Rice's refusal to testify by no means unprecedented

Charles Lane, Washington Post

WASHINGTON, D.C. -- The White House's refusal to permit National Security Adviser Condoleezza Rice to testify publicly and under oath before the commission investigating the Sept. 11 attacks is not unprecedented, according to legal analysts and a report by the research arm of the Library of Congress.

Presidential advisers and other White House staff members have on occasion testified about policy matters before congressional committees since the end of World War II -- but far less frequently than Cabinet secretaries, who are subject to Senate confirmation.

Whatever their political or other motivations may have been, presidents have generally cited the separation of powers and the need for confidential and candid executive deliberations in explaining their resistance to testimony by those White House staff members who, like Rice, serve the president and are not confirmed by the Senate.

These distinctions and justifications remain relatively undefined and have never been ruled on by the Supreme Court. Such a court battle would probably occur only if the commission sent Rice a subpoena, as some members have suggested, and she refused it.

Historically, clashes over White House staff testimony have been settled through compromise between the executive and legislative branches, with each side vying for advantage in the same forum where the dispute over Rice is being played out: the court of public opinion.

"It depends on the situation and the politics and the leverage Congress has and how embarrassing it is for the president not to comply," said Louis Fisher, a specialist in separation of powers at the Congressional Research Service.

In a letter Thursday to Thomas Kean and Lee Hamilton, the chairman and vice chairman of the National Commission on Terrorist Attacks Upon the United States, Counsel to the President Alberto Gonzales spelled out the principles he said make it impossible for Rice to offer anything more than a second private question-and-answer session with the commission. Rice was interviewed privately and not under oath on Feb. 7.

The second time

"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, it is important that these advisers not be compelled to testify publicly before congressional bodies such as the commission," Gonzales wrote.

This is the second time the White House has taken such a position in a battle over congressional access to a key White House anti-terrorism official. Tom Ridge, then the White House's homeland security director, refused to testify before the Senate Appropriations Committee in 2002 but ultimately appeared for public informal sessions before two House committees.

President Jimmy Carter's White House appears to have taken a similar position. An internal 1979 directive advised staffers that they had immunity from compelled congressional testimony because of separation of powers, according to a 2002 report by the Congressional Research Service.

The main exception, historically, appears to be in cases of alleged wrongdoing. When scandal strikes, White House aides testify.

Several of Richard Nixon's White House aides testified before the Senate Watergate committee, as did Carter's national security adviser, Zbigniew Brzezinski, during the Senate's investigation of alleged lobbying by the president's brother, Billy Carter, on behalf of Libya.
President Bill Clinton's national security adviser, Sandy Berger, testified before a Senate committee investigating the Clinton campaign's fundraising practices in 1996. Berger, as deputy national security adviser, testified on Haiti policy in May 1994, but that testimony was behind closed doors.

So it ultimately may be important whether the current congressional commission is conducting a probe similar to investigations of such scandals.