The recent Senate hearing on legislation to restore Lt. Col. Oliver North's Marine Corps pension revealed one of this capital's little games inside the Beltway. North's pension can clearly be saved by any of several options available to the Navy, the Bush administration and Congress. It is more fun, however, to play with the issue a while.
North lost the right to his pension, tentatively, when the General Accounting Office, an arm of Congress, offered the Navy general counsel its opinion that North was disqualified from holding the office of retired officer when he was convicted of shredding certain government documents. The law protecting such documents states that anyone so convicted "shall not hold any office under the United States." Neither of the other two counts on which he was found guilty carries such a penalty, nor do most other federal criminal laws.The law has no power to bar North from holding constitutional offices such as member of Congress or president or vice president, whose qualifications are set in the Constitution. Several former members of Congress continue to get their pensions, despite having been convicted of far more serious felonies.
The Navy, under an opinion offered by its own judge advocate general, said it did not believe North's pension was an office under the law, but to avoid having its disbursing officer run the risk of being charged with issuing a paycheck illegally, turned to the Justice Department for confirmation. Justice, under long usage, defers to GAO in pay cases, and GAO said yes, North, as a retired regular officer, would hold an office. (A reserve officer would not.)
Conservative Republicans dropped in a bill that would restore the pension of any lieutenant colonel graduate of Annapolis who holds 16 medals from the Vietnam War.
Sen. Orrin Hatch, R-Utah, told this reporter that he thought the bill was going to be a lot of fun. It will make a certain number of Democrats, who don't want to vote for Ollie North's pension, squirm. The Republicans, Hatch explained, will gleefully hold up in the next election campaign any vote against a 20-year Marine war hero's pension.
Sen. Joseph Biden, D-Del., chairman of the Senate Judiciary Committee, said the issue should be whether as a general rule a regular officer in any service should lose his pension for destroying papers. He conceded the point of North's record when he stipulated at the opening of a hearing on the pension bill that the colonel was a war hero but he was not able to get either Republicans or other Democrats to leave North out of the discussion. Hatch and Sen. Strom Thurmond, R-S.C., made North the centerpiece of their remarks, and Sen. Howard Metzenbaum, D-Ohio, retorted that for his part he thought North got a slap on the wrist from Judge Gerhard Gesel and deserved to lose his pension.
Two constitutional scholars testified solemnly that to write a law giving only North his pension would be, in effect, a constitutionally prohibited bill of attainder, written for just one person. Better, they advised, for Congress to write a generic bill giving such rights to all regular officers, as remote as the chance might be that such a case might ever arise again.
Biden asked rather plaintively at the end of the session if President Bush could not give North his pension by executive action.
Of course he could.
So could the Navy. The separation of powers doctrine, which the Democrats pleaded the North bill would breach, hardly gives Congress' accounting office authority to tell the Navy whom to pay. No federal prosecuting attorney in the nation would try to indict a paymaster for giving Ollie North his pension, and if one did make such an attempt the attorney general could cut him off at the hip pockets.
It is highly unlikely that a succeeding Democratic administration would want to revive the issue some time in the future.
The general counsel for the GAO suggested just what the Navy or the secretary of defense could do to give North back his pension. He recalled that during the Eisenhower administration Congress restricted some State Department funds in a way that enraged then-Secretary of State Christian Herter.
Herter appointed himself the department's disbursing officer and signed the checks himself.
What did GAO do about it? Nothing.