The making of sound U.S. foreign policy depends on a vigorous, deliberative, and often combative process that involves both the executive and the legislative branches. The country’s Founding Fathers gave each branch both exclusive and overlapping powers in the realm of foreign policy, according to each one’s comparative advantage — inviting them, as the constitutional scholar Edwin Corwin has put it, “to struggle for the privilege of directing American foreign policy.”
One of Congress’ key roles is oversight: making sure that the laws it writes are faithfully executed and vetting the military and diplomatic activities of the executive. Congressional oversight is meant to keep mistakes from happening or from spiraling out of control; it helps draw out lessons from catastrophes in order to prevent them, or others like them, from recurring. Good oversight cuts waste, punishes fraud or scandal, and keeps policymakers on their toes. The task is not easy. Examining a department or agency, its personnel, and its implementation policies is time-consuming. Investigating possible scandals can easily lapse into a partisan exercise that ignores broad policy issues for the sake of cheap publicity.
The two of us began our immersion in Congress 37 years ago, participating in events such as the Senate Foreign Relations Committee’s extended hearings on the Vietnam War. Throughout most of our time in Washington, tough oversight of the executive was common, whether or not different parties controlled the White House and Congress. It could be a messy and contentious process, and it often embarrassed the administration and its party. But it also helped prevent errors from turning into disasters and kept administrations more sensitive to the ramifications of their actions and inactions.
In the past six years, however, congressional oversight of the executive across a range of policies, but especially on foreign and national security policy, has virtually collapsed. The few exceptions, such as the tension-packed Senate hearings on the prison scandal at Abu Ghraib in 2004, only prove the rule. With little or no midcourse corrections in decision-making and implementation, policy has been largely adrift. Occasionally — as during the aftermath of Hurricane Katrina last year — the results have been disastrous.
In October 2005, Representative John Dingell (D-Mich.) reached the 50-year mark for service in the House. Through seven presidents, much of the time as the chair of the Energy and Commerce Committee, often as the chair of its vaunted Oversight and Investigations Subcommittee, Dingell oversaw the executive branch to make sure it acted without bias or malfeasance. He did not shrink from making presidents, Democrat and Republican alike, uncomfortable. At times, even colleagues winced when he grilled bureaucrats. But the result was better execution of policy.
Dingell is now a unique figure on Capitol Hill, but he was not always alone. To be sure, the failure to ask tough questions of the military or challenge wartime decisions is neither new to Congress nor limited to Republicans. There has never been a golden era of congressional oversight. More often than not, oversight of foreign policy has taken the form of “fire alarm” hearings, responding to scandals or crises, rather than of “police patrols,” designed to prevent problems before they occur. But at one time there was more robust give-and-take, even when the country was at war or when the president and the majority in Congress belonged to the same party.
Perhaps the most noteworthy effort was the Special Committee to Investigate the National Defense Program, which was created during the buildup to World War II to investigate alleged overspending in the construction of a camp for draftees in south-central Missouri. After visiting the site and talking to the president, in February 1941 then Senator Harry Truman proposed the creation of a special committee. Within a few months, the body had begun a long series of hearings. “At Truman’s insistence,” the Truman biographer David McCullough has written, “any member of the Senate was welcome to …take part in the hearing… There was no browbeating of witnesses, no unseemly outbursts tolerated on the part of anybody.” In the weeks after Pearl Harbor, President Franklin Roosevelt was urged to try to disband the body. He demurred. The committee produced more than 50 reports, all unanimous, and conducted more than 500 hearings. It is said to have saved the country $15 billion.
Vigorous oversight was the norm until the end of the twentieth century. During the Korean War, a special committee chaired by then Senator Lyndon Johnson strongly criticized the Truman administration. According to the historian Bruce Schulman, it also “reduced waste, improved the efficiency of wartime agencies and reaffirmed the patriotism of administration officials — no trivial matter when [Senator Joseph] McCarthy and his allies saw every small mishap as evidence of disloyalty and subversion.” In the 1970s, there were the Church committee investigations of intelligence failures and secret illegal surveillance. In the 1980s, joint congressional committees scrutinized the Iran-contra affair. In the 1990s, authorizing committees and appropriations committees in both houses reviewed military operations in Kosovo. When the Republicans took control of Congress under President Bill Clinton, overall oversight declined. (Joel Aberbach, a political scientist at the University of California, Los Angeles, has found that the overall number of oversight hearings in the House — excluding the appropriations committees — dropped from 782 during the first six months of 1983 to 287 during the first six months of 1997. The falloff in the Senate between 1983 and 1997 is just as striking: from 429 to 175.) But there were still some visible and aggressive investigations, albeit often driven by an obsession with scandal.
But since George W. Bush has become president, oversight has all but disappeared. From homeland security to the conduct of the Iraq war, from allegations of torture at Abu Ghraib to the surveillance of domestic telephone calls by the National Security Agency (NSA), Congress has mostly ignored its responsibilities. The same is true of less publicized issues involving the United States and the rest of the world, including U.S. relations with trading partners and rivals, allies and adversaries. The year-and-a-half hiatus in the Republicans’ control of the Senate, which came after 9/11 and during a nationwide surge in patriotism, did not noticeably reverse that pattern.
The numbers are striking. Examining reports of the House Government Reform Committee, the journalist Susan Milligan found just 37 hearings described as “oversight” in 2003-4, during the 108th Congress, down from 135 in 1993-94, during the last Congress dominated by Democrats. The House Energy and Commerce Committee produced 117 pages of activity reports on oversight during the 1993-94 cycle, compared with 24 pages during 2003-4. In the mid-1990s, the Republican Congress took 140 hours of testimony on whether President Clinton had used his Christmas mailing list to find potential campaign donors; in 2004-5, House Republicans took 12 hours of testimony on Abu Ghraib.
When committees do hold hearings, they tend to focus on routine budget review. Charles Stevenson, a longtime Senate staffer, has noted that “the Senate Armed Services Committee held no hearings specifically on operations in Afghanistan in 2003 and 2004, and only nine on Iraq [excluding the prisoner-abuse matter] in that two year period — less than 10 percent of its total hearings. The House Armed Services Committee held only one hearing on Afghanistan in 2003 and 18 on Iraq during 2003-2004 — less than 14 percent of its total number of hearings. The Senate Foreign Relations Committee spent 19 percent of its time on those two countries.” Such hearings, moreover, suffer from “stovepiping” — the practice of looking only at matters and people within one’s narrow jurisdiction — which prevents Congress from taking a comprehensive view of certain policies. Only one Senate Foreign Relations Committee hearing involved a senior military officer, and only two saw witnesses from the Department of Defense.
Foreign policy has dominated the attention of Americans since 9/11, and especially since the Iraq war began. Major issues have included the formulation and execution of terrorism policy, the invasion of Afghanistan, prewar intelligence, the invasion of Iraq, the conduct of the Iraq war and its aftermath, the NSA’s surveillance program, reform of the intelligence apparatus, homeland security, the treatment of detainees, and U.S. borders and immigration. And yet, Congress has failed to ask how policies in these areas have been carried out, how faithfully laws have been executed, how reasonably taxpayer dollars have been spent, how well the executive branch has stayed within its constitutional bounds, and how vigorously malfeasance or nonfeasance by public agencies and private contractors has been handled.
Lapses have been especially apparent on issues relating to homeland security. The Department of Homeland Security (DHS) has been beset by a series of management problems, a lack of consistent focus, and a failure to sort out its numerous responsibilities — all problems that were utterly predictable. From its inception, the department has been a near revolving door when it comes to its top management team, has had major problems integrating agencies, and has had a less-than-stellar record creating an integrated information-management system for the department, not to mention coordinating its computers with those at the FBI.
What are the causes of these problems? Poor planning and faulty execution. Even prior to 9/11, the Hart-Rudman commission, which was set up to review U.S. national security needs for the twenty-first century, had recommended the creation of a new department bringing together agencies and bureaus tasked with combating terrorist threats and responding to domestic attacks and natural catastrophes. It was a powerful idea but a complex task, and determining what the department should look like and do called for much debate. Yet these questions were never debated. After vehemently resisting the creation of such a body for almost nine months, in 2002 President Bush made a dramatic turnaround virtually overnight and unveiled a far more sweeping plan, which had been secretly hatched by several key administration aides. There was no deliberative process to question the extent of the reorganization and its breakneck pace. Absent, too, was any talk of starting with a new department of border security and moving incrementally to something grander. When the DHS bill came to Congress, it sparked only one serious controversy: Would civil service protections for the DHS’ 170,000 employees be eliminated? That question became a major campaign issue in the 2002 elections, while important questions about what the DHS should be and do were ignored. The DHS that was eventually created was much larger than the Hart-Rudman commission had envisioned: it had to integrate 22 preexisting entities — the largest reorganization in the history of the federal government. It was still reeling from the job when Katrina struck in August 2005, and so rather than operate as the centerpiece of a federal response to the crisis, as foreseen, the bloated bureaucracy was unable to figure out what to do for days, its inaction compounding the tragedy.
Congress’ failure to oversee the DHS has been crushing. Realistically, only Congress can prod such a massive department and determine whether when mad cow disease strikes or self-initiated Minutemen patrol the border, the Animal and Plant Health Inspection Service or the Citizenship and Immigration Services (formerly the Immigration and Naturalization Service), both part of the DHS, are able to manage the problems. The same is true of the Federal Emergency Management Agency (FEMA), which lost its robust independent status when it was subsumed in the DHS; it has been roiling with confusion ever since.
For three years after the creation of the department, Congress did nothing to ensure that the preexisting functions of its 22 components were well maintained while new ones were added. The House only reluctantly and belatedly created the Select Committee on Homeland Security and gave it no legislative jurisdiction or control over the DHS’ budget or activities. Knowing the committee’s relative powerlessness, top officials at the DHS have treated it with indifference or contempt.
More generally, there has been no serious oversight of the DHS in either house. Perversely, the problem has been compounded by the incessant demands of the 88 congressional committees and subcommittees that, eager for political cachet and cover, have sought to grab a piece of homeland security jurisdiction by demanding that top DHS officials testify before them. The agency’s top managers have spent a lot of time at Congress but almost none seriously examining the DHS’ functions and performance. One result was the abject failure of the DHS and FEMA to handle the aftermath of Hurricane Katrina.
A KILLER BLIND SPOT
Thursday, August 3, 2006, was a remarkable day in Congress. The Senate Armed Services Committee held an oversight hearing on Iraq featuring three star witnesses: General John Abizaid, the commander of U.S. Central Command; General Peter Pace, the chairman of the Joint Chiefs of Staff; and Defense Secretary Donald Rumsfeld. The hearing led the evening news, with footage of General Abizaid, echoed by General Pace, warning about the danger of a civil war in Iraq. Senator John McCain (R-Ariz.) asked both generals if they had foreseen that possibility a year earlier; both said no. Senator Hillary Clinton (D-N.Y.) recited to Secretary Rumsfeld a litany of failures over the past three years; his first response was “Oh my goodness.”
The frank and pessimistic admissions by two top generals and the tense moment of theater between Senator Clinton and Secretary Rumsfeld were striking indeed. But even more striking was the fact of the oversight hearing itself. Secretary Rumsfeld, when asked to testify, first brushed off the request, changing his mind only after Senator Clinton turned his refusal into a major public issue.
Oversight failures in regard to the Iraq war go back to before the beginning of the war. On June 15 of this year, the House of Representatives convened a debate over the war — which Democrats called a sham — to consider a nonbinding resolution about whether to stay the course or cut and run. It was the first formal discussion of the U.S. military role in Iraq since Congress voted to authorize the use of force in October 2002. And that was not much to brag about. As Thomas Ricks writes in Fiasco: The American Military Adventure in Iraq, “When the House debate began there was just one reporter in the press gallery. At their most intense points, the debates in both the House and Senate attracted fewer than 10 percent of each body’s members.” Unlike during the lead-up to the Persian Gulf War in 1990-91, there was little sustained discussion before the Iraq war. As Ricks puts it, “There were many failures in the American system that led to the war, but the failures in Congress were at once perhaps the most important and the least noticed.” He adds, “There was little follow-up investigation or oversight. There were, for example, no hearings with returning division commanders.”
Congress has also done little about the Bush administration’s lack of any plan for the post-Saddam Hussein regime, its quashing of the State Department’s planning, and its stunning failure to provide adequate armor to all U.S. troops. One senator said of the equipment problem, “There really is no excuse for this. Many in the military thought this would be a short conflict, and they did not want to lay out large sums of money for vehicles that would soon be superfluous. Some of the Pentagon officials said that there was only one manufacturer of the appropriate body armor, and the pipeline got clogged. If we had ridden herd on them regularly and publicly, it would have been different.”
Thus, whatever intermittent oversight there has been so far has come from the media. On July 30, 2006, a front-page story in The New York Times reported that the U.S. Agency for International Development had engaged in “an accounting shell game” to hide huge cost overruns in the $1.4 billion reconstruction program in Iraq while “knowingly with[holding] information on schedule delays from Congress.” The same day, The Washington Post showcased a major story, headlined “Report on Prewar Intelligence Lagging,” about a long-promised oversight report from the Senate Intelligence Committee on the Bush administration’s use of intelligence in the lead-up to the war. Nine months earlier, responding to charges by committee Democrats that the report had been sidetracked for political reasons, the committee’s chair, Pat Roberts (R-Kans.), had asserted it was near completion. The Washington Post story made clear Roberts’ intention to delay its release until after the elections in November. (Pressure from Democrats and two Republican senators resulted in a partial release in September.)
These two articles underscored some of the reasons for the lack of oversight: the executive branch’s willful denial of accurate and meaningful information to Congress, the growing partisan divide in Congress, and the reluctance of congressional Republicans to criticize the administration (especially Speaker of the House Dennis Hastert, of Illinois; Senate Majority Leader Bill Frist, of Tennessee; and House Armed Services Committee Chair Duncan Hunter, of California). But these accounts barely scratch the surface. Even more worrisome are the broader dynamic that has led to the sharp decline in Congress’ influence over foreign policy and the policy failures that have occurred as a result.
CONTEMPT OF CONGRESS
Since Congress has shown little appetite for any serious oversight or for using the power of the purse or pointed public hearings to call the executive branch to account, executive agencies that once viewed Congress with at least some trepidation now regard it with contempt.
In March 2003, the Senate Foreign Relations Committee slated a hearing to examine the postinvasion planning for Iraq, with retired Lieutenant General Jay Garner, the first U.S. civilian administrator of Iraq, as the star witness. Garner canceled at the last minute, prompting the committee’s chair, Richard Lugar (R-Ind.), to call the event a “fiasco.” “He was not able to come to the [Senate] Dirksen Building, but could brief [reporters] in the Pentagon,” Lugar told the National Journal. “On the face of it, it was ridiculous.” A senator on the Senate Armed Services Committee told us that Chair John Warner (R-Va.) was apoplectic when Garner also stood up his committee. Last January, an hour into a Senate Appropriations Subcommittee hearing on mine safety, Chair Arlen Specter (R.-Pa.) asked the administration’s top two mine-safety officials to stay for another hour to answer more questions. It was a routine request, but the two said they were too busy and, despite another more pointed appeal from Specter, abruptly rose and exited through a back door. Relating the incident, The Washington Post’s Ruth Marcus reported that the Bush administration “thinks of congressional oversight as if it were a trip to the dentist, to be undertaken reluctantly and gotten over with as quickly as possible. Most astonishingly, it reserves the right simply to ignore congressional dictates that it has decided intrude too much on executive branch power.”
Consider, too, the Senate Armed Services Committee hearing in May 2004 on torture at the Abu Ghraib prison, a crucial test for the Defense Department and the U.S. military. During Senator McCain’s tough questioning about who was responsible, Rumsfeld said that the military brass with him had prepared a chart showing the chain of command. When one of the generals said they had forgotten to bring it, Rumsfeld said, “Oh my.”
Meanwhile, the Bush administration has aggressively asserted its executive power and displayed a strong aversion to sharing information with Congress and the public. In early 2001, the president issued an executive order granting former presidents, vice presidents, or their representatives the right to block the release of documents “reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisors.” (The order also directed the Justice Department to litigate on behalf of any such blocks.) The Bush administration has also refused to respond to requests for information under the Freedom of Information Act. In an October 2001 directive (planned well before 9/11), Attorney General John Ashcroft announced a departure from the Clinton administration’s standard. Eschewing the “foreseeable harm” standard — which required agencies to release records under the Freedom of Information Act as long as there was no foreseeable harm in doing so — Ashcroft adopted a “sound legal basis” standard that allows agencies to withhold information if they have any legal basis to do so.
In addition to resisting congressional and public access to information, the Bush administration has substantially increased the number of documents it classifies and decreased the number it declassifies, blocked the release of documents and briefs requested as part of congressional investigations of the terrorist attacks, refused a House committee request for the numbers that were adjusted to reflect the undercounting in the 2000 census, invoked executive privilege in denying Congress access to information concerning the FBI’s misuse of organized-crime informants in Boston, refused to share information on missile defense with the Senate subcommittee that oversees the project, delayed sending to Congress full cost estimates of the Medicare drug bill before it was signed into law, denied the Senate Homeland Security and Governmental Affairs Committee information about undisclosed meetings between Enron executives and top administration officials, and restricted Congress’ access to environmental records. The administration has also engaged in many battles — with Congress and in the courts — over what information on the handling of terrorist detainees and enemy combatants it has to release. The NSA surveillance initiatives were shared with a bipartisan group of only eight top party and committee members — all of whom were sworn to secrecy and could reveal nothing to their colleagues — rather than with the full congressional intelligence committees. Members of both parties have been quite open with us about the dismissive attitude, indeed the contempt, with which President Bush and Vice President Dick Cheney have greeted requests for information. National security briefings were often considered a complete waste of time; reading the morning newspaper was much more informative. Senator Dianne Feinstein (D-Calif.) said, “The briefings go on … but we could be anybody in those briefings. … It doesn’t matter what we think.”
This behavior is entirely consistent with the Bush administration’s view of executive prerogatives. At times, it has been difficult to discern the administration’s motivations for denying information to Congress and the public. But avoiding political embarrassment must have factored into some of these decisions. As former Senator Daniel Patrick Moynihan (D-N.Y.) has argued, the net effect of avoiding transparency in executive decision-making may have done the country more harm than good.
President Bush has arguably been stonewalling in the hope of leaving a stronger executive behind. But that ambition cannot explain the behavior of Congress, which has been strikingly supine. Minority Democrats often demanded information with gusto. But without support from the majority, they had little chance of prevailing in battles with the executive or in getting media attention. Some Republican senators, such as McCain, Maine’s Susan Collins, South Carolina’s Lindsey Graham, and Iowa’s Chuck Grassley, and Republican representatives, such as Indiana’s Dan Burton and Connecticut’s Christopher Shays, fought for the release of critical information, but they seldom had the support of their party’s leadership or their colleagues. Even their exceptional efforts have had limited success.
AN AILING BODY
Why has Congress abandoned oversight when it is most needed? The most logical explanation, which has been confirmed by comments we have heard from many members of Congress, is that the body now lacks a strong institutional identity. Members of the majority party, including congressional leaders, act as field lieutenants in the president’s army rather than as members of an independent branch of government. Serious oversight almost inevitably means criticism of performance, and this Republican Congress has shied away from criticizing its own White House.
The weakening of Congress’ institutional identity probably began in the 1980s, when the insurgent Republican Newt Gingrich, of Georgia, campaigned to nationalize congressional politics, turning elections from individual referendums on incumbents into national referendums on what he claimed was a corrupt Congress long misled by Democrats. Candidates for congressional seats who picked up on that rhetoric and won in the November 1994 Republican sweep of the midterm elections settled into Congress with little regard for it as an institution. (This was not so, ironically, of Gingrich who, as Speaker of the House, was a staunch congressionalist.) Instead of arriving in Washington excited at the chance of belonging to the storied institution, the new lawmakers saw public service as a dirty job that someone had to do. Since 1994, most new members of Congress have left their families at home in the districts, and many have declared limits on their own terms.
Members of Congress have ratcheted down the amount of time they spend in Washington, which has led to a sharp decline in the number of days Congress is in session and the number of committee meetings that are held. When Congress is in session, both the floor and the committees are sparsely and intermittently attended, as members rush away from Capitol Hill whenever they can to make fundraising phone calls. During a typical week when Congress is in session, no votes occur before 6:30 pm on Tuesday or after noon on Thursday, leaving little time for extended oversight hearings or other related activities.
Close voting margins have also contributed to the problem, as members of Congress have focused more on holding (or overturning) slender majorities than on broad matters of governance. When Bush became president and the Republicans secured control of the House and the Senate, Republican congressional leaders reacted reflexively as members of his team, eager to advance his agenda and avoid any turmoil. (As he was leaving Congress in the fall of 2005, House Majority Leader Tom DeLay, of Texas, said that when the president and the congressional majority are of the same party, “You don’t need the [oversight] hearings.”) Ideological polarization combined with near parity between the parties raised the stakes of majority control, weakening the institutional incentives that the founders had designed to ensure vigorous congressional oversight of the executive.
In recent months, spurred by revelations about the NSA surveillance program, the Supreme Court’s ruling in Hamdan v. Rumsfeld (which scuttled the executive branch’s efforts to try suspected terrorists before military commissions), Bush’s defiant signing of presidential statements, and the growing unpopularity of the president and his conduct of the Iraq war, Congress has shown small signs that it may be steeling its backbone. The Senate Intelligence Committee voted to demand that the administration notify it of surveillance activity and intelligence operations. After the Hamdan decision, Congress also vowed to set new rules for the treatment of detainees. Senator Specter, who has stood out for his willingness to fulfill Congress’ role, told USA Today in June, “If you ask me if I still feel like a lonely voice, I would say that I feel like a member of a small chorus.”
But it is far from obvious that the chorus will grow. In the final weeks of the 109th Congress, efforts to craft serious legislative remedies to problems with the administration’s detainee and surveillance policies played second fiddle to the congressional leadership’s focus on framing these issues for the upcoming midterm elections. Were the House or the Senate to fall to the Democrats, they would certainly usher in aggressive challenges to executive actions, including requests for information, subpoenas for committee appearances, and frequent constitutional confrontations. Less obvious is how serious, informed, and constructive Democrat-led congressional oversight of the executive would be under a divided government and whether such oversight would translate into wiser policy and more effective implementation. (The record of the Republican Congress under Clinton is not encouraging.) It is also far from clear that reinvigorated congressional oversight would extend into whatever government emerges in the 2008 elections.
Although fixing the oversight problem is an urgent goal in and of itself, it is also part of a larger challenge: to mend the broken legislative branch and restore a healthy balance to U.S. democracy. At a minimum, oversight demands an aroused public willing to hold its elected representatives accountable and even to toss majority parties out of power when they underperform. That, in turn, means having enough competitive seats to permit more frequent changes of party control on Capitol Hill. Reforming campaign finance and redistricting would be a good place to start. Congress’ composition should also be changed; having fewer ideological zealots and partisan warriors and more institutionalists would go a long way toward toughening congressional oversight of the executive. As the Washington Post columnist David Broder has put it, “We need an infusion of men and women committed to Congress as an institution — to engaging with each other seriously enough to search out and find areas of agreement and to join hands with each other to insist on the rights and prerogatives of the nation’s legislature, not make it simply an echo chamber of presidential politics.” Institutionalists need to be encouraged and rewarded, by the public and the press.
More specifically, better oversight will require a commitment by Congress to do more sustained legislative work. Changing the congressional schedule is a necessary step. Congress has radically cut back on the time devoted to a panoply of traditional legislative activities, including by reducing the number of days spent in session and the number of overall committee meetings and hearings held. The current 109th Congress is slated to have the smallest number of days in session in our lifetimes, with fewer than 100 in 2006. In the 1960s and 1970s, Congress held an average of