If accountability for military action to Congress and to the public was the foundational disincentive to war we got from the Founding Fathers, Reagan was taking a pickax to that foundation. He claimed the private right to go to war, in secret, against the express will of Congress.
The only hard part was keeping the thing funded. Overhead expenses were a bitch, of course. And then, too, private American companies like to show a profit, especially in a high-risk environment. Of the nearly $40 million that was raised toward Contra aid, only about $17 million found its way to the brave freedom fighters.
That’s why the windfall from the Iran arms-for-hostages sale was so enticing. North wanted more Iranian profits to divert to the Contras, and he made his case in crew-cut-hair-on-fire memos that made their way to Reagan. North may never have been alone in the same room with the president, but he knew his man. The way he sold the need to continue the Iranian arms deal was simple: if the United States backs off the deal now, the hostages in Lebanon are dead meat.
On January 7, 1986, at that day’s NSC meeting, the president surprised his key advisers by talking up a new idea to sweeten the pot: securing the release of twenty Hezbollah associates from Israeli prisons and shipping them along with the newest arms cache from Tel Aviv. The president could see the whole thing unfold. We arrange for Iran to get weapons and the Hezbollah guys from Israel. We sell Israel replacement weapons. Hezbollah frees our hostages. Iran pledges there will be no more kidnappings. “We sit quietly by and never reveal how we got them back,” Reagan noted.
In the middle of this presidential reverie, Secretary Weinberger once again started in on Reagan about violating the Arms Export Control Act. But Ed Meese—he had ascended to United States Attorney General by this point—offered the sort of argument that always pricked up the ears of Ronald Reagan. There was a way around the Arms Export Control Act: “The president’s inherent powers as commander in chief,” Meese said. “The president’s ability to conduct foreign policy.” Reading later descriptions of this moment brings to mind an image of the pink and jowly attorney general, his full girth tucked into circus tights, performing a series of spectacular and acrobatic trapeze feats without a net:
This opinion was based upon an October 5, 1981, opinion of Attorney General William French Smith that if the President determined that neither the Foreign Assistance Act nor the Arms Export Control Act could be used, he could approve a transfer outside the context of these statutes if he determined that the authorities of the Economy Act and the National Security Act should be utilized in order to achieve ‘a significant intelligence objective.’ Whereas Attorney General Smith advised that reporting requirements … required that the House and Senate Intelligence Committees be informed of the President’s determination, Attorney General Meese took a more extreme view that the National Security Act implicitly authorized the President to withhold any prior or contemporaneous notice to Congress, even the limited notice to the leadership of the two houses of Congress.
Meese was spoiling for this sort of fight; he’d already hired into the Justice Department a coven of brilliant ultraconservative young lawyers—Federalist Society guys—and set them to the task of arguing the case for unleashing presidential authority. They were just then at work on a Meese-commissioned report—“Separation of Powers: Legislative-Executive Relations”—which invented something called the unitary executive theory, based on a make-believe version of the Constitution, wherein the president is given unilateral free rein in the realm of foreign policy and national security. The report made a science fiction-like case that the president was within his constitutional rights to reinterpret congressional legislation to conform more closely to his own desires, or to simply refuse to carry out laws with which he did not agree, or that, the report harrumphed, “unconstitutionally encroach on the executive branch.” In sum, anything the president doesn’t want to do he doesn’t have to do; anything he wants to do, consider it done.
This “Separation of Powers” report was still a few months away, but Meese was already living the dream at that January 1986 meeting. The nation’s chief legal officer was basically giving the back of his hand not only to all the post-Vietnam, post-Watergate fetters the legislative branch had seen fit to impose in the aftermath of a couple of runaway presidencies, but to the ones written in the Constitution, too. Meese was saying “Fuck Congress,” only in Latin. As Jane Mayer and Doyle McManus write in Landslide, their book about Reagan’s second term in office, this interpretation of the powers of the president “hadn’t been made quite so brazenly since Watergate. Following the constitutional crisis, Richard Nixon had been asked, ‘When the president does it, that means that it is not illegal, by definition?’ And he had answered, ‘Exactly, exactly. If the president approves something for national security … then the president’s decision is the one that enables those who carry it out, to carry it out without violating the law.’ Meese’s approach to the issue was essentially the same.”
Shultz was taken aback by the entire scene at the NSC meeting that day. The lack of opposition, he later said, “almost seemed unreal.”
Ten days later Reagan signed a presidential finding authorizing a new type of secret arms-for-hostages operation. On Attorney General Meese’s legal advice, it was decided the US government should sell arms directly to the Iranians and cut out the Israelis as the middleman. And as he made clear in earlier discussions of this matter, Attorney General Meese stood ready to give his Justice Department lawyers, you know, a little nudge in the right direction. (“You have to give lawyers guidance when asking them a question.”) A month later, the US government secretly shipped a thousand TOW missiles to Iran through a private party by the name of Richard Secord. One of Secord’s planes returned with the unwanted Hawks. Not a single hostage was released. And Reagan decided that the wise policy would be not to inform Congress.
Well, they got caught of course. The whole thing was so dunderheaded, how could they not? By November 1986, Reagan’s “Secret Dealings with Iran” had supplanted the 1986 midterm election results on the front page of Time magazine. Reagan played dumb for a few weeks, until the news broke that the money from the illegal arms sales had been diverted to the illegal Contra aid operation. The Reagan White House tried to get out ahead of the breaking scandal, calling for a special commission to investigate the entire affair and promising cooperation with a full-on congressional investigation. They even appointed an independent counsel to ferret out the scope and specifics of the illegalities. The president took some hard knocks. Before Christmastime that year, Time front-paged Iran-Contra twice more: “Probing the Mess,” with a grotty close-up of the downcast eyes of “White House Point Man Oliver North,” and “How Far Does It Go?” with a distant, lit-from-below White House looming like a murder-scene mansion in a horror movie.
By spring, after the Reagan-friendly Tower Commission had concluded that the administration had in fact traded arms for hostages and diverted some of the proceeds from those weapons sales to the Contras, Time had dispensed with the photographic emotional cues. They were no longer necessary to convey the seriousness of the damage to the presidency, or the ugliness of the scandal. With Reagan at the presidential lectern, and the Tower Commission report in the foreground, the cover asked simply, “Can He Recover?” The answer, in short, maybe not so much.
The answer in the magazine was longer, one derisive conclusion piled upon another. Reagan was “the befuddled and intellectually lazy figure so damningly portrayed in the Tower report … the picture of an inattentive, out-of-touch President.”
And it got worse from there:
The defects of what the commissioners euphemistically called Reagan’s “management style,” and what some former associates more bluntly term mental laziness … stands exposed as a President willfully ignorant of what his aides were doing, myopically unaware of the glaring contradictions between his public and secret policies … unable to recall when, how or even whether he had reached the key decis
ion that started the whole arms-to-Iran affair … the President has consistently and vehemently denied that the U.S. was swapping arms for hostages, though the voluminous record assembled by the Tower commission leaves no question that that is what happened.… [I]t is far from clear whether Reagan has yet admitted that even in his own mind.
Oh, wait, there’s more.
“The President who did not understand that arms-for-hostages swaps, in the commission’s words, ‘ran directly counter to the Administration’s own policies on terrorism’ is the same Reagan who has never admitted, probably even to himself, that his tax and spending programs were bound to result in gargantuan budget deficits.”
Meese did his nimble-for-a-large-man best; he was in full protect-the-president mode. The attorney general threw the Marines—McFarlane, North, and John Poindexter—to the wolves. He got up some good evidence for a “cabal of zealots” theory arguing that they had operated without presidential knowledge. And in his July 1987 testimony before Congress, Meese did his damnedest to explain why all those activities the cabal had worked so hard to hide from Congress had not, in fact, been illegal at all; he did this by giving legislators a little legal guidance on the meaning of their own Boland Amendment. The Boland Amendment, Ed Meese explained to committee chairman Daniel Inouye in another remarkable high-wire act, didn’t apply to national security staff members in the employ of the White House.
INOUYE: As the chief law enforcement officer of the United States, are you suggesting, or is it your opinion, that once the Boland Amendment was passed setting forth certain activities that are forbidden to the CIA, the NSA and others, that the NSC could have assumed these forbidden functions without violating the law?
MEESE: Well, Mr. Chairman, the question was directed to me as to whether the Boland Amendment applied to the NSC staff. I indicated that this was an issue on which we had not rendered an opinion in the Justice Department. I also indicated that if you look at the language it is possible to make a strong case for the fact that the Boland Amendment does not apply to the NSC staff.… If the Boland Amendment does not apply to the NSC staff then they would not be included within the prohibitions.
INOUYE: Are you telling us that the staff of the National Security Council can carry out functions that are forbidden to the CIA without evading the laws of the lands of the United States?
MEESE: If the law doesn’t apply to them then they can without violating the law, obviously. That’s a tautology. And when I say the law doesn’t apply to them, the law by its language does not include them.
INOUYE: But if an agent of the CIA carried it out, that would have been a violation of the law?
MEESE: Because the law applies to the CIA by its very terms, but the law by its terms only applies to the CIA, I believe the Defense Department, and entities of the government involved in intelligence activities. Normally, under the list that I read to you, that is not normally deemed to include the National Security Council staff.
INOUYE: Even if they carried out intelligence activities, covert activities?
MEESE: Well, it would depend again on the circumstances. It’s a hypothetical question. But by the language there I think a good case can be made that Congress in its enactment of that law did not include the National Security Council staff within the purview of the agencies that are listed in that section as involved in the prohibition.
INOUYE: Then in other words from what you’re telling me, employees of the Department of Agriculture could have done the same thing without evading the law? To carry out covert activities?
MEESE: I think that it’s entirely possible that as the—that as the law is written here where it says, ‘funds available to the Central Intelligence Agency, the Department of Defense or any other agency or entity of the United States involved in intelligence activities may be obligated and expended only as authorized in specific sections.’ Now, as I read that, as I said earlier, a strong case can be made I think that that does not apply to the Agriculture Department, that it doesn’t apply to Health and Human Services, and a number of other entities which are not involved in intelligence activities.
INOUYE: But if some agent of the Department of Agriculture involved himself with the approval of the president in some covert activity, would that law apply then?
MEESE: By its language, it does not appear to.
INOUYE: Then the Boland Amendment can be evaded very easily.
MEESE: I don’t think it would be an evasion if the law itself doesn’t apply to a particular entity. It certainly would not be an evasion.
Ta-da!
At the same time Attorney General Meese was turning in that grand performance in the Russell Senate Office Building, conjuring imagined armies of USDA inspectors and epidemiologists marching on Managua (it’s all legal), declaring the National Security Council as not being involved in intelligence activities, Meese’s Office of Legal Counsel was making the exact opposite argument. Assistant Attorney General Charles Cooper had determined that the first two arms shipments to Iran were perfectly legal because the NSC was involved, and it was “clear” that the NSC is an “intelligence agency.” Meese’s testimony and Cooper’s legal opinion were, as one might say, diabolically opposed, and this was—well, should have been anyway—embarrassing in the way they were making it up as they went. But this was all new.
Most informed and sentient onlookers would have thought back in the spring and summer of 1987 that this new Meeseian executive-branch modus operandi was about to meet the fate it deserved—a swift and sure death. Even before all the indictments and the convictions of senior administration officials, Reagan’s new way—the president can do anything so long as the president thinks it’s okay—looked like toast. In fact, Reagan looked like toast. Whatever his presidency had meant up until that point, Iran-Contra was such an embarrassment, such a toxic combination of illegality and sheer stupidity, that even the conservatives of his own party were disgusted. “He will never again be the Reagan that he was before he blew it,” said a little-known Republican congressman from Georgia by the name of Newt Gingrich. “He is not going to regain our trust and our faith easily.”
The president had been caught red-handed. Congress had exercised its legal and constitutional prerogative to restrain the executive branch from waging a war in Nicaragua. Reagan responded by breaking the law, waging the war anyway, and funding it by illegal and secret weapons deals that the president insisted weren’t happening. The secretary of defense was indicted on multiple counts, as were two national security advisers, an assistant secretary of state, the chief of Covert Ops at the CIA, and two other senior CIA officials. The president himself escaped largely by pleading exhaustive ignorance and confusion: “I’m afraid that I let myself be influenced by others’ recollections, not my own … the simple truth is, I don’t remember—period.” The Reagan presidency—the whole mythology of Reagan’s leadership—was laid bare. This was competence?
But a funny thing happened on the way to the burial of those tough-guy president-can-do-anything ideas. The lesson of the whole affair didn’t really take hold. The Tower Commission and the congressional investigating committee and the independent counsel expended their resources and energies on personalities like North and Secord and McFarlane and Poindexter, and Reagan got a pass. Which meant that in the not very much longer term, Reagan could be reimagined and reinvented by conservatives as an executive who had done no wrong: the gold standard of Republican presidents. By 2011, Newt Gingrich was trying to pave his own path to the presidency with Gingrich Productions “documentaries” like Ronald Reagan: Rendezvous with Destiny. “I knew Ronald Reagan; I began working with Ronald Reagan in 1974 when I first ran for Congress,” Gingrich was thundering from the podium at conservative conferences. “And I hate to tell this to our friends at MSNBC and elsewhere: Barack Obama is no Ronald Reagan!” (Newt’s Reagan movie kind of glossed over the whole Iran-Contra thing, when the extent of Newt Gingrich’s “working with” Ronald Reagan was throwing him under
the bus, as the untrustworthy president who “blew it.”)
The Iran-Contra scandal hasn’t exactly turned into a badge of honor for those who had starring roles, but neither does it tarnish the high sheen retrospectively applied to the Reagan presidency or those who did his illegal or extraconstitutional bidding. Reagan’s successor, George H. W. Bush, pardoned most of the Iran-Contra convicts; Bush’s son George W. hired on a number of the scandal’s key players for his own administration. The Obama administration kept W’s defense secretary, Robert M. Gates, whose name is the title of chapter 16 of the Iran-Contra independent counsel report. (“The evidence established,” said the report, “that Gates was exposed to information about North’s connections to the private resupply operation that would have raised concern in the minds of most reasonable persons about the propriety of a Government officer having such an operational role.”)
But even more dangerous was the sad fact that the shameful Meese-made legal arguments about nearly unlimited executive power were not seen as the crazy talk they were, and killed off for good. One leader in Congress was instrumental in making sure this executive-power argument remained politically viable, by loudly declaiming at the time of Iran-Contra, in the midst of the scandal, that Reagan was right to do what he did. As the main author of the minority’s 145-page written dissent from the congressional investigation of Iran-Contra, Wyoming Representative Dick Cheney insisted, radically, that Iran-Contra was no crime, that Reagan was right to defy Congress, because there was nothing in Congress, nothing anywhere in America’s political structure, that could constrain a president from waging any war he wanted, however he wanted. It was an extreme view of executive power, a minority view when written, but it quickly became a blueprint for the next generation of Republican thinking about war and its limits. “The President was expected to have the primary role of conducting the foreign policy of the United States,” Cheney argued in his minority report on Iran-Contra. “Congressional actions to limit the President in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with core presidential foreign policy functions, they should be struck down. Moreover, the lesson of our constitutional history is that doubtful cases should be decided in favor of the President.”
Drift: The Unmooring of American Military Power Page 12