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Contempt of Congress (last updated 7/3/01)

Congress has investigative powers implicit in its legislative powers. These powers are how Congress can conduct public hearings into such controversies as Watergate, Whitewater, Iran-Contra, and the Teapot Dome scandals of the 1920s, when much of the legal issues surrounding the investigative power was fleshed out.

Congress's main instrument of investigation is its subpoena power. Refusing to comply with a congressional subpoena can give rise to a contempt proceeding under three kinds of contempt proceedings.

The most relevant one for modern practice is the statutory contempt power codified at 2 U.S.C. Section 192 and 194, under which a person who has been subpoenaed to testify or produce documents before the House or Senate or a committee and fails to do so can be cited with contempt and then prosecuted for criminal charges by the U.S. Attorney for the District of Columbia. A contempt citation must be approved by the appropriate committee and by the full House or Senate; it is unclear whether the U.S. Attorney is obligated to prosecute or not. If convicted for statutory contempt of Congress, which is a misdemeanor charge, an individual is subject to a fine of up to $1,000 and/or imprisonment for up to one year.

In the past two decades, House and Senate committees have initiated statutory contempt proceedings against several individuals such as Attorney General Janet Reno and an alleged dealer in fetal tissues. Only two, however, have reached the level of a vote by the full House or Senate.

In 1982, the full House cited for contempt Environmental Protection Agency director Ann Burford for her refusal to provide documents as ordered by subpoena; the U.S. Attorney, however, declined to prosecute and the White House and the House reached an agreement allowing access to the papers. Almost two decades later, in October 2000, the House Resources Committee approved a contempt of Congress resolution against the Project On Government Oversight, a non-profit whistle-blower group that had refused to answer questions relating to its investigations into the oil industry's royalty payments for drilling on federal and Indian lands and some related lawsuits; the resolution was withdrawn from consideration by the full House due to its improbable success.

In addition, under the inherent contempt powers of the House or Senate, either house can order an individual brought in, tried before the body, and then imprisoned in the Capitol jail either for punishment or until the individual complies with the subpoena; this is considered a cumbersome process and has not been used in more than half a century. The Senate can also apply to have a federal court issue a subpoena; if someone refuses to comply with the court-ordered subpoena, that person can be tried for contempt of court and given civil fines designed to coerce compliance.

Sources: Morton Rosenberg, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry, April 7, 1995, available on-line here. The Project On Government Oversight's premature statement on the contempt of Congress vote (the statement was written as if the vote had gone through, when it was withdrawn due to its probable failure) is available on-line here.

Women in history (last updated 8/12/01)

Five women of historical importance are noted by name in this episode. Biographical information on them - and on others - can be found at the National Women's Hall of Fame, from which the following information is taken.

Nellie Bly, born Elizabeth Jane Cochrane (1864 - 1922). Pioneer in investigative journalism who had herself committed to a mental institution for 10 days to expose how the mentally ill were treated. In later years, she went into industry and ran her late husband's companies.
Elizabeth Blackwell (1821 - 1910). First woman awarded a medical degree in 1849.
Ellen Swallow Richards (1842 - 1911). First female professional chemist and the first woman to study at the Massachusetts Institute of Technology.
Belva Lockwood (1830 - 1917). First woman to practice law before the United States Supreme Court in 1879. Ran for president as the candidate of the National Equal Rights Party in 1884.
Maria Mitchell (1818 - 1889). Famous for determining the orbit of a new comet in 1847, and became the first woman to achieve membership in the American Academy of Arts and Sciences.

As for public sculpture dedicated to women, there still do not appear to be many in existence. A photo-book survey of notable public sculpture in New York City circa 1976 included only one statue of a historical woman, Joan of Arc, which was erected in 1915 in a small park at Riverside Drive and 93rd Street; the only other statues depicting women are of women as ideals such as Liberty or Manhattan. By contrast, there were more than 80 statues of historical figures who were men.

There have been a few additions since then. For example, author Gertrude Stein (1874-1946) was immortalized as a statue in Bryant Park in 1977.

Sources: The National Women's Hall of Fame, available on-line here. Frederick Fried and Edmund V. Gillon Jr., New York Civic Sculpture (Dover Publications, 1976).

Civil litigation against hate groups (last updated 7/3/01)

The Southern Poverty Law Center, under the leadership of lawyer Morris Dees, has spearheaded the development of civil litigation which goes after hate groups for the crimes committed by their followers.

Legally, the Southern Poverty Law Center bases its strategy on two different theories as to the relationship between the civil defendant (usually a hate group leader or someone with assets) and the agent who actually committed the direct crime against the victim (the plaintiff). Civil liability under these theories is based on conduct, not on thought or speech.

First, hate group leaders can be liable for aiding and abetting others in their commission of crimes. Generally, plaintiffs must prove that the defendant provided substantial assistance or encouragement, that the encouragement was a substantial factor in causing the conduct, and that the crime was a foreseeable result of the encouragement. Aiding and abetting theories arise when abstract advocacy or words become something more like substantial assistance or encouragement.

Second, hate group leaders can be liable under a civil conspiracy theory. Here, plaintiffs must prove that the defendant and the agents agreed on a course of action, and that the violence occurred in furtherance of the agreed-upon course of action. Civil conspiracy theories arise when there is agreement to act in a certain, criminal way.

These strategies have worked in some high-publicity cases. In 1990, the SPLC won a $3 million award of punitive damages against the White Aryan Resistance and $5 million in punitive damages against Tom Metzger, WAR's leader, for their involvement in the 1998 fatal beating of Mulugeta Shaw of Ethiopia by some skinheads who had been distributing WAR pamphlets out earlier that same night. More recently, in 1998, the SPLC won a $37.8 million judgment against the Christian Knights of the Ku Klux Clan in North Carolina for its involvement in a conspiracy to burn down a black church.

Very little of these judgments is actually collected, but the SPLC is able to use the judgment to seize property and put some of these organizations out of business. The SPLC does not keep any portion of the collected judgment or charge any attorney fees and supports itself through fund-raising.

However, some critics say that the Southern Poverty Law Center is a relatively ineffective civil-rights group focusing on an issue that is of declining concern. Reports do indicate that the Ku Klux Klan and other hate groups are generally on the wane in the United States. Moreover, the most well-publicized hate crimes of recent years were committed by individuals without any connection to any established group (e.g. the June 1998 dragging death of James Byrd Jr. in Jasper County, Texas and the October 1998 fatal beating of Matthew Shepard in Wyoming).

Critics say that the SPLC uses its high-profile cases for fund-raising purposes. The SPLC has been quite successful as a non-profit group, raising more than $27 million in the 1998 financial year (see the 1998 Form 990, as available on Guidestar.org). The SPLC does not report its finances to the American Institute of Philanthropy, which monitors nonprofit groups in order to see how donated money is used.

Sources: Morris Dees has written books about some of his cases. See Hate on Trial and Season for Justice. The Southern Poverty Law Center's website is available here.

Military planning (two-war strategy, QDR) (last updated November 22, 2001)

Since the end of the Cold War, the United States military has tried to adapt to a changing world environment, budget cuts, new technologies, and difficulties recruiting and retaining military personnel.

Overall strategy has been reviewed and revised by the Department of Defense through four major planning efforts, the most recent being the 2001 Quadrennial Defense Review released in the wake of the attacks of September 11, 2001. The 2001 QDR, undertaken by the Bush administration and Defense Secretary Donald Rumsfeld, marked a shift from planning around specific threats to one based on handling how any such threats might bear against the United States.

Planning during the Cold War

During the Cold War, military planning was geared around the threat posed by the Soviet Union. With its "New Look" defense program, the Eisenhower administration focused on nuclear deterrence and de-emphasized conventional forces. The Kennedy administration adopted the concept of "flexible response" and built up conventional forces to reduce the likelihood of nuclear escalation; Kennedy's Defense Secretary Robert McNamara argued that the United States needed a "two-and-one-half-war" capability to simultaneously defend Western Europe from the Soviet Union and Southeast Asia or Korea from China and still be able to meet a contingency elsewhere.

Under the Nixon administration, the United States moved towards a one-and-one-half war strategy, in which the United States would maintain forces to meet one major Communist attack in either Europe or Asia, and still meet a contingency elsewhere. The Reagan administration more clearly focused on war specifically with the Soviet Union and prepared to fight that country on several fronts.

Planning in the post-Cold War Environment

With the end of the Cold War, the strategic environment facing U.S. military planners changed dramatically. There was no more U.S.-Soviet axis around which the rest of the world revolved, and the resulting loss of stability accelerated regional conflict, which was also fed by the proliferation of conventional weapons as well as that of weapons of mass destruction. Also, the American public expected a peace dividend after years of high defense spending.

The first effort to adapt the military for the post-Cold War world was the Base Force, a plan begun in 1989 and implemented only in the last year of the Bush administration and the first of Bill Clinton's. As devised by Colin Powell, then Chairman of the Joint Chiefs of Staff, the Base Force was to be the minimum force needed to execute a new strategy based on regional threats. This new strategy was based on four foundations: strategic deterrence and defense, forward presence, crisis response, and reconstitution. The plan called for a 25 percent reduction in force structure, a 10 percent reduction in budget authority, and a 20 percent reduction in manpower relative to FY 1990. The Joint Military Net Assessment (JMNA) concluded that the Base Force was capable of resolving only one major regional conflict at a time both quickly and with low risk.

The new Clinton administration conducted a second major review of the military in 1993, the Bottom-Up Review (BUR). The strategy here gave more attention to the military's involvement in relatively small peacetime operations, but quickly became geared around a two-MRC model. Policymakers initially leaned towards a model under which the military could win one MRC while holding steady in a second MRC before forces could be shifted, but Defense Secretary Les Aspin publicly committed to a two-MRC model in June 1993. Being able to fight two major regional conflicts simultaneously would deter the possibility that a second conflict would emerge, proponents argued.

At the same time, the BUR accelerated force reductions and budget cuts beyond those planned under the Base Force. This tension between a more ambitious military plan, relatively high levels of deployment in contingency operations such as Bosnia and Iraq, and a shrinking force led to concerns over whether the military could actually implement the two-MRC strategy effectively and over the force's level of readiness. The JMNA in 1993 concluded that the United States could win two conflicts but with higher levels of risk, especially on the second front.

The Clinton administration conducted its second major review with its Quadrennial Defense Review in 1997 (the QDR was ordered by the Military Force Structure Act of 1996 and made a permanent requirement by the Fiscal 2000 National Defense Authorization Act). Here, the DoD declared its strategy to one where the United States would shape the international environment to its favor, respond to all types of crises when directed, and prepared for the future by transforming current capabilities. The QDR maintained the goal of being able to fight two MRCs simultaneously with moderate risk, but the level of risk in doing so rose to "moderate" and "high" levels.

Under George W. Bush, the Department of Defense conducted another planning review in 2001, completing and releasing its Quadrennial Defense Review shortly after the attacks of September 11. The 2001 QDR focused on the need for forward deterrence, so that the United States could maintain its security through active engagement, and responding to asymmetric threats such as terrorist attacks. Overall, the QDR marked a shift in focus from responding to specific threats to building up the capabilities for meeting all possible force requirements, both functional and geographic. As stated in the QDR:

"The new defense strategy is built around the concept of shifting to a 'capabilities-based' approach to defense. That concept reflects the fact that the United States cannot know with confidence what nation, combination of nations, or non-state actor will pose threats to vital U.S. interests or those of U.S. allies and friends decades from now. It is possible, however, to anticipate the capabilities that an adversary might employ to coerce its neighbors, deter the United States from acting in defense of its allies and friends, or directly attack the United States or its deployed forces. A capabilities-based model - one that focuses more on how an adversary might fight than who the adversary might be and where a war might occur - broadens the strategic perspective." QDR at page 13-14.

This shift was not an abandonment of the two-MRC model, according to the QDR. "On the contrary, DoD is changing the concept altogether by planning for victory across the spectrum of conflict." The military still plans on being "capable of swiftly defeating attacks ... in any two theaters of operation in overlapping timeframes," and being "capable of decisively defeating an adversary in one of the two theaters ... by imposing America's will and removing any future threat it could pose" (emphasis added).

In order to meet such a strategy, the QDR called for efforts to improve the state of the military, including retaining military personnel in higher than historic rates, recapitalizing the force and replacing outdated systems through higher procurement spending, and streamlining the defense infrastructure.

The following graph tracks military spending over the past few decades.

Sources: The Quadrennial Defense Review Report, released on September 30, 2001, is available on-line here; the transcript of a background briefing on the QDR is available here. Eric V. Larson, David T. Orletsky, and Kristin Leuschner, Defense Planning in a Decade of Change (2001), published by the Rand Corporation, available in PDF format on-line here. John F. Troxell, Force Planning in an Era of Uncertainty, a report published by the U.S. Army War College and the Strategic Studies Institute, available on-line here. Data taken from military spending statistics in the National Defense Budget Estimates for the Amended FY 2002 Budget (the Green Book), available on-line here.

"And it's greatly to his credit" (last updated July 3, 2001)

Ainsley and Sam are right. Tribbey is wrong. It's from H.M.S. Pinafore.

William Gilbert and Arthur Sullivan were the famous writing-composing team of Victorian England, creating 14 comic operas during their 25 years of collaboration. Among their most famous works are H.M.S. Pinafore (or The Lass That Loved a Sailor), the Pirates of Penzance, and the Mikado.

Towards the end of H.M.S. Pinafore, the entire cast sings an ode to English duty, one that gave rise to the title of this episode and is played at the end of the episode.

ALL: He is an Englishman!
BOAT: He is an Englishman! / For he himself has said it / And it's greatly to his credit, / That he is an Englishman!
ALL: That he is an Englishman!
BOAT: For he might have been a Roosian, / A French, or Turk, or Prossian, / Or perhaps Itali-an!
ALL: Or perhaps Itali-an!
BOAT: But in spite of all temptations / To belong to other nations, / He remains an Englishman!

Source: The Gilbert and Sullivan Archive, available on-line here.