Challenges in congressional oversight of U.S. interests overseas

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By Andy Wright

With control of Congress at stake in the midterm election—including a real chance that Democrats could take back the House—legislative oversight and investigations are returning to the forefront of discussion. Earlier this year at a symposium co-hosted by the Levin Center at Wayne Law and the Wayne Law Review, I examined challenges Congress faces conducting oversight of U.S. activities abroad. Here I present a few of the issues raised in my symposium article, Extraterritorial Congressional Oversight. In addition to summarizing some of the obstacles and sensitivities connected to doing oversight abroad, this post also presents a few practical reforms Congress could undertake to enhance its ability to project its power of inquiry overseas.

Congress’ Overseas Oversight Interests

Congress has all sorts of legitimate reasons to conduct oversight that transcends national boundaries and extends to U.S. interests all over the world. They range from U.S. government operations overseas, to U.S. foreign assistance to foreign governments and multilateral organizations, to wartime U.S. government contracts, to global commercial regulation. Overseas oversight efforts will often raise issues of domestic law, federal jurisdiction, foreign relations law, and diplomatic norms. Imagine, for a moment, an investigation into corrupt siphoning of U.S. funds provided to a foreign government for police training—the diplomatic sensitivities are obvious, but so are Congress’s legitimate information interests.

Unique Oversight Challenges

Right out of the gates, a congressional committee investigating our hypothetical foreign, congressionally funded police contract faces three structural sensitivities: (1) separation of powers, (2) projection of American bipartisan solidarity, and (3) foreign sovereignty. While Congress and its members are free to disagree with executive branch policy, the executive branch conducts formal foreign policy—and represents the face—of the United States. Thus, investigating committees must be sensitive to undermining diplomatic efforts overseas – even if they are advocating for a change in that diplomatic position at home. This is one of the chief evils to which Congress was responding when it passed the Logan Act. Similarly, like complementary coordination in the separation of powers, bipartisanship is also critical to projecting American strength overseas. It is unseemly and damaging for congressional fact finders to allow public partisan rifts to be exploited by foreign governments. Finally, even when Congress has a wholly legitimate interest in a foreign government’s activities, principles of sovereign equality among nations caution against high-handedness. Even beyond the concept of sovereignty, if congressional investigators offend overseas counterparts it could cause a diplomatic incident with collateral consequences worse than the information impasse. As such, it is important to evaluate potential diplomatic fallout in consultation with executive branch diplomats and intelligence officers.

Subpoenas and compelled testimony present another set of challenges for congressional oversight abroad. Civil litigants and prosecutors have had some success serving and enforcing extraterritorial subpoenas in federal court proceedings but Congress has had a lot more difficulty (see pp. 139-146 here). First, Congress is not a beneficiary of the operative mutual legal assistance treaties that cover civil and criminal litigation. Second, Federal statutes implementing requests for foreign judicial assistance also fail to empower congressional oversight. For example, by its terms, the Walsh Act authorizes “courts,” not Congress, to subpoena a U.S. citizen located abroad. From the perspective of foreign governments, Congress is further hampered by the United States’ failure to reciprocate subpoena assistance to foreign legislative bodies (often, for good reason—imagine China’s legislative body seeking to subpoena information on Chinese dissidents in the United States).

Proposals for Reform

While these challenges are significant, they can be mitigated. In order to enhance its ability to conduct oversight overseas, Congress should:

Enact Express Extraterritorial Subpoena Authority. The House and Senate should amend their rules to grant committees of relevant jurisdiction with extraterritorial subpoena authority. In addition, Congress should enact statutes authorizing overseas subpoenas that extend all the way to the limits of the Due Process Clause.

Negotiate Legislative Inclusion in Mutual Legal Assistance Treaties. As Gary Davidson advocates, Congress should press the Executive Branch for inclusion in mutual legal assistance treaties. Congress can leverage its array of legislative powers to incentivize executive branch cooperation, including Senate treaty ratification, appropriations, hearings, and legislative policy expressions.

Mandate State Department and Defense Department Travel Support. Congress should pass legislation that formalizes its expectations of executive branch support for oversight travel. This legislation should not impose too many onerous obligations on embassy or military staff. However, statutory mandates for facilitation of congressional oversight on transcription, translation, workspace, in-country mobility, and security could clarify interbranch relations and improve efficiency.

Enact Congressional Accountability Provisions to U.S. Government Contracts. Legislation should mandate that U.S. government contracts contain provisions designed: (1) to ensure transparency of sub-contractual relationships, (2) to provide audit rights to appropriate U.S. government entities, including Congress’s investigating committees, and (3) to condition contract awards on consent to jurisdiction, including congressional subpoenas.

Leverage Congressional Oversight through Suspension and Debarment. Congress should amend suspension and debarment statutes to strengthen Congress’s ability to obtain contractor information overseas. Specifically, Congress should enact a statute that expressly authorizes suspension of a contractor or subcontractor if Congress finds that it failed to comply with a formal request or subpoena for information from a committee of competent jurisdiction.

Leverage Foreign Assistance Funds to Obtain Information. While it needs to be sensitive to the sovereignty of a foreign government, Congress may choose to incentivize other nations’ oversight cooperation with the power of the purse.

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From the founding, Congress’s legislative power has led it to inquire about overseas issues. As the world becomes more interconnected and more issues cut across borders, Congress’s interests will only increase. In order to meet some of the legal, diplomatic, and practical challenges Congress faces as it projects its power of inquiry abroad, it can strengthen its hand with a few practical reforms.

Andy Wright (@AndyMcCanse) is Senior Fellow and Founding Editor of Just Security.