Penalties can be severe

Press, 24 December 1986, Page 16

Penalties can be severe

Fulmination over Iran concentrates on constitutional clashes, national security, public policy. But prosecutors, if they draft any indictments, are more likely to focus on files and paperwork. The reason is simple. On matters of public policy, Congress passes laws that tend to be imprecise and carry no penalties. But when it comes to details of procedure specified in Government paperwork, precision has been honed by years of experience and penalties can be severe.

The most prominent of the nopenalty laws involved in the Iran-Nicaragua affair is the Boland amendment (now expired), which barred intelligence agencies from direct or indirect aid to the Nicaraguan contras. In passing this law, Congress assumed that the President and his men would abide by it without the threat of a prison sentence if they broke it. The law’s provisions are vague about what “aid” is and whether the National Security Council is an “intelligence agency” covered by the restrictions.

Similarly, no penalties are laid down for breaking laws that instruct the executive to tell Congress what it is up to. The law requiring the executive to report to Congress has many loopholes but no penalties.

It is different for the laws governing paperwork. “In order to get missiles from one part of the world to another — the Government being what it is —- there’s likely to be lots of paperwork needed,” notes Mr Steven Ross, the lawyer for the House of Representatives. If somebody fudges the paperwork to conceal where the missiles went, a law would be broken — and a penalty could be exacted. The laws governing a false statement or an attempt to defraud the Government are stern, but generally require proof that a defendant acted intentionally and intended to commit a fraud.

The president cannot waive the fraud statutes. He can, however, waive many provisions of the laws governing the sale of American weapons. His knowledge and actions could be important, therefore, if somebody were charged with breaking the law barring the sale of weapons to States that support terrorism. Lastly, while the arms sales may have ended, potential crimes may have just begun. Already reports have appeared of document shredding, which could be the basis for a charge of obstruction of justice (a felony) if the destruction were done intentionally to block an investigation. Obstruction of justice and lying under oath comprised the bulk of the charges in the Watergate scandal.