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Charges Pinpoint North's Deceit of Everyone in Sight

February 05, 1989|PHILIP B. HEYMANN | Philip B. Heymann, a professor at Harvard Law School, was assistant attorney general in charge of the Justice Department's criminal division from 1978 to 1981

Oliver North is being tried on the right charges now.

At the price of appearing very anxious to avoid a public judgment on his conduct, North and his attorney managed to force the dismissal of charges that, serious as they were, could have been defended to his benefit. Too smart by half, they are left with charges that do as well as the criminal law can do in describing the wrongfulness of his behavior.

There were three things wrong with North's operation in the National Security Council. First, it was close to idiotic in terms of our concerns about terrorism, credibility with our allies and the maintenance of a strong presidency--but that is not a criminal matter. The two charges that were dismissed alleged a second area of misconduct: defiance of congressional directives about the conduct of foreign policy, mishandling of government funds, and ignoring legal requirements for the initiation of covert operations. They raised, dramatically, the question of the powers of the President and Congress in these matters.

The remaining charges (setting aside two that allege personal profit from governmental operations) present the third wrong. They are based on allegations of a mind-boggling series of falsifications, told to the attorney general, to House and Senate intelligence and other committees and officials, and an accompanying destruction of White House documents that could have revealed the truth.

The dismissed charges raised issues about the powers of the President and Congress; the remaining charges raise issues of North's right to lie to representatives of the President and Congress to avoid accountability for his actions.

First, let us look at the dismissed charges, for the perception has been that the gravity of their possible effect on government powers made them the most serious for North to defend.

Actually, those charges were subject to a plausible, though not necessarily correct, defense. For most people, being mistaken about the criminal law is no defense. But North would argue that, as an aide to the President, he was different. He would say he reasonably believed (a) that the President approved of the continued Contra support in violation of the Boland amendment, the Iran arms sales and the diversion of funds from the latter to the former; and (b) that the President had the power to authorize these operations, despite contrary substantive or procedural directives by Congress.

North also would argue that it would be unfair to convict him of carrying out what he believed were the President's legitimate orders. Presumably, North would seek to prove the reasonableness of his belief, and that would require his being able to present to the jury a great deal of secret national security information as well as the testimony of the highest government officials.

From a prosecutor's view, this is more than a technical legal defense. As North showed so dramatically at the public congressional hearings, he could claim that the conduct alleged in the charges was not self-serving but patriotic, not done for himself, but for his country.

From a broader point of view, these charges presented competing contentions about the proper role of Congress and of the President, a disagreement with no clear constitutional answer, sharply divided public opinion, and two powerful contestants who might better bargain their way to an accommodation than litigate their differences when it was Oliver North's freedom at stake.

The dismissal of those first two counts of the North indictment left unsatisfied many who wished to resolve the larger, contested powers question. In those quarters, the tendency is to regard as trivial the remaining charges of a criminal nature.

The remaining counts allege a long series of deceptions, destruction of records and efforts at cover-up, which are charged as the crimes of making false official statements and obstructing of congressional and presidential investigations. Most, if not all, of the activity is alleged to have taken place long after the U.S. role in selling arms to Iran and supporting the Contras was known to our adversaries. Much of it seems to have occurred in an effort to suppress revelations that were bound to follow upon two pieces of news in October and November, 1986: the Nicaraguans' announcement that they had shot down a plane and captured an American on a U.S. mission in support of the Contras; and a Lebanese magazine's publication of the fact that the U.S. government had sold arms to Iran, which was prohibited by U.S. law.

These remaining charges involve an issue just as fundamental as the balance of power over foreign relations. Here the issue is accountability: a powerful official's accountability to the President who ordered the investigation that North attempted to obstruct, to Congress, which was frequently deceived by him, and to the American public. The effort of Oliver North to deny any accountability for his "enterprise" is a matter of grave importance.

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