Time to rethink hearings?
HOW will the United States look back on the Iran-contra hearings six months or a year from now? It is, of course, too early to say with any certainty. The US is still too swept up by the theater of the hearings to reflect calmly on distilled meanings. But it may be instructive to ponder the question now, while the event is still fresh in mind. What kind of aftertaste are the hearings likely to leave? Will there be second thoughts? Will the US be proud of the way it reacted? Will Congress be pleased with its conduct?
I shall likely not forget this growing unease I'm experiencing, now that the hearings have ended. It isn't that I don't think that truth is being well served but that I wonder whether Congress is. I sense I'm witnessing the declining influence, if not the fall, of this type of congressional hearing. I think I detect the signs. The members feel called upon to defend and reassert their constitutional obligations for oversight. I wonder why they feel compelled to labor the obvious. Is something unanticipated going wrong? Are they less certain that the hearings politically are a good thing?
Conventional wisdom seems very certain about what happened: Lt. Col. Oliver North. Had he not possessed the stuff of heroes, the reasoning runs, the hearings would have continued their rational, if duller, course. I find that explanation much too easy. Colonel North did not cause the derailment. He only showed how easy it is to subvert the hearings system, turn it from reasoned inquiry to show business. The fault is in the system; it is so fragile, so lacking in defensible foundations, that it can be blown apart by a gust of charisma.
And that alarms. For if the colonel's case could be saved by charisma, another's could be destroyed for the lack of it. It is a system subject to the vagaries of men, rather than the protections of law.
This realization hit me when the chief counsel for the majority, in sharp rebuke, reminded North's counsel that ``this is not a trial.'' The usual rules of evidence, the fair and balanced treatment of the accused, and the presumption of innocence until proved guilty do not apply. This is a legislative hearing, counsel, and not a court of law.
The reminder, of course, was a correct one. The two institutions spring from very different traditions, and their inquiries serve different ends. It follows that their modes will differ, too.
Still, within the context of these hearings, I find that intellectual/legal distinction hard to maintain and harder to justify. I have just served as a juror in a criminal trial, and the courtroom's methods and procedures for getting at the facts were still very much on my mind. I could not resist the temptation to contrast and compare. Here on the screen, for example, is the accused, but called a ``witness.'' The distinction, however, is only technical. That he stands accused there can be no doubt. He sits, his single counsel beside him, being interrogated by one of the three ``prosecuting attorneys'' for the state - there are two for the majority party, one for the minority. The joint committee of Congress acts as the panel of ``judges.'' They are, or at least the majority of them are, also his accusers.
Here also are the two ``chief judges,'' the co-chairmen of the Senate and House committees. Though somewhat more restrained, they too make clear that they are accusers.
The rights of the witness's counsel seem ambiguous. To get the floor he has to grab it; to hold it he has to fight. Disparaging comments about his undue influence on the witness are heard from time to time among the ``prosecuting attorneys'' and ``judges.''' He is not given the opportunity either to open or close his client's case. He cannot call witnesses or cross-examine his accuser-judges. He is not accorded ``equal time.''
Questions: As many watched the hearings, were they unconsciously thinking trial? Did they perceive North as the victim of an ``unlevel playing field'' which courtrooms try to guard against? If so, what does that say about the congressional hearing process itself?
Sitting there in the jury box, I cannot recall having any of these sorts of qualms. Indeed, as the trial progressed my respect for the judicial system increased. The rules of conduct are too carefully drawn, too rigidly enforced, to permit the field to be tilted very much by charisma.
One can, of course, sidestep the issue by calling the North phenomenon a product of the ``politics of the right,'' rather than an exposer of a flaw in the system. Surely that influence was present. But I think it would be a mistake to ignore an underlying message. And that message, I believe, has much less to do with political ideology than we may be inclined to think, and much more with the growing concern of the US with individual rights.
One senses it everywhere - in marital arrangements in the home, in the rights of children, minorities, and women, of employees in the workplace, of patients in the doctor's office and hospital, and especially in the rights of citizens before the powerful agencies of government. Many Americans simply weren't buying the intellectual/legal distinction between a hearing and a trial. The hearings offended some deep sense of fair play.
The staging sharpened it: a host of solemn-faced accusers arrayed on an elevated dais peering down. Interrogators front and center, their faces capable of leer, their voices alternately of invective and innuendo. Below, the solitary witness with his single counsel. The scene is less designed for the extraction of facts than of confessions, more akin to inquisition than exposition. Is that why so many Americans struck back?
I do not wish to be misunderstood. I do not believe reform lies in the direction of the courtroom. But when political forces warp hearings into unrestrained accusative modes, without clearly drawn and publicly stated protections for individual rights in tune with contemporary expectations, then it is time to rethink the process of congressional hearings.
Cole S. Brembeck is associate dean emeritus of international studies and programs at Michigan State University.