[Interesting bit of history I didn't know]
http://www.nytimes.com/2007/07/09/opinion/09wilentz.html
July 9, 2007
The New York Times
Mr. Cheneys Minority Report
By SEAN WILENTZ
Op-Ed Contributor
TWENTY years ago this week, Lt. Col. Oliver North testified for six
days before a special joint House and Senate investigating committee.
Permitted by the Democratic majority to appear in his bemedaled Marine
uniform, and disastrously granted immunity, Colonel North freely
admitted that he had shredded documents, lied to Congress and falsified
official records.
Colonel North justified these crimes as necessary to protect two of the
Reagan administrations covert policies: defying a Congressional ban on
aiding the anti-Sandinista contra insurgents in Nicaragua; and selling
arms to Iran officially classified as a terrorist state in order to
free American hostages in the Middle East.
Mixing bathos with belligerence, Colonel North played the incorruptible
action hero facing down Washington politicians and lawyers. He also
suggested that, under the Constitution, the president and not Congress
held ultimate authority to direct foreign policy.
Most of the Congressional committee members, Republicans and Democrats
alike, expressed shock at Colonel Norths testimony. And despite the
surge in Colonel Norths personal popularity, he failed to sway other
Americans on the underlying issues. Clear majorities in opinion polls
said that Colonel North had gone too far in his covert operations,
especially in helping the contras. Roughly half of those polled
believed that he had acted as if he was above the law. Sixty percent
said that Congress was more trustworthy than the Reagan White House on
foreign relations.
And Mr. North was eventually convicted of three federal felonies
receiving an illegal payment, obstruction of a Congressional inquiry
and destroying official documents, although an appellate court held
that his testimony delivered under Congressional immunity may have
affected jurors and reversed one conviction. (Prosecutors gave up on
the other two.)
But there were dissenters. A number of House Republicans on the
committee cheered Colonel North on. One who led the way was Dick Cheney
of Wyoming, who praised Colonel North as the most effective and
impressive witness certainly this committee has heard.
Mr. Cheney the congressman believed that Congress had usurped executive
prerogatives. He saw the Iran-contra investigation not as an effort to
get to the bottom of possible abuses of power but as a power play by
Congressional Democrats to seize duties and responsibilities that
constitutionally belonged to the president.
At the conclusion of the hearings, a dissenting minority report
codified these views. The reports chief author was a former resident
fellow at the American Enterprise Institute, Michael J. Malbin, who was
chosen by Mr. Cheney as a member of the committees minority staff.
Another member of the minoritys legal staff, David S. Addington, is now
the vice presidents chief of staff.
The minority report stressed the charge that the inquiry was a sham,
calling the majority reports allegations of serious White House abuses
of power hysterical. The minority admitted that mistakes were made in
the Iran-contra affair but laid the blame for them chiefly on a
Congress that failed to give consistent aid to the Nicaraguan contras
and then overstepped its bounds by trying to restrain the White House.
The Reagan administration, according to the report, had erred by
failing to offer a stronger, principled defense of what Mr. Cheney and
others considered its full constitutional powers. Not only did the
report defend lawbreaking by White House officials; it condemned
Congress for having passed the laws in the first place.
The report made a point of invoking the framers. It cited snippets from
the Federalist Papers like Alexander Hamiltons remarks endorsing energy
in the executive in order to argue that the presidents
long-acknowledged prerogatives had only recently been usurped by a
reckless Democratic Congress.
Above all, the report made the case for presidential primacy over
foreign relations. It cited as precedent the Supreme Courts 1936 ruling
in United States v. Curtiss-Wright Export Corporation, which referred
to the exclusive power of the president as the sole organ of the
federal government in the field of international relations.
History, the report claimed, leaves little, if any doubt that the
president was expected to have the primary role of conducting the
foreign policy of the United States. It went on: Congressional actions
to limit the president in this area therefore should be reviewed with a
considerable degree of skepticism. If they interfere with the core
presidential foreign policy functions, they should be struck down.
These conclusions went beyond what had long been considered the
outermost limits of presidential power and they put a special twist on
history. Hamilton certainly desired a strong executive, but warned that
it would be utterly unsafe and improper to give a president complete
control over foreign policy.
The Curtiss-Wright decision actually concerned a presidential claim of
constitutional power to act in the absence of an act passed by
Congress, not in violation of such an act.
One of the foremost constitutional scholars of the 20th century, Edward
S. Corwin, stated in 1957 that the Constitution was an invitation to
struggle for the privilege of directing American foreign policy, and
that in many cases the lions share of that privilege belonged to the
president. But Corwin finally insisted that the power to determine the
substantive content of American foreign policy is a divided power.
The Iran-contra joint committee majority in 1987, including some Senate
Republican members, charged that the minority report, with tortuous
illogic, reduced Congresss foreign policy role to nearly nothing.
Senator Warren Rudman, a New Hampshire Republican and vice chairman of
the Senate side of the investigating committee, paraphrased Adlai
Stevenson and quipped that the minority report had separated the wheat
from the chaff and left in the chaff.
His comments did not lead Mr. Cheney to alter course, as Mr. Cheneys
actions as vice president demonstrate. Asked by a reporter in 2005 to
explain his expansive views about presidential power, Mr. Cheney
replied, If you want reference to an obscure text, go look at the
minority views that were filed with the Iran-contra committee.
Nobody has ever read them, he said, but they are very good in laying
out a robust view of the presidents prerogatives with respect to the
conduct of especially foreign policy and national security matters.
In truth, as Mr. Cheney has also remarked, the struggle for him began
much earlier, during the Nixon administration. A business partner says
that Mr. Cheney told him that Watergate was merely a political ploy by
the presidents enemies. For Mr. Cheney, the scandal was not Richard
Nixons design for an imperial presidency but the Democrats drive for an
imperial Congress.
Still, Mr. Cheneys quest to accumulate unaccountable executive power a
quest that has received much attention of late took a major turn 20
years ago. And part of Iran-contras legacy has now become a legacy of
the Bush-Cheney administration.
Sean Wilentz, a professor of history at Princeton, is the author of a
forthcoming book on the Reagan administration and its legacy.