IN A RECENT New York Times op-ed, "Mr. Cheney's Minority Report" (July 19), historian Sean Wilentz claimed that 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. Wilentz correctly named me as principal drafter of the 1987 committee's minority report. Unfortunately, that's about all he got right.
Of course, Wilentz is not alone. A number of recent portrayals describe the Iran-Contra minority as being in lockstep with North's view of the president as the "sole organ" of American foreign policy. I do not want at this point to engage larger questions of executive power before or since 1987. But because I was there, and because this report once again has become part of the current debate, I want to correct the historical record.
North's view was based on a substantial misinterpretation of a 1936 Supreme Court decision in the case of US v. Curtiss-Wright. His view left little role for the Congress in foreign policy, as Wilentz suggests. The eight members of the Iran-Contra committee's Republican minority did react against the majority's expansionist view of the legislative power. But the minority also disagreed with North's aggrandizing view of the executive. The minority report instead argued that each branch has core functions and capabilities, along with shared roles that historically have been contested.
The historical "sole organ" concept (for Alexander Hamilton and John Marshall, as well as the Curtiss-Wright decision) was much narrower than North's. As the report clearly states, the phrase "sole organ" historically referred to the president not as the sole maker of foreign policy but as the country's "eyes and ears," its sole diplomat. Once you get beyond diplomacy, each activity has to be analyzed on its own terms. At the clearly legislative end of the spectrum, the report specifically said that "Congress may use its power over appropriations, and its power to set rules for statutorily created agencies, to place significant limits on the methods a President may use" to pursue discretionary powers.
The Iran-Contra investigation involved several different and commonly conflated activities. Only by working through these facts do the distinctions between this report and North's view of executive power become clear.
*First, the staff of the National Security Council raised funds for the Nicaraguan contras, and coordinated intelligence activities in support of the contras, at a time when the "Boland Amendment" prohibited any expenditure of funds by intelligence agencies for such activities. 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. In fact, the minority's arguments specifically assumed the constitutionality of a much more tightly drafted amendment written by Senator Clark in 1976 in connection with Angola. (If Rep. Boland had been able to assemble a majority in favor of the Clark Amendment's tighter language, such an amendment clearly and constitutionally would have prohibited much of Col. North's operational intelligence activity in support of the contras.) The legal dispute between the majority and minority over intelligence activities in Nicaragua was a dispute over statutory interpretation, not over presidential power.
*Second, most of the funds that went to the contras during the period of the Boland Amendment were sent to them directly by other countries. The minority report emphasized that the president has the inherent power to ask other countries to do this. The majority criticized the president's role in raising those funds but never contested the constitutional claim.
*Third, the covert "arms for hostages" negotiations with the Iranians were criticized by both the majority and minority. Neither saw the secret negotiations in themselves as raising constitutional questions.
*There were constitutionally significant disputes over the president's failure to inform congressional leaders for months about the arms transfers. The National Security Act specifically allowed for a presidential decision to delay informing the leaders in exceptional and rare circumstances, but no one at the time condoned the length of time taken here. As a result, the majority on the Iran-Contra committee wanted to pass an iron-clad 48-hour notification rule, with no exceptions. The minority thought this rigidity was inappropriate constitutionally. Over time, Congress seems to have agreed.
