Executive Privilege Folly
Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES
National Security Adviser Condoleezza Rice will testify Thursday publicly and under oath regarding the Bush administration's forewarnings and counterterrorism planning before the September 11, 2001, abominations.
Her questioning by the independent National Commission on Terrorist Attacks Upon the United States will not cause the constitutional sky to fall. It will not engender distortion or suppression of advice received by presidents. Absolutely nothing adverse to a president's constitutional powers will ensue from Miss Rice's disclosures of confidential counterterrorism communications that steer wide of intelligence sources or methods.
What astonishes is why the White House initially resisted the national security adviser's sworn testimony until March 30, 2004, relying on a theory of constitutional separation of powers contradicted by history and experience.
President George W. Bush should replace "secrecy for the sake of secrecy" with "sunshine is the best disinfectant" as the creed for his administration. As James Madison sermonized, popular government without popular information or the means of acquiring it is either a farce or a prelude to tragedy.
White House counsel Alberto R. Gonzales sent the commission an ill-reasoned letter capitulating to the swelling demand for public sworn testimony from Miss Rice. That demand followed testimony by Richard A. Clarke, the president's former counterterrorism chief, accusing the administration of complacency amid clues of a looming terrorist attack on U.S. soil.
Mr. Gonzales asserted that, "We continue to believe ... that the principles underlying the constitutional separation of powers counsel strongly against such public testimony, and that Dr. Rice's testimony before the commission can occur only with recognition that the events of September 11, 2001, present the most extraordinary and unique circumstances, and with conditions and assurances designed to limit harm to the ability of future presidents to receive candid advice."
President Bush's counsel set forth two conditions for the national security adviser's testimony: that it would not be cited as precedent for future requests by Congress or the commission; and, that the commission forswear any additional public testimony from Miss Rice or other White House officials.
Contrary to Mr. Gonzales' insinuation, presidents have uniformly received candid and unskewed confidential advice from their inner circles despite the risk of public disclosures to Congress or the courts. Past National Security Advisers Robert McFarland, John Poindexter, Zbigniew Brzezinski and Sandy Berger have all appeared before Congress without repercussions to uninhibited advice, including that which Miss Rice has provided to President Bush.
Moreover, every White House adviser operates on the well-founded assumption confidential statements may instantly leak to the media. …