Off the hook?

I apologise. I've said several times that I'm not going to bother and bewilder you with the Byzantine – or even Buy-zan-teen – details of the Iran-Contra hearings, especially since they're likely to go on all summer, but something happened in a mere 15 minutes, during the first days of the hearings which, I assumed, would not only be next day's headline story, but the subject of deep analysis by all the deepest minds. Absolutely nothing.

An exchange of dialogue between the first witness and two congressmen seemed to me to be crucial, perhaps to the outcome of the whole hearings. Now, remember the point of such an investigation, in this case by select committees of the Senate and the House sitting together, is not to prosecute anybody but to discover abuses of, or ambiguities in, the law and then propose to the Congress a better one. Or/and to discover criminality in the presidential branch of the government and pass on the evidence and leave the judgement to the House Judiciary Committee which doomed Nixon.

All right. The subject is the sale, the secret sale, of arms to Iran and the secret transfer of money from such sales to the counter-revolutionaries, the Contras, in Nicaragua. What the whole hearings are about is the war-making powers of the president. Did he or his staff go beyond the limits of that power as defined in the constitution set down in 1787?

I said last week that the constitution did not create a Congress which was to be a parliament subject to a prime minister's bidding. It was set up deliberately as a watchdog over the president's conduct of policy. Did President Reagan or his appointees find an illegal, roundabout way of giving his watchdog the slip? We have to go back and see what powers to make war were given in the beginning to the president and how, if, they have been ignored or evaded.

The eighth section of the first article of the constitution says the Congress shall have power to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces.

So, Congress decides on the money and the arms, the weapons, that will be used for the armed forces, but that first power, to declare war, has been honoured in the breach for more than four decades. In 1917, in the time-honoured way, President Wilson went before Congress to ask for a declaration of war against the German empire and got it with only one dissenting vote. In December 1941, President Roosevelt went before Congress and asked for a declaration of war against the empire of Japan and got it. Within the next two days, he also got a declaration of war against Nazi Germany and Italy.

Now believe it or not, the declaration of war against Italy was, I believe, the last one that an American president has asked for. President Truman sent Americans into action in Korea as United Nations forces in response to a unanimous vote of the security council of the UN. Unanimous, yes. The Russians were sulking over the exclusion of Communist China from the UN and had no delegate sitting on the council. They have never been absent since.

President Kennedy got into Vietnam by sending technicians, so-called, as advisers to the beleaguered South Vietnamese. Without any declaration of Congress, those technicians increased and turned into American fighting forces and when President Lyndon Johnson was challenged over the expansion of those forces – they were over 15,000 by the beginning of 1964 – he appealed for half a billion dollars worth of aid to South Vietnam from the Congress and got it, to finish off the job.

But the American forces expanded without much public to-do and when, in the summer of 1964, North Vietnamese ships were reported – it's still a disputed incidence – were reported to have attacked two American destroyers, President Johnson, that superb and almost heartbreakingly persuasive politician, went before Congress not to ask for a declaration of war, but to ask for a simple, joint resolution by both Houses to allow him to do what he thought necessary to avenge the naval attack in the Gulf of Tonkin.

It was a fatal concession. The resolution was short, simple, vague and all-embracing of any action the president cared to take in south-east Asia. As the war grew and grew and the riots and protests flared around the country and the Congress spawned furious opponents of the war, the president kept pointing to the Gulf of Tonkin resolution. 'Look', he'd say, 'I'm not goin' beyond my constitutional powers, you gave me this l'il ol' piece of paper!' He once told me that, 'I carry it with me in my pyjamas in case of any complainin' night visitors.'

Well, as we all know, in the end, 500,000 American troops served and lost in Vietnam and that disaster led Congress to pass a War Powers Act which forbade the president to commit the armed forces to hostilities abroad without congressional approval. You might guess that this was the beginning of a belated movement in Congress to recover its exclusive power to declare war, but by that time, the day had long gone when nations delivered ultimatums and, once they'd lapsed, began the attack at dawn.

Since the Second World War, there have been more than a hundred wars around the world, undeclared wars, not to mention guerrilla raids and terrorist rampages that turned into wars. What Lyndon Johnson had done and Nixon did after him and President Reagan is to seek money from the Congress to give economic or humanitarian aid or military aid to countries whose instability the president deemed was a threat to the security of the United States. So far, everything seems to be straightforward and above board.

But this has become in the past 20 years or so also the era of what we used to call the secret services and today call the intelligence services, in this country, the Central Intelligence Agency, which in other countries is known – or not known – by initials and numbers. Because the definition of war and threats to national security have broadened so in the wake of terrorism, plotted assassinations, military coups and the like, a time came when the Congress reluctantly agreed that the president might have to take secret actions in the national security which need not be reported to Congress. The new permission was to be known as a presidential finding. So early as 1974, there was a law passed in Congress which required a few, certain chosen members of Congress to be told about the CIA's operations, except those intended solely for collecting intelligence. That would include or exclude the bombing of Libya and the invasion of Grenada.

President Carter, for instance, was not required to report any secret action to free the hostages in Iran. That particular finding was made disastrously unnecessary by the fiasco of his rescue mission in the desert. So now the president had also the secret weapon of a finding.

But, coming to the Contras, the counter-revolutionaries fighting the government of Nicaragua, Congress passed a series of laws not contradictory so much as changeable. First, they allowed military aid to the Contras, then financial aid, then they allowed military aid again and then only humanitarian aid. Then repented and back to military aid.

The law that is relevant to the present investigation is the so-called Boland Amendment. It was passed in 1982 and it says none of the funds provided in this act may be used by the Central Intelligence Agency or the Department of Defense to furnish military equipment, military training or other support for military activities to any group or individual not part of a country's armed forces for the purpose of overthrowing the government of Nicaragua.

Well, this amendment was later amended again to take effect from October of 1984 through October 1985 – and that's the period that all the present investigation is really about. The new amendment forbade the CIA and the defence departments or any of their agents to give military or paramilitary aid to the Contras. The question before the House and the Senate committees is, did former General Secord, a businessman and/or Mr McFarlane as head of the National Security Council and his subordinates, Colonel North, Admiral Poindexter break the law, the Boland law?

Now it seemed to me that, what I've called that crucial session of the hearings so far happened while Mr Secord was on the stand, Congressman Boland read the law that he'd sponsored and asked Mr Secord, 'Who do you think is prohibited by this amendment?' And Secord replied, 'The agencies you have just ticked off.'

Then Mr Boland asked something which I have not seen reported in any paper or on any radio or television report. 'Don't you think,' Boland asked, 'that the National Security Council is an intelligence agency?'

'Certainly not!' said Mr Secord. 'No?'

'No. They use intelligence, of course, but they're not in the collection business.'

I felt Mr Boland thought he had him, but then – and this passage, also, I never saw reprinted or quoted – then another congressman asked Mr Secord if he knew of a 1981 statute which, quote, 'specifically excludes the National Security Council from being defined as an intelligence agency.' .Yes,. said Mr Secord, he knew there was such a statute. That was all.

This struck me at the time as the first glaring sign that not only Mr Secord as a businessman, but Poindexter, McFarlane and North might very plausibly be let off the hook of the Boland Amendment. It may at any rate explain the sudden and confident switch in the defence tactics of the White House and President Reagan's almost boastful assertion that he has always been in favour of people raising money for the Contras – he calls them freedom fighters – and that his advocacy, even of arms, supplied by groups, individuals and foreign sympathisers broke no law.

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

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