Breach or Debate

It's time for Congress to use its freedom of speech power to force the intelligence debate out into the open.

The massive NSA surveillance program revealed in June by Edward Snowden may have narrowly survived an up-or-down vote in the House of Representatives last week, but the battle is far from over. As the House Judiciary Committee mulls a second bill limiting NSA telephone intrusions, it's worth revisiting the ground rules governing the ongoing debate. In particular, should members of Congress use their special constitutional powers of free speech to force the facts about the government's secret activities out into the open?

Up until now, Congress has allowed Barack Obama's administration to say one thing in secret sessions and something very different in public. The most notorious instance involved Director of National Intelligence James Clapper, who brazenly denied in a March hearing before the Senate Select Committee on Intelligence that the National Security Agency was collecting data on millions of Americans. Clapper has since apologized to Sen. Ron Wyden (D-Ore.) for lying to his face.

Clapper's confession spurred calls for his resignation. But now that the White House has stood firmly behind the director of national intelligence, the ball is in Congress's court. Clapper, moreover, doesn't seem to have learned his lesson. On Tuesday, Wyden reported that Clapper's response to a more recent inquiry by 26 senators was inadequate. In his view, Clapper minimized the extent to which intelligence agencies have been violating court orders. Wyden claims that these infractions "are significantly more troubling than the government has stated."

Wyden knows what he is talking about. As a member of the Intelligence Committee, he has been briefed on the ins and outs of domestic snooping operations at secret sessions. Given Clapper's continuing evasions, Wyden should no longer content himself with telling us that the administration is misrepresenting the facts. He should instead let Americans know the truth, even at the cost of revealing some classified information presented to him in secret sessions.

The U.S. Constitution guarantees that elected representatives "shall not be questioned in any other Place … for any Speech or Debate in either House." In other words, they cannot be prosecuted for reading classified material into the public record -- and it is up to them, and them alone, to decide what is worth talking about.

This principle has deep roots. During the run-up to the English Civil War, members of the House of Commons were imprisoned in the Tower of London for as long as 11 years between 1629 and 1640. Their offense: insisting on their right to debate central questions of religious freedom, despite King Charles I's claim that these issues lay within his royal prerogative. The freedom of parliamentary debate was therefore an important principle of the Glorious Revolution, leading to its codification in the epochal Bill of Rights of 1689. This provision was the model for the American founders' constitutional text.

In the United States, congressional freedom of speech was last put to the test during the Pentagon Papers affair at the time of the Vietnam War. Invoking the "speech or debate clause," Daniel Ellsberg -- with whom Snowden has been compared -- approached members of Congress and tried to persuade them to submit the Pentagon Papers into the Congressional Record. Only after they refused did he leak them to the New York Times and Washington Post. When Richard Nixon's administration obtained injunctions in the lower courts, Ellsberg returned to Congress with more success. With the decision still pending before the Supreme Court, Sen. Mike Gravel (D-Alaska) placed 4,000 pages of the Pentagon Papers into the record at a committee hearing. Even if the court had failed to protect the newspapers, Gravel's action ensured that the truth would come out. A year later, the Supreme Court unanimously affirmed Gravel's right to publish documents labeled "Top-Secret: Sensitive" under the speech or debate clause.

In exercising his privilege, Gravel refused to publish parts of the Pentagon Papers that still endangered national security. If future congressmen act irresponsibly, the House or Senate has the authority to sanction them, since the Constitution only protects against reprisals in "any other place." At the extreme, the Constitution authorizes the expulsion of lawmakers by a two-thirds majority -- though this hasn't happened, except in two House cases involving bribery and corruption, since the Civil War.

Wherever the House or Senate draws the line, this much should be clear: Members should certainly have the right to tell the truth when administration officials have lost their credibility. This not only serves the cause of democracy, but it will deter further fabrications and distortions. When voters go to the polls in 2014, surveillance will be high on the agenda. They should not cast their ballots amid a haze of doubt as to the basic facts.

At an earlier stage in the debate, the administration might have had a powerful weapon to defeat congressional watchdogs. In response to the risk of exposure, officials might have refused to cooperate even in secret committee sessions, leaving members entirely in the dark. But such threats are no longer credible. The House only preserved the NSA program by a vote of 217 to 205 after an all-out lobbying campaign by the White House -- and the fight has just begun.

If administration officials refuse to testify at secret sessions in the future, they will most likely alienate the fence-sitters. A boycott would also doom the renewal of the Patriot Act when it comes up for reconsideration in 2015.

For almost 500 years, the people's representatives have spoken out against the abuse of executive prerogative. It took courage to create this great tradition, and it will take courage to sustain it. The moment of truth is now.



The Diplomatic Doldrums

How is the State Department ever going to get a bigger budget if Congress isn’t clear about what it actually does?

The Republican-led House Appropriations Committee approved on July 24 an $8 billion cut for 2014 in the roughly $50 billion current international affairs budget. That same day, the House authorized a $5 billion reduction in the defense budget of over $600 billion -- the latest reminder that many Republicans, and certainly some Democrats, don't much value diplomacy or foreign aid. Why is that the case?

As it happens, I spent most of the spring interviewing congressional staffers and analyzing their bosses' -- and their own -- attitudes toward diplomacy, the Foreign Service, and the State Department for a recently released study commissioned by the American Foreign Service Association. The study -- based on interviews with 28 staffers, evenly divided between Democrats and Republicans, House and Senate -- concluded that those attitudes have improved in the past decade, but a high level of distrust remains between Foggy Bottom and members of both parties on Capitol Hill. That distrust, moreover, appears to be much more fundamental and deeply rooted than the disagreement over last year's attack on the U.S. mission in Benghazi, Libya.

Many in Congress simply do not see diplomacy as a vital component of U.S. national security. They view it as something that is useful under certain circumstances, but not necessarily crucial to protecting American interests. To a startling degree, this disconnect appears to be the product of ignorance. Members and their staffers don't know exactly what U.S. diplomats do every day at all 275 overseas posts to advance U.S. interests -- whether it is helping foreign countries build infrastructure, reform judicial systems, enhance counterterrorism programs, or improve their economies. Members of Congress have a vague idea of what U.S. diplomats are up to, but clearly not enough to justify continuing the current year's funding level.

So the House Appropriations Committee's vote on the 2014 State and Foreign Operations Appropriations bill was hardly a surprise. The committee chairman, Rep. Hal Rogers (R-Ky.), issued a statement saying that, "given all of the country's needs and fiscal realities, we must prioritize our very limited funds on only the most important international activities." The House's allocation of nearly $42 billion is $10 billion less than the level approved by the Senate Appropriations Committee on July 25 and President Barack Obama's request.

When asked whether most members of Congress associate diplomacy with national security, only 43 percent of the staffers in my study, all of whom asked to remain anonymous, said "yes." Members "see it as not necessarily vital because they don't take the time to understand it, and they don't take the time to educate their constituents," a senior Senate Democratic aide told me.

Even if members see a link between diplomacy and national security, according to one House Democratic aide, they think that "defense trumps diplomacy." Despite the Obama administration's forceful arguments that diplomacy and defense are equally important to U.S. national security, on Capitol Hill, "diplomacy is still the red-headed stepchild of the American national security apparatus," in the words of one senior House Democratic aide.

Appreciation for diplomacy breaks down, at least in part, along partisan lines. As one senior Senate Republican aide noted, "By and large, Republicans are more national security-focused, while Democrats are more internationalist when it comes to foreign policy. Republicans view the Foreign Service as more of an adjunct to our national security interests" because for them the diplomatic service is "our way of helping other countries," even if it's not "in our benefit," the aide said. For Republicans, the top priority is to "keep us safe," while for Democrats it's to "make the world a better place."

Still, respondents from both parties admitted they struggle to find a "more direct link" between diplomacy and national security -- or to describe exactly what the Foreign Service does in more relatable terms. Others said the link is clear in their minds, but they find it difficult to articulate it to others. "That's the $64,000 question," as one senior Senate Republican aide put it. Not that members of Congress are completely clueless about what the Foreign Service does. In the words of another Senate Republican aide, diplomacy is about making sure that other countries understand American values. If they don't, "then they could potentially be enemies." Likewise, a House Democratic aide described the Foreign Service's role as "keep[ing] lines of communication open, giving us a much bigger sense of what's actually happening" in a foreign country. "At the end of the day, true security is fostered by relationships, but I do know that many members of Congress don't share this view," a senior House Republican aide said.

Nonetheless, only half the respondents in the study said they consider diplomacy a serious profession. "Would I say that you need some specialized training to do it? Probably not. Probably any smart person who has an interest in living abroad could do it," said one Senate Republican aide. A senior Senate aide from the Democratic side seemed to agree: "When you say you are a diplomat, I don't know what that body of knowledge is." Another senior Senate Republican aide even took issue with "use of the word profession," saying it should imply a specific body of knowledge and a clear and published set of skills that are tested. Law and the military are proper professions, in the aide's view, but the Foreign Service entrance exams don't rise to the same level.

In this way, misperceptions and lack of understanding seem to drive members' reluctance to support better funding for diplomacy and foreign aid, which together represent just over 1 percent of the federal budget. "It's hard to sell that you need money to have more nice dinners," a House Republican aide explained. Another Senate Democratic aide said that some members think "diplomacy is cheap" because it's just "people talking to each other and not something that they think requires large amounts of money."

So why don't many members of Congress have a full and accurate idea of what the Foreign Service does? And why don't they see a more direct link between diplomacy and the security of the American people at home? Part of the blame falls on Congress, according to many of the study's respondents. "Members of Congress, just like staff, don't stop long enough to understand much about much, since these phones are always ringing," said one House Democratic aide. In addition, while the Benghazi attack raised the Foreign Service's visibility, all respondents expressed doubt that the service will ever truly have a domestic constituency, including on Capitol Hill, mainly because "they are not bringing any votes to the table," as one Senate Republican aide put it.

Outside experts agreed. "In political circles, being strong on national security is defined as supporting the defense budget over other instruments of national security, including diplomacy and development," said P.J. Crowley, a former assistant secretary of state for public affairs in the Obama administration who now teaches at George Washington University. "Every congressional district has some tie to the military -- a base, a defense contractor, a Guard or Reserve unit, if nothing else a recruiting station. The State Department has a comparable, even if smaller, network, but it's primarily overseas. Absent these community connections, it's impossible for Foggy Bottom to build the same constituency that the Pentagon has."

At the same time, the State Department should allow its employees in the liaison offices it has in both the House and Senate more freedom to discuss policy and diplomatic activities with members and staff, said Kurt Volker, executive director of the McCain Institute for International Leadership. Currently, he said, the staff detailed to those offices deals mostly with consular issues and congressional overseas travel. "The best results come not from trying to control information, but by empowering real people to engage in real conversations," added Volker, a former Foreign Service officer whose last assignment was as ambassador to NATO, starting in 2008.

In fact, a bigger part of the responsibility for educating and informing Congress about U.S. diplomatic activities lies with the State Department, which hasn't done a good enough job on this front, all of the respondents in my study agreed. "State should find creative ways to show how the work of the Foreign Service affects the lives of ordinary Americans," a House Democratic aide said. A senior Senate Democratic aide concurred: "You have to make the connection for the members and for the public that this is something that relates to their daily lives. You have to do a much more sophisticated job of selling the relevance of the institution." Another senior House Republican aide added: "They should be the ones getting the message out on what it is they do and what value they add to our government."

But the distrust flows both ways. Skepticism of Congress and insufficient understanding of its role in U.S. foreign policy were also cited by most respondents as a reason for the rift between Foggy Bottom and Capitol Hill. "State does not trust us," explained one House Democratic aide. "They don't think we deserve all the information. State's perception is that we do all the leaking, which is not true. Right now, because of the trust deficit, it becomes more adversarial." Likewise, a Senate Republican staffer said that Foreign Service officers "view Congress as an annoyance and an impediment. It stops them from what they want to do. That's one of the reasons they are disliked up here. They are famous for having an attitude of superiority, like they are the cream of the crop and don't necessarily need to be wasting their time on our issues." At the same time, the aide conceded that "people are more competent in the Foreign Service relative to other agencies; I think they are higher quality."

If the State Department wants to see the 2010 enacted budget level of over $56 billion resurrected in the future, it will need to do a better job of explaining to Congress how exactly its work affects Americans at home. Otherwise, the budget for diplomacy will likely face additional reductions, as it has for the last three years.

"Diplomacy, when it's done right, contributes in a very significant way to what matters most to Americans -- to their prosperity and to their physical security," Deputy Secretary of State William J. Burns, a career diplomat since 1982, said recently on my weekly web TV program. "Jobs for Americans depend more than ever before in our history on exports, trade, and investment overseas," he said, adding that the work of diplomats is "far cheaper, in a sense, in terms of American taxpayer resources, than when we are driven to use the U.S. military."

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