Introduction by Andy Wright
Two national traumas — the deadly January 6th attack on the U.S. Capitol and the COVID-19 pandemic — have ignited calls for “9/11-style” investigative commissions to handle the primary after action inquiry reports. In August 2016, I made a similar plea for a “9/11 Commission Approach” as information began to emerge about Russian measures to interfere in the 2016 presidential election. Such calls have become a standard refrain as the United States seeks to comprehend and absorb seismic events.
Commissions are far from perfect. They are not immune from partisanship. They have mixed track records at generating momentum for their policy recommendations or holding bad actors to account. They can be hamstrung by budgetary limits and arbitrary deadlines. They can face recalcitrant witnesses and inadequate tools to compel them. More cynically, they can be used as an outsourcing mechanism for political figures that want insulation from a thorny topic — otherwise known as a hot potato receptacle. And, while the 9/11 Commission is considered the gold standard, its work generated criticism from both the right and left on the political spectrum.
So what is it that gives the commission model an enduring appeal for coming to terms with great national system shocks? While there is no single answer to that question, the perceived legitimacy of an investigative commission is at its core. “Legitimacy is commonly defined in political science and sociology as the belief that a rule, institution, or leader has the right to govern,” according to the Princeton Encyclopedia of Self-Determination. “When shared by many individuals, legitimacy produces distinctive collective effects in society, including making collective social order more efficient, more consensual, and perhaps more just.” Put another way, it is the strength of why a leader has the power to hold a position of authority, and the people’s buy-in to that authority. Legitimacy enjoys an especially high premium in an era characterized by increasing partisan polarization.
The commission model of fact-development and policy inquiry offers as one of its chief design concepts a degree of insulation from immediate partisan interests of legislators who will stand for reelection during the course of an investigation. It also offers an ability to select a panel of commissioners from an array of fields with gravitas and appeal that transcends its individual members’ political orientation. That is the ideal, but opportunities to fall short abound. There is a dynamic relationship between design, personnel, and stakeholder investment that is both elusive and essential to that quest for legitimacy.
Here, Just Security Student Staff Editors Nick Tonckens and Heather Szilagyi, working under the supervision of Just Security Legal Fellow Danielle Schulkin, have compiled a valuable resource for policy makers, journalists, and the broader public to use to evaluate proposals for investigative commissions. Their survey addresses design, powers, and outcomes of significant congressionally created investigative commissions. And, in turn, that information can not only help us address concrete design questions and precedent, but also to contemplate their relation to legitimacy.
The following report surveys the legally significant practices of past U.S. congressional commissions. In particular, we’ve focused on how Congress designed commission membership and what kinds of powers Congress granted to the commissions they created. We also focused on how the commissions conducted their investigations and how they shaped their final outcomes and findings.
As Congress continues to negotiate the legal powers and practices of a potential Jan. 6 Commission, looking at the practices of previous congressional commissions can help situate the current negotiations in the context of their predecessors. This matters because a Jan. 6 Commission — and any other commission Congress may create in the foreseeable future to investigate a national crisis — would be embedded in what is arguably a more severely polarized political climate than that faced by congressional commissions of recent decades.
Though many past commissions faced significant political tensions, a Jan. 6 Commission would come at a time when partisanship has become a defining feature of American life. Moreover, the subject of the potential commission itself — the January 6 attack on the U.S. Capitol — is a topic of intense partisan disagreement. The insurrection quickly precipitated the second impeachment of President Trump by a Democratic House of Representatives and his subsequent acquittal following a politically charged Senate trial. Though technically the most bipartisan impeachment and trial in U.S. history, the proceedings left Americans starkly divided along partisan lines as to whether then-President Trump bore responsibility for the Capitol attacks. Some members of Congress are already downplaying the events of January 6, and the promised commission has been stalled by partisan disagreement before even getting off the ground.
These partisan headwinds mean that, if any new commission is to have a shot at making a meaningful impact, it is crucial to understand the features of past congressional commissions that facilitated success — or presaged failure.
This report provides an overview and brief analysis of six congressional commissions, all multi-member independent entities that were established by Congress and existed only temporarily, and whose members served solely in an advisory capacity, were appointed in part or whole by members of Congress, and who ultimately reported to Congress. These commissions provide comparable reference points for proposals to create a congressional commission to investigate the events of January 6, 2021.
We surveyed six congressional commissions, chosen for the strength of their investigatory powers and their political relevance. We also looked for proximity to national security issues and the ability to analogize to a potential Jan. 6 Commission. The six commissions are:
- National Commission on Terrorist Attacks upon the United States (9/11 Commission) (2002)
- Financial Crisis Inquiry Commission (2009)
- Commission on Protecting and Reducing Government Secrecy (“Moynihan Commission”) (1994)
- National Commission on Terrorism (1998)
- National Commission for the Review of the Research and Development Programs of the United States Intelligence Community (2010)
- National Commission for the Review of the National Reconnaissance Office (2000)
Below we’ve included key takeaways along with summaries of the following characteristics of the investigations: authorizing legislation and investigatory powers, membership, access to classified information and the National Archives and Records Administration (NARA), witnesses interviewed, interactions with law enforcement, and outcomes. If you believe we are missing a significant issue or development, send us a message at firstname.lastname@example.org.
Partisan Appointment. All congressional commissions examined were bipartisan in nature, meaning commissioners were appointed by leadership of both political parties. However, while appointments to some commissions were evenly split between the parties, others reflected a skewed partisan balance (e.g., six members appointed by Democrats, four by Republicans).
The Financial Crisis Inquiry Commission (FCIC), established in the wake of the 2008 financial crisis, is perhaps the most prominent example of a commission with unbalanced appointment procedures. The FCIC adopted its final report along partisan lines, with all six commissioners appointed by Democrats voting in favor of the final report, and all four Republican-appointed members dissenting. On the other hand, the 9/11 Commission had evenly split membership and its report was adopted unanimously.
Given current levels of political polarization in general, these two examples could serve as helpful guideposts for Congress as it seeks to negotiate a new commission’s authorizing legislation.
Other Membership Criteria. The legislation establishing some commissions requires that no members be officers or employees of federal or state government. Other commissions allow for a number of officers or employees — including members of Congress — to serve on commissions. Some commentators, including former 9/11 Commissioner Lee Hamilton, argue that members of Congress should not serve on a Jan. 6 Commission because they do not have resources to devote their undivided attention to the investigation. There is also the obvious objection that members of Congress are at least perceived as inherently partisan and unable to fulfill an appropriately independent investigative function.
Legislation also generally suggests that commissioners should have particular areas of expertise. For example, the 9/11 Commission legislation provided that: “It is the sense of Congress that individuals appointed to the Commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as governmental service, law enforcement, the armed services, law, public administration, intelligence gathering, commerce (including aviation matters), and foreign affairs.” Other commissions have used similar language, substituting in relevant areas of expertise.
The criteria that Congress might use to establish a Jan. 6 commission have already been a topic of partisan disagreement.
Legislation and Powers. The congressional commissions examined here were all established by acts of Congress laying out their general mandate and specifying their powers to appoint staff, spend money, enter into contracts, secure logistical assistance from federal agencies, request information from government officials, hold hearings, and — in some cases — issue subpoenas. The authorizing statutes also set deadlines for appointing commissioners, commencing meetings, delivering interim and final reports, and termination.
Nine congressional commissions from the 101st–115th Congress were granted subpoena authority. Of these, three are included on the list below: the National Commission on Terrorist Attacks upon the United States (9/11 Commission), Financial Crisis Inquiry Commission, and National Commission for the Review of the Research and Development Programs of the United States Intelligence Community. We found that other commissions with subpoena power were insufficiently analogous to the proposed Jan. 6 Commission to include in the report at this time. It is worth noting that these commissions rarely used their subpoena power; as 9/11 Commission co-chairs Thomas Kean and Lee Hamilton recently emphasized, the threat of subpoena power is a powerful incentive on its own.
Witnesses. All of these commissions called a large number of witnesses. Though different commissions sought out different kinds of witnesses in line with their respective mandates, all of them relied heavily on current and former executive branch officials, and many also sought the testimony of subject matter experts in the private and nonprofit sectors.
Outcomes. A congressional commission is generally tasked with writing a final report — along with either the opportunity or mandate for interim reporting — that presents its research and investigative findings and may make recommendations to Congress and the Executive branch, depending on its mandate.
The success of such a report can be gauged according to several factors: whether its findings are endorsed by all of its members, whether its recommendations are actually implemented, or, if it does not make recommendations, whether its findings spur subsequent action by Congress or the executive branch. The commissions summarized in this report achieved varying degrees of success. The 9/11 Commission saw its recommendations largely passed into law by Congress. Though lower-profile and more modest in scope, the National Commission for the Review of the National Reconnaissance Office successfully persuaded NRO leadership to adopt its proposed reforms.
Other commissions struggled to achieve buy-in for a variety of reasons. Despite generating widespread praise in the media, the Moynihan Commission on Protecting and Reducing Government Secrecy simply failed to gain traction in Congress and was largely ignored by the White House. The Financial Crisis Inquiry Commission (FCIC) suffered from a very broad mandate as well as constrained time and resources. It was also accused of being a partisan project from the outset, designed to reach pre-determined conclusions that reinforcedDemocrat-preferred policy choices. The FCIC ultimately finished its work along partisan lines, with all of the Republican commissioners voting to reject the final report. Former FCIC commissioner Peter Wallison recently argued that the outcome of the commission was a “foregone conclusion” from the outset –resulting in a lack of legitimacy and uptake of the commission’s findings — and that House Speaker Nancy Pelosi’s proposed Jan. 6 Commission was on track to fall victim to the same fate.
The Six Commissions
- The 9/11 Commission was mandated with investigating the facts and circumstances of the September 11, 2001 terrorist attacks and making recommendations to prevent such attacks in the future.
Legislation and Powers
- The 9/11 Commission was created by statute in late 2002. Authorizing legislation gave the commission the power to hold hearings, take testimony, receive evidence, and administer oaths. It also gave the commission the power to subpoena witnesses and records.
- A subpoena required agreement of Chair and Vice-Chair or the affirmative vote of six members of Commission. If necessary, subpoenas could be enforced by a United States district court. If the subject of the subpoena continued to fail to comply, a majority of the commission could vote to refer the matter to the appropriate United States attorney.
- The 9/11 Commission reportedly did not need to make extensive use of its subpoena authority. According to the archived website of the 9/11 Commission, the commission “issued three subpoenas of government agencies: the Federal Aviation Administration (FAA), the Department of Defense, and the City of New York. In all three instances, the issues were resolved amicably, without litigation. The Commission received the access that was necessary to fulfill its mandate.” The former Chair and Vice Chair of the 9/11 Commission recently commented that the threat of subpoena power itself, whether or not it is exercised, is crucial.
- The 9/11 Commission was composed of ten members, with the Chair appointed by the President and the Vice-Chair appointed by the Senate Democratic leader, in consultation with the House of Representatives Democratic leader.
- Legislation provided for an equal number of appointments to be made by Democratic and Republican members of Congress. Specifically: two members were appointed by the senior member of House Republican leadership; two members were appointed by the senior member of Senate Republican leadership; two members were appointed by the senior member of Senate Democratic leadership; and, two members were appointed by the senior member of House Democratic leadership.
- The legislation establishing the commission further specified that no more than five members of the commission could be members of the same political party. Commissioners could not be an officer or employee of the federal government, or of any state or local government. This meant that members of Congress were not eligible to serve on the commission.
- Under the commission’s authorizing legislation, the commission was authorized to secure information directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the government. According to the National Archives, a “large percentage” of the 9/11 Commission’s records are national security classified.
- The 9/11 Commission initially had difficulty obtaining sensitive documents from the White House due to fears of the possible disclosure of classified information and separation of powers concerns. Eventually, in early 2004, the White House allowed some commissioners and staff to review Presidential Daily Briefs (PDBs) under a negotiated compromise. PDBs from the Clinton administration were also examined by the commission. The archived website of the 9/11 Commission states:
“A four-person Review Team has seen every single PDB item for which the Commission requested access. The Team prepared a detailed report on all PDBs of critical importance to the Commission’s mandate. All Commissioners were briefed for over three hours on this 7,000-word report, joined with a supplement of complementary intelligence documents. The Commission was also given every word of the August 6, 2001, item on al Qaeda and the threat of attacks on the United States.”
- According to the 9/11 Commission’s final public report, the Commission held 19 days of hearings and took public testimony from 160 witnesses. The Commission held a total of 12 public hearings.
- The 9/11 Commission interviewed law enforcement officials, including representatives of the Department of Justice.
Outcome of the Commission
- The 9/11 Commission released its final report in 2004.
- The Intelligence Reform and Terrorism Prevention Act of 2004 largely implemented recommendations from the 9/11 Commission’s final report, primarily by creating the Office of the Director of National Intelligence and restructuring the intelligence community.
- The FCIC had a broad purpose: “to examine the causes, domestic and global, of the current financial and economic crisis in the United States.”
Legislation and Powers
- The FCIC was established by statute in 2009.
- Authorizing legislation had similar (in effect identical) language to the 9/11 Commission with respect to the commission’s powers. The FCIC could hold hearings, receive evidence, administer oaths, and require attendance and testimony of witnesses and production of documents, including by subpoena. A subpoena could be issued either upon the agreement of the Chair and Vice Chair or affirmative vote of the majority of the Commission (including at least one member appointed by the House or Senate minority). The statute also provides for the enforcement of subpoena power.
- The FCIC was composed of 10-members, with six members chosen by Democratic congressional leadership and four members chosen by Republican congressional leadership. The Chair of the Commission was selected jointly by the Senate Majority Leader and House Speaker (both Democrats); the Vice Chair was selected jointly by the Senate Minority Leader and House Minority Leader (both Republicans).
- Legislation provided that the Chair and Vice Chair could not be members of the same political party, but there were no overall partisan balance requirements. Commissioners could not be an officer or employee of the federal government, or of any state or local government. This meant that members of Congress were not eligible to serve on the commission.
- Under its authorizing legislation, the FCIC had the power to secure information — including confidential information — from “any department, agency, bureau, board, commission, office independent establishment, or instrumentality of the United States.”
- The commission obtained records from federal agencies related to sensitive financial regulatory activities that were “subject to confidentiality agreements.”
- We assume that the commission received information related to financial policy decisions of prior administrations, but have not yet found clear indications of such NARA access.
- The FCIC interviewed more than 700 witnesses and held 19 days of public hearings. Many government officials served as witnesses, including: Attorney General Eric Holder, SEC Chairperson Mary Schapiro, and Federal Deposit Insurance Corporation Chairperson Sheila Bair.
- The FCIC made use of its subpoena power to compel testimony and the production of documents in several instances. For example, the commission issued a subpoena to Moody’s Investors Service. FCIC Chairman Phil Angelides said that the firm only began producing documents after the subpoena was issued. The FCIC also issued a subpoena to Goldman Sachs and reportedly “harshly accused the investment bank of trying to delay and disrupt its inquiry.”
- The commission’s investigation was based on regulation and policy rather than prior criminal justice investigations. There is no indication that law enforcement access, such as the ability to obtain sensitive information from law enforcement (e.g. grand jury materials) was relevant or sought after during the commission’s investigation.
Outcome of the Commission
- The FCIC produced a final report, which was released in 2011. The report was approved by the commission following a vote along partisan lines. All four commissioners appointed by Republican congressional leadership dissented from the report, while all members appointed by Democrats voted in favor of its adoption.
- According to the New York Times, the FCIC faced a number of setbacks, including a lack of time and resources, delays in assembling staff, a broad mandate, and partisan disagreement.
- The FCIC did not make recommendations, and it was not asked to do so by Congress. As stated in the final report:
“Congress did not ask the Commission to offer policy recommendations, but required it to delve into what caused the crisis. In that sense, the Commission has functioned somewhat like the National Transportation Safety Board, which investigates aviation and other transportation accidents so that knowledge of the probable causes can help avoid future accidents. Nor were we tasked with evaluating the federal law (the Troubled Asset Relief Program, known as TARP) that provided financial assistance to major financial institutions. That duty was assigned to the Congressional Oversight Panel and the Special Inspector General for TARP.”
- The Dodd–Frank Wall Street Reform and Consumer Protection Act went into effect in 2010, before the FCIC’s final report was released. The legislation was based on a reform template created by Treasury Secretary Timothy Geithner in 2009 that was then significantly revised prior to passage. It does not appear that the FCIC substantially influenced the federal government’s immediate response to the financial crisis.
- The Moynihan Commission was established in 1994 to review the government classification system in light of the end of the Cold War and a growing bipartisan understanding that that period had engendered excessive government secrecy, leading to unnecessary administrative expense, reduced communication within the government and scientific community, reduced communication between the government and the public, and ultimately weaker security.
- The commission was tasked with evaluating these problems and making recommendations to reduce the amount of information that became classified, as well as examining and making recommendations regarding the security clearance process.
- This was the first major reappraisal of government classification practices since the 1955 Commission on Government Security.
Legislation and Powers
- The commission was authorized by statute in 1994 for a two-year period. It was given subpoena power, which could be exercised by “the Chairman of the Commission, the chairman of any designated subcommittee, or any designated member.”
- The commission had twelve members, eight appointed by Democrats and four by Republicans. The commissioners were a mix of members of Congress, executive branch officials, and outside experts.
- The authorizing statute empowered the commission to obtain classified information and instructed executive departments to provide commission members and staff with appropriate security clearances.
- The commission worked closely with NARA during its lifetime. It met several times with NARA staff, held several meetings with a Department of Defense declassification panel at NARA headquarters, and convened a public roundtable on declassification, also at NARA headquarters. Its final report heavily featured NARA as an important player in any future declassification reform.
- The commission heard from witnesses from a vast array of federal agencies, foreign embassies, and private companies – and even convicted spies.
- Commission staff met with officials from multiple federal law enforcement agencies, including the FBI, Drug Enforcement Administration, and Customs Service.
Outcome of the Commission
- In accordance with its authorizing legislation, the commission submitted an unanimous final report in March 1997 making a series of recommendations about reforming the information classification system, including a piece of model legislation.
- Though it received positive coverage from the New York Times, Washington Post, and Los Angeles Times, the report seems to have made no impact on policy. Representative Lee Hamilton (D-Ind.), ranking minority member of the House Committee on International Relations, introduced legislation implementing its recommendations, but it died in committee.
- The National Commission on Terrorism was established to evaluate “America’s laws, policies, and practices for preventing and punishing terrorism directed at American citizens.” This entailed reviewing “the laws, regulations, policies, directives, and practices relating to counterterrorism,” assessing their effectiveness, and recommending changes.
Legislation and Powers
- The commission was established by statute in 1998. It was given a ten-month window: three months for member selection, one month for members to begin meeting, and six months following the first meeting to do its work and make a final report.
- The legislation did not give the commission subpoena powers. It did authorize the commission to obtain any information needed from federal agencies (see Classified Information).
- Out of ten members, six were chosen by Republican congressional leadership and four by Democratic congressional leadership. The Chair was selected by the Speaker of the House.
- The commission was authorized to “hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the commission considers advisable to carry out its duties,” and to “secure directly from any agency of the Federal Government such information as the commission considers necessary to carry out its duties.
- It is unclear whether the Commission accessed NARA files.
- The commission interviewed over 120 current and former government officials and outside experts. The full list of witnesses is available in Appendix D of the report (page 57).
- The commission interviewed a number of federal law enforcement officials, especially from the FBI.
Outcome of the Commission
- The commission published a final report in June 2000 advocating a more aggressive counterterrorism posture across the whole of government. The Kyl-Feinstein Counterterrorism Act of 2000, which passed the Senate but did not make it to the House, would have implemented many of the report’s recommendations, including steps to crack down on terrorist financing and enhance information sharing between intelligence and law enforcement. Some of these policies were later implemented as part of the USA PATRIOT Act.
5. National Commission for the Review of the Research and Development Programs of the United States Intelligence Community
- The National Commission for the Review of the Research and Development Programs of the United States Intelligence Community was charged with reviewing “the status of research and development programs and activities within the intelligence community, including advanced research and development programs and activities.”
Legislation and Powers
- The commission was originally authorized by statute in 2002. It was later reestablished with new membership in 2010 (Public Law 111-259). The text of this second statute is reproduced in the commission’s report. The Commission was given until the end of 2011 to complete its report. This was later extended to March 2013.
- The DNI and Secretary of Defense were instructed to provide an assessment of the Commission’s final report within two months of its publication.
- The legislation granted the commission subpoena power.
- The commission was composed of twelve members. Six were named by congressional Democrats, four by Republicans, and one by the Secretary of Defense (Republican Robert Gates). In addition, the authorizing statute designated the Principal Deputy Director of National Intelligence as a member, and also required that of the congressionally-appointed members, four be members of Congress and six be private citizens.
- Two co-chairs were to be appointed from among the members, one from each party, and jointly agreed upon by the President, the majority leader of the Senate, the minority leader of the Senate, the Speaker of the House of Representatives, and the minority leader of the House of Representatives.
- The commission was empowered to secure information directly from any executive department or agency, including classified information relating to intelligence sources or methods.
- It is unclear whether the commission accessed NARA files.
- The commission met with individuals from numerous government offices, including the Office of the DNI, CIA, NSA, DHS, and FBI. The final unclassified report lists organizations, not individuals, that briefed the commission.
- It does not appear that the commission held public hearings.
- The unclassified version of the report does not specifically mention the Commission’s use of its subpoena power.
- The FBI briefed the commission, and the report does not mention challenges obtaining data from sources.
Outcome of the Commission
- The commission released an unclassified version of its final report in July 2016, which made four key findings of existing weaknesses in the intelligence community’s approach to research and development, along with four corresponding recommendations.
- The National Commission for the Review of the National Reconnaissance Office was established “to evaluate the roles and mission, organizational structure, technical skills, contractor relationships, use of commercial imagery, acquisition of launch vehicles, launch services, and launch infrastructure, mission assurance, acquisition authorities, and relationship to other agencies and departments of the Federal Government of the NRO in order to assure continuing success in satellite reconnaissance in the new millennium.”
Legislation and Powers
- Established by statute in 2000, the commission was given eleven months to conduct its duties and produce a final report. The DCI and Secretary of Defense were instructed to submit assessments of the report within two months of its publication.
- The commission was empowered to subpoena witnesses, though it is not clear whether that power was exercised.
- The commission was evenly split along partisan lines, with each party’s congressional leadership selecting five commissioners. The authorizing statute also named the Deputy Director of Central Intelligence for Community Management as a commissioner, and the Director of the National Reconnaissance Office as an ex officio member.
- The commission was empowered to secure any information it needed from federal agencies, and all members were required to hold appropriate security clearances.
- The commission evidently had NARA access. Its final report documents the history of the NRO, making frequent references to classified decisions made by successive presidential administrations that affected the NRO.
- The commission interviewed a large number of witnesses from relevant positions in the intelligence community and private sector.
- There was no law enforcement nexus to the commission’s work.
Outcome of the Commission
- The commission issued a final report in November 2000 critically evaluating the NRO’s history and evolving mission, and making a series of specific recommendations, many of which were adopted and implemented by subsequent NRO directors.