The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0108/01085.txt

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$Unique_ID{bob01085}
$Pretitle{}
$Title{Iran-Contra Affair: The Report
Chapter 25   Powers of Congress & the President in Foreign Policy}
$Subtitle{}
$Author{Various}
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$Subject{congress
president
foreign
policy
power
constitution
executive
powers
government
case}
$Date{1987}
$Log{}
Title:       Iran-Contra Affair: The Report
Author:      Various
Date:        1987

Chapter 25   Powers of Congress & the President in Foreign Policy

     Under our Constitution, both the Congress and the Executive are given
specific foreign policy powers.  The Constitution does not name one or the
other branch as the exclusive actor in foreign policy.  Each plays a role in
our system of checks and balances to ensure that our foreign policy is
effective, sustainable and in accord with our national interests.

     Key participants in the Iran-Contra Affair had serious misconceptions
about the roles of Congress and the President in the making of foreign policy.
Poindexter testified, referring to his efforts to keep information about the
covert action in support of the Contras from the Congress, "I simply did not
want any outside interference."  North testified, "I didn't want to show
Congress a single word on this" same covert action.  In Poindexter's and
North's view, Congress trespassed on the prerogatives and policies of the
President and was to be ignored or circumvented when necessary.  If Congress
denied the President funds to implement his foreign policy, they believed that
the President could and should seek funds from private parties and foreign
governments.  If Congress sought to investigate activities which were secretly
taking place, they believed executive branch officials could withhold
information to conceal operations.  These practices were required, in their
judgment, to promote the President's policies.

     In Part IV, these Committees set forth the record of the
misrepresentations, half-truths, and concealment employed by some within the
executive branch to prevent Congress from learning about the NSC staff's
covert activities.  Here, we note that the attitude that motivated this
conduct was based on a view of Congress' role in foreign policy that is
without historical or legal foundation.

     The argument that Congress has but a minor role in foreign policymaking
is contradicted by the language of the Constitution, and by over 200 years of
history.  It is also shortsighted and ultimately self-defeating.  American
foreign policy and our system of government cannot succeed unless the
President and Congress work together.

The Witnesses' Position at the Hearings

     During the public hearings, both Poindexter and North characterized
Congress as meddlers in the President's arena.  Both asserted that their
actions in providing covert support to the Contras were lawful despite the
prohibitions contained in the Boland Amendment.  In light of that position,
Poindexter was specifically asked "why it was when the NSC was carrying out
military support for the Contras, you felt it necessary to withhold
information from the Congress."  In his responses, Poindexter said in part
that the covert action in Central America was an implementation of the
President's policy, and that "we didn't want more restrictive legislation
introduced in some new form of the Boland Amendment."  Characterizing such
legislation as "outside interference," Poindexter responded to questions:

     Q.  Now, the outside interference we are talking about was Congress, and
I take it the reason they were inquiring about Colonel North's activities, the
Government's activities in support of the Contras, was precisely so that they
could fulfill with information their constitutional function to pass
legislation, one way or the other. Isn't that true?

     A.  Yes, I suppose that is true.

     Q.  And that you regarded as outside interference?

     A.  The point was, and still is, that the President has the
constitutional right and, in fact, the constitutional mandate to conduct
foreign policy.  His policy was to support the Contras.

     North also repeatedly stated his view that "it was within the purview of
the President of the United States to conduct secret activities . . . to
further the policy goals of the United States."  North claimed that the
President had the power under the Constitution to conduct "secret diplomacy"
because "the President can do what he wants with his own staff."  He stated
that the President had a "very wide mandate to carry out activities, secretly
or publicly, as he chooses."

The Constitutional Framework

     The Constitution itself gives no support to the argument that the
President has a mandate so broad.  The words "foreign policy" do not appear in
the Constitution, and the Constitution does not designate the President as the
sole or dominant actor in foreign policy.

     The only foreign policy powers expressly granted to the Executive in the
Constitution are the powers to nominate Ambassadors, to negotiate treaties,
and to direct the Armed Forces as Commander-in-Chief.  Two of these powers are
specifically conditioned on Senate approval: the Senate, through its power of
advise and consent, can confirm or reject Ambassadors and ratify or reject
treaties.

     On the other hand, the Constitution expressly grants Congress the power
to regulate foreign commerce, to raise and support armies, to provide and
maintain a navy, and to declare war.  Congress is given the exclusive power of
the purse.  The Executive may not spend funds on foreign policy projects
except pursuant to an appropriation by Congress.

Judicial Decisions Recognize a Shared Power

     Judicial decisions have not found in the Constitution any exclusive
Presidential power to conduct foreign affairs.  Questions involving foreign
policy are infrequently litigated.  But on those occasions where opinions are
on point, the courts routinely have described the conduct of foreign policy as
a shared power between Congress and the President.

     Only last year, the Supreme Court, in discussing its own role in a case
involving "this Nation's foreign relations," recognized "the premier role
which both Congress and the Executive play in this field."  Similarly, in 1948
the Supreme Court declined to take jurisdiction of a case turning on a foreign
policy issue, noting that such issues "are wholly confided by our Constitution
to the political departments of the government, Executive and Legislative."
In a 1979 case, the D.C. Circuit Court of Appeals noted that Congress' role
in foreign policy stems from its power of the purse and its authority to
investigate the Executive's faithful execution of the law:  "The legislature's
powers, including prominently its dominant status in the provision of funds,
and its authority to investigate the Executive's functioning, establish
authority for appropriate legislative participation in foreign affairs."

     In 1977, the D.C. Circuit rejected the argument that the Executive had
"absolute discretion in the area of national security."  The Court noted that
the Constitution assigns each branch powers "equally inseparable from the
national security."  Finally, the Court dismissed the executive branch's claim
that it could prevent Congress from obtaining information that might impact on
national security since the Executive's concern with secrecy "conflicts with
an equally legitimate assertion of authority by Congress to conduct
investigations relevant to its legislative functions."

     Congress's role in obtaining and protecting confidential information
relating to foreign policy has also been recognized in judicial opinions. In
United States v. Nixon, the Supreme Court recognized that "military,
diplomatic, or sensitive national security secrets" may be entitled to
specially privileged status in certain contexts, but went on specifically to
state that the case had nothing to do with the balance between the President's
"generalized interest in confidentiality . . . and congressional demands