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The Constitution in Danger

1.

The unfinished business of the Iran-contra affairs still haunts us. It reappears every time the President decides to take some critical action in foreign policy on his own.1 We have barely begun to face the issue, with the result that some Iran-contra variant is bound, sooner or later, to recur.

The Iran-contra affairs amounted to more than good plans gone wrong or even bad plans gone wildly wrong. They were symptomatic of a far deeper disorder in the American body politic. They were made possible by an interpretation of the Constitution which former National Security Adviser John M. Poindexter and Lieutenant Colonel Oliver L. North thought gave them a license to carry on their secret operations in the name of the President, without regard for any other branch of the government.2 One would not ordinarily think of Poindexter and North as authorities on the power of the presidency in foreign affairs. Yet, to justify their actions, they held forth on just this constitutional issue. A highly dubious theory of a presidential monopoly of foreign policy had filtered down to them. Their reasons reflected a school of thought that calls into question the constitutional foundations of this country.

On May 2, 1986, Poindexter sent a revealing message to his deputy, Don Fortier, about a conversation with President Reagan. Poindexter said that he and the President had discussed an aid bill for the contras, which was not going through Congress fast enough to please the administration. Reagan had started the conversation with “I am really serious.” He then said: “If we can’t move the Contra package before June 9, I want to figure out a way to take action unilaterally to provide assistance.” After some discussion on how to accomplish this end, Poindexter observed: “But the fact remains that the President is ready to confront Congress on the Constitutional question of who controls foreign policy.”3

Poindexter brought up another critical question bearing on who controls foreign policy. Of all the powers given to Congress by the Constitution, none is more fundamental than congressional control of appropriations.4 Without that control, Congress would be deprived of any effective share in the governance of the United States. Yet Poindexter took it upon himself to declare that the constitutional authority of Congress to appropriate money should not be used “to restrict what the President can do in foreign policy.”5 In effect, he wanted congressional control of appropriations to stop at foreign policy, thereby depriving Congress of any fully effective means of influencing it.

North also posed as an authority on the President’s constitutional powers. At one point in the congressional hearings, he said:

I deeply believe that the President of the United States is also an elected official of this land, and by the Constitution, as I understand it, he is the person charged with making and carrying out the foreign policy of this country [italics added].6

It was this assumption of a president almighty in foreign policy that underlay the belief of Poindexter and North that they could do anything in the Iran-contra affairs so long as they had the President’s implicit or explicit approval.

Poindexter and Fortier were sometimes more extreme than North. The difference once came up in connection with efforts to solicit money from “third countries.” In November 1985, Fortier wrote to McFarlane:

Ollie believes we need to flag the possible option of a Finding permitting us to seek third country support. John [Poindexter] and I are both uneasy about raising this.7

Fortier was referring to the Hughes-Ryan Amendment of 1973, which requires the president to “find” that any operation, other than that for obtaining intelligence, “is important to the national security of the United States” and to report it to the appropriate committees of Congress “in a timely fashion.” Poindexter explained: “I didn’t want to resurface the issue on the Hill and get an answer that we didn’t want to hear.”

Another issue concerned whether funds were appropriated by Congress. In this case, Poindexter admitted, “you probably have to have, as we do have, a very detailed accounting system to make sure the money is all spent for its intended purpose.” But there was an escape hatch. If unappropriated money were used, Poindexter held, no accounting would be necessary. In the case of the operation managed by former General Richard V. Secord in behalf of North, Poindexter said, “We are talking about private funds, third-country funds that really are outside of the purview of the US government.”8

North also claimed to know the constitutional difference between appropriated and unappropriated funds. He maintained: “We lived within the constraints of Boland, which limited the use of appropriated funds.”9 If unappropriated funds were used, he thought, there was no need to abide by the Boland Amendment, which prohibited support for the contras.

The use of private or third-country funds thus became another way the President and his men tried to escape from the reach of Congress and accountability in foreign affairs. If this rationale had occurred only to Poindexter and North, it might be dismissed as an amateurish aberration. Two years later, however, the very same argument was put forward by Senator Jesse Helms, the ranking Republican in the Foreign Relations Committee, against the most important bill as yet offered as a consequence of the Iran-contra affairs. The issue will not die, as will become clear when we come to the fate of the bill presented by Senator Daniel Patrick Moynihan in July of 1989.

The question of the appropriations power of Congress in foreign policy is only a special case of other, more farreaching questions:

Is the president a free agent in complete command of the conduct of American foreign policy? Do the other branches of government, especially Congress, have any part to play in it? Does the Constitution draw a fundamental distinction between the conduct of foreign and domestic affairs? Do we have an autocratic president in foreign but a democratic president in domestic policy?

The way these questions were answered influenced the way the Iran-contra affairs unfolded. The premise of a presidential monopoly in foreign policy emboldened Reagan, Poindexter, and North to play fast and loose with constitutional constraints. In its ultimate significance, nothing was more important in these affairs than how the power of the president in foreign policy was understood—and nothing was more neglected. The Iran-contra affairs were not an aberration; they were brought on by a long process of presidential aggrandizement, congressional fecklessness, and judicial connivance. If anything is to be gained from this costly experience, it should be the belated realization that the Constitution is, in a sense, in danger.

2.

But in what sense?

There is little agreement on what the Constitution says about where power is located in foreign policy. For one reason, the Constitution itself says comparatively little about it. Article I, Section 8, gives Congress the power to regulate commerce with foreign nations, to declare war, to provide for the common defense, and determine the organization of the armed forces. Article II, Section 2, empowers the president to make treaties with the advice and consent of the Senate, provided two thirds of the senators present concur; to appoint ambassadors with the advice and consent of the Senate; and to be the commander in chief of the armed forces. The grants to the president—as Abraham D. Sofaer observed in a notable study—are “by contrast, few and vague.”10 All this is not very much on which to base a complete constitutional doctrine. These few hints were hardly enough to guide the nation even in its infancy.

The framers of the Constitution, moreover, were not models of consistency. They frequently said different things or said one thing and did another. Alexander Hamilton, traditionally considered the early exponent of a strong presidency, gave expression to the classical rejection of an all-powerful presidency in foreign affairs:

The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States.11

Later, however, Hamilton wanted to give the presidency virtually unlimited power, except where the Constitution contained specific exceptions and qualifications, which were few. Thomas Jefferson appealed to James Madison “to cut him to pieces,” which Madison tried to do in the great debate between Pacificus (Hamilton) and Helvidius (Madison). A critical issue was whether the executive as well as the legislature had the “right” to judge whether to make war or not—the ultimate test of how far the executive could go in its control of foreign policy. Madison argued heatedly:

In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace in the legislature, and not to the executive department…. War is in fact the true nurse of executive aggrandizement…. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war; hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.12

The main, historic leaps in “executive aggrandizement” might well serve as a commentary on this passage, as shown by the wartime presidencies of Woodrow Wilson and Franklin D. Roosevelt.

A few years later, Madison wrote to Jefferson:

The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging, and are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.13

Yet President Jefferson and his secretary of state, James Madison, stretched the powers of the presidency beyond anything they had previously envisioned in order to obtain the Louisiana Territory in 1803. Previously “strict constructionists” of the Constitution, they waived their principles for what Jefferson said was a “higher obligation.” Since the Constitution did not provide for the acquisition of territory, which would have required a constitutional amendment, Jefferson admitted that it was “an act beyond the Constitution.”14 The congressional defenders of President Reagan’s handling of the Iran-contra affairs did not fail to note these historical precedents and inconsistencies.15

  1. 1

    See the Afterword on the armed intervention in Panama.

  2. 2

    Unfortunately, joint congressional committee documents and the press distorted the Iran-contra affairs by using the singular. They were, in fact, two quite different affairs, which dealt with very different problems and countries. That both were managed by Oliver North and sometimes intersected, as in the case of the “diversion,” did not make them one and the same affair.

  3. 3

    Iran-Contra Investigation, Joint Hearings, Poindexter to Fortier, May 2, 1986, Poindexter testimony, Exhibit JMP-45, p. 568. This is the multivolume, official transcript of the public hearings before the Senate and House Select Committees. The volumes have no other distinguishing feature than the names of those who testified (hereafter Joint Hearings).

    According to this message, President Reagan was influenced by reading a book edited by Benjamin Netanyahu, then the permanent representative of Israel to the United Nations, “and he was taken with the examples of Presidential actions in the past without Congressional approval.” The book was Terrorism: How the West Can Win (Farrar, Straus and Giroux, 1986). The selection which impressed President Reagan so much was made up of six pages on “Constitutional Power and the Defense of Free Government” by Professor Walter Berns. It dealt wholly with “The Case of Abraham Lincoln,” who took various unilateral actions during the Civil War. Reagan apparently mistook himself for Lincoln and the covert operation against Nicaragua for the Civil War.

  4. 4

    No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” (Article I, Part 9, Clause 7).

  5. 5

    Joint Hearings, Poindexter testimony, p. 372.

  6. 6

    Joint Hearings, North testimony, p. 181.

  7. 7

    Joint Hearings, Fortier to McFarlane, November 22, 1985, Poindexter testimony, Exhibit JMP-5, p. 418.

  8. 8

    Joint Hearings, Poindexter testimony, p. 358.

  9. 9

    Joint Hearings, North testimony, p. 338.

  10. 10

    Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (Ballinger, 1976), p. 3.

  11. 11

    The Federalist, edited by Jacob E. Cooke (Wesleyan University Press, 1961), pp. 505–506.

  12. 12

    The Founders’ Constitution, edited by Philip B. Kurland and Ralph Lerner (University of Chicago Press, 1987), Volume IV, p. 65 (Hamilton), pp. 76–77 (Madison).

  13. 13

    Madison to Jefferson, May 13, 1798, Letters and Other Writings of James Madison (Lippincott, 1865), Volume II, p. 141.

  14. 14

    Jefferson to John Breckenridge, August 12, 1803, The Writings of Thomas Jefferson (Putnam, 1903), Volume X, p. 411.

  15. 15

    Report of the Congressional Committees Investigating the Iran-Contra Affair (US Government Printing Office, 1987), p. 465 (hereafter Iran-Contra Report).

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