Stupid Regulations - Drift: The Unmooring of American Military Power - Rachel Maddow

Drift: The Unmooring of American Military Power - Rachel Maddow (2012)

Chapter 5. Stupid Regulations

THE THING TO DO IN NICARAGUA SEEMED SO GLARINGLY OBVIOUS to President Reagan that it almost didn’t need explaining (“It seems to me that the issue was so plain,” he was still saying years later. “We were talking about preventing the presence of a Soviet satellite in the Americas!”). “The Sandinista rule is a Communist reign of terror,” he implored in a May 1984 address to the nation. “If the Soviet Union can aid and abet subversion in our hemisphere, then the United States has a legal right and a moral duty to help resist it.”

But the more he explained it, the more clear it became that he would not be able to move the public to his way of thinking; on this one question, the nation would not dance to his tune. It didn’t matter how hard the president beat the drum about the frightening prospect of a Central American country being sucked into the sphere of Soviet influence. (Remember, we got there just in time in Grenada! Might not be so lucky in Managua.) Didn’t matter how hard the president beat the drum about the need to forestall what he described in his diary as “another Cuba on the American mainland.” Didn’t matter how adoringly he extolled the virtues of the brave Nicaraguan resistance. (“They are our brothers, these freedom fighters, and we owe them our help,” he’d offered. “They are the moral equal of our Founding Fathers and the brave men and women of the French Resistance. We cannot turn away from them.”) Didn’t matter what he said, it seemed to him, he could not get traction on the issue.

“Dick Wirthlin’s poll figures were interesting & holding up well—except for the Nicaragua issue,” Reagan wrote in his diary in the spring of 1985. “We have to do a job of education with the people—they just don’t understand.” It was a failure he stewed over again and again in that diary: “Our communications on Nicaragua have been a failure, 90% of the people know it is a communist country but almost as many don’t want us to give the [anti-Communists] $14 million for weapons. I have to believe it is the old Vietnam syndrome.” After meetings with members of Congress on Nicaragua, Reagan wrote, “The meetings went well & I think I answered some of their worries. It’s apparent though that the lack of support on the part of the people due to the drum beat of propaganda ‘a la Vietnam’ is influencing some of them.”

When Reagan wrote about the “Vietnam syndrome,” what he meant was that the American body politic suffered from a real pathology. He was sure that his failure to rally the country on Nicaragua, that all the impediments he found to making war on the Commies in Central America (or even to doing just a little energetic saber rattling)—the public’s disinclination to call up our troops to fight on foreign soil, the press asking questions about it, Congress asserting its power to stop war or limit it—were symptoms of this dread disease.

“In the last ten years,” Reagan complained at one press conference near the end of his first term, “the Congress has imposed about 150 restrictions on the President’s power in international diplomacy. And I think that the Constitution made it pretty plain way back in the beginning as to how diplomacy was to be conducted. And I just don’t think that a committee of 535 individuals, no matter how well intentioned, can offer what is needed in actions of this kind or where there’s a necessity. Do you know that prior to the Vietnamese War, while this country had four declared wars, Presidents of this country had found it necessary to use military forces 125 times in our history?”

But the “Vietnamese War” didn’t break anything. America’s structural disinclination toward war is not a sign that something’s gone wrong. It’s not a bug in the system. It is the system. It’s the way the founders set us up—to ensure our continuing national health. Every Congress is meddlesome, disinclined toward war, and obstructive of a president’s desire for it—on purpose. On Nicaragua, Congress was doing its constitutional duty, and what the founders expected.

In the run-up to the 1984 election, Congress had stayed late and built a big wall the president could not easily scale where his Nicaragua policy was concerned. After being told and not asked about the Grenada invasion, Tip O’Neill was not going to be gone around on this one. The lesson of Grenada (and Lebanon) for Speaker O’Neill was that passivity didn’t pay. Against a president who seemed bent on war, Congress needed to vigorously (and sometimes preemptively) assert its own authority.

This new barrier erected by Congress—the Boland Amendment—was no garden-variety, cut-off-some-funding restriction but rather an explicit legislative move to block the president from doing exactly what he wanted to do, to stop him from doing what he was already doing: conducting a secret, CIA-funded, CIA-run war fought by a CIA-created, CIA-led army of local insurgents to overthrow the Nicaraguan government. The Reagan administration had been training those insurgents—called Contras—in Honduras, as well as running attacks on Nicaraguan military patrols, on fuel tanks at Nicaraguan ports, and even on the airport in Managua. When a secret CIA-led operation to mine Nicaraguan harbors became public in the spring of 1984, the chairman of the Senate Intelligence Committee, Barry Goldwater, blew up. Goldwater was as much of an anti-Communist badass as anyone in the Senate, but the fact that what Reagan was doing was anti-Communist didn’t trump that what Reagan was doing seemed to Goldwater anti-American. The Reagan team had been legally obligated to inform Goldwater, the Senate Intelligence chairman, that these covert missions were happening, and they’d been violating that law, among others. “The President has asked us to back his foreign policy. Bill, how can we back his foreign policy when we don’t know what the hell he is doing?” Senator Goldwater wrote to the director of Central Intelligence, William Casey. “Lebanon, yes, we all know that he sent troops over there. But mine the harbors in Nicaragua? This is an act violating international law. It is an act of war. For the life of me, I don’t see how we are going to explain it.”

Senior senators muscled Director Casey into making a pilgrimage to Capitol Hill to apologize to a closed session of the entire Senate Intelligence Committee. The full Senate voted 84-12 to condemn the mining; even staunch anti-Communist Republicans stood up to be counted. The message was clear: no president was vested with this kind of power. That summer, both houses of Congress debated the merits of Reagan’s secret war in Nicaragua, and that fall, the Democratic-controlled House and the Republican-controlled Senate voted to put the brakes on it.

“During fiscal year 1985,” read the Boland Amendment of October 12, 1984, “no funds available to the Central Intelligence Agency, the Department 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 would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any action, group, organization, movement or individual.” The amendment was written in purposefully broad language (“any other agency or entity of the United States involved in intelligence activities,” “purpose or … effect of supporting,” “directly or indirectly,” “military or paramilitary”) to make sure the Reagan team could not evade congressional will. “There are no exceptions to the prohibition” was how the amendment’s author explained it.

And yet in a separate provision of the amendment, Congress gave Reagan a way to try to win back the funding for his secret war; they invited the president to make his case for his Nicaraguan operation. To them. Maintaining their constitutional prerogative as the arbiter of war, they asked the administration, in effect, to ask them; to submit to Congress the evidence that Nicaragua was exporting Communist revolution to other Central American countries, to make a formal and specific dollar request of Congress for US support of Contra military or paramilitary operations, to justify the need and the amount, and to explain in full the goal of this effort.

When asked years later about congressional requests for this sort of information, Reagan explained them as a clever political maneuver by Tip O’Neill and his soft-on-Communism liberal chums in Congress: “Well, frankly,” Reagan said, “I just believe it was part of the constant effort of the Congress to discredit those who wanted to support the Contras.”

Actually, it was a wide-open invitation for Reagan to make his case to Congress about why they, too, should support the Contras. But Reagan refused to see it that way. The president’s nearly unprecedented electoral romp in 1984—Reagan had won forty-nine of fifty states and 525 electoral votes to Walter Mondale’s paltry thirteen—hardened his conviction that Congress shouldn’t be sticking its nose into his business (like into Nicaragua, for instance).

His commitment to act in Nicaragua despite Congress was both procedural and substantive. He could not have been more certain that he was on the right side of history. “The Contras,” Reagan liked to say, “wanted to have what we had in our own country, and that was [that] the result of the revolution would be democracy.” In March 1986 he told a group of elected officials at the White House, “So I guess in a way [the Nicaraguan rebels] are counterrevolutionary, and God bless them for being that way. And I guess that makes them Contras, and so it makes me a Contra too.” To a president who saw not only George Washington as a Contra, but saw himself as a Contra too, the Congress and the American people being opposed to helping those freedom fighters was simply a nuisance to be got around, not a real impediment to action.

By the time he embarked on his second term, Ronald Reagan had moved well beyond the built-in resentment and disdain presidents have for members of the Senate or the House or the press. (Which one of them had received fifty million votes?) Somewhere along the way, Reagan had taken the remarkable posture that even just public debate on issues of war and peace was detrimental to our national security. Reagan had said it plain in the days after he’d grudgingly pulled US military troops from the misbegotten mission he had ordered in Lebanon: “When you’re engaged in this kind of a diplomatic attempt and you have forces there, and there is an effort made to oust them, a debate as public as was conducted here, raging, with the Congress demanding, ‘Oh, bring our men home, take them away.’ All this can do is stimulate the terrorists and urge them on to further attacks because they see a possibility of success in getting the force out, which is keeping them from having their way. It should be understood by everyone in government that once this is committed, you have rendered [our military] ineffective when you conduct that kind of a debate in public.”

In other words, according to Reagan, having a spirited argument about where, when, and why to put United States soldiers in harm’s way (as well as how long to keep them there) and forcing a president to engage in a real argument about the wisdom of his foreign policy initiatives, to make his case in public, was akin to giving aid and comfort to the enemy—to Communists and terrorists.

By the middle of his second term, this radical ethic had become fully operational in the White House. Forget open debate. Forget making your case to Congress or the public. Even a congressional request for information on a matter like Nicaragua was an offense to the presidency. Reagan didn’t need a permission slip from anyone. He wouldn’t even take one if offered. Forget the Boland Amendment. He was the president! He had personally approved all the covert activities in Nicaragua. His administration had not always met the legal requirements of keeping Congress up to speed on this secret war, but that was his call. He didn’t trust the legislature. And frankly, Congress needed a brushback.

Reagan was convinced that a president needed unconstrained authority on national security. He was also convinced that he knew best (after all, he was the only person getting that daily secret intelligence briefing). These twin certainties led him into two unpopular and illegal foreign policy adventures that became a single hyphenated mega-scandal that nearly scuttled his second term and his legacy, and created a crisis from which we still have not recovered. In his scramble to save himself from that scandal, Reagan’s after-the-fact justification for his illegal and secret operations left a nasty residue of official radicalism on the subjects of executive power and how America cooks up its wars.

The day after President Reagan complained in his diary about that old Vietnam syndrome, in March 1985, the militant Islamic group Hezbollah abducted an American journalist in Lebanon, bringing the total number of US hostages there to four. “Was shown the photo recently taken by the bastards who are holding our kidnap victims in Lebanon,” Reagan wrote five days later. “Heartbreaking, there is no question but that they are being badly treated.” Hezbollah grabbed two more Americans living in Beirut over the next few months, so that by the summer of 1985, the group was holding a journalist, a Catholic priest, a Presbyterian minister, and two administrators from the American University in Beirut. Reagan’s national security team was especially concerned about the other known hostage: the CIA station chief in Beirut.

This was Reagan’s worst nightmare—American hostages, and in the Middle East again. Nothing was more politically resonant to him than how the long, drawn-out, 444-day water torture of a hostage situation in Iran had worn away what remained of the Carter presidency, demoralized the American people, and made the country look weak. Those fifty-two hostages had been freed in the hours after Reagan’s inauguration, and the new president welcomed them to his White House a week later. “It’s the most emotional experience of our lives,” said Reagan’s vice president, George H. W. Bush, of the ceremony in the Blue Room. “You could feel it build until the point it hurt inside.” And President Reagan’s wife, Nancy, a woman with a reputation for keeping a cool distance from the hoi polloi, could not maintain her composure: “Oh I can’t stand this,” she exclaimed, and began hugging and kissing the returning victims of Ayatollah Khomeini and his Iranian henchmen.

“Those thenceforth in the representation of this nation will be accorded every means of protection that America can offer,” Mr. Reagan said from the Blue Room that day, for the world to hear. “Let terrorists be aware that when the rules of international behavior are violated, our policy will be one of swift and effective retribution.… Let it also be understood, there are limits to our patience.”

Three years later, the president, in the triumph of bringing home those might-have-been hostages from Grenada, was still speaking it aloud: “The nightmare of our hostages in Iran must never be repeated.” But here was Reagan in 1985, in the hostage soup, and with no real channel of communication to Hezbollah. So when the president’s national security adviser, Bud McFarlane, came to him in July 1985 with a hush-hush plan that might just free the captive Americans, the president grabbed it and held on for dear life.

“Bud, I’ve been thinking about this,” he said in one call, according to McFarlane. “Couldn’t you use some imagination and try to find a way to make it work?”

“Mr. President,” McFarlane had answered, “your secretary of state and secretary of defense were against this.”

“I know, but I look at it differently. I want to find a way to do this.”

The main agent in the hostage-release scheme was a Paris-based exiled Iranian arms dealer, Manucher Ghorbanifar, who claimed to have ties to a buzzing nest of moderates inside Iran’s military. These army officers, according to the tale Ghorbanifar told, wanted to overthrow the madman Khomeini and make a fresh start with the United States. As a show of good faith among new future friends, the United States would open up the spigot for weapons sales to Iran, and the Iranian moderates would convince Hezbollah to release all of the American hostages in Beirut.

By the time Ghorbanifar presented his tantalizing arms-for-hostages plot, he was already well known in US intelligence circles. A lengthy CIA report described him as “personable, convincing … speaks excellent American-style English.” (Not even intelligence guys are immune to the charms of excellent American-style English.) However, the report concluded, Ghorbanifar “had a history of predicting events after they happened and was seen as a rumor-monger.… The information collected by him consistently lacked sourcing and detail notwithstanding his exclusive interest in acquiring money.… Subject should be regarded as an intelligence fabricator and a nuisance. Any further approaches by subject or his brother Ali should be reported but not taken seriously.” In fact, on the occasions the CIA had subjected Ghorbanifar to a polygraph test, he generally proved himself to be a liar on any question more complicated than his name and his place of residence. But still, under cover of secrecy, Reagan decided it would be good policy to get in bed with Ghorbanifar and his French silk jammies.

As the deal unfolded—badly—assessments of Ghorbanifar within Reagan’s White House national security team included “corrupt,” “devious,” “duplicitous,” “not to be trusted,” and “one of the world’s leading sleazebags.” National Security Adviser Bud McFarlane even called him a “borderline moron.” There was pretty good evidence that Ghorbanifar’s main goal was money. And still, Reagan decided it would be good policy to continue to pursue the Ghorbanifar plan.

The way the first arms-for-hostages deal was designed, Israel would sell US-made weapons to Iran, and the US government would replace Israel’s weapons from its own stocks. As a favor to us, Israel was allowing itself to be used as a pass-through for America sending missiles to Iran. It was a shame that the first arms shipment of ninety-six TOW antitank missiles to Iran ended up (and this was truly unfortunate, everybody agreed) in the hands of Khomeini’s loyal Revolutionary Guard. Worse, no hostage was released. It turned out to be arms-for-no-hostages.

Reagan was undeterred, and, as ever, optimistic. “It seems a man high up in the Iranian govt believes he can deliver all or part of the 7 Am kidnap victims in Lebanon sometime in early Sept,” Reagan recorded in his diary a few days after the first failure. “They will be delivered to a point on the beach north of Tripoli & we’ll take them off to our 6th fleet. I had some decisions to make about a few points—but they were easy to make. Now we wait.”

In spite of Reagan’s high hopes, the second weapons delivery of more TOW missiles, also via Israel, shook loose only one hostage, and not the one McFarlane requested. In planning the third shipment, eighteen Hawk antiaircraft missiles, Reagan’s operatives managed to piss off Portugal, endanger Turkey, get the CIA illegally involved, raise protests from the Defense Department, and move Secretary of State George Shultz to think about resigning … and all for nothing. This time, according to Ghorbanifar, there would be no hostages released at all, because the Iranians were upset at having received substandard weapons. In fact, they’d like to return the Hawks.

Nearly six months and millions of dollars of weapons into the arms-for-hostages deal, Reagan had yet to inform Congress about the status or existence of the operation. The president had his reasons. The way Reagan told it to himself, the success of it hinged on secrecy. The president had kept his secretaries of state and defense largely out of the loop; hell, he withheld information from his own personal record of the events of his presidency. “I won’t even write in the diary what we’re up to.” No one could know, most especially Tip O’Neill and the Democrats in the House; Reagan didn’t want them to run crying to the press.

This insistence on secrecy was fueled in part by Reagan’s fear that the hostages or the men inside Iran doing the talking would be killed if details of the negotiations became public. Nobody in the Reagan administration had good enough contacts to know if this fear had any basis in reality. Hard data had never been—and would never be—a controlling factor in the Reagan administration’s decision-making process. But there was also just the embarrassment factor. Given a choice between secrecy and the public finding out about the operation’s Laurel-and-Hardy-worthy failures (up to and including the Iranians sending our weapons back, dissatisfied!), who wouldn’t choose secrecy? Finally, there was the fact that much of what Team Reagan was doing was not simply flying in the face of their own stated policy against dealing with terrorists (“We make no concessions,” Reagan had said. “We make no deals”) or state sponsors of international terrorism (Iran was a gold-plated designee on that list); it was not just shredding the president’s own executive orders and national security directives; it was not simply executing a spectacular and hypocritical affront to good sense and good diplomacy; but, in fact, much of this arms-for-hostages operation was quite flagrantly against the law. Flat-out illegal.

Reagan’s deal violated the Arms Export Control Act by permitting Israel to secretly transfer US-supplied arms to a third country and failing to report the transfer to the proper officials in the US legislature. And the CIA, in providing access to the jet that flew the Hawk antiaircraft missiles to Iran in November, had violated a post-Vietnam amendment to the Foreign Assistance Act that forbade the agency from undertaking covert operations in a foreign country unless a president issued a finding that the operation is “important to the national security of the United States.”

At a White House meeting three weeks after the disastrous and illegal-on-two-counts shipment of the TOW missiles, most of the president’s top advisers tried to pull him out of the arms-for-hostages racket. A CIA deputy director explained that the notion of an independent moderate faction in the Iranian Army was a fiction, which meant that, even if Casey’s deputy didn’t say it aloud, selling weapons to Iran meant selling weapons directly to Khomeini. George Shultz and Caspar Weinberger, who rarely agreed on anything, were agreed on the benighted nature of the Ghorbanifar operation. Secretary of State Shultz had never bought Reagan’s argument that because we put Israel between ourselves and Iran, and then put some unknown and unidentified “Iranian moderates” between ourselves and Hezbollah, this was not an arms-for-hostages deal. Those were a couple of strands of hair too fine to split. And Secretary of Defense Weinberger pointedly reminded Reagan of the violations of both the embargo on selling arms to Iran and the Arms Export Control Act. The president was visibly annoyed with both Shultz and Weinberger, Shultz later said, and “very concerned about the hostages, as well as very much interested in the Iran initiative.… Fully engaged.” Despite the vocal in-house opposition to the operation, the Iranian arms deal remained on the table for the next month, largely because Reagan himself would not let it be extinguished.

In the meantime, by the reckoning of the White House’s NSC staff, one good thing had come from this mess of an arms deal: a smallish but quite useful windfall had dropped into the Swiss bank account of a private American company set up almost exclusively to further President Reagan’s foreign policy agenda. That first arms-for-hostages profit didn’t happen by design. The logistics of the third weapons shipment—the Hawks shipment—became so knotty that Israel had to pay a retired US Air Force general to deliver to Iran their four separate planeloads of twenty antiaircraft missiles. They advanced Gen. Richard V. Secord and his partners at Lake Resources, a key subsidiary of what came to be called “the Enterprise,” a million dollars for the job. Only one of the four shipments was actually made. The Enterprise spent $150,000 of the $1 million making that one flight to Tehran, but what would become of the remaining $850,000?

As it turned out, the Enterprise, this web of shady little offshore companies, had another client in real need. That extra money became what Secord—and perhaps his contact inside the Reagan White House, Col. Oliver North—called a “Contra-bution.” And this is where Iran-Contra, the scandal that almost destroyed the Reagan presidency, earned its hyphen.

By the time General Secord got his unexpected windfall, the White House had been for a year secretly running a public-private partnership to keep the Contras in what the many Marines on Reagan’s team liked to call “beans, boots, Band-Aids, and bullets.” The privatization of the Contra aid operation was an idea first promoted in the highest circle of the Reagan administration in the summer of 1984, when it started to become clear that Congress was going to stop the US government from aiding the Contra military effort directly. According to now-declassified minutes, much of the June 25, 1984, National Security Planning Group meeting in the White House Situation Room was about funding the Contras. And everybody in the room understood they were edging up against legally questionable measures.

“If we can’t get the money for the [Contras],” said UN ambassador Jeane Kirkpatrick at the meeting that afternoon, “then we should make the maximum effort to find the money elsewhere.”

“I would like to get the money for the Contras also,” Secretary of State George Shultz countered, “but another lawyer, Jim Baker, said that if we go out and try to get money from third countries, it is an impeachable offense.”

“I am entitled to complete the record,” CIA Director Casey chimed in, to remind everybody of the presidential finding on Nicaragua that Reagan had signed. “Jim Baker said that if we tried to get money from third countries without notifying the oversight committees, it could be a problem and he was informed that the [presidential] finding does provide for the participation and cooperation of third countries. Once he learned that the finding does encourage cooperation from third countries, Jim Baker immediately dropped his view that this could be an impeachable offense.”

“I think,” Shultz suggested, “we need to get an opinion from the attorney general on whether we can help the Contras obtain money from third sources. It would be the prudent thing to do.”

After a brief argument about the feeble prospects of a diplomatic push in Central America, Casey circled the conversation back to finding money for the Contras. “It is essential that we tell the Congress what will happen if they fail to provide the funding for the [Contras]. At the same time, we can go ahead in trying to help obtain funding for the [Contras] from other sources; the finding does say explicitly ‘the United States should cooperate with other governments and seek support of other governments.’ ”

“As another nonpracticing lawyer,” offered Ed Meese, a longtime presidential counselor, who was then more or less auditioning for the role of attorney general, “I want to emphasize that it’s important to tell the Department of Justice that we want them to find the proper and legal basis which will permit the United States to assist in obtaining third party resources for the anti-Sandinistas. You have to give lawyers guidance when asking them a question.”

A few minutes later, Casey seconded Meese: “We need the legal opinion which makes clear that the US has the authority to facilitate third country funding for the [Contras].”

As the meeting finally wound down, Vice President George Bush made a rare interjection, a tepid endorsement for the plan, with a tepid caveat: “How can anyone object to the US encouraging third parties to provide help to [Contras] under the finding? The only problem that might come up is if the United States were to promise to give these third parties something in return so that some people could interpret this as some kind of an exchange.”

National Security Adviser Bud McFarlane, clearly concerned about a discussion that had led off with the specter of impeachment, suggested extreme caution. “I propose that there be no authority for anyone to seek third-party support for the [Contras] until we have the information we need,” he told the group, “and I certainly hope none of this discussion will be made public in any way.”

Reagan agreed wholeheartedly with his national security adviser’s assertion of the need for absolute discretion. It was clear that he expected his team to keep their traps shut about this plan: “If such a story gets out,” the president said to close the meeting, “we’ll all be hanging by our thumbs in front of the White House until we found out who did it.”

Four months after that meeting, when Congress did cut off money for the US government to carry on with the Contras, the White House did not pause to consider the legal niceties of making its (covert) push for funding from third countries. Good news was that King Fahd bin Abdul Aziz of Saudi Arabia was already on board to the tune of a million dollars a month in direct aid to the Contras; the king was probably most appreciative for the 450 Stinger missiles Reagan had expressed to Saudi Arabia under the guise of presidential emergency powers, and for the US president’s promise to ask Congress for more. During Fahd’s visit to Washington in February 1985, the king capped a delightful private breakfast with the president with a promise to double his monthly donation. In all, Saudi Arabia would give about $32 million in aid to the Contras, or more precisely to the Enterprise. The only real disappointment for the president in his relations with Fahd was when the king tried to give Reagan a gift of four Arabian horses. He complained in his diary, “I couldn’t accept them as a gift—due to our stupid regulations.”

Word also got around in our hemisphere that the US president was up for bargaining with any country that would indulge him on his Contra obsession. Reagan used emergency powers to get Honduras $20 million worth of military supplies from the Pentagon. El Salvador wanted trade concessions. The Guatemalan president asked the United States to double its economic assistance package to his country, and triple the military package. Panamanian president Manuel Noriega offered to assassinate the leadership of the Nicaraguan government, but in return he wanted a commitment from the White House to lift the ban on US weapons sales to Panama, and also, maybe, a little help in revitalizing his image would be nice. The whole “dictatorial strongman” thing was apparently beginning to eat at Noriega. Reagan took a pass on the Noriega deal.

President Reagan left no continent undisturbed in his quest for “Contra-butions.” When, after Reagan had left office, an independent counsel attorney presented him with a document that suggested he had asked the leader of an Asian country to ship weapons to the Contras, Reagan stammered out a remarkable truth, under oath: “I know this man of course, very well, met with him a number of times in his own country.… I don’t recall seeing this and … my policy was not to involve others in this. I mean, I wanted them involved but I didn’t want to be on the record of doing it.”

That was the way Reagan liked to work, off the record. But those Marines on his national security staff—Bud McFarlane, John Poindexter, and Oliver North—heard the president loud and clear when he tasked them to keep the Contras alive “body and soul.” According to an independent counsel’s report on the Iran-Contra affair published after more than five years of investigation, “North described how he and Secord, in order to replace the CIA in assisting the Contras, in their covert-action Enterprise created a ‘mirror image outside the government of what the CIA had done.’ [North] claimed he never made a single trip or contact ‘without the permission, express permission, of either Mr. McFarlane or Admiral Poindexter, and usually, when I could, with the concurrence of Director Casey.’ ”

North turned out to be one hell of an operator; he understood that the president’s appreciation for “third party” assistance to the Contras went well beyond foreign royalty and foreign governments. North managed a team of private fund-raisers and arms dealers who kept the Contras alive in the year of living without congressional funding. He’d shake the change out of the pockets of wealthy donors at fund-raisers hosted by the (newly created, not-for-profit, all-contributions-tax-deductible) National Endowment for the Preservation of Liberty, and he’d make sure the best check writers got a private audience—and a picture, of course—with the president. The president was happy to help.

With a combination of Saudi dollars and contributions from private American citizens funneled into the Enterprise’s Swiss bank accounts, North and his friend Secord kept those Contras in millions of dollars (though not as many as they raised, but more on that later) of beans, boots, Band-Aids, and bullets. By June 1985, Secord’s Enterprise was acting as the sole purchasing agent and weapons supplier of the Nicaraguan Contras. Contra leaders had no access to the money given them; North and Secord controlled it.

By spring 1986 North, Secord and partners also controlled and directed the logistics of the Contra resupply efforts (this would be known as Project Democracy) and its $4 million in assets comprising two C-123 cargo jets, two C-7 planes, and a $75,000 Maule aircraft paid for single-handedly by a wealthy Republican, Ellen Garwood, after a private meeting with the president. Ms. Ellen’s two and a half million dollars also helped pay for a maintenance base in Miami, living quarters in El Salvador for eighteen or so resupply employees, and an airstrip in Costa Rica known as “The Plantation.” This was essentially the closest North could come to the “mirror image” of the CIA’s secret support to the Contras.

But unlike the CIA, which had to depend on money from Congress, this privately funded entity had added value: the privatization of Reagan’s foreign policy initiative turned out to be just the ticket for evading all those barriers the legislature had erected. (Stupid regulations!) How could the president be obligated to report the activities of a private enterprise to Congress or anyone else? The Boland Amendment didn’t stop the administration from helping concerned citizens who just wanted to help the Contras. This quasi-privatization—with fronts like the National Endowment for the Preservation of Liberty, and for-profit companies like Secord’s Stanford Technology Trading Group International and Project Democracy’s Corporate Air Services—allowed the White House to run its Nicaragua operation unmoored from the Constitution and its fetters, free from congressional or statutory constraints, and clear of accountability. If anything went wrong, there was a firewall. Even though the Reagan administration directed the covert activity, there was a break in the formal chain of command; the orders up and down the line weren’t really traceable. So confident in the firewall of deniability was the White House that when the House Intelligence Committee got wind of the Contra resupply operation, Reagan’s NSC staff simply lied to Congress. “None of us has solicited funds, facilitated contacts for prospective potential donors, or otherwise organized or coordinated the military or paramilitary efforts of the resistance,” the national security adviser told House Intelligence Committee members. “There has not been, nor will there be, any such activities by the National Security staff.”

If accountability for military action to Congress and to the public was the foundational disincentive to war we got from the Founding Fathers, Reagan was taking a pickax to that foundation. He claimed the private right to go to war, in secret, against the express will of Congress.

The only hard part was keeping the thing funded. Overhead expenses were a bitch, of course. And then, too, private American companies like to show a profit, especially in a high-risk environment. Of the nearly $40 million that was raised toward Contra aid, only about $17 million found its way to the brave freedom fighters.

That’s why the windfall from the Iran arms-for-hostages sale was so enticing. North wanted more Iranian profits to divert to the Contras, and he made his case in crew-cut-hair-on-fire memos that made their way to Reagan. North may never have been alone in the same room with the president, but he knew his man. The way he sold the need to continue the Iranian arms deal was simple: if the United States backs off the deal now, the hostages in Lebanon are dead meat.

On January 7, 1986, at that day’s NSC meeting, the president surprised his key advisers by talking up a new idea to sweeten the pot: securing the release of twenty Hezbollah associates from Israeli prisons and shipping them along with the newest arms cache from Tel Aviv. The president could see the whole thing unfold. We arrange for Iran to get weapons and the Hezbollah guys from Israel. We sell Israel replacement weapons. Hezbollah frees our hostages. Iran pledges there will be no more kidnappings. “We sit quietly by and never reveal how we got them back,” Reagan noted.

In the middle of this presidential reverie, Secretary Weinberger once again started in on Reagan about violating the Arms Export Control Act. But Ed Meese—he had ascended to United States Attorney General by this point—offered the sort of argument that always pricked up the ears of Ronald Reagan. There was a way around the Arms Export Control Act: “The president’s inherent powers as commander in chief,” Meese said. “The president’s ability to conduct foreign policy.” Reading later descriptions of this moment brings to mind an image of the pink and jowly attorney general, his full girth tucked into circus tights, performing a series of spectacular and acrobatic trapeze feats without a net:

This opinion was based upon an October 5, 1981, opinion of Attorney General William French Smith that if the President determined that neither the Foreign Assistance Act nor the Arms Export Control Act could be used, he could approve a transfer outside the context of these statutes if he determined that the authorities of the Economy Act and the National Security Act should be utilized in order to achieve ‘a significant intelligence objective.’ Whereas Attorney General Smith advised that reporting requirements … required that the House and Senate Intelligence Committees be informed of the President’s determination, Attorney General Meese took a more extreme view that the National Security Act implicitly authorized the President to withhold any prior or contemporaneous notice to Congress, even the limited notice to the leadership of the two houses of Congress.

Meese was spoiling for this sort of fight; he’d already hired into the Justice Department a coven of brilliant ultraconservative young lawyers—Federalist Society guys—and set them to the task of arguing the case for unleashing presidential authority. They were just then at work on a Meese-commissioned report—“Separation of Powers: Legislative-Executive Relations”—which invented something called the unitary executive theory, based on a make-believe version of the Constitution, wherein the president is given unilateral free rein in the realm of foreign policy and national security. The report made a science fiction-like case that the president was within his constitutional rights to reinterpret congressional legislation to conform more closely to his own desires, or to simply refuse to carry out laws with which he did not agree, or that, the report harrumphed, “unconstitutionally encroach on the executive branch.” In sum, anything the president doesn’t want to do he doesn’t have to do; anything he wants to do, consider it done.

This “Separation of Powers” report was still a few months away, but Meese was already living the dream at that January 1986 meeting. The nation’s chief legal officer was basically giving the back of his hand not only to all the post-Vietnam, post-Watergate fetters the legislative branch had seen fit to impose in the aftermath of a couple of runaway presidencies, but to the ones written in the Constitution, too. Meese was saying “Fuck Congress,” only in Latin. As Jane Mayer and Doyle McManus write in Landslide, their book about Reagan’s second term in office, this interpretation of the powers of the president “hadn’t been made quite so brazenly since Watergate. Following the constitutional crisis, Richard Nixon had been asked, ‘When the president does it, that means that it is not illegal, by definition?’ And he had answered, ‘Exactly, exactly. If the president approves something for national security … then the president’s decision is the one that enables those who carry it out, to carry it out without violating the law.’ Meese’s approach to the issue was essentially the same.”

Shultz was taken aback by the entire scene at the NSC meeting that day. The lack of opposition, he later said, “almost seemed unreal.”

Ten days later Reagan signed a presidential finding authorizing a new type of secret arms-for-hostages operation. On Attorney General Meese’s legal advice, it was decided the US government should sell arms directly to the Iranians and cut out the Israelis as the middleman. And as he made clear in earlier discussions of this matter, Attorney General Meese stood ready to give his Justice Department lawyers, you know, a little nudge in the right direction. (“You have to give lawyers guidance when asking them a question.”) A month later, the US government secretly shipped a thousand TOW missiles to Iran through a private party by the name of Richard Secord. One of Secord’s planes returned with the unwanted Hawks. Not a single hostage was released. And Reagan decided that the wise policy would be not to inform Congress.

Well, they got caught of course. The whole thing was so dunderheaded, how could they not? By November 1986, Reagan’s “Secret Dealings with Iran” had supplanted the 1986 midterm election results on the front page of Timemagazine. Reagan played dumb for a few weeks, until the news broke that the money from the illegal arms sales had been diverted to the illegal Contra aid operation. The Reagan White House tried to get out ahead of the breaking scandal, calling for a special commission to investigate the entire affair and promising cooperation with a full-on congressional investigation. They even appointed an independent counsel to ferret out the scope and specifics of the illegalities. The president took some hard knocks. Before Christmastime that year, Time front-paged Iran-Contra twice more: “Probing the Mess,” with a grotty close-up of the downcast eyes of “White House Point Man Oliver North,” and “How Far Does It Go?” with a distant, lit-from-below White House looming like a murder-scene mansion in a horror movie.

By spring, after the Reagan-friendly Tower Commission had concluded that the administration had in fact traded arms for hostages and diverted some of the proceeds from those weapons sales to the Contras, Time had dispensed with the photographic emotional cues. They were no longer necessary to convey the seriousness of the damage to the presidency, or the ugliness of the scandal. With Reagan at the presidential lectern, and the Tower Commission report in the foreground, the cover asked simply, “Can He Recover?” The answer, in short, maybe not so much.

The answer in the magazine was longer, one derisive conclusion piled upon another. Reagan was “the befuddled and intellectually lazy figure so damningly portrayed in the Tower report … the picture of an inattentive, out-of-touch President.”

And it got worse from there:

The defects of what the commissioners euphemistically called Reagan’s “management style,” and what some former associates more bluntly term mental laziness … stands exposed as a President willfully ignorant of what his aides were doing, myopically unaware of the glaring contradictions between his public and secret policies … unable to recall when, how or even whether he had reached the key decision that started the whole arms-to-Iran affair … the President has consistently and vehemently denied that the U.S. was swapping arms for hostages, though the voluminous record assembled by the Tower commission leaves no question that that is what happened.… [I]t is far from clear whether Reagan has yet admitted that even in his own mind.

Oh, wait, there’s more.

“The President who did not understand that arms-for-hostages swaps, in the commission’s words, ‘ran directly counter to the Administration’s own policies on terrorism’ is the same Reagan who has never admitted, probably even to himself, that his tax and spending programs were bound to result in gargantuan budget deficits.”

Meese did his nimble-for-a-large-man best; he was in full protect-the-president mode. The attorney general threw the Marines—McFarlane, North, and John Poindexter—to the wolves. He got up some good evidence for a “cabal of zealots” theory arguing that they had operated without presidential knowledge. And in his July 1987 testimony before Congress, Meese did his damnedest to explain why all those activities the cabal had worked so hard to hide from Congress had not, in fact, been illegal at all; he did this by giving legislators a little legal guidance on the meaning of their own Boland Amendment. The Boland Amendment, Ed Meese explained to committee chairman Daniel Inouye in another remarkable high-wire act, didn’t apply to national security staff members in the employ of the White House.

INOUYE: As the chief law enforcement officer of the United States, are you suggesting, or is it your opinion, that once the Boland Amendment was passed setting forth certain activities that are forbidden to the CIA, the NSA and others, that the NSC could have assumed these forbidden functions without violating the law?

MEESE: Well, Mr. Chairman, the question was directed to me as to whether the Boland Amendment applied to the NSC staff. I indicated that this was an issue on which we had not rendered an opinion in the Justice Department. I also indicated that if you look at the language it is possible to make a strong case for the fact that the Boland Amendment does not apply to the NSC staff.… If the Boland Amendment does not apply to the NSC staff then they would not be included within the prohibitions.

INOUYE: Are you telling us that the staff of the National Security Council can carry out functions that are forbidden to the CIA without evading the laws of the lands of the United States?

MEESE: If the law doesn’t apply to them then they can without violating the law, obviously. That’s a tautology. And when I say the law doesn’t apply to them, the law by its language does not include them.

INOUYE: But if an agent of the CIA carried it out, that would have been a violation of the law?

MEESE: Because the law applies to the CIA by its very terms, but the law by its terms only applies to the CIA, I believe the Defense Department, and entities of the government involved in intelligence activities. Normally, under the list that I read to you, that is not normally deemed to include the National Security Council staff.

INOUYE: Even if they carried out intelligence activities, covert activities?

MEESE: Well, it would depend again on the circumstances. It’s a hypothetical question. But by the language there I think a good case can be made that Congress in its enactment of that law did not include the National Security Council staff within the purview of the agencies that are listed in that section as involved in the prohibition.

INOUYE: Then in other words from what you’re telling me, employees of the Department of Agriculture could have done the same thing without evading the law? To carry out covert activities?

MEESE: I think that it’s entirely possible that as the—that as the law is written here where it says, ‘funds available to the Central Intelligence Agency, the Department of Defense or any other agency or entity of the United States involved in intelligence activities may be obligated and expended only as authorized in specific sections.’ Now, as I read that, as I said earlier, a strong case can be made I think that that does not apply to the Agriculture Department, that it doesn’t apply to Health and Human Services, and a number of other entities which are not involved in intelligence activities.

INOUYE: But if some agent of the Department of Agriculture involved himself with the approval of the president in some covert activity, would that law apply then?

MEESE: By its language, it does not appear to.

INOUYE: Then the Boland Amendment can be evaded very easily.

MEESE: I don’t think it would be an evasion if the law itself doesn’t apply to a particular entity. It certainly would not be an evasion.


At the same time Attorney General Meese was turning in that grand performance in the Russell Senate Office Building, conjuring imagined armies of USDA inspectors and epidemiologists marching on Managua (it’s all legal), declaring the National Security Council as not being involved in intelligence activities, Meese’s Office of Legal Counsel was making the exact opposite argument. Assistant Attorney General Charles Cooper had determined that the first two arms shipments to Iran were perfectly legal because the NSC was involved, and it was “clear” that the NSC is an “intelligence agency.” Meese’s testimony and Cooper’s legal opinion were, as one might say, diabolically opposed, and this was—well, should have been anyway—embarrassing in the way they were making it up as they went. But this was all new.

Most informed and sentient onlookers would have thought back in the spring and summer of 1987 that this new Meeseian executive-branch modus operandi was about to meet the fate it deserved—a swift and sure death. Even before all the indictments and the convictions of senior administration officials, Reagan’s new way—the president can do anything so long as the president thinks it’s okay—looked like toast. In fact, Reagan looked like toast. Whatever his presidency had meant up until that point, Iran-Contra was such an embarrassment, such a toxic combination of illegality and sheer stupidity, that even the conservatives of his own party were disgusted. “He will never again be the Reagan that he was before he blew it,” said a little-known Republican congressman from Georgia by the name of Newt Gingrich. “He is not going to regain our trust and our faith easily.”

The president had been caught red-handed. Congress had exercised its legal and constitutional prerogative to restrain the executive branch from waging a war in Nicaragua. Reagan responded by breaking the law, waging the war anyway, and funding it by illegal and secret weapons deals that the president insisted weren’t happening. The secretary of defense was indicted on multiple counts, as were two national security advisers, an assistant secretary of state, the chief of Covert Ops at the CIA, and two other senior CIA officials. The president himself escaped largely by pleading exhaustive ignorance and confusion: “I’m afraid that I let myself be influenced by others’ recollections, not my own … the simple truth is, I don’t remember—period.” The Reagan presidency—the whole mythology of Reagan’s leadership—was laid bare. This was competence?

But a funny thing happened on the way to the burial of those tough-guy president-can-do-anything ideas. The lesson of the whole affair didn’t really take hold. The Tower Commission and the congressional investigating committee and the independent counsel expended their resources and energies on personalities like North and Secord and McFarlane and Poindexter, and Reagan got a pass. Which meant that in the not very much longer term, Reagan could be reimagined and reinvented by conservatives as an executive who had done no wrong: the gold standard of Republican presidents. By 2011, Newt Gingrich was trying to pave his own path to the presidency with Gingrich Productions “documentaries” like Ronald Reagan: Rendezvous with Destiny. “I knew Ronald Reagan; I began working with Ronald Reagan in 1974 when I first ran for Congress,” Gingrich was thundering from the podium at conservative conferences. “And I hate to tell this to our friends at MSNBC and elsewhere: Barack Obama is no Ronald Reagan!” (Newt’s Reagan movie kind of glossed over the whole Iran-Contra thing, when the extent of Newt Gingrich’s “working with” Ronald Reagan was throwing him under the bus, as the untrustworthy president who “blew it.”)

The Iran-Contra scandal hasn’t exactly turned into a badge of honor for those who had starring roles, but neither does it tarnish the high sheen retrospectively applied to the Reagan presidency or those who did his illegal or extraconstitutional bidding. Reagan’s successor, George H. W. Bush, pardoned most of the Iran-Contra convicts; Bush’s son George W. hired on a number of the scandal’s key players for his own administration. The Obama administration kept W’s defense secretary, Robert M. Gates, whose name is the title of chapter 16 of the Iran-Contra independent counsel report. (“The evidence established,” said the report, “that Gates was exposed to information about North’s connections to the private resupply operation that would have raised concern in the minds of most reasonable persons about the propriety of a Government officer having such an operational role.”)

But even more dangerous was the sad fact that the shameful Meese-made legal arguments about nearly unlimited executive power were not seen as the crazy talk they were, and killed off for good. One leader in Congress was instrumental in making sure this executive-power argument remained politically viable, by loudly declaiming at the time of Iran-Contra, in the midst of the scandal, that Reagan was right to do what he did. As the main author of the minority’s 145-page written dissent from the congressional investigation of Iran-Contra, Wyoming Representative Dick Cheney insisted, radically, that Iran-Contra was no crime, that Reagan was right to defy Congress, because there was nothing in Congress, nothing anywhere in America’s political structure, that could constrain a president from waging any war he wanted, however he wanted. It was an extreme view of executive power, a minority view when written, but it quickly became a blueprint for the next generation of Republican thinking about war and its limits. “The President was expected to have the primary role of conducting the foreign policy of the United States,” Cheney argued in his minority report on Iran-Contra. “Congressional actions to limit the President in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with core presidential foreign policy functions, they should be struck down. Moreover, the lesson of our constitutional history is that doubtful cases should be decided in favor of the President.”

And who won this argument? The answer is kind of surprising, but sadly obvious today, when we find ourselves in a succession of indefinite hot wars the country does not really want.

Remember the words of James Madison: “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.” The “studied care” Madison describes behind that “vesting” has not been matched by any equal and opposite studied care in recent decades, as we’ve divested that same power. It’s not a conspiracy. Rational political actors, acting rationally to achieve rational (if sometimes dumb) political goals, have attacked and undermined our constitutional inheritance from men like Madison. For the most part, though, they’ve not done it to fundamentally alter the country’s course but just to get around understandably frustrating impediments to their political goals. The ropes we had used to lash down presidential war-making capacity, bindings that by design made it hard for an American president to use military force without the nation’s full and considered buy-in, have been hacked at with very little appreciation about why they were put there in the first place.

When Ronald Reagan extricated himself from the Iran-Contra scandal by cutting one of those crucial mooring lines—without considered forethought or specific course headings in mind—it set the country adrift and heading into a dangerous tide.

Congress has never since effectively asserted itself to stop a president with a bead on war. It was true of George Herbert Walker Bush. It was true of Bill Clinton. And by September 11, 2001, even if there had been real resistance to Vice President Cheney and President George W. Bush starting the next war (or two), there were no institutional barriers strong enough to have realistically stopped them. By 9/11, the war-making authority in the United States had become, for all intents and purposes, uncontested and unilateral: one man’s decision to make.

It wasn’t supposed to be like this.