Glasnost, American-style. The arduous task of sorting out the Iran-contra debacle
PRESIDENT REAGAN and his advisers persist in the hope that ``this too shall pass.'' But it is increasingly evident that it has not passed, nor will it until the full truth comes out. The spot will not out. By latest count, there are 11 agencies and individuals involved in investigating various aspects of this fiasco. These are the Foreign Affairs Committee of the House of Representatives; the Foreign Relations Committee of the Senate; the Senate Intelligence Committee, a select committee of the Senate; a select committee of the House; the special prosecutor, Judge Lawrence E. Walsh; the Federal Bureau of Investigation; a federal grand jury; the Central Intelligence Agency; the Tower Commission; the national-security adviser, Frank Carlucci; and Ambassador David M. Abshire.
This is another example proving the validity of Sir Winston Churchill's observation that democracy is the worst of all political systems, except for all the others.
The immediate subject of Sir Winston's sardonic comment was democratic Great Britain. But Britain is somewhat more tidy than we are in matters of this character.
Faced with the Iran-contra imbroglio, Her Majesty's government would have appointed a royal commission. Its head undoubtedly would be a high court judge of unimpeachable integrity and objectivity. The royal commission would investigate, with all deliberate speed, and all implicated would be required to testify. Upon completing its inquiry, the commission would issue a white paper, detailing the facts and, if the evidence warranted, recommend appropriate remedies. The white paper would be made public, corrective measures employed, and the matter under investigation then put to rest, with minimal political fallout.
In our more freewheeling democracy things are different. Thus, as noted, the affair is being investigated by 11 agencies, and the results of the various inquiries will not be made public until virtually the end of this year.
This is not to say that a full investigation, without fear or favor, is not warranted. On the contrary, it is imperative, under the circumstances. But as I shall point out, there is a way to expedite the process - not to substitute for it.
There are disadvantages inherent in a prolonged inquiry. The public's attention span is limited. Many other matters of general concern require attention.
Further, our body politic, strong as it is, is hard put to suffer, however warranted, another flawed presidency.
I detect that there is no overwhelming desire, either on the part of the public or responsible politicians of either party, for ``president-bashing.'' But to escape such bashing, the President must be more forthcoming than he has been. While the public may be increasingly bored with the Iran-contra scandal, the news media, as is its right, still pursues the scandal with inevitable and appreciable effect on the public at large.
The President has said that he is eager that all of the facts be brought to light. But beyond dismissing Vice-Adm. John Poindexter and Lt. Col. Oliver North from their White House posts, Mr. Reagan has taken no action to ensure that the key witnesses testify before any of the investigating agencies. On the contrary, the President has stated that they have every right to invoke the Fifth Amendment and that he is therefore powerless, under the Constitution, to compel Admiral Poindexter or Colonel North to answer questions about the misadventure.
The Speaker of the House of Representatives, Jim Wright, has suggested that President Reagan pardon the two officers, thus freeing them to testify without incriminating themselves. The President, mindful of the public outcry against President Gerald Ford's pardon of Richard Nixon and Watergate, has declined to do so. Rather, he has pointed out that Congress may grant use of immunity and compel Poindexter and North to testify, while safeguarding their Fifth Amendment rights. But Congress is also wary of doing so, fearing public reaction to granting immunity to people allegedly committing serious illegal acts. Further, the law requires that before immunity is voted by Congress, the views of the special prosecutor must be solicited.
The special prosecutor, Judge Walsh, has now made his views about immunity known. In a letter recently released, he has urged Congress not to grant immunity to any witness until the judge's is finished. Walsh in his letter warned that grants of immunity would ``create a serious and perhaps insurmountable barrier to the prosecution of these witnesses.'' Congress will be hard pressed to ignore the objection of the special prosecutor.
But is the President as powerless as he professes to ensure Poindexter's and North's testimony? The plain answer is no.
Admiral Poindexter and Colonel North, on active duty in the Navy, although they were formally detailed to the White House, are subject to military law. If they violated federal statutes, they may be charged and tried before a military judicial tribunal.
President Reagan, under our Constitution, is commander in chief of the armed forces, and as such and by virtue of the express language of the Uniform Code of Military Justice, may, in light of the circumstances, order the secretary of the Navy promptly to bring general court-martial proceedings against Poindexter and North. Indeed, the secretary of the Navy and his delegated subordinates may do so on their own initiative. Parenthetically, it is passing strange that a commissioned clinical psychologist has been held subject to a court-martial by a military department, on its own initiative, for covering his head while on duty indoors, in accordance with his religious faith, whereas our military authorities choose to be impotent in this far more grave matter. It appears the Navy is asleep on its watch.
There are precedents that North and Poindexter cannot be court-martialed merely for invoking the Fifth Amendment. This seems to me entirely correct. One should not be penalized for exercising a constitutional right.
On the basis of the evidence that has already come to light, however, there is probably cause to believe that Poindexter and North, while on active duty in the Navy and Marines, on assignment to the White House, violated several federal statutes, among them the Boland amendment, the Neutrality Act, and other federal laws. This showing of probable cause warrants a general court-martial of both officers.
In court-martial proceedings, the admiral and the colonel may invoke the Fifth Amendment, as is their right, under the Constitution and Uniform Code of Military Justice. But while respecting this constitutional right, the members of the court-martial, through the Navy's judge advocate and following proper channels, are authorized by the immunity statute to grant them use immunity and to compel them to testify. Unless, as is unlikely, they commit perjury, their testimony will unravel the mess.
While I do not condone violations of law by them or anyone else, it is common in prosecutions to grant use immunity, to gain more-important objectives. The larger goals in the Iran-contra debacle are to resolve concerns about our foreign policy and its conduct. There are widespread, understandable misgivings, here and abroad, on this matter. American presidents, as Lyndon Johnson learned belatedly in Vietnam, depend on the consent of the governed, and the polls show an erosion by Americans in the consent accorded to Mr. Reagan because of this affair, which, regardless of diminution of public interest, still commands a widespread audience among Congress and a considerable proportion of our body politic. Abroad, our role as the leader of the free world is imperiled until this matter is promptly put to rest.
Therefore, Admiral Poindexter and Colonel North can and should be required to provide the answers, sooner rather than later.
Nevertheless, independent evidence, other than their own testimony, may be developed, after more prolonged inquiries, which may establish illegal conduct on their part and perhaps on the part of others. Such independent evidence is admissible in court-martial proceedings and criminal prosecution.
With all their resources, the various investigating agencies, including the special prosecutor, should be able, despite immunity grants, to obtain such independent testimony. And these agencies can recommend appropriate corrective actions and procedures. But to avoid a prolonged trauma, the testimony of Poindexter and North is imperative to enlighten the public at the earliest possible date.
Since this is not Watergate, where justice was obstructed for personal political gain, justice in this matter, whether by way of court-martial or a criminal prosecution, can be tempered by mercy, consideration of the national interest, appropriate acknowledgment of mistakes by those on high, and remedial measures to ensure against repetition.
There are advantages in the procedure I suggest. Gamesmanship and fallout for granting immunity will be minimized, since neither the executive branch nor Congress need be primarily involved in the immunity grants.
Importantly, the confidence of our people and that of our allies in our government and its leaders, a confidence now impaired, can, along with the credibility of our foreign policy, be restored by an early airing of the truth and remedial measures, rather than further diminished by lengthy and inevitable partisan controversy.
Edmund Burke once said that all too often in foreign affairs the choice is between the undesirable and the intolerable. The Iran-contra affair was not only undesirable and amateurish, it was and is intolerable. All the more reason for the facts to come to light without delay to ensure that our foreign policy is credible and consistent.
So to borrow from Mr. Gorbachev, we need prompt American-style glasnost - openness - in this unseemly business. Justice Brandeis expressed the same thought earlier: ``Sunlight is the most powerful of all disinfectants.''
Arthur J. Goldberg is a former associate justice of the Supreme Court of the United States.
