To probe detainee abuse, Congress leans toward outsourcing

Congress is on track to punt its toughest investigations – including the hot-button one over harsh and possibly illegal treatment of terrorism suspects – to freshly minted, independent commissions, seen as freer of partisan rancor than the House and Senate.

While there is some pushback, especially from lawmakers with long institutional memories, the impulse to outsource oversight is becoming the new normal on Capitol Hill.

The most pressing question this week concerns torture or abuse of detainees in Central Intelligence Agency custody – and who knew about it.

Calls to create an outside “truth commission” are gaining momentum in both the House and Senate. Facing questions about what she knew and when she knew it, House Speaker Nancy Pelosi renewed calls Thursday for an independent commission.

Outside help on a host of issues

But that's not the only question Congress is passing on to outside investigators. Is the Treasury Department wasting money with its Troubled Asset Relief Program? Congress mandated the creation of an independent congressional oversight panel, instead of tapping one of its own oversight committees, when it passed TARP legislation last October.

What caused the meltdown on Wall Street? In previous market collapses, such questions were grist for the banking committees, which bulked up on staff to investigate. But when the Senate Banking panel showed no signs of gearing up for a full-scale investigation, the Senate voted last month to create a Financial Markets Commission to do the work. On May 6, the House passed its own version.

Together, these initiatives are setting up defining moments in the history of the 111th Congress.

The battle over how to investigate Bush-era treatment of detainees, however, most illustrates a growing incapacity on Capitol Hill to deal with tough issues amid a highly partisan climate.

The first congressional hearing on the release of four Bush-era memos enabling "enhanced interrogation" methods turned sharply partisan this week – fueling calls for an independent panel to sort out the issues.

While Democrats wanted to restrict the inquiry to how Bush administration lawyers paved the way for harsh treatment of detainees, Republicans are demanding to know what top Democrats – who were among the few to receive classified briefings on these policies – knew and what they did about it.

The No. 1 target is Speaker Pelosi, who renewed calls Thursday for an independent commission to carry on the investigation.

"I have long supported creation of an independent truth commission to determine how intelligence was misused, and how controversial and possibly illegal activities like torture were authorized within the [Bush] executive branch," she said at a briefing on Thursday. "Until a truth commission is implemented, I encourage the appropriate committees of the House to conduct vigorous oversight of these issues."

Pushing back, Sen. Dianne Feinstein (D) of California is urging Congress and the White House to let the Senate Select Committee on Intelligence that she chairs complete its own investigation. The committee has months to go in its bipartisan review of detention and interrogation standards and does not want to see the task outsourced to a truth commission.

“I believe that the Intelligence Committee is the appropriate source for this kind of a review, and that the actual facts, actions, orders, and behavior can be examined by intelligence professionals in a classified setting,” says Senator Feinstein.

But after questions at a Senate Judiciary subcommittee hearing on torture this week turned bitterly partisan, Sen. Sheldon Whitehouse (D) of Rhode Island said that a "nonpartisan, authoritative commission" to "draw it all together" is becoming inevitable, despite congressional probes.

A history of tapping outside investigators

Recourse to independent commissions is not new. Over the past 20 years, Congress empowered more than 80 commissions to tackle issues ranging from prison rape and stolen Holocaust assets to war claims in Guam, according to the Congressional Research Service. Most met, produced a report, and disbanded, with little impact.

But the success of the National Commission on Terrorist Attacks Upon the United States in investigating the 9/11 attacks and rallying bipartisan support for its recommendations has raised the commission model to near totemic status in Washington.

The default to outside groups is also fueled by a conviction on and off Capitol Hill that Congress no longer has the moral authority or the capacity to credibly investigate deeply controversial issues.

“Congress has lost credibility on tackling anything tough,” says former New Jersey Gov. Thomas Kean (R), who co-chaired the 9/11 commission. “The partisanship that affects Congress today gets in the way.”

No longer a do-it-yourself Congress

Congress once had a zeal for high-profile, tough investigations.

Sen. Harry Truman did such effective work uncovering wartime profiteering as head of the Senate Special Committee to Investigate the National Defense Program that President Roosevelt put the junior senator from Missouri on the ticket as his running mate in 1944.

The Senate Banking Committee’s investigation of the stock market collapse, lead by its brilliant chief counsel, Ferdinand Pecora, stunned Wall Street bankers with its depth of knowledge and questions and led to the creation of the Securities and Exchange Commission in 1934.

“The Pecora investigation made sense of why the financial system collapsed,” says associate Senate historian Donald Ritchie. When Congress got around to legislating about the issue, “they had formed a collective opinion of what needed to be done.”

But such investigations are time-consuming. “They wear you down and keep you from doing anything else. Senators were here all week in 1933,” as opposed to the three-day workweeks more typical of a congressional calendar today, Mr. Ritchie says.

Is Congress too partisan for the work?

The argument to outsource investigations to outside groups often comes down to this: Congress is too partisan and, in some cases, too complicitous in the issue it would be investigating to be effective.

Any investigation into the financial meltdown on Wall Street, for example, would also have to take up Congress’s own role in the crisis, including bipartisan votes to pass the 1999 Gramm-Leach-Bliley Act, which capped a 10-year effort to deregulate the financial services industry.

An amendment to create an independent Financial Markets Commission passed the Senate on April 22 with only four dissenting votes. Cosponsored by Sens. Kent Conrad (D) of North Dakota and Johnny Isakson (R) of Georgia, the commission would be modeled after the 9/11 commission, including subpoena powers.

“I think it’s best to do what we did with the 9/11 commission, where we had very credible people looking at what the White House and Congress did that was part of this crisis,” says Senator Isakson, who voted for Gramm-Leach-Bliley. “An independent commission gives you a far better basis to look at it than if the House and Senate were examining themselves.”

At the same time, the Senate also approved a move to create a select Senate committee to investigate the issue. A House-Senate conference committee on antifraud legislation will decide whether either or both make it into final legislation.

“While I also support an outside commission, and have previously introduced legislation to establish such a commission, I believe the Senate has an important oversight responsibility that cannot be delegated,” said Sen. Byron Dorgan (D) of North Dakota, a cosponsor with Sen. John McCain (R) of Arizona. “That’s why we need a select Senate committee to investigate this financial crisis and make sure it never happens again.”

On the House side, 28-term Rep. John Dingel (D) of Michigan is battling to keep an investigation of the Wall Street crisis in-house. He is proposing a new 15-member select committee to explore the causes of the financial crisis, including an investigation of the role of insurance companies.

"It is my long-held belief that the Congress should, contrary to the prevailing fashion of the times, conduct its own oversight work," he says.

While commissions can defuse a public relations crisis for Congress, they seldom affect policy, says Don Wolfsenberger, director of the Congress Project at the Woodrow Wilson International Center for Scholars, in Washington."A very high percentage of these commissions go nowhere. It's a way for Congress to kick the ball down the road, pass the buck for awhile, and let the crisis be forgotten," he says. "I fear that until Congress takes responsibility for itself and its constitutional obligations, the people will continue to hold it in low regard for its profiles in shirking."