Sep 30


Obama "state secrets" claim not the first

Posted 3 years, 6 months ago.


The Obama administration is coming under pressure for its use of the “State Secrets” doctrine to prevent cases from being tried in court. However, it’s not the first time a president has butted heads with congress over the executive branch claiming additional power in the name of national security.

In the first in our ongoing “monograph” series, Walter A. McDougall, a Penn History professer and Pulitizer Prize winner, looks at the use of the War Powers Resolution throughout history – the bill, passed in 1973 – attempts to control presidential power in matters of war. This monograph was originally published by the Foreign Policy Research Institute.

McDougall writes in his monograph that it’s “crystal clear that the War Powers Resolution is ‘a bad
idea whose time has come and gone’,” so should the “state secrets” doctrine also face similar scrutiny?

This week we look at Jimmy Carter and Ronald Reagan’s interaction with Congress as they attempted to execute their foreign policy goals.

Jimmy Carter

Far from rolling back presidential authority in the wake of Vietnam and Watergate, Congress failed to prevent yet another big arrogation of Constitutional power by the least likely of presidents, Jimmy Carter.

He suddenly announced that the United States would grant full recognition to the People’s Republic of China on January 1, 1979.  That was an act blessed by the Constitution itself.  But as part of the package, Carter had to terminate the 1955 Mutual Defense Treaty with the Nationalist Chinese regime on Taiwan.  That was a treaty ratified by two-thirds of the Senate.

Did the President alone have the right to un-ratify?  Senators led by Barry Goldwater (R., Ariz.) filed a Constitutional challenge, but the Court of Appeals ruled against it and the Supreme Court refused the case on the grounds that it “involves the authority of the President in the conduct of our national foreign relations.”

Ronald Reagan

Ronald Reagan’s administration acted as if the War Powers Resolution simply did not exist.  It dispatched 1,200 marines to Beirut, launched an invasion of Grenada, sent advisers to El Salvador, and funneled aid to the Afghan Mujahedin and Nicaraguan Contras, which the White House praised as “Freedom Fighters,” resisting Communist regimes.

Democrats in Congress hated such noblesse oblige, especially on the part of an unabashedly conservative President.  So they passed three amendments named for Congressman Edward Boland (D., Mass.) that prohibited aid to the Contras.  Their increasingly tortuous terms, meant to close every conceivable loophole, were what gave National Security Council officials the bright idea of funneling secret funds from Iran to Central America.  Reagan confessed the affair was wrong and assumed responsibility, but after the televised hearings, starring Colonel Oliver North, Congress emerged from the Iran-Contra Affair at least as embarrassed as the White House.