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.
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
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
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
