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
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.