the costs of this policy. Although we are faced with a constitutional crisis we must not lose sight of the fact that the scandal is but an illegality in a larger illegality–the global policy of crushing governments and movements that seek to determine their own economic and political future.

There are dangers at home as well. To the extent the Constitution guarantees democracy and a republican form of government, that too is threatened. To the extent government officials must obey the rule of law and not carry out actions based on their views of the national security, that too is at risk. A recent plan for martial law and the detention of American citizens shows just how dangerous the present crisis is. The plan, which Colonel North was apparently involved in drafting, sets forth these draconian measures in the event of widespread internal opposition to a U.S. invasion of a third country.

Already we have seen the effects of this covert war policy at home. FBI spying upon and the disruption of the work of individuals and groups opposing U.S. actions in Central America are again commonplace. Ideas differing from those in power are suppressed. Speakers from other countries are denied admittance to the U.S. The policy has created millions of immigrants who receive arbitrary, discriminatory and unlawful treatment in the U.S. A non-democratic, criminal policy abroad bends democracy at home and leaves us open to great danger.

Hopefully the Iran-contragate scandal will embolden people to address the real issues of concern. It is an opportune moment for doing so. Although there is a general consensus in Congress and among the elites about foreign policy and Nicaragua, there are disagreements. The scandal is deepening these divisions. Laws have been broken, the Constitution disregarded and Congress snubbed.

1Cooley, Principles of Constitutional Law Section 9, p. 205, 4th Edition (1981).

2Pomery, Constitutional Law, Sec. 719, pp. 484-485, 3rd Edition.

3Richard A. Falk, “Why Impeachment,” The New Republic, May 1, 1971 at 13.