In December 2010, Rep. Peter King (R-NY), the new chair of the House Committee on Homeland Security, announced in an op-ed his intention of holding hearings on "radicalization of the American Muslim community and homegrown terrorism."
Following up on a Politico story from last week, today's Washington Post ran a story on reactions from the Muslim community in Rep. King's Long Island district to his announcement of these hearings.
Such hearings are not new to Congress, as Senator Joseph I. Lieberman, Chair of the Senate Committee on Homeland Security & Governmental Affairs held nearly a dozen such hearings on "Violent Islamist Extremism and the Homegrown Terrorist Threat," between 2006 and 2009.
In hearings that could help strengthen our law enforcement, intelligence, and homeland security apparatus to protect Americans from additional harm, these congressional committees need to respect the limitations of their authority when conducting these investigations.
The legal limitations include but are not limited to respect of individual's constitutional rights, such as those protected by the First Amendment, the Fourth Amendment, and the Fifth Amendment. Care also must be paid to the crafting of the resolution authorizing the investigation, and the questions asked pursuant to it. Violating constitutional rights or exceeding the scope of the authorizing resolution could result in a legally unenforceable investigation or set of questions, See Watkins v. United States, 354 U.S. 178 (1957).
But appealing to a federal court might be more difficult than appealing to the court of opinion, which also will have a large say -- depending on the media coverage of such hearings -- on whether a Chair has overreached. Challenging the authority of a congressional subpoena is highly difficult after the Supreme Court's decision in Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (1976), which held that the Speech or Debate Clause of the Constitution bars judicial review of a congerssional subpoena, so long as the issuance of the subpoena was an act made "within the legitimate legislative sphere." In most situations, the practical upshot of Eastland is that a recipient of a subpoena would need to refuse to comply with the subpoena and submit herself to contempt proceedings before she would have an opportunity to have a federal court review the lawful enforceability vel non of the congressional subpoena.
Submitting oneself to contempt is an extraordinary step, which is why we have seen so few published decisions on the legitimacy of congressional inquiries.
For that reason, an educated, active press must play a role in questioning whether congressional inquiries are fair and lawful. If the court of public opinion does not agree with the approach a congressional investigation is taking, such a public reaction can and will have an impact on the investigation.
