NYT/OpEd: Mr. Cheney's Minority Report

The New York Times
July 9, 2007

Op-Ed Contributor
Mr. Cheney's Minority Report

By SEAN WILENTZ

Princeton, N.J.

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 administration's 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 North's testimony. And despite the
surge in Colonel North's 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 ***
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 report's 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 committee's minority
staff. Another member of the minority's legal staff, David S.
Addington, is now the vice president's chief of staff.

The minority report stressed the charge that the inquiry was a sham,
calling the majority report's 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 Hamilton's remarks
endorsing "energy in the executive" - in order to argue that the
president's 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 Court's 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 lion's 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 Congress's 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. Cheney's
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 president's 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 president's enemies." For Mr. Cheney, the scandal was not
Richard Nixon's design for an imperial presidency but the Democrats'
drive for an imperial Congress.

Still, Mr. Cheney's 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-contra's 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.


http://www.nytimes.com/2007/07/09/opinion/09wilentz.html

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