GEORGE SHULTZ'S FEISTY LAWYER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000706970004-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 22, 2016
• Document Release Date: December 13, 2011
• Sequence Number: 4
• Publication Date: April 6, 1987
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2011/12/13: CIA-RDP90-00965R000706970004-2
ARTICLE AP%M, M0
ON PMT
TIME
6 April 1987
George Shultz's Feisty Lawyer
Abraham Sofaer draws fire as State Department legal adviser
S eated at a table before the Senate For-
eign Relations Committee, his hands
clasped tightly, the diminutive State De
partment legal adviser, Abraham Sofaer
hardly looked the role oTen1ant terrible.
But after being praised publicly by Rea-
gan and Secretary of State George Shultz,
Sofaer last week stared straight ahead as
Democratic Senator John Kerry of Mas-
sachusetts delivered a harsher verdict:
"You may say the President hasn't creat-
ed a constitutional crisis ... maybe you
have. Maybe your memorandum has."
This sharp attack was typical of the
controversy Sofaer has triggered by his at-
tempt to reverse an almost universally
held understanding of the 1972 ABM trea-
ty so that the Reagan Administration
would be able to test SDI components in
space. It was not the first time he has
come under fire. In nearly two years as
the top legal adviser to Shultz, Sofaer has
offered a series of aggressive can-do opin-
ions on a range of foreign policy issues.
Democratic Senator Joseph Biden calls
Sofaer's work an "unconscionable politi-
cization of the office."
The opinion on the ABM treaty is par-
ticularly vulnerable. Sofaer queried no-
body from the original negotiating team
except Paul Nitze, the President's
special adviser on arms control. A
recognized authority on the pact,
Nitze supported Sofaer's conclusion
that the agreement did not forbid re-
search and testing of "exotic" weap-
ons such as lasers and particle
beams. Senators savaged Sofaer for
relying heavily on the negotiating
record, ignoring assurances made to
the Senate during ratification. Spe-
cial irritation was reserved for the
way Sofaer quoted documents and
sources out of context. In a court-
room, says Georgia Democrat Sam
Nunn, such sleight of hand would
warrant an "admonition from the
judge, maybe a contempt citation."
Deeply shaken, Sofaer yielded to
the threat of a Senate subpoena last
week to explain his opinion. Al-
though he still believes the ABM trea-
ty permits Star Wars testing, Sofaer
conceded that his methodology had
been flawed, a failure he attributed
to young staff lawyers. Some Sena-
tors rallied to the defense of Sofaer.
Democrat Ernest Hollings of South
Carolina criticized his colleagues for
"rushing to judgment" and argued
the "record shows no ambiguity that
the Soviets refused again and again
to agree to prohibit future systems."
Sofaer has consistently inter-
preted international law to justify
activist, unilateral action by the U.S.
He offered the justification for using
force against nations harboring terrorists
in what has become known as the "Shultz
Doctrine." He supported the Administra-
tion's widely criticized decision to with-
draw partly from the jurisdiction of the
International Court of Justice after the
court ruled against U.S. support for the
Nicaraguan contras. "The U.S. is sup-
posed to be building up international law,
not destroying it," says Mark Feldman, a
Washington attorney and former staffer
in the legal adviser's office.
Considerable criticism dogged So-
faer's performance as head of the U.S.
delegation that traveled to Jerusalem in
December 1985, after Jonathan Jay Pol-
lard was charged with spying for Israel.
While the State Department issued a
statement lauding the Israeli government
for its "full cooperation," Justice Depart-
ment officials on the delegation have
charged angrily that they were "misled"
by the Israelis. Jerusalem had withheld
the name of Pollard's handler, Aviam
Sella, and had delivered only 163 docu-
ments of the thousands purloined by Pol-
lard. Sella was subsequently indicted in
the U.S. on espionage charges, and the
Justice Department is now moving to in-
dict three additional Israeli officials.
The "Judge" as a witness at last week's Senate hearing
His opinions justify unilateral action by the U.S.
For all this, the feisty Sofaer stands
high with Secretary Shultz, who hired him
after admiring his performance as federal
district court judge in the libel suit by
former Israeli Defense Minister Ariel
Sharon against TIME magazine.* The
son of Sephardic Jews, Sofaer, 48, was
born in Bombay, and served for a decade
as a distinguished professorat Columbia
Law School. From the start he was con-
troversial at the State Department. Al-
though the "Judge" was acknowledged to
have a brilliant legal mind, his abrasive-
ness irritated many of his staff outside
the immediate circle of newcomers he
brought with him.
opinions are split on how Sofaer runs
the office of legal adviser, a presti-
gious but traditionally little known de-
partment of some 100 lawyers that serves
as principal counsel to the Secretary of
State on matters of international law.
To some observers, Sofaer has done no
more than would be expected of an attor-
ney serving his client-even if that client
is a policymaking arm of the U.S. Gov-
ernment. "Abe Sofaer is a great New
York lawyer," Governor Mario Cuomo
told a breakfast group. "If they tell
him 'Make it legal, Abe,' he'll make it le-
gal." Sofaer refuses to get caught in a law-
vs.-policy dogfight. He cites Lyricist Sam-
my Cahn's dictum that it is impossible to
say "what comes first, the music or the
words."
That view sits badly with those
like Roberts Owen, a predecessor of
Sofaer, who argue that the "job isn't
just another legal hired gun." The
post is unique in that the legal advis-
er's opinions are often what lawyers
call "non-justiciable"-not subject
to appeal. In this job more than any
other legal post in America, says
Professor Richard Gardner of Co-
lumbia Law School, "Sofaer's judg-
ments should be sub specie aeterni-
tas " (for eternity).
Attention is likely to remain fo-
cused on Sofaer, if only because in ar-
guing the ABM case he has raised an
unprecedented challenge to the Sen-
ate. Sofaer has claimed that nothing
the Administration tells the Senate
during the ratification process is i
binding, a view that Professor Laur-
ence Tribe of Harvard Law School
says "would give the Senate a mean-
ingless role in treaty ratification."
When Biden sputtered, "That's in-
credible. That's absolutely stagger-
ing," Sofaer mumbled, "I'd like to talk
to you about that." Thundered Biden:
"We will." -By Bruce van (bast/
Washington
The jury in that case found that TIME had
erred in its description of a meeting between
Sharon and Lebanese leaders prior to the
1982 massacre of Palestinian refugees in
the Sabra and Shatila camps in Beirut. The
description was defamatory, the j ury held, but
TIME did not libel Sharon because the ma-
gazine's statement was published without
knowing or reckless falsity.
Declassified and Approved For Release 2011/12/13: CIA-RDP90-00965R000706970004-2