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Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair Harold Hongju Koh Yale Law School

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Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair Harold Hongju Koh Yale Law School Yale Law School Yale Law School Legal Scholarship Repository Faculty Scholarship Series Yale Law School Faculty Scholarship 1988 Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair Harold Hongju Koh Yale Law School Follow this and additional works at: https://digitalcommons.law.yale.edu/fss_papers Part of the Law Commons Recommended Citation Koh, Harold Hongju, "Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair" (1988). Faculty Scholarship Series. 2071. https://digitalcommons.law.yale.edu/fss_papers/2071 This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact [email protected]. The Yale Law Journal Volume 97, Number 7, June 1988 Articles Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran- Contra Affair Harold Hongju Koht The Iran-Contra Affair, the latest in a line of disturbing American foreign policy imbroglios, has forced national reexamination of the process by which Copyright 1988, Harold Hongju Koh. - Associate Professor, Yale Law School. From 1983-85, the author served as an Attorney-Adviser in the Office of Legal Counsel, United States Department of Justice. Portions of this article were first presented at the April 1987 Annual Meeting of the American Society of International Law, the November 1987 Federalist Society Conference on "Foreign Affairs and the Constitution" (proceedings to be published in 42 U. MIAMI L. REv. (forthcoming 1988)), and the November 1987 Hofstra University Presidential Conference on "Richard Nixon: A Retrospective on His Presidency" (proceedings forthcoming, Greenwood Press). An expanded version of this article, tentatively entitled THE NATIONAL SECURITY CONSTITUTION AFTER THE IRAN-CONTRA AFFAIR, is forthcoming from Yale University Press (1989). I am grateful to the many friends who challenged and supported me through earlier drafts of this article: Bruce Ackerman, Akhil Amar, Zde Baird, Boris Bittker, Kay Bradley, Guido Calabresi, Gene Coakley, Drew Days, Bob Ellickson, Mary-Christy Fisher, Owen Fiss, Mike Fitts, Tom Franck, Paul Gewirtz, David Halperin, Morton Halperin, David Hayes, Geof Hazard, Paul Kahn, Bob Keohane, Geoff Klineberg, Leon Lipson, Jules Lobel, Jerry Mashaw, Jeff Meyer, Gerry Neuman, Roberta Romano, Susan Rose-Ackerman, Peter Schuck, John Simon, Peter Simons, Kate Stith, Harry Wellington, Alex Whiting, and the participants in the Yale Law School Faculty Workshop. 1255 HeinOnline -- 97 Yale L.J. 1255 1987-1988 1256 The Yale Law Journal [Vol. 97: 1255 the United States conducts its foreign affairs. In this Article, Professor Koh suggests that, contrary to popular perception, the Iran-ContraAffair was not simply an historical aberration. Rather, he argues, the Affair is symptomatic of a chronic dysfunction in the currentforeign policy process. After tracing the Affair's historical roots, Professor Koh suggests that the flaws in the current decisionmaking system stem from a growing trend of executive initiative, abet- ted by congressional acquiescence and judicial tolerance. He further asserts that this dramatic accretion of presidential power contravenes the constitu- tional and policy visions offoreign polic)making set down more than forty years ago. This diagnosis leads Professor Koh to call for a reform of the for- eign policy process t6 restore and reinvigorate the constitutional roles properly envisioned for Congress and the federal judiciary. TABLE OF CONTENTS I. How THE IRAN-CONTRA INVESTIGATORS FAILED 1259 A. Recognizing HistoricalPatterns 1259 B. Role Definition 1275 C. Normative Vision 1279 II. WHY THE PRESIDENT ALMOST ALWAYS WINS IN FOR- EIGN AFFAIRS 1291 A. Executive Initiative 1292 B. CongressionalAcquiescence 1297 C. Judicial Tolerance 1305 D. The Road to the Iran-ContraAffair 1317 III. LEARNING THE LESSONS OF THE IRAN-CONTRA AFFAIR 1318 A. Restraining the Executive 1323 B. Revitalizing Congress 1326 C. Reinvolving the Courts 1335 D. Legislative Prospects 1338 IV. CONCLUSION 1342 For those who lived through the Watergate summer of 1974, the Con- tragate summer of 1987 painted eerie historical parallels.' A congressional panel and special prosecutor convened to question the President's men about the legality of their activities, asking what the President knew and when he knew it. The congressional committees concluded that the Presi- dent's men had been running an illegal secret operation out of the White House and placed ultimate blame upon the President himself.2 But even 1. See, e.g., This Is Watergate, NEW REPUBLIC, Mar. 16, 1987, at 7 (editorial). 2. "[T]he ultimate responsibility for the events in the Iran-Contra Affair must rest with the Presi- dent. If the President did not know what his National Security Advisers were doing, he should have." HOUSE SELECT COMM. TO INVESTIGATE COVERT ARMS TRANSACTIONS WITH IRAN AND SENATE SELECT COMM. ON SECRET MILITARY ASSISTANCE TO IRAN AND THE NICARAGUAN OPPOSITION, REPORT OF THE CONGRESSIONAL COMMS. INVESTIGATING THE IRAN-CONTRA AFFAIR, S. REP. No. HeinOnline -- 97 Yale L.J. 1256 1987-1988 1988] Iran-Contra Affair 1257 after those committees had completed their work,3 the President continued to deny responsibility and Washington rang with talk of pardons for the accused. Of the many noteworthy findings in the Iran-Contra committees' ma- jority report, the most controversial was "that the Iran-Contra Affair re- sulted from the failure of individuals to observe the law, not from defi- ciencies in existing law or in our system of governance."'5 Declaring that "Congress cannot legislate good judgment, honesty, or fidelity to law," the majority implied that all would be well again once the current crop of rascals either leave or are thrown out. The minority report agreed "that the underlying cause of the Iran-Contra Affair had to do with people rather than with laws,' 7 thereby dismissing the majority's accompanying legislative recommendations as either "unconstitutional and unwise" or "unconscionably meddlesome."" Before these conclusions harden into conventional wisdom, it seems worth inquiring whether the Iran-Contra committees asked the right questions, much less reached the right answers. In my judgment, the com- mittees misjudged the Iran-Contra Affair's true import in three crucial respects. First, they failed to recognize that the relevant historical prece- dent for the Affair was not Watergate at all, but rather, Vietnam. Second, they misdiagnosed the underlying problem. The Iran-Contra Affair repre- sented not simply an aberration, a failure on the part of certain individu- als within a particular administration, but deeper systemic flaws in the current legal structure of our foreign policymaking process. Third, the committees' misunderstanding of both the precedent and the problem inev- itably led them to the wrong prescription. For if, as the committees con- cluded, the Iran-Contra Affair sprang mainly from the wayward acts of a few colorful personalities, then the proper policy prescription would in- deed be to enforce the laws currently on the books. But if the Affair stemmed from a more fundamental failure of legal structure, then a legis- lative revamping of the statutory framework that governs our foreign af- fairs is now in order. Section I analyzes three decisive errors committed by the Iran-Contra 216, H.R. REP. No. 433, 100th Cong., 1st Sess. 21 (1987) [hereinafter IRAN-CONTRA REPORT.] 3. The committees formally concluded business at the end of February 1988. See N.Y. Times, Feb. 29, 1988, at B6, col. 5. 4. See Beg Pardon, ECONOMIST, Jan. 9, 1988, at 23. 5. IRAN-CONTRA REPORT, supra note 2, at 423 (emphasis added). The other nonjudicial investi- gation of the Affair reached the same conclusion. See PRESIDENT'S SPECIAL REVIEW BOARD, THE TOWER COMMISSION REPORT 4 (N.Y. Times ed. 1987) [hereinafter TOWER REPORT] ("The problems we examined in the case of Iran/Contra caused us deep concern. But their solution does not lie in revamping the National Security Council system."). For discussion of the Tower Report, see infra notes 80-83 and accompanying text. 6. IRAN-CONTRA REPORT, supra note 2, at 423. 7. Id. at 583 (minority report). 8. Id. HeinOnline -- 97 Yale L.J. 1257 1987-1988 1258 The Yale Law Journal [Vol. 97: 1255 committees: their failure to place the Affair within the pattern of history; their misconception of their legislative role; and their failure to articulate either a coherent policy vision of how the various branches of government should deal with national security issues or a coherent constitutional vi- sion of how the President, the Congress, and the courts should participate in the foreign policymaking process. Had the committees placed the Iran- Contra Affair in proper perspective, they would have recognized that the Iran-Contra Affair was not quintessentially a presidential scandal, but a failure of foreign policy process: the latest episode in a history of executive avoidance of legislative constraint in foreign affairs that stretches back to Vietnam. If the Iran-Contra committees had drawn the proper historical paral- lels, they would have seen that a far more important question than "what did this President know and when did he know it?" is "why does the President almost always seem to win in foreign
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