Rice's grounds for silence weak, legal experts say

Testimony: The clash of the national security adviser and the 9/11 panel looks largely political.

March 30, 2004|By Mark Matthews | Mark Matthews,SUN NATIONAL STAFF

WASHINGTON - Presidential and constitutional scholars took issue yesterday with Condoleezza Rice's reasons for refusing to testify under oath, saying she has undercut her argument by speaking extensively in private and on television and is resting on a narrow legal point.

The refusal by President Bush's national security adviser marks the latest struggle between the commission investigating the Sept. 11 attacks and the White House, which at first resisted the creation of the panel and has tried to restrict its access to the president and key documents.

For critics of the Bush administration, which has earned a reputation for high-level secrecy and discipline, the pressure on Rice represents an effort to penetrate its protective shell. With his accusations that Bush all but ignored the terrorist threat before Sept. 11, Richard A. Clarke, Bush's former counterterrorism chief, committed a rare break with a White House code of tight-lipped loyalty.

The White House frames the dispute in the context of a constitutional separation of powers between the government's executive and legislative branches. In a letter to the commission last week, Alberto R. Gonzales, the White House counsel, argued that vital principles were at stake.

"In order for President Bush and future presidents to continue to receive the best and most candid possible advice from their White House staff on counterterrorism and other national security issues," Gonzales wrote, "it is important that these advisers not be compelled to testify."

But some scholars say the struggle is fundamentally a political one.

"A president can waive executive privilege every time he thinks it's in his political interest - they not only can but do," said Louis Fisher, a specialist on the separation of powers at the Congressional Research Service.

Fisher noted that President Ronald Reagan did so when his White House became embroiled in the Iran-contra scandal.

On Sunday night, Rice told CBS' 60 Minutes that she would be setting a dangerous precedent by testifying publicly on policy matters. And in his letter to the commission, Gonzales wrote that he knew of no example of a "sitting national security adviser" testifying about policy.

Successive presidents have fought to keep internal White House deliberations under wraps, but the Bush White House takes the issue particularly seriously, said David Gergen, who served as an adviser to both Reagan and Bill Clinton.

Noting Vice President Dick Cheney's refusal to identify the people who have advised his energy task force - a matter now before the Supreme Court - Gergen suggested that White House officials believe "there have been too many encroachments on presidential power in recent decades. They believe it's important to the office to reassert that power.

"Now, they're hung up on a position they're having a hard time getting off of," said Gergen, who teaches at Harvard's Kennedy School of Government.

Rice was among the earliest White House officials to denounce Clarke's accusations. She had lengthy exchanges with reporters last week in which she discussed the contents of her inter-office e-mails instructing Clarke to attend staff meetings. Sunday, she was interviewed for a 60 Minutes segment broadcast on prime time.

In addition, she spoke privately with commission members for four hours. Last week, she asked to meet with them again to clarify what the White House calls "a number of mischaracterizations of Dr. Rice's statements and positions" made by others during last week's hearings.

"Why is it that she has to be the one to come forward publicly to denounce Clarke?" said Michael Gerhardt, a constitutional law specialist at the College of William and Mary School of Law. "She puts herself in such an awkward position. If she put herself above the fray, she would appear to be consistent."

Rice seemed to undercut the notion of preserving the confidentiality of White House deliberations when she told 60 Minutes, "I'm not going to say anything in private [to the commission] that I wouldn't say in public."

George Edwards, a professor of political science at Texas A&M University and editor of Presidential Studies Quarterly, said of Rice: "She's not testifying as to her advice to [Bush]. She's testifying as to what they were doing."

Mark Mozell, a political science professor at Catholic University and author of Executive Privilege, a book on presidential powers, said: "I think they're using the policy distinction a bit narrowly in order to justify withholding her testimony."

The White House maintains that previous national security advisers have testified publicly only in cases of suspected impropriety.

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