Balkinization  

Thursday, August 25, 2005

Roberts and the Ghost of Iran-Contra

JB

The Washington Post reports that during his time in the Reagan Administration John Roberts offered advice on the establishment of the Nicaraguan Humanitarian Assistance Office (NHAO), an organization used by the Reagan Administration to circumvent the Boland Amendment.

For those of you who don't remember, the Boland Amendment made it illegal for U.S. intelligence agencies to provide covert funding to the contras in Nicaragua. John Poindexter and Oliver North attempted to get around this prohibition by diverting millions of dollars to the contras through a secret deal-- approved by the President-- which sold anti-tank and anti-aircraft missles to Iran. Poindexter and North then funneled the money to the contras.

The NHAO was formed within the State Department to provide what was, at least on the surface, legitimate humanitarian assistance to Nicaragua; Oliver North, however, used it to send money and supplies that the CIA couldn't send directly. Put another way, he used the NHAO as a cover for illegal covert funding for the contras in violation of federal law.

We do not know what Roberts' role was in any of this. For example, he might simply have been asked to set up the NHAO for purely humanitarian purposes and then North infilitrated and twisted the organization for his own illegal ends. If so, there's nothing in the file on the NHAO that should be problematic for Roberts. He simply did what any good lawyer would do for his client.

On the other hand, if Roberts was asked to justify circumventing the Boland Amendment in any way, he would have been a hitherto unknown part of the Iran-Contra scandal. If that were so, it would be inappropriate for someone who had participated in fomenting a serious constitutional scandal to be rewarded with a Supreme Court appointment.

The Democrats obviously want to know what is in those files; the Bush Adminstration doesn't want anyone to know. At the very least the senators should ask Judge Roberts for his recollections, to the extent that he can provide them.


Comments:

Prof. Balkin,

The article says this:

"There are three reasons the papers were withheld under federal records laws, according to Archives officials. They include preliminary judgments by archivists that information in them would improperly invade a person's privacy (such as revealing a Social Security number), jeopardize law enforcement operations or potentially harm national security.

Under the ordinary course of business, archivists black out individual words or sentences before releasing a document. In this case, National Archives official Sharon Fawcett said, the rush to release a large volume of documents quickly did not allow enough time for surgical redactions -- so the entire page was pulled.

The White House involvement in this process is unclear. Fawcett said White House officials are allowed to offer input during the review process, but she would not discuss their involvement. Senior White House officials said administration lawyers typically examine the documents after the archivists complete the initial review, and they insisted they have not asked for any papers to be withheld that archivists did not first flag."

It's not clear how this translates into "The Democrats obviously want to know what is in those files; the Bush Administration doesn't want anyone to know."

But, if one chooses to adopt that assumption, it permits one to speculate, without any foundation, that Judge Roberts might have abetted the breaking of laws while he was in the White House, as you do here.

Is there a level at which spouting this sort of innuendo seems inappropriate? Couldn't we wait until something more damning than this article comes out before raising the specter of participation in a major scandal?
 

It is extremely unlikley these documents would contain information which would invade personal privacy. It is also quite unlikely that any law enforcement information would be contained in the documents, and extremely unlikely, given their age, that such information would be of sufficient import to justify even considering withholding them. That leaves only the last -- national security. This is, at last, a plausible possibility. Given the lapse of time and the large anmout of publicly available information on the topic, however, it would be somewhat difficult (but not impossible) to make out such a case. The documents are material to activities which were plainly illegal and created a serious constitutional crisis. Furthermore, absent a showing that these particular documents are voluminous, it is difficult to see a good faith basis for continuing to withhold them. Indeed, the context suggests that whatever the motivations and intentions of the initial decision to withhold the documents, continued withholding is not justified. Thus, the inference that Judge Roberts may have had involvement in serious illegal conduct is neither unreasonable nor illicit. As ther is no suggestion in the post that Judge Roberts had any involvment in the treatement of the documents, your suggestion that the post casts aspersions on Judge Roberts is erroneous. On its face it concerns action by othr political actors. There is no "spouting" innuendo involved.
 

"We do not know what Roberts' role was in any of this. [...]He simply did what any good lawyer would do for his client."

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Prof. Balkin-

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