Chapter 15 - part b

Is the proposed list of banned activities, page 393, realistic?

Was Congress able to pass this list and get it signed into law?

Intelligence Oversight Act of 1980

Review this act - it was all the formal legislation that resulted from the Church Committee

What are the duties?

What are limitations of the Act?

Does it require congressional permission for covert activities?

What is the duty of the House and Senate?

Which excuse for reporting to congress did this Act eliminate?

Executive Orders implementing the Church Committee report

Why did Ford and Carter want to do this by executive order rather than legislation?

What was Executive Order No. 11,905

What did Executive Order No. 12,036 do?

What does Executive Order 12,333 do?

What was the criticism of the reviewing role of the NSC?

What language did Regan leave out of Carter's definition of covert activity?

Is this legally significant?

What was the purpose of the intelligence oversight board (IOB) as constituted by Executive Order No. 12,334?

Iran Contra

What was the original deal as suggested by Israel?

What is the downside of this sort of deal?

What about buying back slaves in Africa?

How did the arms get to Iran?

What did Secretary of State Schultz determine in 1984 that complicates the use of the Arms Export Control Act and other legal authorities?

How does the Hostage Act support the arms deal?

What provision of the Hostage was ignored?

What are the legal problems of using the Arms Export Control Act as authority?

What act did the president use to get out from under the Arms Export Control Act?

But may the President avoid the AECA simply by labeling an arms transfer as a covert action?

What would the President have to do to use the National Security Act, added by the Intelligence Oversight Act of 1980 as authority?

How did Poindexter finesse this?

What is the loophole for reporting in §501 of the Intelligence Oversight Act?

When did Judge Sporkin say the White House thought it could report?

Does this support the argument by Meese and others that the president did not have to report at the time of the transaction?

What is an argument for why the president has a constitutional right to not report certain covert actions?

What finding did Regan make on 1 Dec 1981 and convey to the Congressional intelligence committees?

What was the purpose of this finding?

What was the purpose of the Bolland Amendments?

What were the Congressional conflicts over the Amendments?

How is this like the debate over limiting actions in Iran?

How is this different?

What did Bolland II provide?

What prompted this amendment?

What are the three interpretation problems with this amendment?

Is there any ambiguity in this from the Congressional point of view?

What did Congress think the amendment meant?

How did the White House try it take advantage of its interpretation questions to get around Bolland II?

Putting aside policy and constitutional considerations, why is this a bad idea?

What did the GAO report on government contracting say about the White House theory that the "no funds" provision only applied to funds in the defense appropriations bill that the Bolland Amendment was part of?

Why might congress have used "no funds" rather than language about specific appropriations?

What did Regan say about what he knew and authorized?

How did this defuse the impeachment issue?

What was latter support for this position?

If there are no presidential findings, where does this leave the legal status of these activities, even if they might have been legal with presidential findings?

How does Congress provide funding for special forces so that they there is no detailed information about them in the budget?

Was it appropriate for the White House to use this money when the Congressional appropriations ran out for supporting the Contras?

What does congress require be done with gifts to the US?

Why is possibly unconstitutional for the president to solicit funds from other countries that are not put under the control of Congress?

Is there evidence that countries that provided funds were paid back through other channels?

Is this money laundering?

What is the effect of money outside the appropriations process on separation of powers?

Is there a difference is the president tries to persuade other countries to directly support causes that the Congress will not support?

How important is it if Congress has said no to supporting the cause, rather than merely being silent?

What did Representative Wilbur Daniel state during the debate on the Bolland Amendment?

Are there constitutional limits on acts such as the Bolland Amendment?

What is Daniel is correct about its effect?

Who has the constitutional authority to issue letters of Marque and Reprisal?

What kind of war are these aimed at?

What kind of war were we involved in with the Contras?

How can the Marque and Reprisal Clause be used to support the constitutionally of the Bolland amendment?

What crimes were the Iran Contra defendant's charged with?

What did the appeals court say about North's requested instruction that authorization by his superiors was a complete defense?

When did the appeals court say this might be a defense?

How much of this should be the president's call?

Why is the money such an issue?

Is it a crime to shift money from appropriated accounts?

We will talk about the legal fall out next time.

Constitutionality of the Boland Amendment

Boland amendment was the congressional attempt to keep the president from supporting the Contras

Even if the president could constitutionally support the contras, can congress prevent him from using any funds or staff not appropriated by congress and congress limit what he can do with appropriated money?

What about limits on persuading third parties to support action that Congress opposes?

There is no penalty provision in the Boland amendment - does it need one?

What about laws on misappropriating funds?

Are there remedies short of impeachment?

The ethics in government act (independent counsel law)

The attorney general (Meese) requested an independent counsel

Judge Lawrence Walsh was appointed

Became a huge project

Indicted Poindexter, North, Secord, and Hakim

Conspiracy to violate the Bolland Amendment

Obstruction of justice

Money crimes related to improper expenditures

Complicated because they had been granted immunity so they would testify before congress

Did congress intend to stop the prosecution?

The white house refused to turn over classified documents requested by North's attorneys, resulting in the dismissal of most of the money crimes

Is criminal prosecution appropriate?

Was North just carrying out the president's policy?

What is the advantage of not protecting the individuals who carry out the policy?

Is just following orders always a good defense?

Why is it called the Nuremberg defense?

Should North have inquired into his boss's authorization?

North played it as a patriot caught up in technicalities and made the fall guy by higher ups.

US v. Terrell, 731 F.Supp 473 (1989)

What was the prosecution based on?

Why did the defendants say the Act did not apply?

What was the factual support for their claim?

What did the court find?

The Outcomes

North and Poindexter were convicted

The convictions were thrown out on appeal because they depended in part on immunized testimony

The independent counsel did not re-prosecute, finding it impossible to prove the case without running into immunity.

Why had congress infringed on the prosecution through granting immunity so they would testify in congressional hearings?

Is it better to have the hearing or a conviction?

McFarlane pleaded guilty to misdemeanor charges of withholding information from Congress.  He was pardoned by Bush.

Casper Weinberger was pardoned, foreclosing trial.

Six were pardoned, 5 after convictions.

Review the provisions of the Intelligence Authorization Act of 1991

What are the limits on covert action?

What are the directions on notification to avoid long delays?

What did the act do to address the presidents memo of disapproval that accompanied his pocket veto?

Did the president say that he would always report?

What provision might violate INS v. Chadha?

Should reporting to the intelligence committees constitute notice to Congress?

What are the powers of the new IG under the act?

Could Iran Contra occur again?

Do the laws really matter?

What does control of the executive depend on?