AS a Senate subcommittee weighs whether to investigate President Bush's pardon of six former Reagan administration officials charged with covering up the Iran-contra scandal, legal scholars are sizing up a central paradox of the tangled affair: Laws designed to help prevent such foreign policy misadventures have proved largely unenforceable.
One such law, the Arms Export Control Act, was violated when the administration authorized the sale of arms to a terrorist state, Iran, without notifying Congress.
Another, the "Boland Amendment," was broken when Reagan National Security Council (NSC) officials diverted $14 million from the arms sales to support the Nicaraguan rebels, or contras. Laws were too general
"The problem with general laws like these is that the executive branch is supposed to be bound by them, but that doesn't make individuals who violate them liable, criminally or civilly," notes Morton Halperin, a former NSC staff member who is now a senior associate at the Carnegie Endowment for International Peace.
"The truth is that Congress was not as explicit as it should have been about making violations [of these laws] a criminal offense," he adds.
Critics say the pardons by Mr. Bush, which were announced Christmas eve, excuse lawlessness in cases where the putative motive is to serve the national interest. But even many of these critics acknowledge that the laws themselves have been weak reeds for prosecutors in the Iran-contra affair to lean on.
"What you had here were a group of people acting in support of what they knew or assumed was the president's policy in a situation where nobody profited personally," says one Washington attorney who asked not to be named. Even if the law provided for individual liability, "it would be harder to prove criminal intent and harder to convince a jury to convict."
Unable to invoke the Boland amendment directly, Iran-contra special prosecutor Lawrence Walsh relied instead on a conspiracy statute, charging NSC aides John Poindexter and Oliver North with conspiring secretly to evade the Boland amendment, which is a crime.
And unable to rely on the Arms Export Control Act, Mr. Walsh pressed a different charge: that the diversion of proceeds to the contras from the sale of arms to Iran amounted to theft of government property in violation of federal criminal law.
But even these indirect approaches were blocked when the Reagan administration refused to declassify documents a federal district court judge deemed necessary to the defense's case.
As a last resort, Walsh was forced to prosecute US officials for the peripheral offenses of obstructing justice and lying to Congress about their roles in the Iran-contra affair.
As Walsh's record of 11 convictions suggests, perjury and obstruction statutes have provided juries with a clear standard by which to judge criminal conduct. But in the controversy over such secondary issues, the significance of the Iran-contra affair - involving issues of accountability and separation of powers and the sale of arms to a terrorist state - has been lost sight of. `Constitutional tragedy'
"If the North case had been brought the way Walsh originally planned, he could have told a fuller story. From a public relations point of view it would have been a more comprehensible investigation," says a legal scholar familiar with the Iran-contra investigation.
"When all you can tell is bits and pieces of the story it's difficult for people to understand the depths of the constitutional tragedy and to see why this is something they should be outraged about."
This attorney notes that in the end those involved in the Iran-contra affair have paid a high, if more indirect price. Several senior officials lost their jobs and the reputations of others were tarnished. Revelations that senior officials used covert methods to thwart the will of Congress, then withheld information from congressional investigators, were also politically damaging to the Reagan administration.
The six officials pardoned by Bush include former Defense Secretary Caspar Weinberger; former Assistant Secretary of State Elliott Abrams, three former senior Central Intelligence Agency officials, and Reagan national security advisor Robert McFarlane. Some were not pardoned
The cases of three others convicted in connection with the scandal - including Messrs. Poindexter and North - have been dismissed or reversed on appeal.
Bush declined to pardon five non-government participants in the affair who pleaded or were found guilty of felonies ranging from making false statements on income taxes to illegally raising private money to fund US military operations.
The scandal has taxed relations between the Reagan and Bush administrations and Congress which, in the aftermath of Vietnam, Watergate, and the CIA scandals of the 1970s, has acquired a large oversight role which it now guards jealously.
"Whatever Congress expected or tolerated in the past, it is now saying very clearly to government officials, you can tell the truth or refuse to testify. What you can't do is deceive or lie to Congress," Mr. Halperin says.
With the principal suspects off the hook, Mr. Bush himself is now the remaining "subject" of Walsh's inquiry.
Walsh has charged Bush with "misconduct" for failing to disclose that he had kept notes of White House meetings he attended on the Iran-contra matter. Some of the notes were turned over last month.
That was five years after Walsh called on Bush to submit any relevant documents.
Former US Attorney General Griffin Bell, whom Bush retained last week to represent him in dealings with Walsh, said a second batch of notes would be turned over as early as this week. In return, Mr. Bell is demanding that Walsh's office release a videotaped version of a deposition Bush gave to the prosecutor's office in 1988. Walsh plans to release the deposition but not until he has received all the Bush notes to compare accounts, according to news reports.
The deposition contains a sworn statement by Bush that as vice president he was not aware that arms sales to Iran were part of deal to secure the release of American hostages. Among other places, that account is challenged in notes obtained of a conversation between Mr. Weinberger and former Secretary of State George Shultz.
Walsh is expected to lie low while the Senate Governmental Affairs subcommittee holds hearings to investigate the pardons and until after Bush is out of office. He then plans to interview Bush for the purpose of closing out the investigation. He will then write a final report on the investigation, which has lasted five years and cost a total of $32 million.