Undue Process: A Story of How Political Differences Are Turned Into Crimes, by Elliott Abrams

...paper, for example, that the Saudis are...

...Abrams knew it...

...Yet what makes his case take on the character of an ex post facto prosecution is that the charges on which he was convicted involved a measure of deception and dissembling that seem no greater than is common in official testimony at congressional hearings or, for that matter, than Abrams himself probably engaged in on other occasions...

...Still, it is unfair to single out this testimony by Abrams, reprehensible as it was, because a scandal erupted subsequently involving matters that went beyond his own duties and knowledge...

...As everyone became aware subsequently, Oliver North's secretary, Fawn Hall, transposed two numbers of the Swiss bank account into which the WINTER • 1993 • 121 money was to be deposited...

...Accordingly, even before the adoption of the Bill of Rights, the U.S...

...Much of the time they do not...

...The fact that he is one-sided, however, doesn't make him wrong, at least in this instance...

...Abrams was a focus of the special prosecutor's inquiry for a period during which he was interviewed several times and three times questioned before a grand jury...

...Moreover, his actual situation was much better than that of most criminal defendants because he could afford the services of highly skilled defense counsel and because, if he had chosen to go to trial, he could have counted on his ideological admirers to contribute to a fund to help defray the enormous expenses...

...This book makes no pretense of balance...

...Despite my bias against Abrams, and despite my dislike of the particular blend of vituperation and self-pity that characterizes Abrams's book, I found its central points persuasive...

...Similarly, though you won't find this in Abrams's book, the institution of the special prosecutor warrants three or four sentences in its defense...

...government was involved in the Hasenfus flight...

...The Boland Amendment, which forbade U.S...

...This is vintage Abrams, and it is not pretty...

...Saudi Arabia had provided such support, but Abrams says he did not know of this, and, to my knowledge, no evidence has emerged to contradict his claim...

...In the Abrams case, of course, there were laws that prohibited lying to Congress or contempt of Congress...

...Perhaps officials should get some notice beyond the enactment of vaguely worded legislation that is wholly disregarded in practice...

...and he cheated...

...The other count involved the question of foreign funding for the contras...

...It has become an established practice for a president to designate his closest political ally—for example Robert F. Kennedy, John Mitchell, Griffin Bell, or Edwin Meese—to serve as attorney general of the United States...

...We did not really know what the facts were...

...I even wrote a column in the Nation expressing satisfaction over his conviction because it seemed the appropriate denouement to a career in public office in which deceit had been a hallmark...

...Abrams answered, "Yes it is also false...

...the questioning may be poor...

...It is then up to members of Congress to try to elicit crucial information that is being withheld by asking the right questions and by hearing testimony from others who may have their own sources of information...

...Though his book is unlikely to change anyone's estimation of him, it should persuade fair-minded readers that the prosecution wronged him...

...After a while, we were no longer on speaking terms, and, along the way, matters got to a point where the Columbia Journalism Review reported that I was among three or four persons with whom he would refuse even to debate on television talk shows...

...The manner in which the office of that prosecutor operates may not be circumscribed by standard Justice Department procedures, as Abrams points out, but it is controlled by the rules of criminal procedure, the adversary system, and the courts...

...Between the time that the plane was shot down and the testimony, Abrams's bosses, Secretary of State George Shultz and President Ronald Reagan, had publicly denied that the U.S...

...122 • DISSENT...

...If Abrams had been forthright, there might have been a policy consequence...

...It would be best if officials would recognize their obligation to enable the legislature and the public to participate by coming forward at these hearings and revealing all that is required for intelligent decision making...

...What happened in the Abrams case, however, is that the right questions were asked and the wrong answers were given...

...that no one in the administration told him that the public statements he made prior to his congressional testimony about the Hasenfus matter were false or told him after the testimony that he had misled Congress...

...He was then asked, "Is it also false with respect to other governments as well...

...That he did not may be attributed either to his status as a victim or reflect a character trait that was evident throughout his tenure in public office...

...The Iran-contra affair epitomizes the need for an independent prosecutor insulated from control by the attorney general...

...As to Abrams's arguments about due process violations, denial of counsel in the grand jury room, press leaks, undue efforts to influence a probation report, attempts to exclude particular defense lawyers, and the pressures of plea bargaining, these are all par for the course in the criminal process...

...10017 (212) 595-3084...

...funding for efforts to overthrow the Sandinista government in Nicaragua, was not itself a criminal statute...

...There can hardly be a principle of fairness more important in the administration of criminal justice than the prohibition against punishing a person for an action that was not known to be a crime when it was committed...

...therefore, it was credited to the wrong account...

...There is a wonderful, even breathtaking, passage in Elliott Abrams's book in which he reproduces a letter by his wife Rachel that expresses her fury at the prosecutors who secured the criminal indictment of her husband for improperly withholding information from Congress...

...I bequeath $ to the Foundation for the Study of Independent Social Ideas...

...In his book, Abrams writes that "neither the Secretary nor his staff felt that we should rush back to the Hill, or make public statements, withdrawing any past assurances that had been given...

...The political differences over Central America that were involved in the question of what Abrams did not reveal to Congress about the funding of the contras, either by a "private" network directed by Oliver North or by the Sultan of Brunei at the behest of the U.S...

...Conceivably, there would have been an impact on the crucial votes in Congress on October 17, 1986 to provide $100 million to the contras, just days after the testimony for which Abrams was indicted...

...This does not negate the validity of Abrams's complaints, however...

...Constitution barred bills of attainder and ex post facto laws...

...The decision to invoke penal sanctions was based on the revelation that profits from clandestine arms sales to Iran had been diverted to support the contras, but no one suggested that Abrams had anything to do with Iran or knew that this was the provenance of support for the contras...

...If Abrams had been willing to consider the arguments on the other side, he might have written a better book...

...Our legal name is the Foundation for the Study of Independent Social Ideas...

...Abrams himself never quite manages to achieve a comparably pure distillation of venom, but it is not for want of trying...

...Whatever the Contras were living on, I was confident, it was not money from Brunei or any other foreign government, and A LEGACY OF IDEAS A bequest of any size can be of lasting benefit to Dissent and help ensure that the ideas and beliefs you hold dear will continue to have a public forum...

...Though Abrams has nothing to say on the subject, a few words are in order in support of punitive measures against officials who mislead Congress...

...The manner in which the special prosecutor zeroed in on him following the reversal of Oliver North's conviction and the special prosecutor's consequent need to have something to show for his effort suggest a political prosecution rather than the fair administration of justice...

...Yet the question Abrams's book raises is whether his conduct should have resulted in a criminal prosecution...

...Often, neither of these avail...

...In the meantime we would maintain silence...

...and that he did not find out that he had issued a statement that was outright false until two weeks later, though he was aware that he had misled Congress by not disclosing what he did know about North's role...

...government, should be dealt with through the political process and not by means of the criminal law...

...One of the two counts on which Abrams was convicted involved his testimony on October 10, 1986 about the Sandinistas' capture of Eugene Hasenfus five days earlier after they shot down a contra supply plane in which he had flown into Nicaragua from El Salvador...

...That is, the stakes were high...

...He now acknowledges that he knew at the time that Oliver North was the administration's liaison with the private contra supply network, but argues that he did not know that North was running it...

...Abrams did not give his deceptive testimony under oath, nor in response to questions that had been submitted in advance, nor under a threat of a citation for contempt if he withheld information...

...Nothing was done to put him on notice on the two occasions subsequently singled out by the prosecutors that he might be venturing into the territory where the criminal law would be applied...

...In his book, Abrams defends his deception by arguing: I did not say we had never made a solicitation or received a promise: I said no foreign government was helping the Contras, because we had not yet received a dime from Brunei [i.e., because the money had gone astray...

...By 1988, however, it appeared that the prosecutors had lost interest in Abrams...

...The question of whether Abrams was dealt with fairly should not depend on which side deserves such a description...

...In December 1985, the Boland Amendment had itself been amended by Congress to allow the State Department to solicit foreign funding...

...In retrospect, my celebration of his downfall should have been dampened by consideration of the means by which it took place...

...Three years later, however, they focused on him again...

...As he may know, some would say the same of him...

...Though he and I started out on friendly terms when he was appointed in 1981 to serve as assistant secretary of state for human rights, our relationship soon deteriorated...

...If the policies of the government are to be established as our Constitution and our idea of democracy require through the interaction of the executive branch, the legislature, and public opinion, it is essential that whichever participant in this process knows what is going on should reveal this to the others...

...Abrams reports that when he did find out how completely he had misstated the facts, he went to Shultz...

...On the other hand, Abrams himself was a key participant in soliciting a contribution of $10 million from the Sultan of Brunei...

...3. You can leave the remainder of your estate...

...In the absence of reasonable prior notice that officials who engage in such unsworn deceptions face the possibility of criminal charges, it seems unfair...

...2. You can leave a specific percentage of your estate...

...The notes of the meeting taken by Shultz's aides show Abrams saying that "the CIA is involved in these flights—after I have been out there for two weeks saying absolutely not...

...His account of his ordeal at the hands of the Iran-contra special prosecutor's office wastes no words on any arguments on the other side...

...it is a victim's screed against his tormentors...

...Questions were weapons, and answers were shields...

...it was therefore accurate to say no government at that time "was helping...

...I bequeath % of my estate to the Foundation for the Study of Independent Social Ideas...

...On October 14, 1986, Abrams was asked at a congressional hearing: "Do you know if any foreign government is helping to supply the Contras...

...For more specifics on this or other information on gift planning, feel free to phone or write Dissent, 521 Fifth Avenue, New York, N.Y...

...and some matters are known only to executive branch officials...

...Our hostility was sufficiently well known so that, when it was reported that he had pled guilty on two misdemeanor counts, I received several congratulatory calls...

...To one who testified at those same hearings, that description rings true...

...His reputation for slipperiness rests on his regular resort to such reasoning...

...Though the funding was legal, Abrams wanted to cover it up...

...We ask you to consider one of the following options: 1. You can leave a specific amount or a particular asset...

...The foremost mechanism that has been established to serve this purpose is the congressional hearing...

...Abrams answered that the "story about the Saudis to my knowledge is false...

...And there were shortcomings in due process in the manner in which the special prosecutor's office dealt with him after choosing him as a target...

...No doubt, Abrams would consider my selection to review his book as a further effort by political enemies to persecute him...

...it does suggest that, in this respect, he was not singled out for special treatment but was merely a victim of routine unfairness...

...011ie assures me he has talked to White House counsel and is not doing anything illegal...

...One consequence is that it is impossible to be confident that the Department of Justice will fairly and vigorously prosecute crimes by the administration of which it is a part, especially 120 • DISSENT in circumstances when those crimes may have been committed in furtherance of the policies of the president...

...Congressional and public hostility to the manner in which the Reagan administration was sustaining the contra war could have mounted...

...There is a report in the L.A...

...We were being told the CIA's Inspector General would be investigating...

...After distributing the specific bequests listed above (to others in your will), I leave the remainder of my estate to the Foundation for the Study of Independent Social Ideas...

...Abrams's argument that he was chosen as a target because the special prosecutor needed a recognizable scalp following North's victory on appeal, and at a moment when John Poindexter also seemed likely to escape by that route, is buttressed by the evidence of timing...

...He argues that "on Central America, hearings were a form of combat...

...Abrams repeated that denial at the hearing as he had done publicly on each day since the capture of Hasenfus...

...According to Elliott Abrams, the prosecutors whom he encountered were "a nasty mix of personal ambition, ideology, and animus...