If Laurence Silberman says that the health care mandate is constitutional then there is probably little hope that the Supreme Court will rule otherwise. Let’s review Sliberman’s record:
Silberman’s sojourn in the world of political scandal began during the run-up to the 1980 presidential election when, as a member of Ronald Reagan’s campaign staff, he, along with Robert C. McFarlane, a former staff member of the Senate Armed Services Committee, and Richard V. Allen, Reagan’s chief foreign policy representative, met with a man claiming to be an Iranian government emissary. The Iranian offered to delay the release of the 52 American hostages being held in Tehran until after the election — thus contributing to Carter’s defeat — in exchange for arms.
A controversy continues to rage over whether the Reagan team made a bargain with the Iranians, as alleged by Gary Sick, a former National Security Council aide in the Ford, Carter and Reagan administrations who now teaches at Columbia University. Yet no one denies that the meeting Silberman was at took place, and although Silberman has said the Iranian’s offer was immediately rejected, none of the three Reagan operatives ever told the Carter administration what had happened. McFarlane, Allen and Silberman have all since insisted that they don’t know the name of the Iranian man they met with.
After working for Reagan’s election, Silberman was rewarded with an appointment to the D.C. Court of Appeals, the second most powerful court in the country. After the Iran-contra scandal, he was part of a three-judge panel that voted 2-to-1 to reverse Oliver North’s felony conviction.
I’m going to get back to the October Surprise in a moment, but I want to note that Judge Silberman is still serving on the D.C. Court of Appeals, and he wrote the opinion released today upholding the constitutionality of insurance mandate in the Affordable Care Act.
“Congress, which would, in our minds, clearly have the power to impose insurance purchased conditions on persons who appeared at a hospital for medical services — as rather useless as that would be — is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce,” Judge Laurence Silberman wrote in the 2-1 opinion.
Now, getting back to the October Surprise, there were congressional investigations in both the House and Senate that both concluded that there was no credible evidence that Reagan’s people made a deal with the ayatollahs where the American hostages’ ordeal would be extended past the 1980 presidential election in return for favors when Reagan took office.
However, Congress received some interesting information just three days before the House released their report.
On Jan. 11, 1993, Russia’s Supreme Soviet sent a secret cable to the U.S. Congress. The cable claimed that Russian national security files held evidence that two U.S. Presidents and two CIA directors had committed an act of treachery with Iran’s radical Islamic government in 1980.
Despite its explosive potential, the document was kept from the American people. It was buried in a pile of cardboard boxes, left behind with a host of other unclassified and secret papers in an obscure storage room on Capitol Hill: a real-life “X-Files.”
That report had some rather straightforward information.
To the shock of the task force, the six-page Russian report stated, as fact, that Casey, George Bush and other Republicans had met secretly with Iranian officials in Europe during the 1980 presidential campaign. The Russians depicted the hostage negotiations that year as a two-way competition between the Carter White House and the Reagan campaign to outbid one another for Iran’s cooperation on the hostages. The Russians asserted that the Reagan team had disrupted Carter’s hostage negotiations after all, the exact opposite of the task force conclusion.
As described by the Russians, the Carter administration offered the Iranians supplies of arms and unfreezing of assets for a pre-election release of the hostages. One important meeting had occurred in Athens in July 1980 with Pentagon representatives agreeing “in principle” to deliver “a significant quantity of spare parts for F-4 and F-5 aircraft and also M-60 tanks … via Turkey,” according to the Russian report. The Iranians “discussed a possible step-by-step normalization of Iranian-American relations [and] the provision of support for President Carter in the election campaign via the release of American hostages.”
But the Republicans were making separate overtures to the Iranians, also in Europe, the Russians claimed. “William Casey, in 1980, met three times with representatives of the Iranian leadership,” the Russians wrote. “The meetings took place in Madrid and Paris.”
At the Paris meeting in October 1980, “R[obert] Gates, at that time a staffer of the National Security Council in the administration of Jimmy Carter and former CIA director George Bush also took part,” the Russians said. “In Madrid and Paris, the representatives of Ronald Reagan and the Iranian leadership discussed the question of possibly delaying the release of 52 hostages from the staff of the U.S. Embassy in Teheran.”
Both the Reagan Republicans and Carter Democrats “started from the proposition that Imam [Ruhollah] Khomeini, having announced a policy of ‘neither the West nor the East,’ and cursing the ‘American devil,’ imperialism and Zionism, was forced to acquire American weapons, spares and military supplies by any and all possible means,” the Russians wrote. According to the report, the Republicans won the bidding war.
“After the victory of R. Reagan in the election, in early 1981, a secret agreement was reached in London in accord with which Iran released the American hostages, and the U.S. continued to supply arms, spares and military supplies for the Iranian army,” the report continued. The deliveries were carried out by Israel, often through private arms dealers, the Russians said. Spares for F-14 fighters and other military equipment went to Iran from Israel in March-April 1981 and the arms pipeline kept flowing into the mid-1980s.
“Through the Israeli conduit, Iran in 1983 bought surface-to-surface missiles of the ‘Lance’ class plus artillery of a total value of $135 million,” the report said. “In July 1983, a group of specialists from the firm, Lockheed, went to Iran on English passports to repair the navigation systems and other electronic components on American-produced planes.” Then, in 1985, the weapons tap opened wider, into the Iran-contra shipments.
President Carter was constitutionally authorized to negotiate for the early release of the hostages, but candidate Reagan was not authorized to negotiate at all, and certainly not to keep Americans in captivity.
Once in office, Reagan kept his deal with the Iranians and sent them weapons, even as the Iranians (through Hezbollah) took more hostages. Silberman was useful when that became a scandal.
In the 1980s, Silberman played behind-the-scenes roles in helping Ronald Reagan gain the White House; he helped formulate hard-line intelligence policies; he encouraged right-wing media attacks on liberals; and he protected the flanks of Reagan’s operatives who were caught breaking the law.
Iran-Contra special prosecutor Lawrence Walsh, a Republican himself, counted Silberman as one of “a powerful band of Republican [judicial] appointees [who] waited like the strategic reserves of an embattled army,” determined to prevent any judgments against Reagan’s operatives who broke the law in the arms-for-hostage scandal.
In his 1997 memoir, Firewall, Walsh depicted Silberman as a leader of that partisan band, even recalling how Silberman had berated Judge George MacKinnon, also a Republican, who led the panel which had picked Walsh to be the special prosecutor.
“At a D.C. circuit conference, he [Silberman] had gotten into a shouting match about independent counsel with Judge George MacKinnon,” Walsh wrote. “Silberman not only had hostile views but seemed to hold them in anger.”
In 1990, after Walsh had secured a difficult conviction of former White House aide Oliver North for offenses stemming from the Iran-Contra scandal, Silberman teamed up with another right-wing judge, David Sentelle, to overturn North’s conviction in a sudden outburst of sympathy for defendant rights.
You can read about how all this history went down the memory hole here. And, of course, Bush appointed Silberman as the co-chair of the committee that investigated the “intelligence failures” in the lead up to the war in Iraq.
If Silberman says that the insurance mandate is constitutional, you can’t even be sure that Clarence Thomas will disagree.
