The Law Was Law and They Knew It : Did President Knowingly Breach His Enforcement Duty?

To date, the White House has given three different responses to allegations that it violated the Boland amendment ban on assistance to the contra war against Nicaragua. The first was that the Reagan Administration had acted within the bounds of the law. The second was that the law did not apply to either the activities or the participants. The most recent is that the law is unconstitutional.

In fact, the law that is the source of the controversy is neither complicated nor confusing. The author himself, Rep. Edward P. Boland (D-Mass.), explained it to the House in October, 1984, just before its adoption as part of an appropriations bill: “Let me make very clear that this prohibition applies to all funds available in fiscal year 1985 regardless of any accounting procedure at any agency. It clearly prohibits any expenditures, including those from accounts for salaries and all support costs. . . . To repeat, the compromise provision clearly ends U.S. support for the war in Nicaragua.”

In the executive branch, the simple words of the Boland amendment were fully understood, according to Langhorne Motley, the assistant secretary of state for inter-American affairs at the time. In March, 1985, Motley assured a Senate committee that “nobody is trying to play games with . . . Congress. That resolution (the Boland amendment) stands, and will continue to stand; and it says ‘no direct or indirect’ (aid). And that is pretty plain English; it does not have to be written by any bright young lawyers. And we are going to comply with that.” Now, however, the Administration is arguing that the Boland amendment did not apply to the staff of the National Security Council. But the legislation plainly said otherwise; it prohibited “any agency or entity of the United States involved in intelligence activities” from supporting the Nicaraguan contras. The way the law was written, once an agency became involved in any intelligence activities that even indirectly assisted the contras, that agency would then have been covered by the Boland amendment. The Administration could not circumvent the prohibition by having the operation run out of the National Security Council or, for that matter, the Department of Agriculture.

Furthermore, the Administration repeatedly recognized that the law covered the activities of the National Security Council staff. In August, 1985, there were reports in the press that the NSC was secretly assisting the contras. Administration officials emphatically and repeatedly assured Congress that they were complying with Boland. Never then did they suggest that the law did not apply.

White House spokesman Larry Speakes stated: “No member of the national security staff has, at any time, acted in violation of either the spirit or the letter of existing legislation dealing with U.S. assistance to the democratic resistance in Nicaragua.”

National security adviser Robert N. McFarlane assured Congress: “Throughout, we have scrupulously abided by the spirit and the letter of the law. . . . 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.”

At the time the law was in effect, the State Department, the White House and the National Security Council all had a clear and unequivocal understanding of its reach and scope. Now, however, the White House has taken the position that the law never did apply to the President, and in any case was unconstitutional because it infringed on the President’s prerogatives.

In fact, the amendment applied to the President in two ways. The Constitution requires that the Presdent faithfully execute the laws of the land. President Reagan signed Boland into law without challenging its constitutionality. His responsibility as chief executive officer was to see to it that the law was complied with. If the full record demonstrates--as the facts to date suggest--that the President was at all aware that his subordinates were involved in a deliberate effort to provide assistance to the contras and failed to stop them, then he has breached his constitutional duty.

It has been argued that the President has some inherent authority beyond the reach of Congress when, acting on his own, he pursues his foreign-policy goals. That is really irrelevant in this case. President Reagan’s meeting with King Fahd of Saudi Arabia, which led to the doubling of Saudi aid to the contras (to $2 million a month) was part of a coordinated effort involving staff members who were engaged in circumventing the Boland restriction.

The question for the nation is: Did the President faithfully execute the law of the land, or did he willfully and purposefully violate or circumvent it--and did he then lie about what he had done?