Wednesday, March 28, 2007

Iran-Contra -- It Gets Worse with Time

A recent discussion of the Iran-Contra scandal of the Reagan Administration inspired this post, which I have been wanting to make for some time. The overall facts of the scandal are nothing new. Lebanon's Hezbollah militia, closely allied with Iran, was holding a number of US and other western hostages. Ronald Reagan, trying to secure their release, approved the secret sale of arms to Iran, even though Iran was a hostile power and the sale was illegal. In the mean time, Congress had cut off all funds to the Contras, a US-backed group of rebels against Nicaragua's pro-Soviet government. Reagan had made support for the Contras a centerpiece of his foreign policy, so the Congressional cutoff of funds was a major blow. The CIA and National Security Council secretly diverted the proceeds from the sale to the Contras in order to circumvent the funding restriction.

The largest scandal of the Reagan Administration followed, with an independent commission, Congressional hearings, and a special prosecutor. In the end, the investigation largely backfired against Congress. Oliver North and other participants were able to portray themselves as patriots whose only crime was to want to fight Communism against the wishes of a treasonous Democratic Congress that was trying to thwart them. (Sound familiar?) Furthermore, as the scandal descended into details (as scandals do), as it became a seemingly microscopic discussion of who knew what and when, as shredded documents and grants of immunity made it impossible to prosecute anyone for anything other than perjury and obstruction of justice, scandal fatigue set in and most people just wanted it all to go away. I confess to falling into that error myself. But looking back on it, Iran-Contra was a grave constitutional crisis that, in an ideal world, should have led to impeachment.

Ronald Reagan, a Republican President often in conflict with a Democratic Congress, was, unsurprisingly, an advocate of executive power. However, neither Reagan, any member of his Administration, nor any pro-Adminstration pundit, made the sweeping claims of Presidential power currently being advanced by John Yoo and other advocates of the "unitary executive." No one in the Reagan Administration every claimed that the President had authority to engage in warrantless wiretapping or torture. Still less did anyone during the Reagan Administration claim that the President may do such things in violation of a statute or treaty forbidding them, or that any such statute or treaty is an unconstitutional infringement on the President's authority. In short, no one at the time of the Reagan Administration claimed that the President is above the law on all matters of war, foreign policy, or national security.

John Yoo and others who share his viewpoint deny that they are creating a all-powerful, unchecked executive. Rather, they say, in any confrontation between Congress and the President, Congress can alway win because it holds the ultimate power, the power of the pursestrings. Any time Congress thinks the President is out of hand, it can always cut off funds.

Hence Yoo argues that the Congressional power to declare war does not mean that Congress has the authority to decide whether or not to fight, but only how to define a war. The President, as commander-in-chief, can use the army however he wants.

But this does not mean that the President exercises unlimited power. Instead, Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Congress can choose to block presidential warmaking ex ante, if it chooses, simply by doing nothing.
Yoo makes a similar argument about warrantless wiretapping: "Congress can cut off funding for this program if it wants to. It can reduce the NSA. It can hold up appointments. It can exercise its oversight authority as it's going to do." Investigation and holding up appointments are merely means of excerting political pressure, not ways of making the warrantless wiretapping illegal. Ultimately, the only proposal Yoo offers that carries the force of law is to cut off funding.

Yoo hands Congress a baseball bat to crush the President's programs, then dares them to use it. But he denies that Congress can regulate the President with an instrument any less blunt than his baseball bat. It is an all or nothing choice made intentionally unpalatable. Congress can defund a war and abandon the troops in the field. It can prevent wars by refusing to fund an army. It can prevent warrantless wiretapping by defunding the NSA. But once Congress creates an army or an intelligence agency, it has no say-so in how they are used. Yoo's fine-sounding talk that Congress can always prevail by cutting off funding is a bluff more than anything else. He manages to sound reasonable by saying that Congress is supreme, but the only tool he leaves them to exercise their supremacy is intentionally made as clumsy as possible.

But what happens when Congress calls John Yoo's bluff and actually uses the power of the pursestrings to limit the President? Iran-Contra makes the answer clear -- right-wingers cry foul and unconstitutional. When Congress cut off funding for the Contras, even though this was an exercise of the power of the purse, many right-wing commentators of the day complained that Congress had overstepped its proper authority. When Colonel North and others circumvented this exercise of the power of the purse, right-wingers dismissed it as "criminalization of foreign policy differences." (Links not available, this was from pre-Internet times).

Perhaps the ultimate expression of this viewpoint comes from then-Congressman Dick Cheney in the minority report of the Congressional investigation:

[T]hroughout the Nation's history, Congress has accepted substantial exercises of Presidential power -- in the conduct of diplomacy, the use of force and covert action -- which had no basis in statute and only a general basis in the Constitution itself. ... [M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. ... [T]he power of the purse ... is not and was never intended to be a license for Congress to usurp Presidential powers and functions. (emphasis added).
The reasoning here is extraordinary. Apparently if the President wants to engage in a covert operation, Congress is legally and constitutionally obligated to fund it! Or perhaps Cheney is trying to further blunt the power of the purse -- if Congress funds the CIA, it may not control how those funds are used. The only way to defund the Contras is to defund the CIA altogether.

In any event, Iran-Contra and the Yooian theory of presidential power, each dangerous enough by itself, are terrifying in conjunction. Ronald Reagan never claimed such extensive powers as the Bush Administration currently claims, but when Congress attempted to restrict it by cutting off funding, supporters cried foul. Bush and his followers now claim powers far beyond what anyone during the Reagan Administration imagined, but assure us that Congress can check them at any time by cutting off funds. And the Reagan Administration managed to circumvent the power of the purse and get away with it.

My greatest fear: That Congress will try to use the power of the purse strings to shut down, say, Guantanamo or "black sites" and the Bush Administration will pull an Iran-Contra.

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