Are Presidents Above Even the Law? : Iran-Contra Hearings Test Our Distrust of Unchecked Power

The real confrontation in the hearings of the congressional Select Committee on the Iran- contra scandal is not between investigators and investigatees. It is between two concepts of government 200 years apart.

The first concept, fashioned in Philadelphia in 1787, held that not even the noblest and best-intentioned of human beings can be trusted with unchecked powers. It was necessary, therefore, to structure government so that law, not man, was the highest authority. No one, not even a President, should be able to skirt the law to accomplish his purposes. This concept was the underlying feature of the U.S. Constitution.

The second, and conflicting, concept is that an American President should not be blocked or frustrated in carrying out policies that he perceives to be in the national interest. This concept has produced numerous debates and even political upheavals in the course of American history, but it is doubtful that the issue has ever been more clearly defined than it is today.

The reason the present issue goes deeper than ever before is that an American President today has more opportunities to get around the law than his pre-1947 predecessors had. He can work with, through or alongside secret agencies created in 1947. Behind the 1947 legislation was the belief that if the Soviets could foment unrest, spread subversion and finance and equip forces for the overthrow of governments, the United States should not be at a disadvantage in coping with these threats. Hence the creation in 1947 of secret agencies. Though the CIA was not authorized to engage in subversive activities, the scope of its operations from time to time have embraced attempts at assassination and the overthrow of governments.

Congress has tried to meet some of the constitutional problems involved in such activities by requiring that the CIA be monitored by a special committee of Congress.

The 1947 legislation, however, did more than create a new agency. It produced a loosening of restraints and a weakening of checkpoints built into the original constitutional design. Not only the President but also other branches of government have exploited the opportunity to veer away from traditional forms of public accountability. The Pentagon, for example, now has a “black budget” under which it is able to spend billions without public scrutiny.

Inevitably the new access to secret funds and powers has produced cross-currents and conflicts in the government itself, as when President Dwight D. Eisenhower’s scheduled meeting with Soviet leader Nikita S. Khrushchev to improve relations with the Soviet Union was negated by an American U-2 reconnaissance overflight of that country--without the President’s knowledge. In 1961 the United States officially recognized Souvanna Phouma’s government in Laos and helped equip its army, but the CIA became involved in an attempt to overthrow that same government. The result was a civil war in which soldiers on both sides wore American uniforms, used American guns and received pay from the U.S. government.

A dramatic example of the infection that can be produced by the general acceptance of secret operations was the private squad, the infamous “plumbers,” created inside the White House by President Richard M. Nixon. Even more dangerous is the opportunity that exists for a coalition between the President and the secret agencies--a coalition in which the CIA might use the presidency as a shield or in which the President could avail himself of the CIA capability to do things that he is otherwise prevented from doing. What is of central importance is the demonstrated tendency to abuse constitutional powers whenever it seems possible to do so.

After the conclusion of the present hearings, Congress may want to address itself to an issue extending far beyond the Iran-contra affair. That issue may be second to none in determining the future of American society. Nothing is more fallacious or irresponsible than the notion that we can carry out subversive activities against other governments without subverting the U.S. government itself, or that men who use secret powers to accomplish their purposes abroad can be trusted not to use the same powers at home. No greater fallacy exists than that the only way of coping with a nation possessing a KGB is to have KGB capabilities of our own. This is the way freedom ends--not with a bang or a whimper but with the imitation of an enemy.

A new round of congressional hearings on the essential limits of secret U.S. operations, by any agency or combination of agencies, would be a good way to observe the Bicentennial of the U.S. Constitution.