QUESTIONING THE QUESTIONING

Now that the Senate and House Select committees on the Iran- contra affair are three weeks into their public hearings, what are we learning about the rightness or wrongness of what the President or the President’s men did? I don’t mean what have we heard the witnesses say--but what have we understood the testimony to mean? The most important function of Congress in situations involving alleged abuse of power by the President, like Watergate and now the Iran- contra affair, is its public-informing function. In such crises, only when the American people are fully informed can we responsibly assert ourselves as the ultimate authority in this democracy.

Both committees announced that the hearings are designed to expose the complete facts of the scandal to the public--but have they chosen a proper strategy?

It is too early to appraise the effectiveness of their efforts. Certainly, the committees do not lack the expertise necessary for success. The chief counsel of both committees have outstanding professional backgrounds in gathering and presenting evidence in complex litigation. However, the committees’ self-imposed deadlines on the length of the hearings and, as a consequence, their need to limit witnesses mainly to principal figures, may disable the committees’ ability to tell the story from beginning to end and to permit a full public grasp of what went wrong and why.

This problem may be reflected by the decision to call Maj. Gen. Richard V. Secord and Robert C. McFarlane as the first witnesses. The public was brought in at the middle of the story, not the beginning. In addition, Secord and McFarlane are key targets and there was no preceding testimony from knowledgeable lesser participants to serve as background. This allowed them to defend their conduct unchallenged--except in cross-examination by the chief counsel and committee members.

If the Senate Watergate Committee had followed the same plan, it might have called Atty. Gen. John N. Mitchell and presidential aide John D. Ehrlichman as its first witnesses. But its strategy was different. Remember Robert C. Odle Jr., the obscure director of administration for Richard M. Nixon’s Committee to Reelect the President? He was called as the Senate Watergate Committee’s first witness, with pointer and chart, to describe CREEP’s campaign organization. Through him, H. R. Haldeman, Mitchell, Jeb Stuart Magruder, G. Gordon Liddy, James W. McCord Jr., etc.--Watergate break-in and cover-up figures later to testify--were introduced as names on the chart or as presidential aides responsible for transferring White House staffers to the campaign.

Then came another unknown witness, Bruce A. Kehrli, a White House aide, with a chart of the White House staff, to show the positions staffers held at the White House before being transferred to the campaign committee. This was the Senate committee’s effort to educate the public on how Nixon’s presidential election campaign was organized and to introduce the players in the Watergate drama and show how they were positioned to execute a political burglary through a covert intelligence plan. Kehrli was followed by the policemen who caught the Watergate burglars; then some of the burglars; then more campaign staffers to recount the beginnings of the cover-up; then Magruder and John W. Dean III, testifying under immunity, who pointed fingers at Nixon’s attorney general, his two highest White House aides and the President himself.

By the end of June, 1973, the public had watched the Watergate story unfold, understood what had happened and was ready to listen to and weigh the explanations of the principal accused--Mitchell, Haldeman, Ehrlichman and the President--that followed, either in the form of testimony or public statements. That the public fully understood what the Senate Watergate Committee presented to them in the first phase of the hearings between May 17 and Aug. 4, 1973, was dramatically demonstrated by the outburst of outrage from millions of Americans over the October, 1973, firing of Special Watergate Prosecutor Archibald Cox on the orders of Nixon--the “Saturday Night Massacre.”

At the risk of sounding like an old general refighting the last war, I have evoked, in some detail, the memory of the Senate Watergate Committee’s hearings to contrast them with the present Iran- contra hearings. Of course, there is no stereotype format for major hearings. Each congressional investigation is confronted by unique facts and problems which may call for a strategy different from that used by an earlier investigation. And the fact that I have not been privy to the internal planning and constraints of the current congressional investigations must qualify any comparison I make. However, the common goal of all congressional investigations must be effective public communication of the events as a whole.

The Iran- contra committees’ choice of opening with Secord and McFarlane may have been influenced by the desire of the chairmen and members to finish the hearings quickly--with August as a deadline. This concern over extended hearings seems symptomatic of a traditional fear among senators and congressmen of being overexposed in politically controversial matters. This worry is aggravated because the target of the current investigation, Ronald Reagan, is still perceived to be a popular President. The members of the select committees, fearing backlash, may believe prudence demands getting off the public stage as soon as possible.

Obviously, a decision to shorten the period of the hearings requires winnowing the witness list. But sacrificing the telling of the whole story in an orderly way may cost us public understanding.

The members of the Senate Watergate Committee had the same fears and were also tempted to have an abbreviated set of hearings. But Sen. Sam J. Ervin Jr. recognized that the committee’s paramount responsibility was to inform the public of the complete dimensions of the Watergate events; if that meant putting on a large number of witnesses and taking as much time as necessary to tell the story, so be it. Ervin prevailed on the rest of the committee to brave the danger of backlash. In all fairness, however, it must be stressed that he was investigating a far less popular President.

The Iran- contra select committees have an additional problem peculiar to them, running counter to efforts to expedite the hearings. Unlike the Watergate hearings directed by one Senate select committee, the current hearings are run by two select committees and two separate staffs. The Senate and House select committees deserve credit for their decision to put aside turf prerogatives and hold joint hearings. They are still too large, however. With each witness questioned in turn by counsel for each select committee and then by 26 congressmen and senators, the hearings not only appear to drag on, but begin to look inquisitional--belying the committee’s stated purpose to maintain objective proceedings.

Even in hearings conducted by a single congressional committee and staff, there is always the danger of proceedings taking on the atmosphere of persecution because of the setting--the array of elected officials and staff confronting the witness, positioned alone, under lights and cameras. Because of this, committee counsel must remember their style of interrogation should be different from that in the courtroom.

Sharp cross examination aimed at the jugular may work well in court, but it can appear to the viewing public as harassment in a congressional hearing room. Maintaining the public’s confidence in the fairness and objectivity of the hearings requires congressional interrogators to adopt a thorough, yet low key, style of questioning. Otherwise, the committee will be surprised by outraged protests from its public audience--as occurred on one occasion during the Senate Watergate hearings, and again, recently, during the questioning of Secord.

Further, the large number of interrogators in the Iran- contra hearings makes it unlikely that the committees will be able to meet their August deadline, even with their shortened witness list, unless they cut even deeper, and thereby make it still more difficult for the public to be informed. The quality and commitment of both committees’ chairmen and their staffs make it unlikely that this will be a problem. The committees will probably extend their deadline if that becomes necessary to complete their hearings in a responsible manner. This might permit them to go back to the beginning of the whole affair and publicly retell how the Administration got involved in its policy of supporting the contras and how Congress adopted a different policy, leading to the Boland Amendment. That background, which the committees cannot assume the public knows well, could put into better focus the Administration’s efforts to evade Congress’ prohibition of aid to the contras by covert operations of the National Security Council staff.

Finally, will the committees take the time to serve as a forum for a national debate on the constitutional boundaries between the powers of the President and the Congress in making national security and foreign affairs policy? The Iran- contra affair presents this clash of powers under our Constitution in an unprecedented form, and we, the people, should be permitted to hear the views of representatives of the President and the Congress and of constitutional scholars so that we may shape a national consensus on these crucial questions.