Issues Of Law and Ethics

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The Tower commission will help sort out the bewildering array of activities involved in the Iran-contra affair, some of which may have been illegal, others merely unwise. Here are the key subjects to look for when the report is released this week:

ACTIVITY

Although Reagan claimed the arms sales were an attempt to cultivate "moderates" in Iran, the evidence shows that this was partly a cover story. Reagan repeatedly focused on the hostages. When he first approved the arms shipments, his go-ahead was based on a memo saying such shipments "may well be our only way to achieve the release of the Americans held in Beirut."

LEGAL QUESTIONS

Using arms shipments as a bargaining tool with Iran may not have been illegal. Although it violated publicly proclaimed U.S. policy and arms-export laws, the President had the power to waive the laws by issuing a finding that the actions were in the national interest. But the commission is likely to be harshly critical of the hypocrisy and folly of this failed policy.

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McFarlane has testified that Reagan authorized in advance the Israeli shipments of U.S. arms to Iran in late 1985. Don Regan has testified that, to the best of his recollection, the President did not. Reagan initially told the Tower commission that he had, then two weeks ago changed his story. Several investigators say they find McFarlane's recollection more convincing.

LEGAL QUESTIONS

If Reagan did not authorize the 1985 shipments, McFarlane apparently violated laws by arranging them. If Reagan did authorize them, but only orally, that would be an apparent violation of the arms-export laws because he did not sign a finding that this was in the national interest until later, in January 1986. But Meese contends that this finding was retroactive.

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As part of the January 1986 finding authorizing the arms deals, Reagan signed an order to the CIA saying that Congress should not be informed. Only after the story broke publicly last November was Congress told of the finding.

LEGAL QUESTIONS

The Intelligence Oversight Act requires prior notice of a covert action or, in particularly sensitive cases, notification "in timely fashion." that was generally thought to mean a few hours or days, not eleven months. But Congress is unlikely to pursue a legal challenge in this instance, partly because it is not eager to make an issue of its own impotence.

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A chronology prepared by North and others in November initially indicated that the 1985 shipments were authorized, but it was revised to indicate that U.S. officials at first thought only oil-drilling equipment was involved. Testimony prepared by Casey in November originally contained this misinformation until Shultz objected.

LEGAL QUESTIONS

Lying to the American public is not a crime. attempting to cover up an illegal act or lying to Congress under oath is. but even if Casey's testimony turns out to have been intentionally misleading, it is unlikely that he would be prosecuted. From a political standpoint, any evidence of White House attempts to cover up what happened could be the most damaging revelation of all.

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