Hearings

Purposes

Hearings enable the conduct of legislative oversight of the executive branch, draw attention to issues of concern, highlight policy differences between Congress and the administration, lay the basis for legislation, and provide a platform for members and witnesses to make their case to the public.

Types

Hearings may be investigative, using subpoenas to compel the presence of witnesses and requiring sworn testimony; oversight, conducting reviews and due diligence over administration policy, budget, and compliance matters; legislative, providing information and opinions on proposed bills prior to mark-up; regarding nominations and treaties; or informational, on any matter within a committee or subcommittee’s jurisdiction or within a commission’s mandate. They may be one-off or part of a series, held in Washington or in the field (within the United States), open or, under certain circumstances, closed to the public.

Good Practices

• At the start of each Congress, each committee designates the titles, jurisdictions, and membership of its subcommittees. This is an excellent time to ensure that human rights are included in the title and jurisdiction of a subcommittee.
• Consider human rights and fundamental freedoms at every stage of the hearing process: planning and requesting topics for hearings; deciding whether and when a hearing is held, and at what level (full committee or subcommittee); how many and which witnesses are invited to testify; the content of the informational memo that is circulated prior to the hearing; the opening statements that are made during the hearing or submitted for the record; and the questions that are asked during the hearing or submitted for the record.
• Well-placed questions are helpful in forcing the State Department or other relevant agencies to acknowledge human rights problems and take appropriate action – but they can set back your cause if they prompt a negative answer. Work with allies inside the administration to prepare witnesses and spokespersons with constructive responses.
• Invite the State Department’s regional and security-related bureaus – not just the Bureau for Democracy, Human Rights and Labor – to testify on human rights issues. Better yet, have representatives of several bureaus testify together on the same panel. Although they are unlikely to voice their differences in public, they will be forced to cooperate with each other prior to the hearing, and may develop better working relationships as a result.
• Hearings are your opportunity to force an interagency conversation that might not otherwise occur. Less powerful bureaus and agencies are not always able to bring the larger and more influential ones to the table.
• Ask human rights questions of other federal agencies, even when the State Department is not in the room. The Departments of Defense, Homeland Security, Justice, Treasury, and others need to hear about congressional concerns directly.
• Understand the workload associated with questions for the record. Answers will be drafted by junior staffers and required to go through numerous clearances and approvals.
• Use questions for the record in situations when the administration refuses to be pinned down to a clear answer. You may not succeed in receiving a better answer on paper, but you will force the administration to have an internal debate.
• Don’t ask questions for the record to which you need immediate answers. It can take many months for answers to be submitted (except in the case of nomination hearings).
• Solicit questions from civil society and outside experts. These organizations may bring a unique perspective, as well as the manpower to generate valuable questions that you don’t have time for in the run-up to a hearing.
• Invite a celebrity to raise the profile of a hearing – but make sure he or she is well-briefed on the issue and prepared to answer difficult questions. Testimony by a Hollywood star will only help the cause if it is thoughtful, informed, and on-point.
• If you are inviting a controversial witness, prepare for disruption. You may wish to alert the Capitol Police to the need for additional security.
• Hearings take a great deal of time and effort to prepare and conduct. Sometimes the same benefits can be achieved by organizing a briefing, which is much simpler and less formal – but is not entered into the record.
• Enter into the record a letter or statement from a human rights organization that has not been invited to testify.

Instructive Examples

1. Creating a Human Rights Subcommittee. In 2007, new Senate Judiciary Chairman Sen. Patrick Leahy created the Human Rights and the Law Subcommittee to provide a “focal point” for efforts against torture, human trafficking, and war crimes. In 2011, that subcommittee was merged with the Constitution Subcommittee and renamed by Sen. Durbin as the Subcommittee on the Constitution, Civil Rights, and Human Rights.
2. Building the Basis for Legislation. Building on the release of the movie, Hotel Rwanda (2004) and his own trip to Kigali in 2005, Sen. Durbin held the first hearing of the newly-created Human Rights and the Law subcommittee on “Genocide and the Rule of Law.” The hearing focused on Darfur, exploring the possibility of criminal and civil liability under U.S. law for people who commit genocide anywhere in the world. These hearings led directly to the Genocide Accountability Act of 2007 and the Child Soldiers Prevention Act of 2008.
3. Garnering Media Attention. Testimony by actor and director Ben Affleck on the subject of atrocities in Congo brought vastly increased attendance and attention to hearings before the Senate Foreign Relations Committee in 2014 and the Senate Appropriations Committee in 2015. Some members began as skeptics of Affleck’s expertise on the issue, but his performance won rave reviews on both sides of the aisle.
4. Prompting Policy Change. Following its 2009 offensive in the Swat valley, the Pakistani Army was accused of carrying out hundreds of extrajudicial killings, as well as torture, illegal detentions and disappearances. Sen. Leahy raised this issue in a March 2010 hearing with Secretary of State Hillary Clinton and Secretary of Defense Robert Gates, reminding them of their obligation to uphold the Leahy Law. In October 2010, the U.S. Government cut support to about half a dozen Pakistani Army units linked to the abuse, despite Pakistan’s importance to the War on Terror.
5. Ensuring Federal Authorities Confront Abuses. In 2012, the Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights held the first-ever hearing by Congress on solitary confinement, examining whether the practice constitutes cruel and unusual punishment. Following the hearing, which included a testy exchange with the director of the Federal Bureau of Prisons, Sen. Dick Durbin requested an independent assessment of federal segregation policies. The report, released in December 2014, identified several areas for improvement and reform. In July 2015, President Obama asked the Justice Department to review the issue further, and in January 2016, the Justice Department released a final report recommending that “this practice should be used rarely, applied fairly, and subjected to reasonable constraints.”
6. Shaming the Administration into Action. In September 2013, Rep. Chris Smith introduced a bill to designate Boko Haram as a foreign terrorist organization. Similar legislation was introduced in the Senate earlier that year, as well as in the previous Congress, but no action had been taken on any of these measures. On the morning of November 13, 2013 – just before the Assistant Secretary of State for African Affairs was to testify at a joint subcommittee hearing on “The Continuing Threat of Boko Haram” – the State Department announced it would add Boko Haram to the list of terrorist organizations.
7. Holding Corporate Executives Accountable. At a hearing of the House Foreign Affairs Committee in November 2007, Yahoo Chief Executive Jerry Yang publicly apologized to the mother of imprisoned journalist Shi Tao for providing the Chinese Government with Shi’s e-mail records. In previous testimony to the committee, Yang had denied knowing why Chinese officials wanted information on Shi. Chairman Tom Lantos publicly announced his invitation to Yang to reappear before the committee after new information came to light and seated Shi’s mother directly behind Yang. Two weeks after the hearing, Yahoo agreed to a financial settlement with the family.
8. Not What the Ambassador Intended. In March 2006, the Ethiopian Chargé d’Affaires in the United States demanded to be added to the witness list for a scheduled hearing of the House Subcommittee on Africa, Global Human Rights and International Relations. In his testimony, Ambassador Fesseha Ashghedom Tessema denied human rights abuses by his government. Members of the committee cited specific allegations in the State Department’s Country Report on Human Rights Practices, which caused the hearing room to erupt in laughter. The ambassador was recalled shortly thereafter, and the committee changed its rules to prevent foreign government officials from testifying.
9. Dangers of Not Knowing Your Witnesses. In 1990, following the Iraqi invasion of Kuwait, the Kuwaiti Ambassador to the United Nations alleged that Iraqi soldiers had looted hospitals and seized incubators, resulting in the death of premature babies – a story repeated in the media. The Congressional Human Rights Caucus seized on these stories to hold a hearing with a 15-year old girl, identified only as “Nayirah,” who claimed to be a Kuwaiti nurse who had witnessed Iraqi soldiers taking infants from incubators and leaving them to die. It turned out that the teenager was the daughter of the Kuwaiti Ambassador to the United States, and that her testimony had been arranged by a public relations firm working for a Kuwaiti-sponsored organization seeking U.S. military intervention.
10. Putting Human Rights on the National Agenda. In 1973-74, Rep. Donald Fraser of Minnesota, Chairman of the House Foreign Affairs Subcommittee on International Organizations, held a series of 40 human rights hearings that substantially raised the visibility of human rights issues and led to enactment of the first laws linking human rights and foreign aid. Section 32 of the Foreign Assistance Act of 1973 (PL 93-189) states the sense of Congress that “the President should deny any economic or military assistance to the government of any foreign country which practices the internment or imprisonment of that country’s citizens for political purposes.” Section 35 of the same act expresses the sense of Congress regarding human rights in Chile.
11. Uncovering Covert Aid. In 1975, witnesses from the State Department and the CIA gave conflicting testimony to the Senate Foreign Relations Committee regarding covert U.S. aid to paramilitary groups in Angola. Sen. Dick Clark, who chaired the Subcommittee on Africa, exposed the discrepancies, revealing that the CIA was coordinating with apartheid South Africa. Congress then took action to end the program (paywall).