A Case of Missing Prologues : In North Trial, the Benefit of Doubt Was Denied

A block from the federal courthouse in Washington where the Oliver North trial unfolded for three months and his peers deliberated his fate for an additional 12 days before finding him guilty on three criminal counts, the National Archives building bears the inscription: “What is Past is Prologue.” This case, raising profound issues of public morality and public law, had ample prologues. But with the encouragement of the prosecutor, the trial judge seems to have missed them.

Eight hundred years ago, Henry II exclaimed in a petulant rage: “Will no one rid me of this cursed priest?” and four of his household knights rode off to Canterbury to murder Thomas a Becket at the cathedral. These knights seemingly misconstrued their liege lord’s lament and devised a solution to his problem that he himself did not squarely command.

Like that bloody struggle between temporal and ecclesiastical prerogatives, the North prosecution grew out of the clash between two institutions jealous of their powers and quick to sense encroachment. Just as with the response to King Henry’s frustrated exclamation, North’s actions raise serious questions about how far a loyal member of a President’s retinue may go in pursuing what he believes is his superior’s will.

The defense in the North trial, however, had a difficult time conveying its main theme. At times it appeared that North was arguing that his duty to carry out his commander-in-chief’s policies excused him from complying with any pesky laws that might obstruct his pursuit of the President’s twin goals of extricating American hostages in the Middle East and supporting the Nicaraguan Contras. He insisted that he received approval from his superiors for everything he did.

At other times, however, North’s counsel emphasized a more modest and more conventional theme: that the various laws he had allegedly broken did not clearly apply to what he was doing. Under this line of argument, he wanted the jury to consider his noble public purpose in determining whether he harbored “criminal intent” in taking “authorized” actions against the backdrop of ambiguous laws.

Judge Gerhard A. Gesell adopted the broadest possible interpretation of the defense theme and smacked it down firmly. He instructed the jury that “neither the President nor any of the defendant’s superiors had the legal authority to order anyone to violate the law. Our country is governed by the rule of law.” That statement is superficially compelling, but it failed to capture either the nuances of the law or the culture of which Col. North was a part at the time he did the deeds for which he was tried.

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North was an active-duty Marine working in the shadowy world of international espionage and counter-terrorism. Although he was assigned to the White House to serve on the National Security Council staff and mingled with civilians working for the government, he was by training and temperament a soldier. In that culture, he was certainly aware of the settled principle of military law that a soldier is bound to obey only the lawful orders of his superiors. Long before Nuremberg, the Articles of War recognized that the defense of obedience to superior orders would be recognized only if the orders were legal. Today, Articles 90 and 92 of the Uniform Code of Military Justice similarly prescribe obedience only to a ‘lawful command” or “lawful order.”

American law recognizes, however, that demands of military life and discipline are complex. For obvious and compelling reasons, the system is definitely tilted against having soldiers question their superiors’ orders. As the Supreme Court aptly noted a century ago, an army “is not a deliberative body. It is the executive arm. Its law is that of obedience.”

Under American law, a soldier is not expected--and is not permitted--to hold his superiors to the burden of convincing him that their directives are proper. As the definitive 19th-Century treatise on military law by Col. William Winthrop admonished: “Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.”

It was against the standard of “palpable illegality” that the military and civilian courts upheld the My Lai massacre conviction of Lt. William Calley. He contended that while he had his men on patrol in the jungle, his company commander radioed him to “dispose of” all the Vietnamese in the village. The commanding officer’s testimony was that he had instructed his officers to “use common sense” and not to kill women and children indiscriminately. The courts ruled that, whatever order Calley had received, an act performed pursuant to an order that a person of “ordinary sense and understanding” would know under the circumstances to be unlawful is not excusable.

Murdering children after a village has been “pacified” does not present a very close case of law or morality. By contrast, perceived instructions to provide funding for friendly forces whom the President himself compared to our Revolutionary War forebears seems to fall in a far-grayer zone.

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The use of calculated deceit to honor a supposed duty to maintain the cloak of secrecy around the operation when confronted with “outside” investigations--from the Justice Department and Congress--may take on a different coloration when the command is being implemented by an officer indoctrinated in the “need to know” principle. Although purists proclaim that one cannot tell a lie to save the world, it is disingenuous to deny that disinformation has been, at least episodically, an instrument of statecraft in peacetime as well as in war--in the White House as well as in Congress.

Thus, what Judge Gesell failed to capture when he instructed the jury was that American law gives the soldier the benefit of the doubt on any gray questions concerning the legality of the orders he was implementing. As the authoritative Model Penal Code puts it, executing a military superior’s order is a valid defense, even in a civilian court, so long as it was an order that the soldier did “not know to be unlawful.”

In the North trial, though, the defense did not set out to prove that the President or the national security adviser or even the director of central intelligence had ordered North to take each of the steps that were prosecuted as illegal. Instead, North contended that for the most part, he was using what he considered legitimate discretion in devising the operational details to translate policy into action. His discretion in selecting the means to carry out the President’s policy, he argued, should entitle him to the benefit of the doubt, especially after his superiors allegedly approved his plans.

On this issue, too, Judge Gesell adopted the narrowest view of official authorization as bearing positively on North’s intent to commit federal crimes. He told the jury: “Authorization requires clear, direct instructions to act at a given time in a given way . . . . It must be specific, not simply a general admonition or a vague expression of preference.”

Perhaps Judge Gesell had read T.S. Eliot’s “Murder in the Cathedral” before framing his instruction and wanted to foreclose the North jury from entertaining the defense advanced by the Second Knight for the sacrilegious murder: “We are not getting anything out of this. We have much more to lose than to gain. We are four plain Englishmen who put our country first . . . . The fact is that we knew we had taken on a pretty stiff job.”

In taking that stringent a view, however, Gesell appeared not to have been troubled by the fact that the court of appeals reversed him in a Watergate-era case involving a somewhat similar issue. That case involved two of the White House “plumbers”--the paramilitary investigating group set up in the Nixon White House to do sensitive (and illegal) operations. Two of the foot soldiers in that unseemly enterprise (technically, they were civilian ex-CIA operatives) insisted that the jury was entitled to consider their belief that the President had lawfully ordered their unit to break into a psychiatrist’s office in California to search for national security information that a patient (Daniel Ellsberg, leaker of the Pentagon Papers) might have left there. The court ruled that it was error for Gesell to refuse to tell the jury that it was a defense if the defendant “believed he was acting out of good faith reliance upon the apparent authority of another to authorize his actions.”

Moreover, in virtually forbidding Oliver North’s jury to consider any of his decisions as officially sanctioned unless explicitly commanded, the judge was telling the jury to blind themselves to two centuries of American military tradition and training. American officers--and enlisted men--have been bred to exercise imagination and bravado, to see the prize and devise a way to capture it, to encounter unforeseen obstacles and to craft a strategy of might or sleight to evade them.

This emphasis on nurturing initiative in the field is widely credited with the success of American arms in wars ranging from the Revolution through the war with the Barbary pirates, with Mexico, with Spain and against the Axis. This ingrained tradition of initiative and freedom to maneuver is also viewed as supplying American military forces today with a tactical superiority over vastly overwhelming Soviet troops who are trained not to stray from orthodox doctrine and precise plans.

Nor did Judge Gesell’s instructions adjust for the special hydraulic forces at work in the White House itself, even when civilians are staffing the offices. As Watergate showed, the pressure to divine the President’s will, even when incompletely expressed, is powerful. So is the near obsession to transform any presidential preference into an effective program. Watergate exposed the dark side of these pressures to deliver. Perhaps the Iran-Contra affair did, too.

At the very least, though, it is important to recognize that these forces are at work and--with the singularly revealing exception of Jimmy Carter’s own obsession with micro-management--Presidents depend on their aides to do more than await, as Gesell put it, “clear, direct instructions to act at a given time in a given way.” North’s conduct may well have exceeded the bounds of permissible discretion, but the country would not be well served if the law left no room at the margins for any discretion in implementing a President’s policies.

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At the close of his defense, the second of Becket’s assassins remarks cynically: “We know perfectly well how things will turn out. King Henry--God bless him--will have to say, for reasons of state, that he never meant this to happen; and there is going to be an awful row; and at the best we shall have to spend the rest of our lives abroad.”

Henry II’s knights were not punished for their overzealous pursuit of the king’s aims, though Henry--under public pressure--ultimately accepted accountability and did public penance. There the parallel with the Iran-Contra affair ends. After all, history would be very dull stuff indeed if we merely retold the prologue over and over again. And after Watergate, both the law and the people seem less willing to tolerate the claim that a public servant’s notion of the public good excuses a crime.