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Rice to testify in public, under oath

In a reversal, the White House said Tuesday it had agreed to allow national security adviser Condoleezza Rice to testify in public and under oath before the Sept. 11 commission.
/ Source: NBC, and news services

In a reversal, President Bush said Tuesday that he had agreed to allow his national security adviser, Condoleezza Rice, to testify in public and under oath before the Sept. 11 commission to give the nation “a complete picture” of events leading up to the 2001 terrorist attacks.

Bush said he and Vice President Dick Cheney also agreed to meet together with the full panel in private, abandoning their earlier insistence that they would meet only with the commission’s chairman and vice chairman.

“This commission has been charged with a crucial task,” Bush told reporters Tuesday afternoon. “To prevent future attacks, we must understand the tactics of our enemies.”

In a letter to the panel, the White House sought written assurances that Rice’s testimony would set no precedent and that no more public testimony from any White House official would be requested.

The commission accepted the terms, saying in its response that “Dr. Rice’s appearance before the Commission is in response to the special circumstances presented by the events of September 11 and the Commission’s unique mandate.”

Standing on principle
Commission member Slade Gorton, a Republican former senator from Washington, said the National Commission on Terrorist Attacks Upon the United States accepted the stipulation that it not call other White House officials because “we hadn’t planned to.”

“I think the White House would have been better off if it had made the agreements sooner, but I’m delighted,” Gorton said. “I have felt all along that her public testimony would be good for the country.”

The White House and Rice had maintained that requiring a national security adviser to testify under oath would compromise “executive privilege,” which allows a president to exchange ideas freely with an adviser without fearing that they would be made public.

“A president and his advisers, including his advisers for national security affairs, must be able to communicate freely and privately without being compelled to reveal those communications to the legislative branch,” Bush said.

“We have observed this principle while also seeking ways for Dr. Rice to testify,” he added.

Answering Clarke
Rice had said repeatedly that she wanted to testify, but only in private and not under oath, to rebut claims made before the panel last week by Bush’s former counterterrorism director, Richard Clarke. He accused Bush of being obsessed with ousting Iraqi President Saddam Hussein at the expense of fully focusing on the war against terrorism.

“There are significant and extremely important questions,” commission member Tim Roemer, a Democratic former member of Congress from Indiana, said Tuesday. “Was there an urgent priority in the Bush administration in fighting terrorism? How quickly was the decision made? Was it slow, as Mr. Clarke says, or accelerated, as Dr. Rice says?”

Commission staff members were already highlighting differences between Rice and Clarke so commissioners could prepare questions, said former Rep. Lee Hamilton, D-Ind., the panel’s Democratic vice chairman.

“We've got to clear up those discrepancies as best we can,” said former New Jersey Gov. Thomas Kean, the commission’s Republican chairman.

The agreement came as demands that Rice, who spoke to the commission privately for about four hours on Feb. 7,  appear again in public were increasingly cutting across party lines, with Republicans joining Democrats’ insistence that she not evade public testimony.

“I think it’s the right decision,” Sandy Berger, who was President Clinton’s national security adviser, said Tuesday. “It’s not the end of the road, obviously. Her testimony will obviously add to the picture the American people have. It can be then contrasted or compared to any other testimony that may or may not be consistent.”

Former Navy Secretary John Lehman, a Republican member of the commission, said Monday on NBC’s “Today” show that Rice would not be sacrificing the principle of executive privilege because the panel, which was appointed by Bush, was “not an arm of the Congress.”

“There’s a time to rise above principles,” Lehman said. “Lawyers are driving this train,” he added, creating an issue when the Bush administration has “nothing to hide.”

Rice’s slipping position
Critics said Rice’s many news interviews in recent days damaged her credibility in refusing to speak to the commission in public.

“They had no choice” but to let Rice testify in public, Alan Lichtman, a presidential historian at American University in Washington, said Tuesday. “They could not continue on the present line because it made them look like they had something to hide. And the fine distinctions on separation of powers were lost on the public and were debatable on their face.”

Rice has disputed Clarke’s claim that Bush tried to intimidate him on Sept. 12, 2001, into finding a connection between the Sept. 11 attacks and the Iraqi regime of Saddam.

She acknowledged Sunday on CBS’s “60 Minutes” that a meeting took place at which the president asked about Iraq, but she emphasized: “I have never seen the president say anything to people in an intimidating way. The president doesn’t talk to his staff in an intimidating way to get them to produce evidence that is false.”

Legal stance questioned
It is rare for White House advisers to testify publicly before Congress or congressionally appointed panels like the Sept. 11 commission. But there are exceptions, and legal scholars said they called Rice’s argument into question.

“The whole idea of executive privilege is that the president’s advisers should be able to give advice in confidence,” said Herman Schwartz, a constitutional law professor at American University in Washington. “That means the advice should be kept confidential. But she’s talked to everybody under the sun.

“What is the difference between appearing before the commission privately, telling them her story, and saying it publicly under oath? She can’t have it both ways,” Schwartz asked.

But Charles Fried, a constitutional law professor at Harvard Law School, said previous instances involving testimony by White House staffers were special situations involving criminal prosecutions or closed-door testimony.

He noted that Cabinet officials such as Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, unlike presidential advisers, had leeway to testify before Congress because their appointments were confirmed by the Senate.

“If the Bush administration caved, it would open the door to not only this president, but future presidents’, Democrat and Republican, being forced” to have close advisers testify in non-criminal matters relating to confidential political advice, said Fried, who was solicitor general, the government’s chief lawyer, in the administration of President Ronald Reagan.