BOLAND LAWS MAY BE THE REAL 'CRIME'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000300570008-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 22, 2016
• Document Release Date: August 9, 2011
• Sequence Number: 8
• Publication Date: June 4, 1987
• Content Type: OPEN SOURCE

STAT
Sanitized Copy Approved for Release 2011/08/09: CIA-RDP05CO1629R000300570008-5
THE WALL STREET JOURNAL THURSDAY, JUNE 4..... `
Laws May Be the Real Crime
Boland dent agree
s
By L. GuKujoN CROVIT%
The White House has finally come
around to the must important argument
against the Boland amendments. This is
that they not only didn't apply to the presi.
dent or his staff at the National Security
Council, but that any law that usurps the
foreign-policy powers of the executive
branch is unconstitutional. Edwin Meese
told Bill Moyers on TV last week that it's a
case for the Supreme Court if Congress
passes a law that limits the president "in
ap unconstitutional manner from perform-
ing Prhis es detnt Reagan could have forced the
issue by vetoing the amendments as they
were passed. Failing this, his attorney gen-
eral could have raised the constitutional
questions at the beginning of the Iran-Con-
tra affair. Instead, the separation-of-
powers issue was raised by the administra-
tion belatedly and after already crippling
its case.
The first confusion about the Boland
amendments is sorting out what they said;
the second is figuring out what they meant.
There were five different Boland amend-
d
s
described alongside, g
o
`
ments,
the Contras and
laced between support
cutting them off. These amendments were
inconsistent and vague, but did not offer
any evidence that they applied to Presi-
dent Reagan. The reference in each Bo-
land amendment is to intelligence agen-
cies. The president is not mentioned.
A Vague oncep
The president's staff at the National Se-
curity Council is also not mentioned, but
here the text is less clear. Boland 3, for ex-
ample, refers to any "agency or entity of
the United States involved in intelligence
activities.'' Intelligence is a vague con-
cept, and could include any agency that
analyzes confidential security information.
On the other hand, a 1981 Executive Order
exempted the NSC from the list of intelli-
gence agencies. All of the Boland amend-
ments were passed as part of authoriza-
tions or appropriations for the CIA or De-
nse Department. not the NSC.
f
e
The confusion surrounding the text of
the Boland amendments is why the White
House is wise to make the fundamental,
constitutional argument. This is that even
if Congress had used clear language to re-
strict the president from soliciting funds
from foreign countries or meeting with pri-
vate Contra supporters, any such law
would be unconstitutional. "There is a
strong argument," chief of staff Howard
Baker said, that Congress cannot "limit
the president's authority under the Consti-
tution to administer the foreign policy of
this country."
This argument also should apply to the
National Security Council. If the president
has the constitutional power to solicit funds
or rally private donors, it's untenable to
say he must personally exercise these ex-
ecutive powers. He must be able to dele-
gate to his own staff, in this case NSC offi-
cials. The NSC is part of the president's in-
ner staff; its top officials are not subject to
confirmation by the Senate or ongoing re-
view by any committees of Congress. Rob-
ert McFarlane testified that he didn't know
whether the Roland amendments legally
applied to the NSC, but that he knew Co
gress didn't want aid for the Contras. How-
ever, political constraints are not the same
as legal constraints.
Unfortunately for the White House, its
constitutional case looks weaker for being
raised so late in the day. Mr. Meese made
a fateful statement in breaking the story
on Nov. 25. 1986, of the Iran arms sales and
diversion to the Contras. "We are pres-
ently looking into the legal aspects of it."
here was also the issue of whether
the re
-
to the Contras. --Why. Het aus'- w
keep on obeying the laws
Congress cnot ountry.
which we are obeying.'
knew that aid was being sent covertly. it
made covert aid the only leuctl policy- The
only way for the White House to avoid run-
ning afoul of micro-managing legislation
was to keep the policy officially secret,
though it was in reality very public.Finally, it was no secret that private
aid from domestic and foreign sources was
keeping the Contras alive. In this context.
a statement by a member of the House in a
June 12, 1985. debate is noteworthy. He
said the Contras "continue their military
operations in Nicaragua and they have in-
creased their numbers. They have done
this with funds provided by private groups.
mostly from the United States. , .. private
groups will continue to provide money for.
arms and ammunition." The speake
Rep. Edward Boland.
he said. Sanitized Copy Approved for Release 2011/08/09: CIA-RDP05C01629R000300570008-5 i
nality involved." So, fom the egtnmhg
the issue was "the law,'' not the constitu-
tionality of these laws.
The better view is that any likely
'crimes'' are unconstihUtional laws passed
by Congress. Yet the White House implic-
itly accepted the validity of congressional
restraints on the preside'nt's foreign-attau?s
power. One result is the prosecutorial tone
of the Iran?Contra hearings. Many con-
gressmen seem more intent on hlpingecu-
the legal groundwork for special 1
for I.awrence Walsh than on discussing the
Iran initiative or what to do about the com?
munist government in Nicaragua. Mr.
Walsh has hinted of criminal charges
against Lt. Col. Oliver No't and others of
conspiring to violate the mes, civet or
ments, which carried no pena
criminal. veto the
Why didn't President Reagan
Boland amendments as unconstitutional?
Richard Nixon at least vetoed the War
powers Resolution. but was overridden.
One reason is that each Boland amend-
attached to an authorization or
ment was
appropriation bill..^Pressidenctt hReagan
noesn a uct- n
d to risk closing down the defens
have ha
and inteligence agencies until Congress
tried to dverride.
Even now, sources at the white House
are reluctant to talk on the record about
how they viewed the Boland amendments
when they were passed. They fear the le
gal repercussion that anything they say
could lead to a subpoena by Mr. Walsh. In-
deed, this chill is one of the big effects turning what is essentially a policy dispute
into possible criminal cases; not since the
McCarthy era have internal communica-
officialsesay off stifled. th e record administration needs saying.
however. -
would have been a veto.
f the aid was to overthrow
l
i
y
n
ur se o
There certa
me in Managua. as in Roland 1. or It,
these sources all agree, if anyone had been P
making the claims for the Boland amend- interdict aid to Salvador insurgents or to
ments that are being made today. At the bring about negotiations between the com
time of their passage, no one ever stig, ists and tile
gested they overrode the president's First mun
Reagontra w as asked in a May
Amendment rights when talking to the ress confere'nc'e why the U.S.
king of Saudi Arabia. Indeed. as the re. d17, idn't affe overt aid instead of covert aid
e w??uri to
peated changes in the Roland restrictions
show, the whole five-year debate was
about .separation of powers, about how far
Congress could go in restricting the execu-
tive'sconduct of foreign policy.
The political compromise that arose
from this struggle was that the executive
would obey Congress's restrictions, but
would continue to pursue its policy with
whatever powers remained. The executive
and the Congress bargained over what re-
strictions would be acceptable and signed,
and which would be unacceptable and ve-
tot-:1. Thus when the most restrictive Bo-
land amendment was passed, the context
of the debate established an implicit but
clear understanding: The pres
not to veto. and the quid pro quo was leav-
Ing option other than ov
by means the
alive fund
ing.
There s abundant evidence in the legis-
lative history that (his is what everyone
thought the amendments meant. Before
the adoption of Boland I in late 1982. for
example. several Democratic congressmen
tried to amend the fiscal 1983 defense ad-
propriations bill to bar all U.S.
through any channel. to the Contras. Rep.
Tom Harkin (D., Iowa' proposed a bar on
anyone ''carrying out military activities
or against Nicaragua.'
The White House sent word it would
veto any such broad bill as an unconstitti'
tional usurpation of executive authority in
foreign policy. Rep. so
avoid a political fight of this he himself fought off the bid for a total ban
on aid. He pushed the vague language he
had included in the intelligence?athoizaf
tion bill barring aid "for the purpose
overthrowing the government of Nicara-
of this Bo-
gua." The compromise nature
land amendment is shown by the fact that
it passed the House by a vote of 411.0.
Whatever try tho, to bani all11aid.ii is Illelt- 11
did not not try
amendment would have.
There's evidence that from the begin'
ning. Congress was a willing participant in
a covert policy. A heated debate broke out
in the Senate Intelligence Committee in the
spring of 1983 about whether Contra aid
should be overt or covert. Covert won. Sen.
Barry Goldwater IR.. Ariz.) said that laws
such as the War Powers Resolution
ven
hibit us from engaging in the type of o
action that we now call covert.-
of a public This debate
the surreal spectacle
about "covert" aid.
the
 Sanitized Copy Approved for Release 2011/08/09: CIA-RDP05CO1629R000300570008-5
Despite their current exclamations of
surprise, congressmen knew from
speeches and rallies that the executive
branch was doing what it could for the
Contras. This situation did, however, lead
to some tightrope-wall-ing. Mr. McFarlane
told the Iran-Contra panel that when he
had earlier testified to a House committee
about the level of assistance to the Contras
that he "used some tortured language''
and may have been 'too categorical.''
Langhorne Motley, then the assistant sec-
retary of state for Central America. told a
Senate committee in 1985 that there was no
soliciting or encouraging of aid from third
countries. What is not clear is whether,
given their tacit support for covert aid,
any congressmen expected answers differ-
ent from the ones they got.
Reagan Should Have Fought Back
Still, the implicit agreement that the
president would keep the Contras alive un
ail Congress began funding them again
broke down in the glare of publicity. Ili re
trospect. the greatest failure of President
Reagan in the Iran-Contra affair was duck-
ing h:s duty to himself and future presi-
dents to fight back when Congress first be-
gan usurping executive authority. l;~e'n
Boland I is of dubious constitutionality.
Now the separation-of-powers issue will
most likely be settled by a court hearing
claims brought by special prosecutor
Walsh. An obvious defense for an indicted
Iran-Contra participant is that the Boland
amendments were unconstitutional.
In light of Congress's muddling med-
dling in Nicaragua policy, it's worth recall-
ing that one reason it constitutional con-
vention was called cuu years ago was that
the Articles of Confederation had a fatal
flaw. They gave the foreign-affairs power
to Congress. With policies led to and fro by
dozens of commanders in chief, the coun.
try, threatened by continued British ag-
gression, feared for its independence.
Mr. Crui it, is assistant editor of the
Journal's editorial page.
These certainly would have been a veto,jhese sources
all agree.i'if anyone had been makingt claims for the
Boland amendments that are being made y
The Five Amendments
These were the amendments sup-
ported by House Intelligence Committee
Chairman Edward Boland ID., Mass.1 to
limit funding for the Contras:
Roland 1. Dec. 21, 1982, to Dec.
1983. Defense Appropriation Act: No
funds can be used b the Defense De-
partment or Central Intelligence Agency
''to furnish military equipment, military
training or advice .. . for the purpose
of overthrowing the government of Nica-
ragua or provoking a military exchange
between Nicaragua and Honduras."
Boland 1. Dec. 8. 1983, to Oct. 21,
198-1. Defense Appropriations and intelli-
gence Authorization Acts: Granted $24
million for use by Defense, the CIA or
other intelligence agencies for "support-
ll;r'('r't!r- or Indirectly, mlli:, rA -1
. I'.i Ilillit,ir% lh i,itions in NI('al'agua,
H'd,wl ' I Wt 1984. to Sept. 30,
:9')') Defense Appropriation and Intelli-
gence Authorization Acts: ''During fis'
cal year 1955. no funds available to the
Central Intelligence Agency, the Depart-
ment of Defense, or any other agency or
entity of the United States involved in
intelligence ;activities may be obligated
or expended for the purpose or which
aell;!d have the effect of supporting. CI
n -ct!) or indirectly. military or parami-
In;iry operations in Nicaragua by any
nation, group, organization, movement,
It Illrtillfllfal,-
h,,;,l~l,l 4. Aug. x, 1955, to March :il.
International Security and Dev'el
In;mient Cooperation Act: Appropriated
52: million for humanitarian assistance
to the Contras via the State Department.
It prohihncd Ih1' t.'.S. io?,crnment from
entering rlt(l any arrangement cnndi-
tinning, 1'x,': ss!)' of Itiipilectly. ter' pro-
vision of Issistance by i recipient to
persons or groups engaging in an insur-
gency or other, act of rebe!!ion." Supple-
mental Appropriations Act: Granted ex-
ception fro n, any prohibitions on the
U.S. government 'exchanging Informa-
tion with the AIcaratguan democratic re-
sistance.'
Roland J. Dec. 4, 1985, to Oct. 17,
1956. Intelligence Authorization Act: Au-
thorized secret direct military and para-
military aid 'o the Contras. The details
were classified as national secrets, but
the conference managers for the bill ex-
plained that the act authorized a classi-
'I'-i! ' V enni:I'Jnal('.a'IOns and
eyul;~ment tr::linng. It ins- o;ihonu`d
I litelligencc agencies to he!p the Contras
with intelligence and counterintelligence
advice and information and communica
tions training, but assistance lexcept for
communic,tt!nns training; could not
amount to 'p;nining or execution of mil-
itary or paramilitary operations in Nica-
ragua' or ''partic;patinn in logistics ac
tivities intetrri; to such activities, ' It
re- the, pr('nihition on Indirect mili-
tary or paranu;rtary aid, and expressly
authorized Ili(, State Department to so-
'it-it third ('nl,!ltrA' hll!il In;t,trl!Il aid.
P'..,.nd~ . ,ir`?d- ()II )i;nc- 1986,
the to loin the Sen
ate In .ip;lrn,;r: ~inii million in aid for
the ~.'n,'1-r;is rat rf:i ..~'0 million was for
nulitary ;aid. jYe million for humanitar-
ian aid
Sanitized Copy Approved for Release 2011/08/09: CIA-RDP05CO1629R000300570008-5