As the next Defense Secretary, Robert M. Gates will be in charge of a new star-chamber legal system that can lock up indefinitely “unlawful enemy combatants” and “any person” accused of aiding them. Yet, despite these extraordinary new powers, his confirmation is being treated more like a coronation than a time for tough questions.
Not since 2003 when Secretary of State Colin Powell wowed Official Washington with his United Nations speech on Iraq’s WMD has there been such an awed consensus about any public figure as there has been for former CIA Director Gates, who is almost universally praised for his intelligence, experience and down-to-earth style.
But there are serious unresolved questions about Gates’s past that the American people might want resolved before he is entrusted with the awesome new powers that the Military Commissions Act of 2006 puts in the hands of the Defense Secretary.
In 1991, for reasons mostly of political expediency and personal friendship, Gates’s last confirmation process for CIA director never got to the bottom of allegations linking Gates to some of the most serious national security scandals of the 1980s, including illegal involvement in arms deals with Iran and Iraq.
In his memoir, From the Shadows, Gates revealed why the inquiries were cut short when he thanked his friend, Sen. David Boren, the chairman of the Senate Intelligence Committee, for shepherding him through the confirmation process.
“David took it as a personal challenge to get me confirmed,” Gates wrote.
Boren’s chief of staff who helped limit the investigation of Gates in 1991 was George Tenet, whose actions earned him the gratitude of then-President George H.W. Bush, who a decade later urged his son, President George W. Bush, to keep Tenet on as CIA director.
Amid all this cozy back-scratching, Gates’s alleged involvement in illicit contacts between senior Republicans and Iranian representatives during the 1980 hostage crisis was never seriously vetted. Neither was Gates’s alleged participation in arranging secret arms shipments to Iraq’s Saddam Hussein in the early 1980s.
Though Boren promised to pursue the so-called Iraq-gate allegations against Gates, the Oklahoma senator never did.
Then, regarding a purported Gates meeting with a key Israeli intelligence officer who had linked Gates to both the 1980 Iran-hostage scandal and the later Iraq-gate operations, Gates denied that the meeting ever took place. To prove it, Gates supplied Boren and Tenet with an airtight alibi – for the wrong day.
In 1991, when I pointed out this date discrepancy to the Senate Intelligence Committee staff, they agreed that they had the wrong day but then told me that they had simply decided to take Gates at his word that he had not met the Israeli intelligence officer, Ari Ben-Menashe.
New Evidence
Since 1991, however, new evidence has emerged supporting the plausibility of Ben-Menashe’s claims.
In January 1993, the Russian government sent then-Rep. Lee Hamilton a report describing what the KGB’s intelligence files revealed about the history of secret U.S. arms sales to Iran.
According to this Russian report, CIA officer Gates joined then-vice presidential candidate George H.W. Bush and Ronald Reagan’s campaign chief William Casey in a clandestine meeting with Iranian representatives in Paris in October 1980.
At the time, President Jimmy Carter was trying to gain the freedom of 52 American hostages in Iran whose continued captivity sank Carter’s hopes for reelection. The hostages weren't freed until immediately after Reagan and Bush were sworn in on Jan. 20, 1981.
Though the Russian report contradicted long-standing denials by Gates and Bush about the Paris trip, Hamilton never subjected the report to a thorough examination, nor did he release it to the public. He simply filed it away in unpublished records of a House task force he had headed. [I discovered the Russian report a couple of years later.]
In another blow to Gates’s credibility in January 1995, Howard Teicher, who had served on President Reagan’s National Security Council staff in the 1980s, submitted a sworn affidavit detailing the work of Gates and his boss, then-CIA Director Casey, in arranging arms supplies through Chilean arms dealer Carlos Cardoen for the Iraqis.
Again, the Teicher affidavit was never seriously investigated, in part because it complicated a federal prosecution of a private company, Teledyne Industries, which had supplied explosives to Cardoen.
When Justice Department lawyers couldn’t readily find documents that Teicher said should be in the Reagan archives, the lawyers questioned Teicher’s credibility, ignoring the fact that in 1986, NSC aide Oliver North conducted a massive “shredding party” of NSC records about secret policies in the Middle East and Central America.
In the years since Gates’s last confirmation hearing in 1991, other evidence has come along to buttress Ben-Menashe’s claims that Gates was an active player in covert Middle East policies and took part in clandestine operations.
Critics of Ben-Menashe have challenged his claims on the grounds that Gates was known as a Soviet – not a Middle East – expert and was an intelligence analyst who would not cross over into covert operations.
But what these critics misunderstood is that while Gates did work in the Soviet division of the CIA’s analytical section, his work there concentrated on Soviet policy toward the Middle East, according to Gates’s former boss, CIA analyst Ray McGovern. Indeed, McGovern said Gates prided himself in being a top Middle East expert within CIA.
Gates also didn’t confine himself to the cloistered world of CIA analysis, even when he was in charge of the CIA’s analytical division, the Directorate of Intelligence, in the early- to mid-1980s.
Though CIA analysts are supposed to focus on providing objective intelligence and leave setting policy to the policymakers, Gates secretly sent policy recommendations to CIA Director Casey.
For instance, in a December 1984 memo to Casey, Gates called for the bombing of military targets in Nicaragua and the overthrow of the leftist Sandinista government as the only way to prevent a permanent “Marxist-Leninist” state on the mainland of the Americas. [For details, see Consortiumnews.com’s “Why Trust Robert Gates on Iraq.”]
Besides crossing the bright line between analysis and policy, Gates turned out to be wrong in his assessments. After the Reagan administration rejected his plan as too extreme, the Sandinistas eventually left power peacefully when they lost an election. [For more on Gates’s history, see Consortiumnews.com’s “The Secret World of Robert Gates.”]
Tribunal Powers
The questions about Gates’s integrity and independence stand out in even sharper relief now because of the enactment of the Military Commissions Act of 2006. The new law empowers the Defense Secretary to create a parallel American legal system, existing outside the protections of the U.S. Constitution.
As Defense Secretary, Gates would handpick the military judges and set the rules for administering the system, which was established under a law passed by Congress in September and signed by President Bush on Oct. 17. The law allows the jailing of both “unlawful enemy combatants” and “any person” who allegedly helps them.
While the new law explicitly strips non-U.S. citizens of the habeas corpus right to a fair and speedy trial, the law implicitly does the same to U.S. citizens in a section that covers “any person” who “aids, abets, counsels, commands or procures” actions by “unlawful enemy combatants."
Anyone who is thrust into this parallel legal system is barred from filing any motions “whatsoever” with a civilian court, presumably preventing assertion by citizens and non-citizens alike of habeas corpus or other constitutional rights. [See Consortiumnews.com’s “Who Is ‘Any Person’ in Tribunal Law.”]
Given the sweeping powers that Gates would inherent as Defense Secretary, the Senate Armed Services Committee might want to take a little more time before it rushes through his confirmation.
Currently, Gates is expected to undergo gentle questioning mostly focused on the Iraq War during pro forma confirmation hearings on Dec. 5. According to this thinking, his confirmation by the full Senate would follow quickly during the lame-duck session with the Republicans still in the majority.
But before Gates’s confirmation by acclamation, senators might want to consider posing the following questions:
1. In a 1995 affidavit, former NSC official Howard Teicher put you in the middle of arranging third-country arms shipments to Iraq in the 1980s. Exactly what was your role in dealing with the issue of third-country military shipments to Iraq during the Iran-Iraq War? Were you ever approached by Israeli representatives who voiced concerns about some of these shipments, particularly those involving dangerous chemicals? If so, what did you do about these Israeli concerns? What do you know about Chilean arms dealer Carlos Cardoen?
2. In December 1984, you wrote a memo to CIA Director William Casey recommending, among other things, the bombing of military targets in Nicaragua. You warned that if your tough recommendations weren’t followed, you envisioned a permanent “Marxist-Leninist” state in Central America. As it turned out, the Reagan administration rejected your advice as too extreme and the Sandinistas surrendered power via an election in 1990. In hindsight, do you acknowledge that your recommendations were misguided? Since you made them when you were in charge of the analytical division, do you believe you overstepped your bounds by getting involved in policy recommendations? Given the damage to U.S. national interests that has followed the faulty intelligence on Iraq’s WMD, do you believe it’s wise for the deputy director for intelligence to offer detailed policy prescriptions?
3. In a 1993 report to Rep. Lee Hamilton, the Russian government said its intelligence files put you in a meeting in Paris in October 1980 with Iranian representatives about American hostages then held in Iran. At that time, you were the executive assistant to CIA Director Stansfield Turner. Though you denied participating in such a meeting during your 1991 confirmation hearings, this Russian report followed that denial. First, do you stand by your earlier denial? And second, can you turn over to Congress records that would verify your whereabouts during the relevant period of mid-October 1980, particularly the weekend of Oct. 18-19?
4. On another date for a disputed meeting between you and an Israeli representative in New Jersey, you apparently gave the Senate Intelligence Committee an alibi for the wrong day, April 19, 1989, when the date of the supposed meeting was April 20, 1989. Would you be willing to provide documentary evidence about your whereabouts on the afternoon of April 20, 1989, such as personal calendars or your official schedule for that day when you were deputy national security adviser?
5. During your career in the CIA and your assignments to the NSC, how many times did you travel to the Middle East? Could you provide a list of destinations, the purposes of the trips, and approximate dates? Do you consider yourself a Middle East expert?
6. Since the Military Commissions Act of 2006 contains wording that seems to apply to “any person” who aids and abets acts by “unlawful enemy combatants,” some American citizens fear they might be pulled into the military tribunal system. Can you offer categorical assurances that no American citizen would ever be detained under this new law? Do you believe that Congress should revise the statute to restore the principle of habeas corpus for all detainees and to include other traditional legal safeguards, or are you happy with the law as is?
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
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