An Election Hacking Select Committee Carries Both Promise and Risk

Former Senator Sam Ervin (D-NC)—the Harvard-educated “country lawyer,” constitutional authority, and chair of the Senate select committee on Watergate—once declared that the Congressional investigation can be an “instrument of freedom” or “freedom’s scourge.”  It can promote good policy or “afford a platform for demagogues and the rankest partisans.”

It is essential that Congress keep this dual-edge in mind if Majority Leader Mitch McConnell (R-KY) accedes to a bipartisan request to form a select committee to investigate the hacks during the 2016 election, and, more broadly, the threat posed by covert cyber-intervention in the U.S. electoral process.

The select committee presents a unique opportunity to educate Congress and the American public on the threat that cyber-insecurity poses to civil liberties, privacy, and our democratic system.

The select committee presents a unique opportunity to educate Congress and the American public on the threat that cyber-insecurity poses to civil liberties, privacy, and our democratic system.  Public hearings, à la Watergate, may be a real teaching moment.

If the Senate does this right, the committee could serve as a counter-weight to the intelligence and armed services committees, which may favor giving spy agencies and the military extraordinary new authority to secure domestic networks in the private sector.  Such authority should lie with a private sector actor, with assistance on a voluntary basis from a civilian entity, the Department of Homeland Security.  There is a risk that new responsibility in a military or intelligence agency to secure domestic civilian networks would come with new domestic surveillance authority in the cyber realm.  Crucially, if the select committee does it wrong, it runs the risk of being the agent of these new surveillance powers.

Further, a select committee could embrace another opportunity here: the chance to foster global consensus that any interference with the democratic process in any country through cyber-attacks or other means is improper, regardless of whether the target is Secretary Clinton, or Dr. Salvador Allende, or Mohammed Mossadegh, or Jacobo Arbenz, or Patrice Lumumba, etc.

Accordingly, there are a few steps the Senate could take now to reduce the possibility of a select committee running off the rails.

One, it could require the committee to ensure that the views of interested parties other than military or spy agencies and U.S. political parties are elicited and considered in the committee’s report.  The views of the Departments of Commerce, State, Justice, and Homeland Security, and of civil society and industry, should all be accounted for.  The committee’s mandate should also expressly require the committee to consider privacy and civil liberties in its recommendations.

Two, the same resolution should ensure that the committee’s proceedings are as open to the public as possible.  As noted, the great strength of the Watergate committee was that its hearings were broadcast live in gavel-to-gavel coverage nation-wide.

For instance, a month after the committee started, close to a hundred percent of Americans had heard of Watergate.  That public exposure was critical to public acceptance of the committee’s conclusions.  It led not only to the resignation of President Nixon and criminal charges against conspirators, but to the Church Committee’s inquiry into intelligence abuses, and to passage of legislation governing campaign finance and the Foreign Intelligence Surveillance Act, among other things.

Three, the authorizing resolution should expressly mandate that the committee explore the possibility of some type of multilateral agreement that bars signatories from using cyber-attacks or other clandestine or covert means to influence democratic elections abroad.  Although we are all certainly right to be concerned with foreign interference in the U.S. election, the sad legacy of Cold War political intervention by the United States should also serve as a lesson that this kind of conduct is so dangerous to democracy and the global order that it is never okay.

It is crucial that the committee not be dominated by either the military or the intelligence community.

To that end, the language authorizing the committee to make recommendations to Congress and the administration, in addition to authorizing the investigation of possible interference in the U.S. election, could include something along these lines: “The committee is authorized and directed to investigate whether covert intervention in the electoral processes of any country, including intervention short of the use of military force, should be addressed through legislation or international agreement.”

Fourth, the Senate should pay close attention to the composition of the committee, both with respect to members, and to staff.  It is crucial that the committee not be dominated by either the military or the intelligence community. The committee must ensure that it does not become “militarized,” and that members on the Senate commerce, homeland security, judiciary, and foreign relations committees are prominent and active participants.

In sum, though not without risk, an independent select committee, that is not overly beholden to any stakeholder, and is as transparent in its deliberations as possible, may actually be a positive development as Congress and the country work to determine whether there was foreign interference in the U.S. election and how such interference in any democratic election can be prevented.