- - Tuesday, December 24, 2013


Christmas came early to the executive branch this year, thanks to Republicans in Congress. They gave the Obama administration a yearlong Christmas present: benign neglect.

Controversy after controversy bubbled up in the press, only to fizzle out for want of sustained congressional energy and attention. The most troubling of these controversies have involved the administration’s lack of principles and consistency in the collection and dissemination of information. On these matters, Congress has failed to make good use of its oversight tools — tools that are critical to our system of separated powers.

Take, for example, the National Security Agency‘s data-mining programs. Director of National Intelligence James R. Clapper’s emphatic denial in March that the NSA knowingly gathered “any type of data at all on millions or hundreds of millions of Americans,” and his apology only after ex-NSA contractor Edward Snowden’s revelations caught him in a flat falsehood, illustrate the compelling need to have Congress review what has been going on at the NSA. The intelligence community’s history of misinformation and evasion on domestic spying makes it critically important that Congress approach this issue from a multidisciplinary perspective that brings together legislative expertise now spread among committees on foreign affairs, homeland security, intelligence, oversight and the judiciary. On the most recent “60 Minutes,” National Security Adviser Susan E. Rice shrugged off the NSA matter; Congress must not allow her to sidestep this fundamental constitutional issue.

Speaking of Ms. Rice, a similar analysis applies to the Sept. 11, 2012, attack on the American diplomatic post in Benghazi, Libya, that left the U.S. ambassador and three other Americans dead. Congress has investigated this episode through the narrow lens of embassy security, but it obviously implicates the CIA and the larger context of NATO’s involvement in a civil war.

Why were we unable to protect our own civilian personnel in a war zone that we had a hand in creating? Why did the State Department deny repeated requests for added security in the preceding months? Why weren’t available security forces immediately sent to the scene after fighting broke out? Who concocted the government’s false story about a YouTube video inciting spontaneous violence, and why did the State Department stand by it for so long? More than a year after the attack, and despite the involvement of six Republican-controlled House committees, clear answers to these basic questions seem out of reach. Meanwhile, President Obama promoted former Ms. Rice to be his top security aide.

In both the NSA and Benghazi cases, the problem is not a shortage of congressional hearings but a lack of coordination, a myopic and “stovepiped” focus, and an overly deferential approach to the intelligence community. What is needed in each case is a single special integrated committee dedicated to systematically uncovering the truth rather than scoring quick public relations points through questioning in the form of five-minute speeches by lawmakers.

In May, on the heels of the Obama Justice Department’s admission that it had secretly gathered Associated Press phone records, the media reported that in 2010 the department had searched Fox News reporter James Rosen’s private emails after he reported on a government leak. The search warrant approved by Attorney General Eric H. Holder Jr. identified Mr. Rosen as a “co-conspirator” in the leak investigation, though the government never brought charges against him. Who was responsible for this “clumsy attempt at intimidation,” as former Attorney General Michael Mukasey called it? And how many other reporters’ communications has the government seized for political retribution? We may never know.

Congress has been no more effective at getting to the bottom of the Internal Revenue Service’s systematic discrimination against conservative organization seeking tax-exempt status, the Bureau of Alcohol, Tobacco, Firearms and Explosives’ deadly “gunwalking” programs, or the debacle over the rollout of the Obamacare federal website.

History shows that Congress is capable of more productive investigative hearings. The Pecora Commission, which investigated the causes of the Great Depression, laid the blame on specific abusive banking practices and resulted in responsive legislation culminating in the 1934 Securities Exchange Act and the creation of the SEC. The Watergate hearings also stand out as an example of successful legislative inquiry into executive branch abuses.

These investigations have in common special committees constituted for a specific purpose and the involvement of powerful chief counsels who questioned witnesses themselves. Those characteristics are sorely lacking in today’s investigative hearings at which members of Congress take turns asking questions under the five-minute rule.

The Democratic majority in the Senate, by doing away with the filibuster for purposes of certain presidential nominees, has shown how to use procedural maneuvering to reach substantial goals. It’s time House Republicans followed suit.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs. “Arbitrary and Capricious” runs monthly.

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