Oversight and Responsibility

Hi Folks,

The other political scientist (who is turning into the king of the lurkers) got in an argument with me about my earlier posting about oversight. He said that he thought I was making apologies for the Bush administration because I said the problem was a lack of oversight. I'm glad he brought it up because it forced me to clarify my own thoughts on the issue. Just one more reason why this guy needs to start posting!

OK, so here goes....

The day to day operation of our government is conducted by millions of people who never got elected by anyone. They are civil servants or military personnel. Some times they aren't even government employees but private contractors. How does a democratic government ensure that these unelected people act in accordance with the laws and wishes of the elected officials? The answer is oversight! Political appointees in the executive branch oversee the civil servants and contractors in their agencies. Congress oversees the executive branch as a whole - through committee hearings, and Congress' sole control over the national budget. The Judiciary plays an oversight role as well. Not only do judges review laws to determine their constitutionality but judges require executive branch agencies to open up their administrative practices to the public - through public bidding for contracts, publication of new rules and procedures before they take effect etc. I have argued in the past that the problems in Iraq are largely the result of the break down of oversight. My friend believes that this lets Bush et al off the hook. Here is why I believe it does not.

Executive Branch Oversight: The Defense Department has a responsibility to ensure that its employees (including the military and civilian contractors) abide by the laws of the United States. I contend that the Bush Administration has gone out of its way to ensure that its employees DO NOT abide by the laws of the United States. I contend that the torture incidents in Iraq, Afghanistan and Guantanomo are the result of orders by Rumsfeld and other high ranking DOD appointees. Granted, there has been no smoking gun to this effect yet, but there is a lot of circumstantial evidence implying that the sexual abuse of prisoners is a consistent policy across the "War on Terror." Furthermore, the Bush administration has gone out of its way to establish structures that prevent Congress and the Judiciary from exercising their oversight responsibilities. These structures include the wide spread use of private contractors that have a high turnover of employees and are also less liable to Congressional authority. There is also the moving of funds from budgets for Afghanistan to pay for operations in Iraq - ignoring the Congressional authority over the budget (more on this later).

Congressional Oversight: Congress is controlled by the Republican party. This is the most important factor when considering Congressional oversight. Although the Republican majority is narrow (especially in the Senate), the Republicans have total control over the agenda of both houses. Republicans determine what hearings get held, what investigations occur etc. Only Republicans can MAKE something happen in Congress. The Democrats (especially in the Senate) might be able to PREVENT something from happening but they can't force hearings, investigation etc. The Abu Gahrib hearings were brief and ultimately resulted in little more than a photo op. But yesterday, the Democrat's power came into play for the first time in a long long time. The Senate approved new supplementary funding for the war in Iraq but with very specific requirements about where the money should be spent, drastically curtailing Executive branch ability move money around without prior approval. This is Congress really reasserting it's oversight authority for the first time since 9/11! The journey of a thousand miles begins with a single step.

Judicial Oversight: Judicial oversight is sometimes slower. They must wait for cases to work their way up through the courts. The Padilla case for example is only now before the Supreme Court. The judiciary may eventually have a role in investigating the no-bid contracts with Halliburton et al. I imagine that someone will accuse the Bush administration of violating the Administrative Procedures Act (APA) with those contracts. The APA is the bible of American bureaucracy. The judiciary has used the APA as a launching board to force more openness in the awarding on contracts and to limit executive discretion where Congressional laws are vague.

Summing up: None of this lets the Bush administration off the hook! The Bush administration has gone out of its way to make oversight by the Judiciary and Congress very difficult. Holding prisoners in Guantanomo was intentionally done in an effort to limit judicial jurisdiction. Using outside contractors was intentionally done to make it difficult for either Congress or the Judiciary to establish who is doing what.

Finally, while there are institutional reasons why the Democratic minority can't unilaterally conduct oversight, the Democrats have been very weak in the exercise of little they can do. Why? I would argue that the Democrats have been cowed by Republican accusations of "aiding terrorists" whenever the Democrats oppose things like the Patriot Act, the Homeland Security Act (which dramatically reduced several avenues of oversight required by the APA) and other bills. Max Clelland lost his seat in large part because his opponent accused him of aiding and abetting terrorist by opposing the Homeland Security Act. (Perhaps one of the other "Citizens" could do a posting on these accusations and their effects).

The Executive branch is using its oversight powers to violate US laws and to prevent Congress and the Judiciary from interfering. Congressional Democrats are ineffective due to a combination of institutional weakness (minorities in both houses) and fear of being accused of treason in an election year. The Judiciary moves slowly and has yet to make a major ruling in any of this (but that is coming soon). The result: a total mess in Iraq, torture, corruption, abuse of executive authority etc.