Richard cheney presidential_prerogative


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Richard cheney presidential_prerogative

  1. 1. REPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRANCONTRA AFFAIRWith the Minority ViewsAbridged EditionDaniel K. lnouye, ChairmanSenate Select CommiffeeLee H. Hamilton, ChairmanHouse Select CommitteeEdited and with an Introduction byJoel Brinkley and Stephen Engelberg ? 3 /f2?7hn BOOKS
  2. 2. Copyright © 1988 by Random House, Inc. All rights reserved under International and Pan-American Copyr ight Conventions. Published in the United States by Times Books, a division of Rando m House, Inc, New York, and simultaneously in Canada by Random House of Canada Limited, Toronto. Copyright is not claimed in the United States publication embod ied in this work.The Cast of Characters and Iran-Contra Chronology were publish edpreviously in a slightly altered form in The New York Times.ISBN; 0—8129—1695—6Book design by Karin BattenManufactured in the United States of America98765432First Edition
  3. 3. Minority Report of Senator James McClureRepresentative Dick Cheney of Idaho of Wyoming Senator Orrin HatchRepresentative William S. Broomfield of Utah of MichiganRepresentative Henry J. Hyde of flhinoisRepresentative Jim Courter of New JerseyRepresentative Bill McCoIlum of FloridaRepresentative Michael DeWine of Ohio Members, Senate Select Committee onMembers, House Select Committee to Secret Military Assistance to Iran and the Investigate Covert Arms Transactions Nicaraguan Opposition with iran 371
  4. 4. Minority Staff Thomas R. Smeeton Minority Staff Director George W. Van Cleve Chief Minority Counsel Richard J. Leon Deputy Chief Minority CounselAssociate Minority Counsel Robert W, Genzman Minority Editor/Writer Michael J.MalbinAssistant Minority Counsel Kenneth R. Buck Minority Esecutive Assistant Molly W. TullyMinority Research Director Bruce Fein Minority Staff Assistant Margaret W. DillenburgAssociate Staff House of RepresentativesRepresentative Broomfield Steven K Berry - David S. AddingtonRepresentative Hyde Diane S. DornanRepresentative Courter Dennis E. TetiRepresentative McCollum Tina L WestbyRepresentative DeWine Nicholas P., WiseAssociate Staff SenateSenator McClure Jack GerardSenator Hatch Dee Benson372
  5. 5. 2 -H00z
  6. 6. CHAPTER 1 hitroductionPresident Reagan and his staff made mis they did, it is important to understand thetakes in the Iran-Contra Affair. It is impor context within which they acted. The decitant at the outset, however, to note that the sions we have been investigating grew outPresident himself has already taken the hard of:step of acknowledging his mistakes andreacting precisely to correct what went — Efforts to pursue important U.S. interestswrong. He has directed the National Security both in Central America and in the MidCouncil staff not to engage in covert opera dle East;tions. He has changed the procedures for — A compassionate, but disproportionate,notifying Congress when an intelligence ac concern for the fate of American citizenstivity does take place. Finally, he has in held hostage in Lebanon by terrorists,stalled people with seasoned judgment to be including one CIA station chief who wasWhite House Chief of Staff, National Secu killed as a result of torture;rity Adviser, and Director of Central Intelli — A legitimate frustration with abuses ofgence. power and irresolution by the legislative The bottom line, however, is that the mis branch; andtakes of the Iran-Contra Affair were just — An equally legitimate frustration withthat—mistakes in judgment, and nothing leaks of sensitive national security secretsmore. There was no constitutional crisis, no coming out of both Congress and the exsystematic disrespect for “the rule of law,” ecutive grand conspiracy, and no Administration-wide dishonesty or coverup. In fact, the Understanding this context can help explainevidence will not support any of the more and mitigate the resulting mistakes. It doeshysterical conclusions the Committees’ Re not explain them away, or excuse their havport tries to reach. ing happened. No one in the government was actingout of corrupt motives. To understand what 375
  7. 7. I The Committees’ Report and the amination of legislative-executive branch re Ongoing Battle lations in foreign policy was sorely needed. It still is. Judgments about the Iran-Contra Af The excesses of the Committees’ Report are fair ultimately must rest upon one’s views reflections of something far more profound. about the proper roles of Congress and the Deeper than the specifics of the Iran-Contra President in foreign policy. There were many Affair lies an underlying and festering insti statements during the public hearings, for tutional wound these Committees have been example, about the rule of law. But the fun unwilling to face. In order to support rhetori damental law of the land is the Constitution. cal overstatements about democracy and the Unconstitutional statutes violate the rule of rule of law, the Committees have rested their law every bit as much as do willful violations case upon an aggrandizing theory of Con of constitutional statutes. It is essential, gress’ foreign policy powers that is itself part therefore, to frame any discussion of what of the problem. Rather than seeking to heal, happened with a proper analysis of the Con the Committees’ hearings and Report betray stitutional allocation of legislative and execu an attitude that we fear will make matters tive power in foreign affairs. worse. The attitude is particularly regretta The country’s future security depends ble in light of the unprecedented steps the upon a modus vivendi in which each branch President took to cooperate with the Com recognizes the other’s legitimate and consti mittees, and in light of the actions he already tutionally sanctioned sphere of activity. Con has taken to correct past errors. gress must recognize that an effective foreign A substantial number of the mistakes of policy requires, and the Constitution man the Iran-Contra Affair resulted directly from dates, the President to be the country’s for an ongoing state of political guerrilla warfare eign policy leader. At the same time, the over foreign policy between the legislative President must recognize that his preemi and executive branches. We would include in nence rests upon personal leadership, public this category the excessive secrecy of the Iran education, political support, and interbranch initiative that resulted from a history and comity. Interbranch comity does not require legitimate fear of leaks. We also would in Presidential obsequiousness, of course. Presi clude the approach both branches took to dents are elected to lead and to persuade. But ward the so-called Boland Amendments. Presidents must also have Congressional Congressional Democrats tried to use support for the tools to make foreign policy vaguely worded and constantly changing effective. No President can ignore Congress laws to impose policies in Central America and be successful over the long term. Con that went well beyond the law itself. For its gress must realize, however, that the power own part., the Administration decided to of the purse does not make it supreme. Lim work within the letter of the law covertly, its must be recognized by both branches, to instead of forcing a public and principled protect the balance that was intended by the confrontation that would have been healthier Framers, and that is still needed today for in the long run. effective policy. This mutual recognition has Given these kinds of problems, a sober cx- been sorely lacking in recent years. 376
  8. 8. WHY WE REJECT THE COMMT[EES’ cord, as Members used the witnesses as obREPORT jects for lecturing the cameras? These tactics had little to do with factfinding, or with aSadly, the Committees’ Report reads as if it careful review of policies and institutionalwere a weapon in the ongoing guerrilla war processes.fare, instead of an objective analysis. Evi Our reasons for rejecting the Committees’dence is used selectively, and unsupported Report can best be understood by samplinginfrencès árè drawn to support politióálly aféw ofits major ébhclusions. By presentingbiased interpretations. As a result, we feel these examples, we hope to alert consciencompelled to reject not only the Committees’ tious readers—whether they agree with ourconclusions, but the supposedly “factual” interpretations or not—to take the narrativenarrative as well. with a very large grain of salt. Regrettably, We always knew, of course, that there readers seeking the truth will be forced towould be differences of interpretation. We wade through a mass of material to arrive athad hoped at the start of this process, how an independent judgment.ever, to arrive at a mutually agreeable statement of facts. Unfortunately, that was not tobe. The narrative is not a fair description of The President’s Knowledge of the events, but an advocate’s legal brief that ar Diversion rays and selects so-called “facts” to fit pre conceived theories. Some of the resulting The most politically charged example of the narrative is accurate and supported by the Committees’ misuse of evidence is in the way evidence. A great deal is overdrawn, specula it presents the President’s lack of knowledge tive, and built on a selective use of the Com about the “diversion”—that is, the decision mittees’ documentary materials. by the former National Security Adviser, The tone of the Report flows naturally Admiral John Poindexter, to authorize the from the tone of the Committees’ televised use of some proceeds from Iran arms sales to hearings. We feel strongly that the decision support the Nicaraguan democratic Resist to air the hearings compromised some intelli ance, or Contras. This is the one case out of gence sources and methods by broadcasting thousands in which the Committees—in inadvertent slips of the tongue. But one thing stead of going beyond the evidence as the television did do successfully was lay bare Report usually does—refused instead to ac the passions that animated too much of the cept the overwhelming evidence with which Committees’ work. Who can forget the mas it was presented. The Report does grudg sive displays of travelers’ checks being shown ingly acknowledge that it cannot refute the to the country to discredit Col. North’s char President’s repeated assertion that he knew acter, weeks before he would be given a nothing about the diversion before Attorney chance to reply? Or the “j’accuse” atmo General Edwin Meese discovered it in No sphere with which witnesses were con vember 1986. Instead of moving forward fronted, beginning with the first week’s from this to more meaningful policy ques prosecutorial confrontation with General Se- tions, however, the Report seeks, without 377
  9. 9. major set of will never testimony become the basis for aany support, to plant doubts. We assertions about other events . If these flip- s shreddedknow what was in the document flops could be explained by neu tral rules of his last daysby Lt. CoL Oliver L. North in evidence, or if they were random , we could s. Of courseon the NSC staff, the Report say treat them more lightly. But som ething quite have beenwe will not. That same point could different seems to be at work her e. The narra orted doubtmade, however, to cast unsupp tive seems to make every judgm ent about the own conclu upon every one of the Report’s evidêñce in favor of the interp retation that gled out be sions. This one seems to be sin puts the Administration in the worst possible put his own cause it was where the President light. Two examples involving North will credibility squarely on the line. make the point clearly. The firs t has to do sident did The evidence shows that the Pre with when he first got the idea for a diver we discuss not know about the diversion. As sion. subject, this at length in our chapter on the North testified that he first got the idea for re than just evidence includes a great deal mo diverting some of the Iran arm s sale proceeds exter was cor Poindexter’s testimony. Poind to the Contras from Manucher Ghorbanifar the President’s roborated in different ways by at a London hotel meeting in late January from North, own diaries and by testimony 1986. He acknowledged that the subject of pson (for Meese, Commander Paul Thom using the residuals to rep lenish Israeli el), and for merly the NSC’s General Couns weapon supplies, and for relate d operations, Staff Donald mer White House Chief of came up in a discussion with Am iram Nir, an President did Regan. The conclusion that the Israeli official, in late December or early Jan ion, in other not know about the divers uary. North specifically said, how ever, that all the infer words, is one of the strongest of the Nir conversation had nothin g to do with dence before ences one can make from the evi the Contras. t to suggest these Committees. Any attemp The Committees also received a chronol effort to sow otherwise can only be seen as an ogy from the Israeli Governm ent, however, of reaping a meiitless doubts in the hope that claimed North told Israel i supply offi partisan political advantage. cials in New York on Decem ber 6 that the t he intended Contras needed money, and tha s sales to and the to use proceeds from the Iran arm The idea for the Diversion get them some. When North was asked Use of Israeli Evidence about the December 6 meeting, he reiterated the Contras rative’s hun that he did not recall discussing In the normal course of the nar with anyone involved in the Ira n initiative ectivity stems dreds of pages, the lack of obj before the late January meetin g with Ghor s, and makes more from the way it select banifar. a scarcity of questionable inferences, from The Committees’ Report has used the Is rate decision to evidence, rather than a delibe raeli chronology, and the timing of North’s becomes most ignore what is available. This alleged December 6 conversation , to suggest s dismissed as obvious when we see a witnes that the idea of gaining funds for the Nica of events, and being not credible for one set raguan Resistance was an impor tant consid uncorroborated then see the same witnesses’ 378
  10. 10. don meeting. More importantly, North anderation that kept the Iran arms initiativealive, more than a month before the Presi Poindexter both testified that no one else indent signed the Finding of January 17. The the U.S. Government was told about a diver sion before this time. What that means is thatproblem with making this important inference is that we have no way of knowing the diversion cannot possibly have been a consideration for people at the policymakingwhether the Israeli chronology is accurate. It level when the President decided to proceedmay be, but then again it may not. The Gov with the Iran initiative in January.ernmexit Of Israel made its chronology available to the Committees fairly late in ourinvestigations, and consistently refused to letkey Israeli participants give depositions to Off-the-Shelf, Privately Fundedthe Committees’ counsel. Covert Operations We have no quarrel with the fact that Is Paradoxically, the Committees seem to haverael, or any other sovereign nation, may re had no difficulty swallowing North’s testifuse to let its officials and private citizens be mony that Director Casey intended to create subject to interrogation by a foreign legisla a privately funded, off-the-shelf covert opera ture. The United States, no doubt, would do tions capability for use in a variety of un the same. But we do object vehemently to foreseen circumstances. This is despite the the idea that the Committees should use un fact that two people close to Casey at the sworn and possibly self-serving information CIA, Deputy Director of Central Intelli from a foreign government to reject sworn gence John M. McMahon and Deputy Di testimony given by a U.S. official—par rector for Operations Clair George, both ticularly when the U.S. official’s testimony denied Casey would ever have countenanced was given under a grant of immunity that such an idea. “My experience with Bill Casey protected him from prosecution arising out was absolute,” said George. “He would of the testimony for any charge except per- never have approved it.” July. Even if North did mention the Contras to We have to concede the possibility, of the Israeli supply officials in early December, course, that Casey might have discussed such an idea speculatively with North with however, the inference made from the timing out mentioning it to others at the CIA. As would be unfair. The Committees have no with so many other questions, we will never evidence that would give them any reason to know the answers with certainty. Casey’s believe that anyone other than North even terminal illness prevented him from testify considered the Contras in connection with ing between December 1986 and his death in the Iran arms sales before the January Find May 1987. Nevertheless, it is interesting to ing. Poindexter specifically testified that he note how much the majority is willing to first heard of the idea when North asked him make of one uncorroborated, disputed North to authorize it in February. North testified statement that happens to suit its political that he first mentioned the idea to the Direc purpose, in light of the way it treats others by tor of Central Intelligence, William J. Casey, North that are less convenient for the narra at about the same time, in late January or tive’s thesis. early February, after the post-finding Lon 379
  11. 11. The ANegaUon of Systemolic for not turning his fact-finding operation intoCover-up a formal criminal investigation a day or two earlier than he did. In fact, the ReportThe Report also tries to present the events of strongly tries to suggest that Meese eitherNovember 1986 as if they represent a system must have been incompetent or must haveatic attempt by the Administration to cover been trying to give Poindexter and Northup the facts of the Iran initiative. The reason more time to cover their tracks. We considerfor the alleged coverup, it is suggested, was the first of these charges to be untrue and theto keep the American people from learning second to be outrageous. We shall show in athat the 1985 arms sales were “illegal.” later chapter that Meese worked with the There can be no question that the Ad right people, and the right number of them,ministration was reluctant to make all of the for a national security fact-finding investigafacts public in early November, when news tion. Whatever after-the-fact criticism peoof the arms sales first came out in a Lebanese ple may want to make, it is irresponsible toweekly. It is clear from the evidence that this portray the Administration, in light ofwas a time when covert diplomatic discus Meese’s behavior, as if it were interested insions were still being conducted with Iran, anything but learning the truth and getting itand there was some basis for thinking more out as quickly as possible.hostages might be released. We consider theAdministration’s reticence in the early partof the month to have been completely jus The “Ru’e of Low”tifiable. However, as November 1986 wore on, Finally, the Committees’ Report tries—alPoindexter and North did falsify the docu most as an overarching thesis—to portraymentary record in a way that we find deplor the Administration as if it were behavingable. The outstanding fact about the late with wanton disregard for the law. In our November events, however, is that Attorney view, every single one of the Committees’ General Meese understood the importance legal interpretations is open to serious ques of getting at the truth. Working on a very tion. On some issues—particularly the ones tight schedule, Meese and three others from involving the statutes governing covert oper the Department of Justice managed to un ations—we believe the law to be clearly on cover the so-called “diversion memoran the Administration’s side. In every other dum” and reported it to the President. The case, the issue is at least debatable. In some, President immediately removed Poindexter such as the Boland Amendment, we are con and North from the NSC staff. Shortly after vinced we have by far the better argument. In wards, he asked for an Independent Counsel a few others—such as who owns the funds to be appointed, appointed the Tower Board, the Iranians paid Gen. Richard Secord and and supported the establishment of select Albert Hakim—we see the legal issue as Congressional investigative committees, to being close. During the course of our full which he has given unprecedented coopera statement, we shall indicate which is which. tion. What the Committees’ Report has done The Committees’ Report criticizes Meese with the legal questions, however, is to issue 380
  12. 12. a one-sided legal brief that pretends the Ad company not only with the Committees Reministration did not even have worthwhile port’s answers, but with the very questions itarguments to make. As if that were not identifies as being the most significant.enough, the Report tries to build upon these There are common threads to what weone-sided assertions to present a politicized think went wrong with the Administration’spicture of an Administration that behaved policies toward Central America and Iran.with contempt for the law. If nothing else Before we can identify those threads, howwould lead readers to view the Report with ever, we will give a.very brief overview of theextreme skepticism, the adversarial tone of two halves of the Committees’ investigations.the legal discussion should settle the matter. For both halves, we begin with the context within which decisions were made, describe the decisions, and then offer some judg ments. After taking the parts separately, weOUR VIEW OF THE IRAN-CONTRA will then be in a position to talk about cornAFFAIR monalities.The main issues raised by the Iran-ContraAffair are not legal ones, in our opinion. Thisopinion obviously does have to rest on some NICARAGUAlegal conclusions, however. We have summarized our legal conclusions at the end of this The Nicaraguan aspect of the Iran-Contraintroductory chapter. The full arguments ap Affair had its origins in several years of bitterpear in subsequent chapters. In our view, the political warfare over U.S. policy towardAdministration did proceed legally in pursu Central America between the Reagan Ading both its Contra policy and the Iran arms ministration and the Democratic House ofinitiative. We grant that the diversion does Representatives. The United States had supraise some legal questions, as do some techni ported the Sandinistas in the last phase of thecal and relatively insubstantial matters relat dictatorial regime of Anastasio Somoza anding to the Arms Export Control Act. It is then gave foreign aid to Nicaragua in 1979important to stress, however, that the Ad and 1980, the first years of Sandinista rule.ministration could have avoided every one of By 1980, however, the Sandinistas had shedthe legal problems it inadvertently encoun their earlier “democratic reformer” disguisetered, while continuing to pursue the exact and begun to suppress civil liberties at homesame policies as it did. and export revolution abroad. As a result, The fundamental issues, therefore, have to the United States suspended all aid todo with the policy decisions themselves, and Nicaragua in the closing days of the Carterwith the political judgments underlying the Administration.way policies were implemented. When these During the early years of the Reagan Admatters are debated as if they were legal— ministration, the Soviet Union and its alliesand even criminal—concerns, it is a sign that dramatically increased their direct militaryinterbranch intimidation is replacing and support for Nicaragua, and their indirectdebasing deliberation. That is why we part support, through Nicaragua, of Communist 381
  13. 13. guerrillas in El Salvador. The Reagan Ad outside assistance from Nicaragua and Cuba. ministration decided to provide covert sup This Nicaraguan-Cuban contribution to the port for the Nicaraguan democratic Salvadoran insurgency is long standing. It began shortly after the overthrow of Somoza in Resistance in late 1981, and Congress July 1979. It has provided—by land, sea and agreed. By late 1982, however, Congress air—the great bulk of the military equipment adopted the first of a series of so-called “Bo and support received by the insurgents. land Amendments,” prohibiting the CIA Defense Department.from spending Despite this fiding, House D1Ôäft1 money “for the purpose of overthrowing the Government of Nicaragua or provoking a succeeded in late 1983 in limiting appromilitary exchange between Nicaragua and priated support for the Resistance to an Honduras.” The House voted for this “limi amount intentionally calculated to be insuftation” by a margin of 4 11-0, in large part ficient for the full fiscal year. The funds ranbecause everyone understood that the Ad out by late spring or summer 1984. By Octoministration could continue to support the ber, the most stringent of the BolandResistance as long as the purpose of the sup Amendments had taken effect. Paradoxiport was to prevent the revolution from cally, Congress’ 1983—85 decisions came in abeing exported to El Salvador. context in which it was continuing to pass This approach left many unsatisfied. Some laws that accused the Sandinistas of violatingwithin the Administration wanted a broader the non-aggression provisions of the charterattack on the Sandinista regime. Some within of the Organization of American States—aCongress wanted to end all support for the violation that the OAS charter says calls forContras and begin moving back toward the a response by other member nations, includ 1979—80 policy of providing economic assist ing the United States.ance to the Sandinistas. Neither side of thepolicy debate was politically strong enoughto prevail. Instead, during the course of the Actionsnext several years, Congress and the Administration “compromised” on a series of By the late spring of 1984, it became clearambiguous formulas. that the Resistance would need some source Meanwhile, the Soviet buildup ac of money if it were to continue to survivecelerated, and Sandinista support for the in while the Administration tried to changesurgents in El Salvador continued. In May public and Congressional opinion. To help1983, the House Intelligence Committee, bridge the gap, some Administration officialschaired by Representative Edward P. Bo began encouraging foreign governments andland, reported: U.S. private citizens to support the Contras. NSC staff members played a major role in It is not popular support that sustains the in these efforts, but were specifically ordered to surgents [in El Salvador]. As will be discussed avoid direct solicitations. The President later, this insurgency depends for its life clearly approved of private benefactor and blood—arms, ammunition, financing, logistics third-country funding, and neither he nor his and command-and-control facilities—upon designated agents could constitutionally be382
  14. 14. suggest that the President or other seniorprohibited from encouraging it. To avoid po ra Administration officials knew about this conlitical retribution, however, the Administ ns. cealment.tion did not inform Congress of its actio In addition to encouraging contributions, ofthe NSC’s North, with varying degreesauthorization and knowledge by National JudgmentsSecurity Advisers Robert C. McFarlane and The effort to raise foreign government andAdmiral- John. Poindexter. ., private funds for the Resistance raised about . . .. -. Helped coordinate or facilitate actions $35 million between mid-1984 and mid- taken by private citizens and by certain 1986—virtually all of it from foreign coun U.S. Government officials to direct tries. In addition, the much discussed and money, arms, or supplies from private unauthorized diversion orchestrated by U.S. citizens or foreign governments to North and Poindexter contributed about the Nicaraguan Resistance; $3.8 million more. Without this support, ac Provided the Resistance with expert mili cording to uncontroverted testimony the tary judgment or advice to assist in the Com.rnittees received, there can be no ques resupply effort; and tion that the Resistance would have been an Together with others in Government, nihilated. in other words, the support clearly provided the Resistance with intelligence did make an important strategic difference in information that was useful in the resup the 2 years it took the Administration to persuade Congress to reverse its position. ply effort. The short-term benefits of the effort are therefore undeniable. The long-term costs,Poindexter and North testified that they both however, seem not to have been adequatelybelieved these activities were legally permis considered.sible and authorized. They also said that the We do believe, for reasons explained in thePresident was kept generally informed of appendix to this introductory chapter and intheir coordinating role. The President has our subsequent chapters on Nicaragua, thatsaid, however, that he was not aware of the virtually all of the NSC staff’s activities wereNSC staff’s military advice and coordination. Because the Boland Amendment is an ap legal, with the possible exception of the di version of Iran arms sale proceeds to thepropriations rider, it is worth noting thatthere is no evidence that any substantial Resistance. We concede that reasonable peoamounts of appropriated taxpayer funds ple may take a contrary view of what Conwere used in support of these efforts. In addi gress intended the Boland Amendments totion, the NSC staff believed—as we do—that mean.the prohibition did not cover the NSC. At no Notwithstanding our legal opinions, wetime, in other words, did members of the think it was a fundamental mistake for the President’s staff think their activities were NSC staff to have been secretive and decep illegal. Nevertheless, the NSC staff did make tive about what it was doing. The require a concerted effort to conceal its actions from ment for building long-term political support Congress. There is no evidence, however, to means that the Administration would have 383
  15. 15. been better off if it had conducted its activi coming unless the public is exposed to andties in the open. Thus, the President should persuaded by a clear, sustained and princisimply have vetoed the strict Boland Amend pled debate on the merits.ment in mid-October 1984, even though theAmendment was only a few paragraphs in anapproximately 1,200 page-long continuingappropriations resolution, and a veto there- IRAN would have broughtthe Governmenta standstill within 3 weeks of a national elec The Iran arms sales had their roots in antion. Once the President decided against a intelligence failure. The potential geopolitiveto, it was self-defeating to think a program cal importance of Iran for the United Statesthis important could be sustained by deceiv would be obvious to anyone who looks at aing Congress. Whether technically illegal or map. Despite Iran’s importance, the Unitednot, it was politically foolish and counterpro States was taken by surprise when the Shahductive to mislead Congress, even if mislead fell in 1979, because it had not developed aning took the form of artful evasion or silence adequate human intelligence capabilityinstead of overt misstatement. there. Our hearings have established that es We do believe firmly that the NSC staff’s sentially nothing bad been done to cure thisdeceits were not meant to hide illegalities. failure by the mid-1980’s. Then, the UnitedEvery witness we have heard told us his con States was approached by Israel in 1985 withcern was not over legality, but with the fear a proposal that the United States acquiescethat Congress would respond to complete in some minor Israeli arms sales to Iran. Thisdisclosure with political reprisals, principally proposal came at a time when the Unitedby tightening the Boland Amendments. That States was already considering the advisabilrisk should have been taken. ity of such sales. For long term, strategic We are convinced that the Constitution reasons, the United States had to improveprotects much of what the NSC was doing— relationships with at least some of the curparticularly those aspects that had to do with rently important factions in Iran. The lack ofencouraging contributions and sharing infor adequate intelligence about these factionsmation. The President’s inherent constitu made it important to pursue any potentiallytional powers are only as strong, however, as fruitful opportunity; it also made those purthe President’s willingness to defend them. suits inherently risky. U.S. decisions had toAs for the NSC actions Congress could con be based on the thinnest of independentlystitutionally have prohibited, it would have verifiable information. Lacking such indebeen better for the White House to have pendent intelligence, the United States wastackled that danger head on. Some day, Con forced to rely on sources known to be biasedgress’ decision to withhold resources may and unreliable. tragically require U.S. citizens to make an Well aware of the risk, the Administration even heavier commitment to Central Amer nonetheless decided the opportunity wasica, perhaps one measured in blood and not worth pursuing. The major participants in dollars. The commitment that might elimi the Iran arms affair obviously had some comnate such an awful future will not be forth- mon and some conflicting interests. The key384
  16. 16. U.S. hos to explore helped obtain the release of twoquestion the United States had tages and did produce high Irania n officials leadershipwas whether the U.S. and Iranian for the first face-to-face meeting s between interest toactually felt enough of a common our governments in 5 years. At tho se meetestablish a strategic dialogue. hran in May ings, one of which was held in Te ently to 1986, U.S. officials sought consist in a long- make clear that we were interestedActions te.strategicrelationship with Iran tq. pp. l interests. ning, the pose the Soviet Union’s territoriaTo explore the chance for an ope As concerned as the President had become Israeli salesPresident agreed first to approve personally for the fate of the hos tages—in to sell Iran in 1985, and then in 1986 cluding the CIA’s Beirut station chie f, Wil olved werearms directly. The amounts inv ham Buckley, who was repeatedly tortured ng all ofmeager. The total amount, includi until he died—the hostages were alw ays pre consistedthe 1985 and 1986 sales combined, sented in these negotiations as obstacl es to be 18 HAWKof 2004 TOW antitank missiles, overcome, not as the reason for the init iative. types ofantiaircraft missiles, and about 200 e misled But Ghorbanifar appeared to havHAWK spare parts. both sides, and the Iranian officials see med to nion in There was a strong division of opi in using isability of be interested only in weapons, and the Administration about the adv the hostages for bargaining leverag e. er abated. these arms sales, a division that nev After the Tehran meeting, the United pretext for Unfortunately, this served as a States was able to approach a ver y high the Secre Poindexter’s decision not to keep Iranian official using a Second Cha nnel ar about the taries of State or Defense informed associ between ranged by Albert Hakim and and his detailed progress of the negotiations im’s reason for ates: There is little doubt about Hak the United States and Iran. One business motives in arranging thes e meet e been a the failure to inform appears to hav ings; there is equally little doubt that this ministration past history in which some Ad channel represented the highest levels of the informa officials may have leaked sensitive h this which they Iranian Government. DiscussiOns wit tion as a way to halt actions with channel began in the middle of 198 6 and inclinations disagreed. Poindexter’s secretive lted in all but continued until December. They resu were abetted by Secretary Shultz, who U.S.. informed the release of one further hostage and invited Poindexter not to keep him some used of officials expected them to result in because he did not want to be acc , e dis Secretary more. Perhaps more importantly thes leaking. They also were abetted by tively was less cussions appear to have been qualita Weinberger, who—like Shultz— ough in different from the ones conducted thr than vigorous about keeping himself nifar, reason to the First Channel arranged by Ghorba formed about a policy he had good s of and included some talks about broad area believe was still going forward. vern strategic cooperation. The first deals with the Iranian Go de of our As a result of factional infighting insi ment were flawed by the unreliability was far. For the Iranian Government, the initiative intermediary, Manucher Ghorbani were far exposed and substantive discussions all of his unreliability, however, Ghorbani 385
  17. 17. suspended. Not surprisingly, given the na bona fides were determined. There is no eviture of Iranian politics, the Iranian Govern dence that these relatively minor sales matement has publicly denied that significant rially altered the military balance in thenegotiations were underway. Congress was Iran-Iraq war. However, the sales damagednot informed of the Administration’s deal U.S. credibility with our allies, making itings with Iran until after the public disclo more difficult, among other things, for thesure. The failure to disclose resembled the Administration to enforce its preexisting efCarter Administration’s similar deeisions forts to embargo. arms sa].s.not to disclose in the parallel Iranian hostage The decision to keep Congress in the darkcrisis of 1979—81. President Reagan withheld for 11 months disturbs all Members of thesedisclosure longer than Carter, however—by Committees. It is clear that the Reagan Adabout II months to 6. ministration simply did not trust the Con gress to keep secrets. Based on the history of leak we shall outline in a later chapter, itJudgments unfortunately had good reason to be con cerned. This observation is not offered as aThe Iran initiative involved two govern justification, but as an important part of thements that had sharp differences between context that must be understood. To helpthem. There were also very sharp internal remove this concern as an excuse for futuredivisions in both Iran and the United States Administrations, we are proposing a series ofabout how to begin narrowing the differences legislative and administrative recommendabetween the two countries. In such a situa tions to improve both Congress’ and the extion, the margin between narrow failure and ecutive branch’s ability to maintain nationalsuccess can seem much wider after the fact security secrets and deter leaks.than it does during the discussions. Whilethe initial contacts developed by Israel andused by the United States do not appearlikely to have led to a long-term relationship, DIVERSIONwe cannot rule out the possibility thatnegotiations with the Second Channel might The lack of detailed information-sharinghave turned out differently. At this stage, we within the Administration was what made itnever will know what might have been. possible for Poindexter to authorize the di In retrospect, it seems clear that this initia version and successfully keep his decision totive degenerated into a series of “arms for do so from the President. We have alreadyhostage” deals. It did not look that way to indicated our reasons for being convincedmany of the U.S. participants at the time. the President knew nothing about the diverNevertheless, the fact that the negotiations sion. The majority Report says that if thenever were able clearly to separate the long- President did not know about it, he should term from the short-term issues, confirms have. We agree, and so does the President. our instinctive judgment that the United But unlike some of the other decisions we States should not have allowed arms to be have been discussing, the President cannot come the currency by which our country’s himself be faulted for this one. The decision386
  18. 18. was Admiral Poindexter’s, and Poindexter’s The diversion has led some of the Comalone. mittees’ Members to express a great deal of As supporters of a strong Presidential role concern in the public hearings about the usein foreign policy, we cannot take Poindex of private citizens in covert operations inter’s decision lightly. The Constitution settings that mix private profits with public Istrikes an implicit bargain with the Presi benefits. We remain convinced that covert operations will continue to have to use pri .1dent: in return for getting significant discretionary power to act, the President was vate agents or contractors in the future, andsupposed to be held accountable for his deci that those private parties will continue tosions. By keeping an important decision operate at least partly from profit motives.away from the President, Poindexter was If the United States tries to limit itself toacting to undercut one foundation for the dealing only with people who act out ofdiscretionary Presidential power he was ex purely patriotic motives, it effectively will ercising. rule out any worthwhile dealing with most The diversion also differs from the basic arms dealers and foreign agents. In the real Nicaragua and Iran policies in another im world of international politics, it would be portant respect: we can find nothing to jus foolish to avoid working with people whose tify or mitigate its having occurred. We do motives do not match our own. Neverthe understand the enthusiasm North displayed less, we do feel troubled by the fact that when he told the Committees it was a “neat there was not enough legal clarity, or ac idea” to use money from the Ayatollah, who counting controls, placed on the Enterprise was helping the Sandinistas, to support the by the NSC. Contras. But enthusiasm is not a sufficient basis for important policy decisions. Even if there were nothing else wrong with the diver sion, the decision to mix two intelligence op THE UNCOVERING erations increased the risk of pursuing either one, with predictably disastrous repercus It is clear that officials of the National Secu sions. rity Council misled the Congress and other Unlike the Committees’ majority, we be members of the Administration about their lieve there are good legal arguments on both activities in support of the Nicaraguan Re sides of the question of whether the proceeds sistance. This occurred without authoriza of the arms sales belong to the U.S. Govern tion from outside the NSC staff. It is also ment or to Secord and Hakim. For that clear that the NSC staff actively misled other reason, we think it unlikely, under the cir Administration officials and Congress about cumstances, that the funds were acquired or the Iran initiative both before and after the used with any criminal intent. Nevertheless, first public disclosure. The shredding of the fact that the ownership seems unclear documents and other efforts at covering up under current law does not please us. We do what had happened were also undertaken by believe that Secord and Hakim were acting NSC staff members acting on their own, as the moral equivalents of U.S. agents, even without the knowledge, consent, or acquies if they were not U.S. agents in law. cence of the President or other major Ad- 387
  19. 19. It is ironic that many have looked upon ministration officials, with the possible ex these events as signs of an excessively power ception of Casey. ful NSC staff. In fact, the NSC’s roles in the In the week or two immediately after the Iran and Nicaragua policies were exceptions Iran initiative was disclosed in a Lebanese ic rather than the rule. The Reagan Adminis weekly, the President did not tell the publ with tration has been beleaguered from the begin- all that he knew, because negotiations fling by serious policy disagreements the Second Channel were still going on, and hoping between the SecretatiesofiSta.te and“heteremained agoodreasonfor- sed. among others, and the President has too some more hostages might soon be relea the often not been willing to settle those disputes Once the President learned that not all of at definitively. The press accounts written at relevant facts were being brought to his or the time Poindexter was promoted to fill tention, however, he authorized the Att McFarlane’s shoes saw his selection as a de ney General immediately to begin making cision to have the National Security Adviser inquiries. Attorney General Meese acted play the role of honest broker, with little properly in his investigation, pursuing the independent power. This image of the NSC matter as a fact-finding effort because he had lasted almost until the Iran arms initiative no reason at the time to believe a crime had y became public. Poindexter was seen as a been committed. Arguments to the contrar n technician, chosen to perform a technical are based strictly on hindsight. In our opi job, not to exercise political judgment. ion, the Attorney General and other Justice Once the NSC had to manage two opera Department officials did an impressive job . tions that were bound to raise politically sen with a complicated subject in a short time sitive questions, it should have been no After all, it was their investigation that un s surprise to anyone that. Poindexter made covered and disclosed the diversion of fund some mistakes. It is not satisfactory, how to the Contras. ever, for people in the Administration simply to point the finger at him and walk away from all responsibility. For one thing, the President himself does have to bear personal COMMON THREADS responsibility for the people he picks for top office. But just as it would not be appropriate The different strands of the Iran-Contra Af for the fingers to point only at Poindexter, fair begin coming together, in the most obvi neither is it right for them only to point to ous way, on the level of personnel. Both the top. halves of the event were run by the NSC, Everyone who had a stake in promoting a specifically by McFarlane, Poindexter, and technician to be National Security Adviser North. With respect to Nicaragua:, the Bo should have realized that meant they had a land Amendment just about ruled all other responsibility to follow and highlight the po agencies out of the picture. With respect to litical consequences of operational decisions Iran, the other parts of the executive for the President. Even if the Cabinet officials branch—from the State and Defense Depart did not support the basic policy, they had an ments to the CIA—seemed more than happy obligation to remain engaged, if they could to let the NSC be in charge. 388
  20. 20. so without constantly arguing Poindexter and North’s apparent beliefmanage to do — that covering up was in the President’sthe Preside nt’s basic policy choice. Similarly, have political interest.Chief of Staff Donald Regan may not details ofknown, or had reason to knOw, the effort. We emphatically reject the idea thatthe Iran initiative or Contra resupply nch through these mistakes, the executive braBut he sho uld have known that North’s re- subverted the law, undermined the Constitusponse s to Congressional inquiries generated tantpo1iti-.tion, orthratened, democrpy. Theby’pressreports.weretooim.por ted NSC dent is every bit as much of an elec cally to be left to the people who ran the er representative of the people as is a Memb staff. si ussion of personnel ultimately of Congress. In fact, he and the Vice Pre The disc dent are the only officials elected by the gets around to the importance of political eve about whole Nation. Nevertheless, we do belijudgment. We can be more precise the r the the mistakes relate in a different way to what that means, however, if we conside y ads in the decisions we have issue of democratic accountability. The common thre t provide a good starting point for seeing wha already labelled as mistakes. These have in- ve both sides of the great legislative-executi cluded: branch divide must do to improve the way Bo the Government makes foreign policy. — The President’s decision to sign the of land Amendment of 1984, instead vetoing it; e Congress — The President’s less-than-robust defens a of his office’s constitutional powers, too Congress has a hard time even conceiving of mistake he repeated when he acceded o itself as contributing to the problem of dem read ily and too completely to waive exec r- es cratic accountability. But the record of eve utive privilege for our Committees’ inv a changing policies toward Central Americ tigation; r ’s decision to deceive Con that contributed to the NSC staffis behavio The NSC staff g is symptomatic of a frequently recurrin — gress about what it was doing in Central di problem. When Congress is narrowly Am erica; ert vided over highly emotional issues, it fre The decision, in Iran, to pursue a cov y quently ends up passing intentionall — policy that was at odds with the Ad t ation’s public expressions, with ambiguous laws or amendments that pos ministr icy, pone the day of decision. In foreign pol out any warning signals to Congress or those decisions often take the form of restric our allies; tive amendments on money bills that are The decision to use a necessary and con h open to being amended again every year, stitutionally protected power of wit e with new, and equally ambiguous, languag holdin g information from Congress for replacing the old. This matter is exacerbated unusually sensitive covert operations, for y; by the way Congress, year after year, avoids a length of time that stretches credulit al passing appropriations bills before the fisc Poindexter’s decision to authorize the di year starts and then wraps them together in — version on his own; and, finally, 389
  21. 21. a governmentwide continuing resolution Then, instead of seeing occasional actions loaded with amendments that cannot be turn out to be wrong, we would be increasing vetoed without threatening the whole Gov the probability that future Presidents would ernment’s operation. be unable to act decisively, thus guaranteeing One properly democratic way to amelio ourselves a perpetually paralyzed, reactive, rate the problem of foreign policy inconsist and unclear foreign policy in which mistake ency would be to give the President an by inaction would be the order of the day. opportunity to address the major differences. - I Congress can ie-a-rii somethin•gabout between himself and the Congress cleanly, democratic responsibility from the Iran- instead of combining them with unrelated Contra Affair, future Presidents can learn subjects. To restore the Presidency to the something too. The Administration would position it held just a few administrations have been better served over the long run by ago, Congress should exercise the self-disci insisting on a principled confrontation over pline to split continuing resolutions into sep those strategic issues that can be debated arate appropriation bills and present each of publicly. Where secrecy is necessary, as it them individually to the President for his often must be, the Administration should signature or veto. Even better would be a have paid more careful attention to consulta line-item veto that would permit the Presi tion and the need for consistency between dent to force Congress to an override vote what is public and what is covert. Inconsistwithout jeopardizing funding for the whole ency carries a risk to a President’s futureGovernment. Matters of war and peace are ability to persuade, and persuasion is at thetoo important to be held hostage to govern heart of a vigorous, successful presidency.mental decisions about funding Medicare or A President’s most important priorities,highways. To describe this legislative hos the ones that give him a chance to leave antage taking as democracy in action is to turn historic legacy, can be attained only throughlanguage on its head. persistent leadership that leads to a lasting change in the public’s understanding and opinions. President Reagan has been praisedThe Presdency by his supporters as a “communicator” and his opponents as an ideologue. The Constitution created the Presidency to The mistakes of the Iran-Contra Affair, be a separate branch of government whose ironically, came from a lack of communica occupant would have substantial discretion tion and an inadequate appreciation of the ary power to act. He was not given the power importance of ideas. During President Rea of an 18th century monarch, but neither was gan’s terms of office, he has persistentlyhe meant to be a creature of Congress. The taken two major foreign policy themes to thecountry needs a President who can exercise American people: a strong national defensethe powers the Framers intended. As long as for the United States, and support for theany President has those powers, there will be institutions of freedom abroad. The 1984mistakes. It would be disastrous to respond election showed his success in persuading theto the possibility of error by further restrain people to adopt his fundamental and limiting the powers of the office. The events since then have threatened to un390
  22. 22. S. protects ting the other countries he may wish. It also dermine that achievement by shif agents to If the the ability of the President and his agenda and refocusing the debate. untarily are to be persuade U.S. citizens to engage vol President’s substantial successes in otherwise legal activity to serve wha t they of us who sustained, it is up to him, and those consider to be the national interest. That in e again support his objectives, to begin onc es to sion. cludes trying to persuade other countri with the task of democratic persua ses both contribute their own funds for cau ent’the Otintties support: To whateverext it such Boland Amendments tried to prohib al. ARY OF LEGAL activity, they were clearly unconstitution AFTERWORD: SUMM (2) If the Constitution prohibits Congre ss CONCLUSIO NS l ac from restricting a particular Presidentia riation tion directly, it cannot use the approp Nicaragua power to achieve the same unconstitu tional under effect. Congress does have the power The main per iod under review during these ropria the Constitution, however, to use app investigati ons was October 1984 through Oc . Gov ver tions riders to prohibit the entire U.S tober 1986. During this period, various ney, Amendment restricted ernment from spending any mo sions of the Boland including salaries, to provide covert or overt the expenditure of appropriated funds availa s, the military support to the Contras. Thu ble to agencie s or entities involved in intelli . sup Clark Amendment prohibiting all U.S gence acti vities from being spent directly or 6 was litary port for the Angolan Resistance in 197 ind irectly to support military or parami gress ua. In August 1985, constitutional. Some members of Con operations in Nicarag t may artment was authorized to who supported the Boland Amendmen the State Dep hibi have thought they were enacting a pro spend $27 million to provide humanitarian t. The Re tion as broad as the Clark Amendmen assistan ce to the Nicaraguan democratic ment 1985, the CIA was specific language of the Boland Amend sistance. In December ever, nd funds specifically appro was considerably more restricted, how authorized to spe equip in two respects. priated to provide communications lligence ment and training and to provide inte informa and counterintelligence advice and (a) By limiting the coverage to agencies or enti tion to assist militar y operations by the Re ties involved in intelligence activities, Con gress sistance. On Oct ober 18, 1986, $100 million chose to use language borrowed directly from in direct military support for the Contras the Intelligence Oversight Act of 1980. In the 7. Our , was made available for fiscal year 198 course of settling on that language in 1980 prohib i Congress deliberately decided to exclud e the understanding of the effect of these tions rests on both statutory and con stitu National Security Council (NSC) from its cov i tional interpretations. erage. At no time afterward did Congress md e’s (1) The Constitution protects the pow er of cat.e an intention to change the languag self or coverage. The NSC therefore was excluded the President, either acting him es age in from the Boland Amendment and its activiti through agents of his choice, to eng s with were therefore legal under this statute. whatever diplomatic communication 391
  23. 23. ‘S (b) The requirement for U.S. agreement before (b) The Boland prohibitions also were limited to spending that directly or indirectly sup a country can retransfer arms obtained from the United States is meant to insure that re pc)rted military or paramilitary operations in transfers conform to U.S. national interests. In Nicaragua. Under this language, a wide range this case, the Israeli retransfers occurred with of intelligence-gathering and political support Presidential approval indicating that they did activities were still permitted, and were carried so conform. out with the full knowledge of the House and Senate Intelligence Committees. IsTãli ettaifr ad’ ubsquent re (c) Virtually all, if not all, of the CIA’s activi plenishment made the deal essentially equiva ties examined by these Committees occurred lent to a direct U.S. sale, with Israel playing a after the December 1985 law authorized intel role fundamentally equivalent to that of a mid ligence sharing and communications support clleman. Since the United States could obvi and were fully legal under the terms of that ously have engaged in a direct transfer, and did law. so in 1986, whatever violation may have oc curred was, at most, a minor and inadvertent (d) If the NSC had been covered by the Boland technicality. Amendments, most of Oliver North’s activity still would have fallen outside the prohibitions for reasons stated in (b) and (c) above. (2) A verbal approval for covert transac tions meets the requiremerits of the Hughes- Ryan Amendment and National Security Act. Verbal approvals ought to be reduced to Iran writing as a matter of sound policy, but they are not illegal. The Administration was also in substantial (3) Similarly, the President has the con compliance with the laws governing covert stitutional and statutory authority to with actions throughout the Iran arms initiative. hold notifying Congress of covert activities (1) It is possible to make a respectable under very rare conditions. President Rea legal argument to the effect that the 1985 gan’s decision to withhold notification was Israeli arms transfers to Iran technically vi essentially equivalent to President Carter’s olated the terms of the Arms Export Con decisions in 1979—1980 to withhold notice trol Act (AECA) or Foreign Assistance Act for between 3 and 6 months in parallel Iran (FAA), assuming the arms Israel trans hostage operations. We do not agree with ferred were received from the United States President Reagan’s decision to withhold under one or the other of these statutes. notification for as long as he did. The deci However: sion was legal, however, and we think the Constitution mandates that it should re (a) Covert transfers under the National Secu main so. If a President withholds notifica rity Act and Economy Act were understood to tion for too long arid then cannot be alternatives to transfers under the AECA adequately justify the decision to Congress, and FAA that met both of these latter acts’ that President can expect to pay a stiff po essential purposes by including provisions for litical price, as President Reagan has cer Presidential approval and Congressional notification. tainly found out. 392
  24. 24. or private funds amounted to third-countryDiversion ntras. If they did being shipped to the Co ates, there would be of the funds the belong to the United StWe consider the ownership h not, technically, Hakim “Enter legal questions (althougIranians paid to the Secord- estions) about using t. There are re Boland Amendment quprise” to be in legal doub rposes not specifi he made both U.S.-owned funds for puspectable legal arguments to e answer does not funds belong cally approved by law. Thfor the point of view that the , however, asto e contention seem to us to be so ohvious th iis Tèaüry an forth tter as if it were do not belong warrant treating the mathat they do not. If the funds criminal. n the diversion to the United States, the 393