Rice At Sea
John Prados is an analyst with the National Security Archive in Washington, DC, and author, most recently, of Hoodwinked: The Documents That Reveal How Bush Sold Us A War" (The New Press).
President Bush worked hard to shield his national security adviser, Condoleezza Rice, from being called to provide public, under-oath testimony before the National Commission on Terrorist Attacks Upon the United States. At public hearings in late March 2004, where senior officials from the previous and this administration appeared, Sandy Berger, Rice's predecessor during the Clinton years, spoke with dignity and authority, presenting the White House view of events being examined in one of the most important investigations in recent history. Americans who saw Dr. Rice all over television, heard her on radio, and read print interviews in which she joined in Bush efforts to discredit a former colleague wonder why she cannot spare time to appear before them. The 9/11 Commission voted unanimously to ask Dr. Rice to testify in public. The Bush White House responded that they were required to observe precedent, that the 9/11 Commission, being created by act of Congress, is an artifact of that institution and separation of powers necessitated that White House employees not appear before it. The White House fallback position was that maintaining the confidentiality of advice to the president required that Rice not appear.
Both these arguments have been used before and both are specious. The National Security Act of 1947 established a National Security Council (NSC) that would be served by a small staff led by an executive secretary. The position of national security adviser had no standing in law whatsoever. It has sprung up from the practice of presidents, starting with Dwight D. Eisenhower, who brought in special assistants to help them. There is a body of executive branch administrative regulation that pertains to the security adviser, but as late as the Reagan administration, for purposes of parking spaces on West Executive Avenue and White House Mess privileges, the NSC staff was not regarded as part of the president's personal staff but as a distinct entity. The NSC is supported by its own line item in the U.S. budget that is not part of the president's Executive Office budget. No law shielded Rice from congressional scrutiny.
In practice, the distinction the Bush administration tried to make has eroded completely over time. As early as Eisenhower's time, special assistant for national security affairs Gordon Gray appeared before Congress to justify NSC budget requests. Those were standard hearings, mind you, not ultra-important investigations of key events. In the latter it has been the norm, not the exception, for appearances by national security advisers to take place. President Jimmy Carter began that practice in 1980, requiring security adviser Zbigniew Brzezinski to appear before investigations of allegations of corruption on the part of President Carter's brother Billie.
In the late 1980s Iran-Contra affair, President Ronald Reagan not only fired security adviser John Poindexter but instructed him to cooperate with investigators. Poindexter and another former security adviser, Robert C. McFarlane, testified along with NSC staffer Ollie North. Difficulties securing their testimony flowed from personal legal issues, not executive privilege. During the Clinton administration, incumbent national security adviser Sandy Berger appeared twice before Congress"two different committees of the Senate on different issues three years apart. Predecessor Anthony Lake also appeared before congressional investigators of certain events that had occurred in Bosnia. Nor are presidents themselves immune"President Gerald R. Ford testified on his pardon for Richard Nixon, while Ronald Reagan went before both a commission and a special prosecutor investigating Iran-Contra.
The separation of powers rationale for withholding testimony from a national security adviser is a fiction. Dr. Rice's initial offer of additional closed-door testimony to the 9/11 Commission effectively conceded that point. President Bush's decision at the end of March 2004 to permit Rice to testify in public under oath, which White House counsel Alberto Gonzales wished to stipulate cannot be used to establish a new precedent, in fact does not do so. The precedent, set long ago, is that national security advisers do testify.
The notion that personal advice to a president would somehow be corrupted by testimony is a puzzling one. No one questions the ability of the members of the president's cabinet to furnish advice privately and effectively. Yet those cabinet members testify before Congress all the time. Many national security advisers, Condoleezza Rice among them, have carried cabinet rank. Now the moment has come to take on cabinet responsibilities. The role of the adviser has expanded steadily since Harry Truman created the NSC. Originally traffic cops outside the Oval Office, advisers became issue analysts and coordinators, traveling emissaries for their presidents, secret agents carrying out quiet missions, surrogates for the secretary of state, congressional lobbyists, personal cronies of the president and public relations experts. Dr. Rice has expanded many of those envelopes, and the obverse side of the personal advice argument is that it is inadmissible to have officials of such critical importance and wide scope who have no standing in law but yet are immune to congressional inquiry.
The Bush administration's maneuvers with respect to the 9/11 Commission are of a piece with its information use and denial policies on many fronts. Rice's testimony"or lack thereof"is representative of an attitude previously exhibited with respect to documents required for a criminal investigation (the White House reviewed material prior to handing it over in the Valerie Plame investigation), declassification policy, access to presidential records, insertion of new freedom of information exemptions in the Patriot Act, creation of a category of unclassified but still restricted information and threats to withhold briefings from Congress. The same White House which did these things instantly opened up and threw at reporters excerpts of classified documents (talking points memos and e-mails from NSC staffer Richard A. Clarke) when it became focused on undercutting criticisms made by a former official. The juxtaposition of these behaviors is striking. Dr. Rice herself is the origin of several of these releases, using them in her media contacts.
Americans can agree that a Rice appearance before the 9/11 Commission ought not to be used to set new precedents, but the new precedent to be avoided is the notion that the White House is above scrutiny by Congress or the American people.
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Published: Apr 05 2004
