Attorney Gave North Opinion on Little Data

The White House lawyer who cleared the National Security Council of violating the law in helping the Nicaraguan rebels made his judgment without being allowed to see crucial documents detailing those activities, he told congressional investigators Monday.

Bretton G. Sciaroni, counsel for the presidentially appointed Intelligence Oversight Board, also based his memorandum on only a five-minute interview with Lt. Col. Oliver L. North, who oversaw the contra operation, and a half-hour session with then-NSC counsel Paul Thompson, Sciaroni told the House and Senate committees investigating the Iran-contra affair.

A copy of that secret Sept. 12, 1985, memorandum was found in North’s safe last November. It apparently was cited by North repeatedly in assuring private associates and government officials that his unconventional actions were legal, despite a congressional ban then in effect that applied to most types of U.S. aid to the contras.

The legal ban on aid to the contras applied to the CIA, the Defense Department and “any other agency or entity of the United States involved in intelligence activities.” Several versions of the law were in effect for two years ending last fall.

Sciaroni, an admittedly inexperienced attorney who works for a board that is charged with the heavy responsibility of examining legal matters involving the nation’s intelligence agencies, said he began his investigation after newspaper articles in mid-1985 described North as being involved in possibly illegal activities to support the rebels.

His memorandum concluded that the legal ban did not apply to the NSC, partly because it was not part of the generally recognized “intelligence community” at which Sciaroni said the law was aimed. Although Sciaroni’s opinion was not embraced at the time by top White House aides other than North, Administration officials now assert that the law restricting the activities of government officials did not apply to the NSC.

Only Legal Analysis

Rep. Edward P. Boland (D-Mass.), principal author of the congressional ban on U.S. military assistance, noted that Sciaroni’s opinion is apparently the only legal analysis of the issue ever done at the White House and since has been “seized upon” by some of the President’s supporters as a document that settles all legal questions surrounding the controversy.

Although the memorandum could have been seen as legal backing for North’s activities, one of North’s internal computer messages to his superiors expressed the fear that “our legal fellow is going to create unhelpful speculation re our intentions on this matter as he proceeds around town asking questions.” As a result, Sciaroni’s opinion was later classified and never shown to Congress.

Sciaroni, 35, acknowledged that the oversight board position that he has held since July, 1984, was his first legal job after being graduated from UCLA and that he was hired for it after failing bar exams twice in both California and the District of Columbia. Sciaroni finally was allowed to practice law in Washington after passing the bar exam in Pennsylvania.

“You found yourself in your first legal position in a tough place, dealing with very complex issues,” Sen. Paul S. Trible Jr. (R-Va.) told Sciaroni. “I only wish here the board and its counsel had been more seasoned, more independent and more vigilant.”

Sciaroni’s appearance stirred the committees’ most basic ideological differences over both the weaknesses of the law itself and the deeper issue of how much power the Constitution gives Congress in limiting the President’s ability to conduct foreign policy.

Sen. Warren B. Rudman (R-N.H.) said Sciaroni’s opinion was “just dead wrong” because the law’s congressional authors clearly intended it to span the government.

However, Rep. Henry J. Hyde (R-Ill.) sided with Sciaroni, saying: “If the Boland amendment wanted to foreclose all government funds, why didn’t it simply say so?”

Hyde added: “Can the Congress use its power of the purse to cut off, restrict or amend the President’s constitutional powers to be the supreme spokesman for America in foreign policy, the sole operator? . . . I don’t think so.”

Sen. George J. Mitchell (D-Me.) refuted Hyde’s contention that the Supreme Court has never definitively ruled “that the President alone has to power to speak or listen as a representative of the nation.” In a spirited exchange with the Illinois Republican, Mitchell offered to send Hyde a copy of the Constitution.

Under questioning, Sciaroni noted that he was not allowed to see a series of documents that detailed the extent to which North was secretly involved in planning contra operations and raising money to keep them going--activities that go far beyond the NSC’s traditional role of advising the President on foreign policy.

Some of the memos referred to other nations and wealthy private individuals who were being solicited for donations to the contras. One described a plan to have a British mercenary destroy lethal Nicaraguan helicopters. Another from North to then-National Security Adviser Robert C. McFarlane deliberated on whether to have a Nicaraguan ship sunk.

According to earlier testimony, NSC counsel Thompson had identified these documents and others to McFarlane as “problematic.”

Sciaroni’s handwritten notes of his interview with Thompson indicate that the oversight board attorney was assured that the NSC’s contra operations were limited to such activities as “moral support” and “influence re atrocities.” One notation added: “no mil. mgmt.”

North’s brief interview with Sciaroni included a “blanket denial” that the NSC aide was involved in military operations or fund-raising, Sciaroni added.

Sen. William S. Cohen (R-Me.) described Sciaroni’s interview of North as follows: “You went to Col. North and said, in essence, ‘Say it ain’t so, Ollie.’ ”

“Is your concept (of) investigation and oversight to ask them if they’re doing anything wrong and to accept without question their assertion that they’re not doing anything wrong and ending the investigation at that point?” Rep. Thomas S. Foley (D-Wash.) demanded, setting a tone of questioning followed by many other members of the two investigating committees.

The oversight board attorney repeatedly reminded the lawmakers that both houses of Congress had looked into the same allegations against North with no success, despite their greater powers and their larger staffs.