Abe Sofaer—Whose Watchdog?

By Claudia Wright

President Reagan's special review board on the Iran-Contra scandal, chaired by former Senator John Tower, issued its final report last February with a quotation from the ancient Roman poet Juvenal, who asked: "Who will guard the guards themselves?" The Tower Commission intended this question to refer to White House involvement in clandestine arms dealings and the diversion of funds. But it applies just as well to the staff members who prepared the Commission report, and to the man who may well be the most powerful lawyer in the US government's foreign policy bureaucracy.

That man is Abraham Sofaer, legal adviser to the Department of State. According to his own testimony to congressional investigators, Sofaer simultaneously played the roles of "department lawyer, president's lawyer, and the secretary of state's lawyer," and saw "no conflict of interest."

Sofaer Keeping Out of the Public Eye

Sofaer has played a major role in the Iran affair, but oddly, he was not questioned by the Tower Commission, and his name appears nowhere in the Commission report. In the 678-page chronology of the administration's dealings with Iran and the contras, published in June by Scott Armstrong and the National Security Archive of Washington, Sofaer is mentioned only twice—on November 18 and 20, 1986, as administration officials prepared congressional testimony by former CIA Director William Casey.

The congressional inquiry did not call Sofaer to testify in public, but instead took his deposition in private on June 18, 1987. After a partially declassified version of what Sofaer said was released a week later, the Washington Post reported that he had been "an exception among the President's men...the internal whistle-blower about lies, (and the) misleading (of) Congress with false testimony..."

Sofaer claims to have been protecting President Reagan from the illegality of a cover-up. In doing so, however, he was also protecting Israel, and Israel's allies in the US government, from the consequences of their illegal dealings with Tehran.

Sofaer testified that it was he who had insisted that Lt. Col. Oliver North insert in documentation justifying arms sales to Iran a written reference to a fact that everyone involved knew, but no one wanted to admit: The arms were ransom for American hostages, even though the cover story concocted at that time in case of eventual exposure was that the US thought the arms were going to Iranian moderates. Later, when the affair had been exposed, and the president's men were preparing CIA Director William Casey to testify to Congress that the US had no knowledge of the first two of three 1985 Israeli arms shipments to Iran, it was Sofaer who would not go along with the alibi. He insisted that because Secretary of State George Shultz had been briefed by National Security Advisor Robert McFarlane about the Israeli arms shipments in July 1985, the story that Israel had acted without US approval wouldn't wash.

He recounted all this to congressional investigators in some detail, and the media attributed the actions he was describing to a desire to protect his boss, Secretary of State Shultz. No journalist pointed out that by putting the monkey squarely onto the back of the Reagan administration, Sofaer had made sure that Israel would not be criticized by the US for actions the two governments had undertaken jointly. Unlike Col. North, who originally said he wanted to "step forward and take the spears in his own chest" to protect the president, Sofaer has time and again ensured that when the spears are flying, the Israelis emerge unscathed.

As a federal judge in New York, Sofaer played a major role in the outcome of the libel suit against Time magazine that cleared the way for General Ariel Sharon's return to a central role in Israeli politics. In Washington, as State Department legal adviser and confidant of the secretary of state, Sofaer has played a major role in protecting Israel from the consequences of its own intransigence over the Taba dispute with Egypt, its perfidy in recruiting an American Jewish counter-intelligence specialist to steal US defense intelligence, and its violations of US and international law in bombing the PLO headquarters in Tunis.

Who is this damage control expert who, although always in the center of problems in the troubled US-Israeli relationship, is either too agile or too intimidating to be highlighted in media coverage of those developments in which he is so intimately involved?

From Baghdad and Bombay

Sofaer is regarded by US officials as one of the staunchest advocates for Israel within the Reagan administration. He was born in Bombay in 1938. His father was from a branch of a well-known family of Jewish merchants that originated in Baghdad. In the years after the partition of Palestine, the Sofaers departed Baghdad, some for the new state of Israel and others to Iran, Britain, or the US. Abraham Sofaer was 10 years old when his family brought him to the US in 1948. He became a naturalized US citizen in 1959. He studied at New York's Yeshiva College and New York University Law School, and then clerked for Supreme Court Justice William Brennan. Sofaer served as an assistant district attorney in New York from 1967 to 1979, and during that period he wrote a book entitled War, Foreign Affairs, and Constitutional Power, Vol I: The Origins.

In 1977 Sofaer married Marian Scheuer, a niece of Democratic Congressman James Scheuer, who represents the Queensborough of New York City. She and her family own a residence in Jerusalem where Sofaer frequently spends time.

Early Damage-Control Efforts: Sharon v. Time

A registered Democrat, Sofaer was appointed by the Carter administration to be a federal judge in New York in 1979. It was in that capacity, in 1984, that Sofaer first came to public attention, when he presided over the trial of Ariel Sharon's unsuccessful libel suit against Time magazine. In rulings that were highly unusual, Sofaer ordered the jury to reach three separate verdicts—whether Time had been inaccurate, whether it had been malicious, and whether Time's report on Sharon's activities preceding the massacres of Palestinians at the Sabra-Shatila refugee camps had damaged him. Sofaer's rulings resulted in the jury first finding that Time had been inaccurate in its reporting of some of the evidence collected by the Israeli government commission that investigated the September 16-18, 1982 events. The jury then affirmed that Sharon had suffered damage to his reputation as a result of Time's reporting. But these first two verdicts obscured the jury's third finding, that there had been no malice on Time's part. Sharon therefore lost his lawsuit, but he was able to claim the New York jury had vindicated him and, on the strength of that vindication, re-entered Israeli politics. All this occurred despite the fact that, as Time had reported, the Israeli government commission had found Sharon "indirectly responsible" for the Sabra-Shatila massacre.

Introducing the Folks Who Made Us What We Are Today, Chumps

They appeared in the US government even before Israel was created: Americans who unfailingly advocated whatever policy was most favorable to the creation of a Jewish state in Palestine. One, David Niles, trusted adviser to both Presidents Roosevelt and Truman, might, in retrospect, be characterized as a "dual loyalist." In the Johnson administration men like NSC Director Walt Rostow or Chief UN Delegate Arthur Goldberg seemed to protect "Israel first" when Israeli and US interests clashed. In the Nixon-Ford years, figures as diverse as Senator Jacob Javits and Secretary of State Henry Kissinger constituted almost a "shadow government," increasing US aid to Israel while reducing restrictions on its use. In the Carter years, non-Jewish shadows like Senator Alan Cranston repeatedly frustrated US attempts to deal with rising Israeli extremism and intransigence. Under Ronald Reagan, probably the first US president who continued to believe his own pro-Israel campaign rhetoric, a small army of "consultants" and "advisers" helped calm administration doubts as successive Israeli governments deceived, defied, and finally discredited their president. Who are these Americans who gave such bad advice about the Middle East? Dual loyalists, Israel firsters, or a pro-Israel shadow government?

Sofaer's handling of the Sharon case demonstrated damage-control abilities that would shortly be put to good use in Washington. He changed his party registration from Democrat to Republican and, on June 9, 1985, he was sworn in as the State Department's chief legal adviser.

Israel's Right to Might

After his appointment, Sofaer was quoted in an interview with the Israeli press as believing Sharon's war in Lebanon had been "justified." He later told the Washington Post in March 1986 that he had been speaking "only in general and theoretical terms about the right of self-defense...and did not 'justify' the Israeli action."

Sofaer had no problem, however, on October 1, 1985 when he drafted a justification of the Israeli bombing of PLO headquarters in Tunisia as a defensive action. This justification became official US policy and prevented the application of the US law which prohibits use of US weapons supplied to Israel for other than defensive purposes.

Just how much advance planning preceded the October 1 attack has been revealed by the US spy for Israel, Jonathan Jay Pollard. In his plea for leniency to a US court last March, Pollard revealed that his Israeli spy-masters were already readying a strike against Tunisia before the killing of three Israelis in Cyprus that Israel used to justify it. "I spent two hectic weeks collecting information pertaining to Libya's defense reporting system and the PLO's disposition of anti-aircraft weapons," Pollard wrote in a memorandum for the court. The Cyprus incident occurred on September 25, just six days before the October 1 Israeli "retaliation," and therefore at least a week after Pollard began his "two hectic weeks" of stealing information. Nevertheless, Sofaer defended Israel's raid, which killed some 70 Tunisian and Palestinian civilians, as a defensive action.

Defending Israel at the State Department

Sofaer also endorsed the Israeli attack on Iraq's nuclear reactor in 1981, and suggested that Israel would have his blessing for an attack on Pakistan's nuclear establishment if there were "real evidence" that it threatened Israel.

Sofaer's most challenging damage control assignment was as the US official sent to negotiate Israeli cooperation in the US investigation of Jonathan Jay Pollard, the US Navy counter-intelligence specialist accused of selling thousands of secret US documents to Israel. Between November 1985, when Pollard was arrested outside the Israeli Embassy in Washington, and March 1987, when he was sentenced to life in prison, Sofaer succeeded in diminishing the extent to which the US indictments would expose the true degree of Israeli government involvement in the spy operation.

Who is this Damage-Control Expert?

In the original June 3, 1986, version of the "factual proffer"—which accompanied the indictment and constituted the set of facts to which Pollard pleaded guilty—a dozen corrections were insisted on by Sofaer's office. They were written by hand on the draft document, which was then re-typed and re-dated June 4. One correction deleted statements that Pollard had provided Aviem Sella, the Israeli air force officer who was his first controller, with US classified documents assessing the "capabilities of various Middle East countries." Another deleted the fact that Pollard had passed "satellite photographs" to the Israelis. Sofaer and his deputies also refused to allow the prosecutors to tell the court that Pollard's second handler, Yossi Yagur, an Israeli science attache, issued his requests "according to...particular needs of each branch of the Israeli military." Also suppressed was confirmation that Pollard had passed to Israel detailed US data on "scientific and technical developments in Soviet/Warsaw Pact weapons and weapons systems." Sofaer's office also requested that references by the prosecutors to "representatives of the government of Israel" be changed to a more politically neutral mention of Pollard's "handlers," presumably to accommodate Israeli government claims that Pollard's espionage was not officially sanctioned.

After Pollard's arrest, State Department spokesman Charles Redman publicly expressed "dismay that the government of Israel was not as forthcoming as we would have hoped and expected." He was referring to the departure from the US of Yagur and another Israeli diplomat, implicated by Pollard, after Israeli officials had promised they would be available for questioning in the US. After their escape, the Israeli government offered them for interview in Israel only.

On December 1, Prime Minister Shimon Peres telephoned Secretary Shultz, offered Israel's apology for the espionage, and promised to cooperate in the US investigation. It was then decided Sofaer would lead the US investigative team to Israel, and the State Department subsequently announced the Israelis were fully cooperative. Among other things, they were said to have promised to return all the documents Pollard had given to his controllers. In fact, as US prosecutors were to reveal much later, Sofaer recouped only 163 classified US documents. The Israelis withheld thousands of pages of other documents. Sofaer did not object publicly, then or later.

Accompanying Sofaer on the December 1985 trip to Israel were representatives of the Justice Department, the FBI, the Naval Investigative Service, and three of the prosecutors in the case. They included Joseph DiGenova, the US attorney for the District of Columbia. DiGenova subsequently told associates that Sofaer had put considerable pressure on him not to pursue Pollard's Israeli and American associates for prosecution.

Cover-up of the Iran Scandal

Sofaer's damage-control efforts in the Iran-contra scandal have been equally successful, and much less conspicuous. Of the Tower Commission staff members borrowed from the State Department, three came from Sofaer's office, and one was another of Shultz's advisers on the Middle East, Morton Abramowitz, director of the State Department's Intelligence Bureau. One of Sofaer's men, Nicholas Rostow, son of Eugene Rostow, President Reagan's first appointee to head the Arms Control and Disarmament Agency, wrote the largest section of the Tower Commission's report—a detailed chronology of the secret arms dealings between the American, Iranian, and Israeli governments.

Also working with Nicholas Rostow on the Tower Commission were two other Sofaer subordinates, Jeffrey Kovar and Joy Yanagida. Kovar had earlier been appointed by Sofaer to the State Department's "Iran working group," which was set up on December 10, 1986, after the first disclosures of the Iran-contra scandal. Sofaer obtained authority from Shultz to channel all State Department investigations of the Iran affair through this group working in his office, and to control press inquiries through this same group.

Sofaer or his deputies regularly review for Shultz all presidential "findings," the formal authorizations for covert operations required by US law. Department of State insiders say that Sofaer is one of a trio who have guided Shultz's decisions on all issues affecting Israel. The other two are said to be his intelligence chief, Abramowitz, and Charles Hill, Shultz's executive assistant and a foreign service officer whose only personal Mideast service was in Israel.

Sofaer's Testimony before the Iran-Contra Committee

When Sofaer testified for the joint congressional select committee investigating the Iran-contra affair, he told his lone questioner, Senate Attorney Mark Belnick, that in 1981 his predecessor had signed a legal opinion, subsequently approved by then Attorney General William French Smith, "relating to the transfer of certain arms..." The identity of the seller and recipient countries has remained classified, but congressional sources believe the reference is to Israeli arms transfers to Iran. A State Department memorandum, also attached to Sofaer's deposition but heavily censored, declares unambiguously that "we knew that Israel was shipping arms (to Iran)."

And yet at no point did the congressional investigators ask Sofaer what he had heard, or what he knew of Israeli arms dealings with Iran. Instead, he was asked the much more limited question: "Had you been made aware of what we now call the Iran initiative?" His answer was no. A few moments later, Sofaer was asked: "Was this (November 18, 1986) the first time you had heard that there was any finding relating to an Iran arms initiative?" This was a clumsy, leading question, and Sofaer had no trouble responding: "Absolutely." He could have been asked if he had seen or known of other findings relating to arms transfers to Iran, or he could have been asked the broader question of what he knew of Israeli dealings with Iran since 1981. With omissions as glaring as these, Sofaer did not need to cover up. He simply said as little as the questions called for.

The documents Sofaer provided congressional investigators do not touch on his knowledge of Israeli gun-running to Iran, but they strongly suggest he thought the Israeli activities—and US government connivance in them—were legal. In one memorandum he told Shultz's aids: "We can get through claims of illegality...The issue of notification is less a legal than a practical, political problem. We have delayed notice of arms transfers both before and after the (January 17, 1986) finding, for unprecedented periods." This was hardly the advice of the man the Washington Post called a whistle blower. If the Post had looked closely at Sofaer's documents, it might even have discovered his recommendation to continue secret negotiations with Iran—through Israel!

"In light of the decision not to ship any more arms to Iran," Sofaer queried Shultz's office, "would it be useful to consider other channels for continuing our effort to develop better ties?" Sofaer's specific recommendations to implement that effort have been censored.

What the record of Sofaer's interrogation shows is that he thought he could represent the president, the State Department, and the secretary of state all at once. What the record doesn't show is that Sofaer was also defending the state of Israel. In doing so, he insisted upon the legality of everything Israel had done. He also helped ensure that none of the US officials he was "preparing" (Sofaer's word) for the congressional investigators would seek to defend themselves by pointing at Israel's persistent role in conceiving, implementing, and abetting both the arms-for-hostages and the diversion schemes.

Claudia Wright has been a Washington correspondent for European newspapers for nearly a decade. She is a frequent contributor to the Washington Report, and is the author of Spy, Steal, and Smuggle: Israel's Special Relationship with the United States (AAUG, 1986).