[lbo-talk] Wilentz: Mr. Cheney's Minority Report

Michael Pollak mpollak at panix.com
Tue Jul 10 01:56:43 PDT 2007


[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.



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