Ironworks Gaming Forum - Rice to testify in public, under oath

March 31, 2004
NY Times
PRECEDENT
Behind the Privilege That in the End Bowed to Politics
By NEIL A. LEWIS

WASHINGTON, March 30 — The doctrine of executive privilege, which the Bush White House invoked in trying to keep Condoleezza Rice from testifying in public session before the terrorism commission, is widely viewed as one of the most ambiguous concepts in constitutional law.

Though the Constitution makes no explicit reference to the principle, the Supreme Court has recognized that a president and his advisers should be able to speak freely without fear that disclosure of those conversations will be compelled.

The last time the court directly addressed the issue, however, was in 1974, when it first formally recognized the privilege but said President Richard M. Nixon could not claim it as a way of withholding his secret tape recordings from the Watergate prosecutor.

In that case, the justices said the importance of a president's ability to speak confidentially with his closest aides had to be balanced against other needs. They ruled 8 to 0 that the needs of a criminal investigation outweighed the value of uninhibited advice.

The court has since provided no guidance on interpreting the privilege, and has never addressed how, in the absence of a criminal inquiry, to balance the president's needs against a desire by Congress simply to obtain information.

Presidents considering whether to invoke the privilege have had to do their own balancing: weighing the value of maintaining the principle against the political costs of appearing to be hiding something.

"Executive privilege is, in the end, a combination of law and politics," said Louis Fisher, a senior researcher at the Congressional Research Service, who has written a book on the issue.

"A president can invoke this privilege, but he can also waive it," Mr. Fisher said. "All presidents say they worry about the powers they hand over to their successors, but they also have to worry about their own credibility and the price they pay for what some people might perceive as a cover-up."

A study published in 2002 by the Congressional Research Service, a branch of the Library of Congress, cited 20 instances since World War II in which presidents, waiving the privilege, had allowed senior White House aides to testify before Congressional committees.

In the case of Ms. Rice, however, the White House said no other incumbent national security adviser had ever testified in public concerning policy matters.

In 1980, President Jimmy Carter did allow his national security adviser, Zbigniew Brzezinski, to appear before the Senate Judiciary Committee to discuss efforts by the president's brother, Billy, to lobby on behalf of Libya. But that proceeding was considered something akin to a criminal investigation.

Some members of the Sept. 11 commission have noted that in 1994, President Bill Clinton allowed Samuel R. Berger, then his deputy national security adviser, to testify about American policy in Haiti. But Alberto R. Gonzales, the Bush White House counsel, pointed out in a letter to the commission last week that Mr. Berger's appearance had been in closed session.

In a letter on Tuesday in which the administration agreed to make Ms. Rice available for public testimony, Mr. Gonzales said the White House was making an "extraordinary accommodation" that "does not set any precedent."

One authority on executive privilege, Peter Shane, a law professor at Ohio State University, disagreed. Professor Shane said that if anything, Ms. Rice's testimony would bolster the idea that there is no impediment to having the national security adviser testify publicly.

"If the argument is that such testimony will damage the presidency and she goes ahead and testifies and the presidency remains undamaged," he said, that only makes it more difficult to resist the next time.