Sweet Subpoena: Nine Tough Questions for Congress

Capitol Hill is way overdue for a blockbuster investigation. Here are nine questions to get Congress rolling—if it has the guts.

The stately Russell Senate Office Building stands at one corner of a domestic Green Zone, just northeast of the Capitol building at the intersection of Delaware and Constitution avenues. In the past few years a maze of blockades has sprouted along the shaded avenues and curving drives of the Capitol complex. Checkpoints are patrolled by heavily armed police; guards watch for suspicious characters and prohibited items (which now include food and beverages; cans, bottles, and sprays; and bags larger than 13 by 14 inches). At the Russell Building, visitors encounter another set of barriers and metal detectors before being granted admittance to the elegant structure, its ring of Corinthian columns and soaring rotunda recalling a more worldly and optimistic past. Then, at the top of a sweeping staircase, they'll find a room walled in white marble, draped in deep red, overhung by a gilded ceiling, and fronted, altarlike, with a raised dais.

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Depending on how much faith in American democracy still resides in the visitor's soul, the site's history may seem to justify its grandeur. Here in the humbly named Caucus Room, the U.S. Congress has held some of its most famous public hearings, beginning with a 1912 investigation into the fate of the Titanic. The Teapot Dome scandal of the 1920s was broached here, in what would become a watershed investigation of executive branch corruption. Thirty years later, people around the country got their first glimpse of the Caucus Room in the nationally televised Army-McCarthy hearings, witnessing the famous exhortation by Army Special Counsel Joseph Welch: "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"

The Watergate hearings unfolded here in the early '70s, beneath the ever-watchful gaze of Senator Sam Ervin (D-N.C.). It was here that Rep. Barbara Jordan (D-Texas), the first Southern black woman elected to Congress, declared: "My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution." Here, too, the erect figure of Oliver North, straight from the basement of the Reagan White House, first hinted at the existence of a secret government to be deployed in times of crisis.

But in the past six years, congressional investigations of such bold, searching nature have disappeared. In a post-9/11 environment of silence and fear, the mood inside Congress has mirrored the bunkers and barriers outside: No one dares question the military or the intelligence services too closely, or to push the president too far. The Caucus Room continues to be used for party meetings and social events, and every so often there is a potted inquiry, as in the case of the 2003 hearings on the space shuttle. But on issues of war and peace, of corruption and graft, of civil rights, civil liberties, and constitutional breaches, meek questions are the rule, answered by dull assurances from the White House.

If the Democrats win back control of Congress (or even one of its chambers), if they can come up with the requisite moxie, and if they can muster the political will to reach out to their own base as well as to disaffected Republicans, they will have an opportunity to begin to change all that. They will need to overcome the myriad obstacles the Bush administration has created to keep lawmakers from obtaining and releasing critical information, such as its resistance to briefing congressional committees on intelligence issues, or its heavy hand in redacting congressional reports. When explosive information has leaked out—the fact that documents offering "proof" of Saddam Hussein's intent to buy uranium from Niger had been forged, or that the United States is operating a network of secret prisons in other countries—the administration's response has focused on condemning critics for politicizing national security—a charge before which the Democrats usually crumble.

Still, there is a chance that some of the gutsier Dems, with the support of an increasingly fed-up public, could make progress toward exposing the truth. A Democratic majority in the Senate could, for example, place the chairmanship of the intelligence committee in the hands of Senator Jay Rockefeller (D-W.Va.), who has largely been stymied in his efforts to spur a thorough investigation of the Niger forgeries and what he suspects may be a broader campaign of deception. Among other things, such an inquiry could lead straight to the Pentagon's shadowy Office of Special Plans; under gop leadership, no one is too eager to learn much about this office, which led the prewar intelligence cherry-picking, and Senate Select Committee on Intelligence Chair Pat Roberts (R-Kan.) is holding up an inquiry.

Regardless of the election result in November, a few independent-minded Republicans in key positions offer hope that important investigations may gain traction. Under Rep. Christopher Shays (R-Conn.), the national security subcommittee of the powerful House Committee on Government Reform has actually summoned the mettle to subpoena Secretary of Defense Donald Rumsfeld in its investigation of the chain of command in the Abu Ghraib prison abuse case.

But if lawmakers of either party do not begin to reclaim their constitutional powers—by asking questions such as those listed below—it's not hard to envision a time when visitors may come to the venerable Caucus Room as if to a museum, to learn about a bygone era when congressional investigations still served as a check on the imperial presidency.

1.Who lost Iraq?
It goes without saying that a congressional investigation—a joint inquiry by both houses, given the gravity of the matter—should address the causes, conduct, and effects of the Afghanistan and Iraq wars, going back to the days immediately after Bush's election when the plans for invading Iraq were laid (see "A War Foretold," Page 61). But beyond that, the conduct of the war on terror has raised myriad vital questions that, at another time, would have been subjects of full-fledged inquiries on their own: the Pentagon's failure to adequately equip troops with armor, ammunition, radios, and the like; the use of mercenary forces; the contracting process; and the government's efforts to manipulate the press through outside PR agencies. Also worthy of scrutiny is the role of oil and gas, including the work of the secret Cheney energy task force, which points to prewar discussions with the ceos of major companies about Iraqi oil.

A congressional investigation into the Iraq war must make full use of subpoena power and must be prepared to forward findings of illegal acts to the Justice Department for possible criminal prosecution. Just as important, public hearings could provide an opportunity—and protection—for would-be whistleblowers: Recall that Daniel Ellsberg didn't take his trove of documents, showing the Defense Department's true assessment of the war in Vietnam, to the New York Times until after he had been rebuffed by congressional Democrats. Somewhere inside the Defense Department and the intelligence agencies today's Pentagon Papers are waiting.

2. Did Rumsfeld order torture (and if not, who did)?
Last year, Senator John McCain (R-Ariz.) sought to clear up any confusion over the legality of torture with an amendment to the Defense Appropriations Bill. As McCain explained on the Senate floor, the measure was designed to "restore clarity on a simple and fundamental question: Does America treat people inhumanely?" This set off a bitter behind-the-scenes battle between the senator and Vice President Dick Cheney, who even as the White House was negotiating with McCain over the exact wording of the bill was privately cornering senators, arguing that the legislation would harm the CIA's operations. The result was a bill that bans torture at U.S. facilities but leaves open the question of foreign governments mistreating prisoners at the United States' behest. President Bush then wrote his own interpretation of the legislation, after it passed, in the form of a signing statement that said the White House was free to ignore the measure in the interests of national security. In the end, McCain's ban may have accomplished nothing except to give the administration an occasion to reaffirm its policy of permitting torture—so long as it involves foreigners being held in prisons that are not on U.S. soil.

Congress should demand a no-holds-barred public accounting of "inhumane treatment" since 9/11 by U.S. intelligence services and by third-country surrogates. Did Bush know about these practices? Did Rumsfeld order torture or supervise the chain of command? How far up the chain did knowledge of, and assent for, the horror at Abu Ghraib go? To which countries were prisoners sent for interrogation? When and how were these prisoners tortured? What are the CIA's policies on "unorthodox" interrogation techniques? Such hearings would go a long way toward halting the creeping normalization of torture—and they would almost certainly produce prosecutable evidence about the abuses that have already happened.

3. Who blew 9/11?
It's high time to follow up on the startling discoveries of the Senate and House's joint inquiry, back in December 2002, on pre-9/11 intelligence. In reconstructing the hijackers' trail, the inquiry's staff discovered that the FBI had failed to report, and had later balked at making public, information showing that it knew that a bureau informant in the San Diego Muslim community had socialized with two of the hijackers, and that another man who had been investigated by the FBI had rented an apartment to one of them. Both of the future hijackers had been closely followed by the CIA as they made their way from the Middle East to Malaysia; the agents lost track of the men before they boarded a plane to California, where they then lived openly, with driver's licenses and a phone book listing in their own names. So far, no one has been able to discover how they escaped detection by the FBI—and why the bureau refused to let Congress find out what happened.

The joint inquiry also discovered a Saudi spy operating in California—the same man who had rented an apartment to one of the hijackers—along with suggestions of a larger network, according to former Senator Bob Graham (D-Fla.). The spy nominally worked for a Saudi government contractor, and the committee followed a money trail going back to the royal family and the Saudi government, according to Graham. This was a tantalizing find. Congressional sources have suggested that Saudi spooks may have been sent to California to keep tabs on Saudi students who might be tempted by democratic ideas; it has also been speculated that some of these undercover agents could have become enmeshed with Al Qaeda. In any event, the White House has adamantly refused to declassify 28 pages of the final committee report that dealt with Saudi Arabia. When Congress later set up an independent commission to look into 9/11, it pointedly ordered the panel to "build upon the investigations of other entities" such as the joint inquiry. Yet the commission's report glossed over many questions involving Saudi Arabia. A new select committee could pick up where other probes left off.

4. What did the airlines know, and when did they know it?
The bombing of PanAm Flight 103 over Lockerbie, Scotland, in 1988 ought to have been a wake-up call to aviation across the world. But 13 years later, the FAA was still ignoring warnings from its own staff about security holes at every airport that inspectors checked out. With airlines lobbying against tighter standards and Congress sitting by, the nation's airline security system was caught flat-footed on 9/11.

As far back as 1993, FAA inspectors showed that people with no authorization made it through San Francisco's airport security system 60 percent of the time. At Frankfurt in 1996, the FAA's undercover team broke through security every time it tried—a 100 percent failure rate. By way of addressing the problem, the FAA began telling the airlines when tests were going to be held, and negotiated fines for violations down to a pittance. There was idle talk of hardening the cockpit doors, but the airlines resisted additional security measures because they cost too much. The airlines ran wild in Washington, hiring top lobbyists such as Linda Daschle, the wife of then-Senate Majority Leader Tom Daschle, threatening that their industry would face wholesale bankruptcy unless they got their way. (Most of them, of course, have since gone Chapter 11 anyway—but not before their ceos socked away millions more in salaries and bonuses.)

In the months before 9/11, the FAA warned that hijackers could turn a commercial airliner into a suicide missile and conducted classified briefings at 19 of the nation's largest airports, including Logan, Dulles, and Newark—the points of departure for the hijacked flights—warning of an imminent terrorist attack. Osama bin Laden's name was repeatedly mentioned. During the same period, FAA officials received 52 different intelligence briefings concerning threats from Al Qaeda.

The moment of truth ought to have come a little after 8 a.m. on September 11, 2001, when Betty Ong, a flight attendant on American Airlines Flight 11 out of Logan, called AA headquarters and calmly began to describe the hijacking going on aboard that plane. She provided a detailed account of what she saw and heard and stayed on the line until the moment the plane crashed into the first tower.

Did AA officials, as family members later reported based on tapes and transcripts they were shown by the FBI in closed briefings, respond by saying, "Don't spread this around," "Keep it close," and "Let's keep this among ourselves"? Did that attitude prevent warnings to other pilots—warnings that could have kept Flight 93 on the ground, and could have helped bring Flight 77 down safely before it crashed into the Pentagon? Some member of Congress must have the decency and the guts to ask those questions—not in some backroom closed session, but in the full glare of the TV lights.

5. How wide is the domestic surveillance net?
In the mid-1970s, the Church Committee, named after Idaho Democratic senator Frank Church, put out 14 separate reports that exposed the intelligence agencies' abuses of law. The Pike Committee, named after Rep. Otis Pike (D-N.Y.), conducted a parallel inquiry in the House, focusing mostly on the CIA. Among other things, the investigations discovered the notorious COINTELPRO operation to spy on and disrupt left-wing groups. Thirty years later urgent questions are once again piling up: Just what is the extent of the agencies' spying inside the United States? What are the true motivations and outcomes of this surveillance? How much money is going into spying programs? There is much evidence that domestic intelligence gathering is not limited to the infamous NSA surveillance project. The ACLU, for one, has obtained numerous files describing FBI cooperation with local police in joint terrorism task forces that have targeted groups such as Greenpeace, United for Peace and Justice, Code Pink, People for the Ethical Treatment of Animals, the American-Arab Anti-Discrimination Committee, and the Muslim Public Affairs Council.

6. Is Big Oil pulling an Enron?
The last serious investigation of the oil industry concluded in 1952 with the Federal Trade Commission's staff report on the International Petroleum Cartel, published by the monopoly subcommittee of the Senate. That study laid out a now-familiar pattern: A major concern of the oil industry has always been the threat of surpluses driving down prices. To prevent surpluses, oil and gas companies have employed means such as instituting quota systems, closing off reserves from market, and setting up cartels, or agreements among producers.

Today, while many experts believe oil will soon run out, there is no actual shortage that could be blamed for driving up gas prices. The hurricanes of 2005 did not put the supply in any serious jeopardy, nor was lack of refinery capacity a real factor. (According to the U.S. Department of Energy, refineries along the Gulf Coast and elsewhere frequently run below capacity, meaning that there was some slack in the system.)

There is, however, evidence to suggest practices reminiscent of Enron's market rigging: Last year, the Foundation for Taxpayer and Consumer Rights, a California-based consumer group, released a series of internal memos from Chevron, Texaco, and Mobil that laid out the industry's thinking. A Texaco memo, for example, warned that "supply significantly exceeds demand year-round. This results in very poor refinery margins and very poor refinery financial results. Significant events need to occur to assist in reducing supplies and/or increasing the demand for gasoline." An investigation would subpoena internal company documents and take testimony from oil executives under oath—not just in an "unsworn" chitchat like the sideshow put on by the Senate commerce and energy committees last year—to discover whether the companies conspired to rig prices or manipulate supply.

7. Who's making money off your retirement?
It's been predicted that at least 1 in 10 retirees in 2020 will teeter on the edge of financial collapse or plunge into outright poverty. Social Security is just a small bit of the problem. The potentially much bigger challenge is the disappearance of pensions, most of which have been replaced with 401(k)-type accounts dependent wholly on the securities market. This is an enormous shift: Corporations have succeeded, with amazingly little protest from labor, in transferring the cost—and the risk—of retirement from employer to employee. The Pension Benefit Guaranty Corp. provides some backup when a company with a standard pension plan goes under (think United Airlines). With 401(k)s, there is no insurance. The Securities and Exchange Commission is supposed to regulate mutual funds, which handle most 401(k) money; the sec has nowhere near the resources to keep tabs on the $9 trillion business, so policing is largely left up to the funds themselves.

Before this crisis grows greater, Congress ought to launch a serious investigation into the retirement system. We've got to know all the ways companies are bailing on their pension plans—by converting them into 401(k)s, by filing for bankruptcy, or simply by quietly not paying into (or "underfunding") them for years at a time. We need to understand who controls the money in 401(k)s, what the hidden costs are, and to what extent these accounts are threatened by Wall Street conflicts of interest. For example, thanks to deregulation laws passed during the Clinton administration, commercial banks can now sell the mutual funds that their investment-banking arms manage, but investors have no recourse if their 401(k)s lose value because of bad management. With Social Security privatization refusing to die, and Wall Street eager to get its hands on that money, Congress should do some due diligence.

8. Why is the morning-after pill not at your 7-Eleven?
After numerous clinical trials, thousands of pages of reports, and supportive resolutions from major medical groups including the American College of Obstetricians and Gynecologists, two Food and Drug Administration advisory committees in 2003 recommended that the FDA allow the emergency contraception pill Plan B to be sold over the counter. Conservative groups threw a fit, and House Republican leaders, including then-Majority Leader Tom DeLay, urged the FDA to reconsider. When Democrats fought back, challenging the nomination of Lester Crawford to head the FDA until they got answers on Plan B, Crawford assured them that "the science part is generally done. We're just now down to what the label will look [like]. This is going to be a very unusual sort of approval." After promising a decision on Plan B by September 1, 2005, Crawford instead launched a public comment period. Not much later, he left the agency amid unrelated conflict-of-interest allegations. Now Congress deserves some answers: Why did Crawford overrule his own scientists? On what grounds? And was anyone outside the FDA involved? What about, for example, the calendar entry for then-FDA head Mark McClellan on April 21, 2003—just a few days after the agency got the application for over-the-counter Plan B—for "Conference call w/Jay Lefkowitz re: Plan B submis"? Lefkowitz, a White House go-to guy for conservatives, was at the time the deputy assistant to the president for domestic policy.

9. Grounds for impeachment?
Congressional investigators digging into the aforementioned questions cannot ignore the possibility of impeachment proceedings against Vice President Cheney, who figures prominently in almost every one of the scandals engulfing the administration. It was Cheney who ran the government's response to the 9/11 attacks without constitutional authority, at one point ordering shoot-downs of commercial planes and what would turn out to be a medevac helicopter; who led the secret meetings of administration officials and oilmen to set energy policy; who allowed Ahmed Chalabi to play the U.S. government like a violin; who very well may be the origin of the whisper campaign that culminated in the Plame leak; and, of course, it was Cheney's former employer (and source of continuing deferred compensation paychecks) that benefited enormously from no-bid contracts in Iraq. Judicial Watch, the conservative legal outfit in Washington, has unearthed an email dated March 5, 2003, sent by an Army Corps of Engineers official whose name had been blacked out, that said of a pending deal under which Halliburton would rebuild the Iraqi oil industry, "We anticipate no issue since the action has been coordinated w VP's office." There's plenty more where that came from; whether any of Cheney's actions constitute "high crimes and misdemeanors" is for Congress, and the nation, to debate.

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