Lessons on Congressional Oversight – For Benghazi

Posted: Jun 10, 2014 12:01 AM
Lessons on Congressional Oversight – For Benghazi

Congress is about to commence the Benghazi Oversight Hearings, a step in the right direction for the cause of “truth, justice and the American Way.” That said, a note of caution is in order, especially for those of us who wish to see this inquiry end in success – that is, to fully serve the larger purposes of informing the American People about what happened, because it really does matter.

Twenty-one years ago, a 51-day stand-off between a religious cult and federal law enforcement officials ended in the tragic deaths, most by burning and asphyxiation, of 76 adults and children living in a complex near Waco, Texas. The national uproar over what was viewed as a horrific, seemingly avoidable series of deaths, the murky circumstances surrounding the fire, the risky Federal gas assault on the compound (authorized by then-Attorney General Janet Reno), and the role of the Clinton White House was considerable. The Nation was stunned, horrified, heart sick. Congressional hearings were needed.

In some ways, the uproar over events at Waco was commensurate with the one surrounding events at Benghazi. There were questions of misguided leadership, failed preparation, ungrounded assumptions, profound errors in judgment, suspect motivations, internal fights within a beleaguered administration concerned for re-election, operational mismanagement, even layers of possible conspiracy. To address these persistent national concerns, leadership in Congress created a joint committee, this one commissioned to conduct a thorough-going investigation and hold what would be known as “The Waco Hearings.” Movies would be made about the event, and hearings. Books would be written, and three volumes of testimony would be published, each one the length of Tolstoy’s tome, War and Peace.

Nineteen years ago, on the heels of that national tragedy, I was one of two congressional staffers assigned to run those hearings. To do so, we needed to structure the investigation, draft rolling document requests, interrogatories and letters to Federal agencies, conduct seemingly endless interviews, issue multiple subpoenas, assign roles, coordinate what was learned, and shape what would eventually become an eight-day, 97-witness series of high-profile hearings, covered gavel-to-gavel by C-SPAN and CNN.

What did I learn? A lot, and most of it on the fly. So, as Congress prepares for another flaps down, wheels up, after-burners on, set of rough-and-tumble hearings, a few lessons come back. First, these hearings need to be overtly non-political, highly credible, intensely methodical, and as dispassionate as possible. That is a tall order, especially with passions running high on both sides, but if the goal is truth, this is the only way. Moreover, if credibility is lost, if the object appears preemptive judgment, the hearings will backfire – that is, they may never find truth and may permit theater to trump honest inquiry.

Second, the hearings must be repeatedly, unfailingly and with discipline, focused on just one set of pre-identified, critical and positively illuminating questions. Wandering off topic, pontificating, dragging side issues in which, while valid are not relevant, will only confuse, disrupt and ultimately sideline the hearings. The airspeed needed for truth can only be achieved with early and intentional streamlining.

Third, as a former litigator and US Court of Appeals clerk, I mistakenly thought Congressional hearings would be governed by the same rules one finds in a courtroom. They are not. They are subject to high political cross-winds, which can be perilous to truth-finding. One day a member of Congress who wished to distract from that day’s topic appeared with a gun case, suddenly flinging it open and wielding an AK-47 for the cameras. Another member then brought a grenade casing. On another day, a witness was proffered – and very effectively – by the minority, for the sole purpose of showing about an hour of raw emotion. That was the nightly story. Theater triumphed; truth was set-back.

These events were recurring. State law enforcement witnesses, to whom we had issued “friendly subpoenas” to allow them to testify, called to say they had gotten calls telling them not to honor the subpoenas, because they were not hand delivered. This was absurd. Relying on the legal profession’s Canons of Ethics, I sought to get such a flagrant interference with another party’s witnesses corrected, only to learn that, for purposes of the law, “Congress is considered one party,” thus anything goes.

That was not the worst. Members themselves played games, despite the serious nature of the inquiry. Cross examinations were interrupted with frivolous rule challenges, scenes were thrown, witnesses were coached, statements made to obscure the facts and obfuscate the record. Documents were withheld by the White House, or mysteriously went missing, excuses were proposed for behaviors that were impermissible, only to elicit equally embarrassing counter-assertions. In short, craven politics created intentional misdirection, complicating the often – rightly – boring pursuit of truth.

So, how can the emerging committee avoid these mistakes? Here are a few pointers. First, drop the traditional five-minute rule, in favor of a minimum fifteen-minute rule for questions. Why? Because no cross examination can be developed in five minutes. If you must abide a five-minute rule, get time ceded from non-litigators on the committee the most seasoned litigator to provide a sizable block.

Second, in the same vein, get majority concurrence to have these cross examinations conducted in one-party blocks, say 15 to 30 minutes by the majority, then equal time for the minority.

Third, authorize the committee counsel to conduct inquiries, often done in Senate investigative hearings, thus removing an element of politics, reinforcing the professional nature of process, adding efficiency and tightening questions to speed the journey to truth. Fourth, if members or staff become aggressive, unruly or disrespectful, preordain censure and removal from the hearings, at the chairman’s discretion. Fifth, issue a “litigation hold” on all documents held by the administration and any witnesses, making destruction a criminal offense. Sixth, if criminal referrals emerge from the process, consider lofting new independent counsel legislation, optimally with bipartisan support, to take the criminal prosecutions out of the political realm. Seventh, openly remind the White House that executive privilege is not now, and never has been, protected by claims of executive privilege.

Eighth, as an evidentiary matter, as would apply to Watergate, Iran-Contra, or Waco hearings, turn over every stone. There will not be a second try. The Waco Hearings occurred two years after the event; these hearings will be in that same pattern. In this case, memos to the Secretary of State, phone records of the Operations Centers at the White House, State, Defense and CIA, and a list of on-duty personnel during at all four centers during key times should be sought. Copies of any non-disclosure agreements, gag orders or other documents that any such persons were forced to sign should be sought, together with any forced on those who were at or near the events.

Similarly, in the event that criminality is foreseen, all relevant hard drives for those involved should be subject to search, once reasonable cause is established. The emails of all parties, including those to and from the White House Liaison (an official position) to the State and Defense Departments should be sought. Emails of those designated as “funnel” or authorized contacts between the White House and the Obama Campaign offices should be sought, as well as funnel contacts between State, Defense, CIA and the Obama Campaign, in possible violation of Hatch Act and other statutes. All after-action reports, as well as requests for security within the preceding six months, should be acquired.

Nor should this inquiry be expected to be quick or held hostage to artificial deadlines. Truth often appears in fits and starts, so the window for completion should be kept open. This investigation and report will have to stand the test of time. Similarly, outside counsel should be prepared to seek one or more interlocutory orders from the federal bench if needed, to compel documents, witnesses or real evidence where it is unjustifiably held by the administration.

In short, credibility in such high-profile congressional hearings only comes with intense preparation, clear intent, well-set and reasonable expectations, painful adherence to boring methods, careful attention not to encourage a media circus, building buy-in for findings, keeping the common interest in truth above politics, and evincing a determination to follow light where it leads. In Waco, it led not so much to grand conspiracy, not to tipping a presidential election one way or the other, but to a series of small and large, inevitably tragic missteps, any one of which might have led to a different outcome, but all of which combined to leave the Nation shattered. This many years later, much of what happened at Waco still seems as if it should have been avoidable. Congressional hearings allowed America to see it all, to participate in the truth finding mission, and in the end, one hopes, to heal a bit. Where these Benghazi hearings will actually lead, who can say? But a few lessons from the past may help those in search of truth get there.