A Verdict With Harm to Spare : Iran-Contra: John Poindexter wouldn’t have been tried if the hostages had been freed and the Sandinistas toppled. This was politics, not justice.

The conviction of former National Security Advisor John M. Poindexter is a miscarriage of justice with worrisome implications for a strong executive branch.

The politically inspired nature of Poindexter’s prosecution is transparent. He was charged with and convicted of misleading Congress and obstructing its investigation of the shipment of arms to Iran in exchange for American hostages and of the involvement of the National Security Council in aiding the Nicaraguan Contras. But Poindexter would never have been investigated by Congress--or prosecuted--if the Iranian and Contra gambits had been successful. Congress instructed the President in the Hostages Act of 1868 to use every device short of war to effectuate the release of American hostages held abroad. No law has since superseded this act. There would have been no quibbling over the legalities of arms-for-hostages if all Americans had been released.

Likewise, if the Contras had ousted Sandinista president Daniel Ortega with NSA assistance, even if in violation of the now-fabled Boland Amendment, who would have voiced legal objections? Not Congress. This case epitomizes the axiom that success enjoys a thousand fathers, but failure is an orphan.

Under ordinary prosecutorial standards, Poindexter’s transgressions would not have triggered a criminal case. Nothing he did was intended to aggrandize himself, financially or politically. He was seeking to effect foreign policy goals articulated and championed by President Ronald Reagan. In Nicaragua, the recent election of Violeta Barrios de Chamorro vindicated the NSC effort to maintain the military arm of the Contras as a tactic for encouraging democracy.

Additionally, a criminal prosecution was unnecessary to deter future wrongdoers. Poindexter had resigned under a cloud, been stigmatized by the media, and made a virtual pariah in institutions that might offer gainful employment. His example was already harrowing enough.

And the American public was not demanding retribution. Poindexter’s motivations were patriotic and his official misjudgments or overzealousness on behalf of the hostages and Nicaraguan democracy did not ignite calls for vengeance.

So what was the purpose in pursuing Poindexter with a sledgehammer? To show that Congress’ $4 million gold-plated Iran-Contra investigation and the independent counsel’s bejeweled $20 million follow-up had not been wasted? To show, as former Supreme Court Justice Robert Jackson warned, in 1940, that federal laws are so voluminous and unfathomable that prosecutors can easily pick the man and find the crime, rather than vice versa?

Poindexter’s criminal conviction threatens to make presidential advisers more loyal to Congress than to the chief executive, in violation of the Constitution’s separation of powers. Suppose President Bush were to desire a covert attack inside Iraq to destroy chemical weapon stockpiles and components of a would-be nuclear bomb. Existing constitutional and statutory law is ambiguous regarding notifying Congress in advance, but experience shows that such disclosures would be instantly leaked, scuttling the plan.

What would Bush’s national security adviser, Colin Powell, likely recommend? Forget boldness or secrecy. If it failed, Congress would transform Iraqi President Saddam Hussein into a benevolent dictator and accuse all those involved in the decision-making as criminals.

Poindexter’s conviction makes prohibitive the legal risks to presidential advisers of assertive foreign policy or national security recommendations that might fail (in the eyes of Congress). And any recommendation worth making holds that potential. Consequently, Bush will not obtain the forthright advice indispensable to fashioning initiatives towards the Medellin Cartel in Colombia, the Rabta chemical plant in Libya, Kim Il Sung’s bellicose North Korean tyranny, and the American hostages still held in Lebanon.

The Poindexter case should instead teach Congress that secrecy is inherent to executive-branch foreign policy and national security responsibilities. The Manhattan Project, Henry Kissinger’s secret trip to China and the aircraft interception of the Achille Lauro criminals are illustrative. If Congress by law denies secrecy to the Central Intelligence Agency, then it simply migrates to the NSC, the Department of Defense or elsewhere and infuriates the legislature. This cat-and-mouse chase after secrecy should end, and the President be permitted the discretion to act in confidence without unbecoming and unproductive legal acrobatics.