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Were Any Laws Broken in the Iran-Contra Affair?
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13134 |
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CURRENT ISSUES
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11 / 1987 |
4,678 Words |
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David B. Rivkin, Jr.
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In the aftermath of the Iran-Contra congressional hearings, the legal issues surrounding the executive branch's policies have assumed overriding importance.
It has now become an article of faith that laws were broken in the process of steering private and third-party support to the Nicaraguan freedom fighters and in the selling of arms to Iran. Specifically, it is posited that the Iranian arms sales were carried out in a way that violated the statutory prescriptions dealing with intelligence oversight, as well as the Arms Export Control Act. The support for the Contras effected through Lt. Col. Oliver North's "enterprise" is alleged to have run afoul of the third permutation of the Boland amendment (Boland III).
More generally, opponents of the president's policies claim that the failure of the executive branch to consult with Congress, the administration's efforts to carry out policies through private channels, and the falsehoods deliberately proferred by certain administration members, when responding to congressional inquiries, raise profound constitutional concerns. In addition, there have been allegations that various participants in the Iran-Contra affair may have violated the Neutrality Act and committed sundry crimes ranging from defrauding the government and obstructing justice to conspiring to violate as yet unspecified laws.
Overall, the whole affair has turned into a lawyer's dream. Indeed, rightly or wrongly, technical legality seems to have become a major litmus test by which to judge the acceptability of any foreign policy venture. Unfortunately, most of the legal arguments used to attack the administration are specious in nature and represent a thinly disguised attempt to settle policy differences under the guise of a legal debate.
Narrow in scope
One of the key legal arguments raised by critics of the administration concerns its alleged violations of Boland III. This claim, however, is unpersuasive. Boland III states that "no funds 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 the Contras. Despite the seemingly sweeping language of this provision, it was attached to two congressional acts that, by their own terms, applied only to certain specific agencies of the U.S. government. The National Security Council (NSC) was not one of these agencies. Thus, on its face Boland III did not apply to the NSC. This argument was cogently presented in the now-famous memorandum by the President's Intelligence Oversight Board (PIOB), which prompted savage personal attacks by the anti-Reagan forces against the memorandum's author, Bretton G. Sciaroni.
Several other reasons suggest that the NSC was not covered by Boland III. The amendment referred to "any agency or entity of the United States involved in intelligence activities." Commenting on this point, the PIOB noted that an identical formulation had been employed in "successive intelligence authorization acts dating from 1978 to the present," and, on all of these occasions referred only to members of the "intelligence community," rather than to the entire U.S. government. The PIOB then observed that Congress has been well aware of the concept of the "intelligence community" - a group of government agencies that routinely carry out
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