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Legal Adviser, US Department of State, 1985-1990

On June 10 1985, I was sworn in as Legal Adviser to the U.S. Department of State. Four days later, TWA 847 was hijacked by terrorists on its departure from Athens, Greece. My staff and I went into high gear, and just kept going through a number of terrorist incidents and many other emergencies as well as many legal and diplomatic projects. 

The next five years were interesting times, with many dramatic events, some horrendous and destructive, but many happy and constructive. I was assigned -- first by Secretary of State George P. Shultz and then by Secretary of State James Baker III, some interesting, difficult, and important issues, and was involved in many others as a supporting player. The main projects are summarized in my article "The Reagan and Bush Administrations (1985-1990)," in Michael P. Scharf and Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, pp. 65-85 (Cambridge Univ. Press 2010).

Secretary Shultz refers to some of the matters I handled during his immensely successful tenure in Turmoil and Triumph: My Years as Secretary of State (Charles Scribner's Sons, NY 1993), see Index, pp.1176-1177.

The most significant events with which I was involved during my years as Legal Adviser were those surrounding the Iran/Contra Affair. I had nothing to do with the Reagan Administration's ill considered program of selling arms to Iran and using the profits to support the Contras in Nicaragua. Secretary Shultz ordered that I should be briefed on what he had learned about the arms sales at a time when I was also asked to review proposed testimony by Bill Casey. I realized that Casey was planning to lie to a Senate committee, and I insisted that the testimony be changed to eliminate false statements. This led in turn to my learning enough about the project to realize that Casey and others, particularly Oliver North, were attempting to cover up the affair, information I passed on to Attorney General Edwin Meese, who began the investigation that led to the discovery of evidence of both the arms sales and the diversion of proceeds to the Contras. Secretary Shultz saw this attempted coverup as likely to bring down the President. The story is a long one, and is told in the Iran/Contra reports and numerous books. I summarize some of the dilemmas posed by the situation that confronted me in "Iran- Contra: Ethical Conduct and Public Policy," 40 Houston L. Rev. 1081 (2003).

Terrorism is a subject that demanded much of my time. I realized quickly that international law was serving the interests of terrorists rather than helping to stamp out such conduct. In article in the Summer 1986 issue of Foreign Affairs, "Terrorism and the Law," I proposed this hypothesis, citing several issues on which international law had been changed in recent times to protect those responsible for attacks on civilians and other terrorist conduct. By the time my five-year tenure was over, some of those rules had been changed for the better. I broadened my criticisms of international law in "Law and the Use of Force," The National Interest (Fall 1998), pp. 53-64, based on my speech to the American Society of International Law on April 22, 1998. I summed up my positions in the Waldemar A. Solf Lecture in International Law: "Terrorism, the Law, Last edited: May 19, 2011 and the National Defense," 126 Military L. Rev. 89 (1989). This lecture was cleared by the legal advisers of all the major national security agencies of the U.S. government. That has not stopped critics from claiming that U.S. law differs on one or more of the several issues addressed.

The most controversial issue I was assigned during my time at State was the job of writing a comprehensive report on the meaning of key provisions of the Anti-Ballistic Missile Treaty. I concluded, on the basis of my examination of the negotiating record, and with strong reliance on the opinion of Ambassador Paul Nitze who was one of the key negotiators of the provisions at issue, that the ABM Treaty prohibited the deployment of ABM systems and components of all sorts, but did not prohibit the testing or development of systems or components based on "other physical principles" than those relied on in conventional systems. I was attacked for this opinion, especially by Democratic Senators, and especially because I also concluded that the President could lawfully conclude that the treaty as negotiated is what bound the U.S., and not the treaty as presented to the Senate. Paul Nitze and I went to the White House and asked that the President defer to the Senate on this issue, because it made no sense as a practical matter, since the Democrats controlled the Senate and could block any effort to spend funds on ABM development and testing. We failed. The people in charge of the issue wanted a confrontation with the Democrats on the issue, and wanted to keep the pressure on the Soviets that the "broad" interpretation of the treaty seems to have created. This was easy for them, but a disaster for me, since I became the target of several Senators on the issue. They relied heavily in attacking me on a memo sent to the House Committee on Foreign Affairs, that collected and analyzed some of the evidence related to the Treaty's ratification; while I publicly acknowledged that this memo was flawed as soon as I learned that my staff had done an inadequate job, this did not help in the partisan atmosphere in which all the controversy took place. The issues were summed up in articles by Senator Sam Nunn and myself in The Washington Quarterly, Autumn 1987. Mine is entitled "Legal Debate in the Political Cauldron," 10 Wash. Q. J. 59 (1987), and it was the "hottest" issue of my legal career. My position that the meaning of a treaty was the meaning agreed by the parties irrespective of what U.S. negotiators say to the Senate was (and still is) called "The Sofaer Doctrine." One evening, at a reception in the James Monroe Room on the 8th Floor of the State Department, at the height of the controversy, I found myself alone with Secretary Shultz for a few moments. He asked, "How are you doing?" I said "fine," but he knew it was a tough time for me, given that the attacks had become personal. He pointed to the portrait of Monroe on the wall next to where we were standing, smiled and said: "Not too many people have a doctrine in their name." I laughed and said, "Thanks, but I could have done without it."

Last edited: May 19, 2011 

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