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Minority Report

On July 8, The New York Times published my op-ed on the evolution of Dick Cheney's view of executive power on the occasion of the twentieth anniversary of the Iran-Contra hearings. The essay recounted Lieutenant Colonel Oliver North's testimony to the special Senate-House investigating committee, including his claim that the executive has primacy in foreign policy to the absolute exclusion of the Congress. My article related how then-Congressman Dick Cheney and other right-wing House Republican committee members cheered him on.

The piece also examined the committee's dissenting minority report, written by a political scientist whom Cheney had brought on board. That report argued that, "there can be little, if any doubt, that," under the Constitution, "the President was expected to have the primary role of conducting the foreign policy of the United States." This was, as Vice President Cheney had since recalled, a "robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters.''

Finally, the piece quoted Cheney's own remarks from 2005 explaining his current expansive positions on executive power--the subject of much recent concern and discussion--in light of his Iran-Contra minority report.

Now, the report's author, Michael J. Malbin, a former resident fellow at the American Enterprise Institute and currently a professor at the State University of New York at Albany, has emerged on the Weekly Standard's website to contest what he claims are inaccuracies.

First, according to Malbin, my op-ed dubiously "claimed there was a direct connection between Oliver North, the Iran-Contra Committee's Republican minority led by then-Rep. Richard B. Cheney, and the current Administration's view of executive power," and that like "a number of recent portrayals" (unnamed), it describes "the Iran-Contra minority as being in lockstep with North's view of the president as the 'sole organ' of American foreign policy."

But Malbin's assertion here is false--a typical straw-man argument. I never claimed that the minority report endorsed North's view of executive power. I said, correctly, that the minority report offered an expansive view of executive power. I did note, also correctly, that Cheney cheered on North during and after his testimony. Malbin absurdly reads this to mean that I said his report embraced North's specific formulations.

As for drawing a connection between the current Bush administration's views and those of the Iran-contra minority report, Malbin should not complain to me, but to Cheney himself, who has explicitly linked the two. (See Richard W. Stevenson and Adam Liptak, "Cheney Defends Eavesdropping Without Warrants," The New York Times, December 21, 2005.)

Second, according to Malbin, my op-ed overlooked how the Republican minority "disagreed with North's aggrandizing view of the executive." But Malbin's assertion here is disingenuous. The minority report never challenged North's views about executive power. Instead, it quoted from some of the same historical materials as North had done and drew its own conclusions--without once noting what Malbin now admits was North's "substantial misinterpretation" of that material. Concerning the document that Malbin points to as a example of how North distorted precedent, the Supreme Court's ruling in 1936 in the case of U.S. v. Curtiss-Wright Export Corporation, the minority report does indeed refer to a "misreading" of the ruling--not North's, but the claim by others that the relevant sections of the decision were obiter dicta and thus had no force of law.

The minority report had a clear and open opportunity to disagree with North on this point, as on many others. It chose not to do so. Indeed, the report went on to describe the Curtiss-Wright decision in support of the proposition that "some areas of Presidential authority are beyond Congress's reach." Although this was not as expansive as North's interpretation, it leaned in that direction far more that Malbin's current response allows.

Considering how, in 1987, North was the subject of cult-like public adoration and had received warm words of encouragement from members of the minority--including Congressman Cheney--such a clarification at the time would have been highly desirable in establishing bipartisan support for the rule of law and the Constitution, if not mandatory. To say, 20 years later, that the minority "disagreed" with North on these questions, makes a hash of the political realities of 1987--and misrepresents what the minority report actually said and refrained from saying.

Third, according to Malbin, my op-ed ignores how "the minority report never questioned the constitutionality of the Boland Amendment nor did it condone White House misleading of Congress about what it was doing." But Malbin's assertion here is both blatantly false and a piece of pettifoggery. The Boland Amendment as approved in October 1984 barred efforts "which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual." The Reagan White House and various executive officials paid no mind to the ban and secretly but directly solicited aid and various forms of logistical support for the Contras from foreign governments and individuals.

How did the minority report regard such apparent violations? After discussing the executive's powers to undertake various actions by utilizing other governments and private individuals, it was unequivocal: "To whatever extent the Boland Amendments tried to prohibit such activity, they were clearly unconstitutional." Has Professor Malbin read his own report lately?

The minority report also stated that although the Boland Amendment's restrictions did not cover the National Security Council (NSC)--a highly dubious assertion--"virtually all, if not all, of Col. North's activities" in support of the contras were "legal" and "constitutional," and would have been so even of the amendments had covered the NSC. Those activities involved more than creating a foreign policy that was covert, that raised scores of millions of dollars from foreign governments, and that stood, in some areas, in stark contradiction to stated administration positions. It was also a policy executed by an immense private network, organized and maintained by the White House, consisting of a rogue's gallery of foreign arms dealers, soldiers of fortune, cocaine-smuggling pilots, terrorizing brutes, and rip-off artists of almost every description.

Covert operations, sometimes involving dealings with unsavory characters, have long been a feature of intelligence operations, but this was nothing of the sort. Empowering the White House to undertake, unilaterally, the sorts of secret (and, not incidentally, self-enriching) activities that North reveled in is not what Alexander Hamilton and the Framers had in mind when they spoke of "energy in the executive." It is, however, reminiscent of subversive activity that Aaron Burr engaged in and which appalled Thomas Jefferson.

As for misleading Congress, the minority report regretted only that the White House chose not to conduct its acts publicly and force a showdown with Congress. The confrontation should have started, the report said, with President Reagan standing firm and vetoing the strict version of the Boland Amendment passed by Congress in October 1984--even though doing so (because the measure was contained in a continuing appropriations resolution) "would have brought the Government to a standstill within three weeks of a national election."

Curiously, the minority report never explained clearly why Reagan should have vetoed a congressional measure which the report also claimed did not in any way inhibit the White House from doing what it did. Professor Malbin sheds no further light on that now.

Fourth, the rest of Malbin's response dwells on matters irrelevant to my op-ed, such as the advisability of the diversion of Iranian arms sales proceeds to the Contras. (It is worth noting, however, that even though the minority report called the diversion "extremely unwise," some of the Republican members who signed it said individually that the diversion was a brilliant ruse to rob the Iranians in order to supply the Contras.)

Now, Malbin seems to be intensely interested--as neither the report he wrote in 1987 nor the Republican members of the minority who signed it were--in distancing his report as far and as emphatically as possible from Oliver North on the issue of executive power. It's just too bad he and his report didn't do so in 1987.

More important, Malbin now also seeks to distance himself and the report from Cheney's current understanding of it. Cheney unapologetically and unambivalently continues to see the report as a primer for "a robust view of the president's prerogatives," one the Bush-Cheney administration has put into practice over the past seven years. Malbin notes in passing how the report resisted what he calls "the majority's expansionist view of the legislative power," but otherwise he denies that it had much constitutional significance whatsoever--that the "constitutionally significant disputes" were limited and relatively inconsequential.

Either he or Cheney is correct. Both cannot be. Which is it?

Twenty years ago, Republican Senator Warren Rudman said that Malbin's report separated the wheat from the chaff and left in the chaff. By misrepresenting my op-ed's argument, Malbin has built a straw man--and then failed to knock it down. This might be amusing if the historical issues at hand were not so immediate and grave--including the origins of the current administration's policies and justifications for torture, warrantless surveillance of American citizens, use of signing statements ignoring the will of Congress, and more. Malbin, to be sure, could not have seen any of that coming when he wrote his report in 1987. But it has been the cruel eventual outcome of his report's "robust" arguments--or so Vice President Cheney insists.

Malbin's argument, it turns out, is not with me, but with the vice president. Has Cheney come up with "a substantial misinterpretation" of the report, as Malbin now says North did of historical precedent in 1987? Or was the minority Iran-Contra report, as Dick Cheney claims, a work of prophecy?

By Sean Wilentz