Accountability and Democracy

The Criminalization of Foreign Policy

When is executive wrongdoing appropriately a matter for criminal prosecution and when is prosecution unfair? In his pardon message, President Bush called referred to the “criminalization of foreign policy.” Senator Hatch, who expressed his disapproval of the NSC running covert operations and his disapproval of the diversion of funds, nevertheless made it clear that he did not think that Col. North should be prosecuted. Hatch worried that “sticklers in the law” would want "pursue the last pound of flesh.”

Discussion Questions

  • Were the prosecutions in the Iran-Contra matter legitimate criminal cases or did they involve the criminalization of foreign policy? Presumably one key factor in assessing this question is the extent to which the parties were acting out of a strong sense of patriotism. How important is that factor? What other factors are important?
  • Is there a difference between how the arguments above apply to covert actions versus how they apply to an active cover-up after they have been exposed?
  • When, if ever, should lying to Congress be prosecuted as a crime? What are the most plausible reasons for exercising the prosecutorial discretion to decline to prosecute such cases?