Privilege put aside, Rice will testify
The decision Tuesday shows the political cost of a legal principle.
By conceding that National Security Adviser Condoleezza Rice can testify publicly under oath before the 9/11 commission, the White House has made a political calculation aimed at quieting criticism that the administration is behaving evasively.
The decision, announced Tuesday by the White House counsel's office, goes against weeks of argument that such testimony would compromise the principle of executive privilege that presidents enjoy with their advisers.
In a letter to the 9/11 commission's chairmen, White House Counsel Alberto Gonzales sought written assurances that Dr. Rice's testimony would set no future precedents.
"The president recognizes the truly unique and extraordinary circumstances underlying the commission's responsibility to prepare a detailed report on the facts," Judge Gonzales wrote.
Legal and political analysts disagree over whether the president can avoid the appearance of precedent by allowing a top White House adviser to testify publicly under oath on a policy matter. But it is clear that the Bush administration had concluded it must put out the political firestorm that had erupted over the Rice issue, sparked by testimony and a book by Richard Clarke, the White House's former counterterrorism chief. Mr. Clarke had claimed that the White House was lax in fighting Al Qaeda before Sept. 11, 2001, and allowed Iraq to distract from the battle against Al Qaeda after 9/11.
"What the Clarke story does is question the basic rationale for reelecting the president," says Paul Light, a political scientist at New York University. "Clarke is saying the president doesn't make good decisions. So [Bush has] got to rebut the charges - and I guess they've decided Condi Rice is the one to do it."
Rice has already testified to the commission, though privately and not under oath, as both the president and vice president have agreed to do in a joint private session with all 10 commissioners. But it is doubtful that public testimony from Rice, under oath, will reveal any new information.
"There's a perception that she's holding back, a belief among a lot of people that she has something to hide and I think that is mistaken," says John Mearsheimer, a political scientist at the University of Chicago. "She's going to make the same arguments under oath that she made to '60 Minutes' and all sorts of other TV and radio shows."
Still, Rice's testimony will keep Americans glued to their televisions once again as a top administration official goes over the events leading up to and following 9/11. And it will certainly be remembered, particularly the next time the issue of executive privilege arises in an important public policy matter.
At least two previous presidents have permitted national security advisers to testify in public, but both cases involved political scandal, not policy. Zbigniew Brzezinski testified before the Senate Judiciary Committee about President Carter's brother's alleged effort to lobby on behalf of Libya. And Sandy Berger, President Clinton's national security adviser, testified on alleged campaign fundraising connections in Asia in 1996.
"When you have a criminal or quasi-criminal situation, like Watergate or Iran/contra, then there is a long tradition that the criminal law requires one's testimony," says a former White House counsel.
"But when it's a policy issue, which this is, it's thought by every White House that putting the staff up to testify would totally, over the long term, destroy the ability of the president to get candid advice."
Whether that will prove true remains to be seen. But Peter Shane, director of the Center for Law, Policy, and Social Science at Ohio State University, agrees that the White House is setting an important precedent by allowing Rice to testify publicly under oath.
He calls the White House counsel's office request for assurances that no precedent be recognized a face-saving device.
"An event, once it occurs, obviously establishes a precedent that such an event can occur without ending civilization as we know it," says Professor Shane.
Part of the problem, he notes, is that the role of the national security adviser has expanded over time - especially since the Nixon administration, when Henry Kissinger held the position - and become much more public, complicating the rationale that originally supported the adviser's immunity from testimony.
The practice of having a national security adviser started under President Franklin Roosevelt, who, a management committee found, needed additional eyes and ears and was to function almost as an alterego of the president. Such a person, who would operate in anonymity, literally could not have opened his mouth without compromising the president.
"But since Henry Kissinger has been national security adviser, it's been clear that these people have wielded power comparable to cabinet secretaries," says Shane.
"They are in the foreground, they are issuing orders, making decisions - and giving public statements all the time. And so for the executive branch to take the position that this person can't open his or her mouth without violating executive privilege just seems less and less plausible."
• Faye Bowers contributed to this report from Washington.