March 30, 2004 - New York Times
9/11 Panel's Chiefs Want Rice to Testify Under Oath
By PHILIP SHENON and RICHARD W. STEVENSON
Ms. Rice has refused to testify in public before the commission, even as she has granted numerous interviews about its investigation.
The White House declined to respond to Mr. Kean's comments. One official who had been briefed on discussions between the White House and the commission said Monday night that several options were under consideration that might lead to a compromise over Ms. Rice. The official, who asked not to be named because he had not been authorized to disclose the information, declined to specify the options and said nothing had yet been decided.
Ms. Rice has granted one private interview to the 10-member, bipartisan commission and has requested another. But the White House has cited executive privilege in refusing to allow her to testify in public or under oath. That decision has led Democrats and other critics to accuse the White House of trying to hide embarrassing information about its failure to pre-empt the Sept. 11 attacks.
"I think she should be under the same penalty as Richard Clarke," Mr. Kean said in an interview, referring to Richard A. Clarke, the former White House counterterrorism adviser who testified to the panel last week that the Bush administration had not paid sufficient attention to the threat from Al Qaeda before Sept. 11, 2001.
Congressional Republican leaders have said that Mr. Clarke lied under oath in describing the Bush administration's counterterrorism record and requested that previous Congressional testimony by him be declassified.
In a private interview in February with several members of the commission, Ms. Rice was not required to be under oath, and panel officials said that no transcript was made of the four-hour conversation. The commission has required all witnesses testifying at public hearings to be sworn in, opening them to perjury charges if they are found to be lying, while all but a handful of the hundreds of witnesses questioned behind closed doors have not been sworn in.
In separate interviews, Mr. Kean and the panel's vice chairman, Lee H. Hamilton, a former Democratic House member from Indiana, said they would continue to press for Ms. Rice to testify under oath in public.
But they said that if the White House continued to refuse to have her answer questions at a public hearing, any new private interviews with Ms. Rice should be conducted under new ground rules, with the national security adviser placed under oath and a transcription made.
Mr. Kean and Mr. Hamilton also said that if the White House agreed, they were ready to declassify and make public the notes taken by commissioners when they interviewed Ms. Rice on Feb. 7, along with the transcripts of nearly 15 hours of private questioning of Mr. Clarke that was conducted by the commission before last week's hearing. "My tendency is to say that everything should be made public," Mr. Kean said.
There were signs throughout the day on Monday of a debate within the administration over whether to hold fast to the principle of not allowing White House aides to testify before Congress or to seek a deal that would allow Ms. Rice to appear before the commission.
White House officials said Ms. Rice herself was looking for ways she could be permitted to respond to the commission, despite the reservations of the White House counsel's office and the potential difficulty of explaining why the administration was reversing course on what it had made a matter of principle.
One outside adviser to the White House said that Mr. Bush's political staff was inclined to compromise on Ms. Rice's testimony, judging the political costs of continuing to fight in the midst of a tight re-election campaign to outweigh any cost from showing flexibility on the principle.
"It's fair to say many of the senior political advisers understand the principle but have a more pragmatic view," said the adviser, who insisted on anonymity, saying he wanted to keep his role behind the scenes.
This adviser said that Karl Rove, Mr. Bush's senior adviser and political strategist, wanted to move the election away from questions like "Were there intelligence failures?" and to put the focus instead on which candidate could better protect against any future efforts by terrorists to attack the United States.
"If we're going to have a discussion about W.M.D. and intelligence failures and Osama bin Laden, that's not an election George W. Bush wins," the adviser said. "If it's about who keeps you safer, that's the ground we want to be on."
The White House has cast its objections to allowing Ms. Rice to make a formal appearance before the commission as a matter of upholding the principle of separation of powers between Congress, which created the commission, and the executive branch.
In a letter to the commission last week, Alberto R. Gonzales, the White House counsel, said that in order to protect the ability of any president "to receive the best and most candid possible advice from their White House staff" on national security issues, it was important that "these advisers not be compelled to testify publicly before Congressional bodies such as the commission."
A second outside adviser said that White House officials believed they could endure the political firestorm raging now, but that they were concerned that giving up the privilege could come back to haunt them down the road.
After finding herself at the center of the political furor over Mr. Clarke's testimony, Ms. Rice asked last week for a separate meeting with the commission, specifically to rebut the accusation made by Mr. Clarke in his testimony and in his new, best-selling memoir.
"With other witnesses, our policy has been to conduct interviews under oath when key factual matters are in dispute, and there are obviously some factual matters here under dispute," Mr. Hamilton said. He said the commission would probably go ahead with the interview even if Ms. Rice refused. "If she decided not to be placed under oath, that would be her decision, and we are still going to want her testimony."
The commission has voted in the past against issuing a subpoena for Ms. Rice, and panel members said today that they were unlikely to reconsider given the lengthy court challenge that might result.
Opinion polls over the last week offer no clear signs on whether the furor over Mr. Clarke's accusations will affect Mr. Bush's hopes for re-election.
A poll by the Pew Research Center conducted March 22 through Sunday showed Mr. Bush running even with Senator John Kerry of Massachusetts in a head-to-head match-up among registered voters. A poll by Newsweek taken after Mr. Clark's testimony showed that while the president's overall approval rating remained steady at 49 percent, the percentage of voters who said they approved the way he had handled terrorism and domestic security issues had dropped.
Ms. Rice has given a flurry of interviews to news organizations over the last week in which she has challenged Mr. Clarke's truthfulness, including his depiction of her as slow-footed in responding to intelligence warnings throughout 2001 that Al Qaeda was plotting a catastrophic attack on the United States.
Members of the commission, Democrats and Republicans alike, say they are angered by her interviews. They say that the White House has made a major political blunder by continuing to assert executive privilege in blocking public testimony by Ms. Rice while continuing to use her as the principal public spokeswoman in defending the Bush's administration's actions before Sept. 11.
"I find it reprehensible that the White House is making her the fall guy for this legalistic position," said John F. Lehman, Navy secretary in the Reagan administration and a Republican member of the commission. "I've published two books on executive privilege, and I know that executive privilege has to bend to reality."
While there is precedent for the White House argument that incumbent national security advisers and other White House advisers should not be required to testify in public, constitutional scholars say that the position is based only on past practice, not law, and that presidents have repeatedly waived the privilege, especially at times of scandal or other intense political pressure.
I think that she will
It's better that she doesn't because that gives the Dems an edge but I think she will.
The commission will go easy on her because they won't want to appear as attacking a black woman. They will not ask her anything groundbreaking. She will spout out her usual spiel and will be unscathed.
Drudge.
Well, let's see what the legal experts, quoted in a slightly less partisan place such as
USA Today, say:
Quote:"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. "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," he said.
...and...
Quote:Louis Fisher, a senior specialist on separation of powers at the Congressional Research Service and author of the 2004 book "The Politics of Executive Privilege," called the Bush administration's legal claims "a scarecrow."
Rice "has the same risk on TV of disclosing confidences when people ask her about what did you say to President Bush," he said. "The argument isn't persuasive."
Perhaps her position is that she is happy to answer the questions, but is trying to preserve, for future generation, the idea that the executive branch of the government cannot be compelled to follow the instructions of the legislative branch.
Perhaps this has already been stated, but it is my understanding that she
DID in fact testify before the 9/11 Commission and under oath, but simply not during the
public portion of the hearings.
Quote:Meanwhile, the White House told the independent panel investigating those attacks that National Security Adviser Condoleezza Rice wants another private meeting with the commission, which held two days of
public hearings this week.
Rice did not testify at those sessions,
but she has met privately with the commission before.
Link ->
http://www.cnn.com/2004/ALLPOLITICS/03/25/911.commission/
BBB
Condi Rice's previous testimony before the commission was not under oath and was not recorded; therefore there is no transcript.
BBB
seems to be some confusion as to if there is a transcript of Condi's prior testimony:
Quote:After resisting for months, White House officials worked yesterday to negotiate a compromise that would allow public release of national security adviser Condoleezza Rice's testimony before the independent commission looking into the attacks of Sept. 11, 2001, according to administration aides
http://www.washingtonpost.com/wp-dyn/articles/A34348-2004Mar29.html
Seems to be a lot of confusion that could have been avoided by a bit more straightforward coverage by the media. Take a look at the reports about Condi's "refusing" to testify, and consider how many fail to mention that she actually did, just not in front of the public. From that you can either infer that MOST journalists and media outlets are sloppy and do a poor job of including the relevant facts, OR you can consider the possibility that a lot of the media simply preferred to leave out that important little detail.
Bush OKs Condi Rice testimony under oath in public
Please note my BOLD paragraph near the end. WOW!---BBB
[Tue Mar 30 2004 10:43:17 ET]
THE WHITE HOUSE
WASHINGTON
March 30, 2004
Thomas H. Kean, Chairman
Lee H. Hamilton, Vice Chairman
National Commission on Terrorist Attacks Upon the United States
2100 K St. N.W.
Washington, D.C. 20037
Dear Chairman Kean and Vice Chairman Hamilton:
As we discussed last night, the President is prepared, subject to the conditions set forth below, to agree to the request of the National Commission on Terrorist Attacks Upon the United States for public testimony, under oath, by the Assistant to the President for National Security Affairs, Dr. Condoleezza Rice.
The President has consistently stated a policy of strong support for the Commission and instructed the Executive Branch to provide unprecedented and extraordinary access to the Commission. To my knowledge, the Executive Branch has provided access to documents or information in response to each of the requests issued by the Commission to date, including many highly classified and extremely sensitive documents that have seldom, if ever, been made available outside the Executive Branch.
As an additional accommodation, the Executive Office of the President has available more than 20 EOP officials, including the National Security Advisor, for private meetings with the Commission. As you know, based on principles underlying the Constitutional separation of powers, Presidents of both parties have long taken the position that White House advisors and staff are not subject to the jurisdiction of legislative bodies and do not provide testimony - even on a voluntary basis - on policy matters discussed within the White House or advice given to the President. Indeed, I am not aware of any instance of a. sitting National Security Advisor testifying in public to a legislative body (such as the Commission) concerning policy matters.
We continue lo believe, as I advised you by letter dated March 25, 2004, that the principles underlying the Constitutional separation of powers strongly against such public testimony, and that Dr. Rice's testimony before the Commission 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.
Nevertheless, the President recognizes the truly unique and extraordinary circumstances underlying the Commission's responsibility to prepare a detailed report on the facts and circumstances of the horrific attacks on September 11, 2001. Furthermore, we have now received assurances from the Speaker of the House and the Majority Leader of the Senate that, in their view, Dr. Rice's public testimony in connection with the extraordinary events of September 11, 2001 does not set, and should not be cited as, a precedent for future requests for a National Security Advisor or any other White House official to testify before a legislative body. In light of the unique nature of the Commission and these additional assurances, the President has determined that, although he retains the legal authority to decline to make Dr. Rice available to testily in public, he will agree, as a matter of comity and subject to the conditions set forth below, to the Commission's for Dr. Rice to testify publicly regarding matters within the Commission's statutory mandate.
The necessary conditions are as follows. First, the Commission must agree in writing that Dr. Rice's testimony before die Commission does not set any precedent for future Commission requests, or requests in any other context, for testimony by a National Security Advisor or any other White House official.
Second, the Commission must agree in writing that it will not request additional public testimony from any White House official, including Dr. Rice. The National Security Advisor is uniquely situated to provide the Commission with information necessary to fulfill its statutory mandate. Indeed, it is for reason that Dr. Rice privately met with the Commission for more than four hours on February 7, fully answered every question posed to her, and offered additional private meetings as necessary. Despite the fact that the Commission will therefore have access to all information of which Dr. Rice is aware, the Commission has nevertheless urged public confidence in the work of the Commission would be enhanced by Dr. Rice appearing publicly before the Commission. Other White House officials with information relevant to the Commission's inquiry do not come within the scope of the Commission's rationale for seeking public testimony from Dr. Rice. These officials will continue to provide the Commission with information through private meetings, briefings, and documents, consistent with our previous practice. I greatly appreciate the strong support you expressed to me last for an agreement to the conditions on which we are proposing this extraordinary accommodation and your commitment to strongly advocate for the full support of the Commission. If the Commission accepts the terms of this agreement, I hope that we can schedule a time as soon as possible for such a public appearance by Dr. Rice. I want to reiterate once again, however, that Dr. would be made available to the Commission with due- regard for the Constitutional separation of powers and reserving all legal authorities, privileges, and objections that may apply, including with respect to other governmental entities or private parties.
I would also like to take this occasion to offer an accommodation on another issue on which we have not yet reached an agreement - Commission access to the President and Vice President. I am authorized to advise you that the President and Vice President have agreed to one joint private session with all 10 Commissioners, with one Commission staff member present to take notes of the session.
1 look forward to continuing to work with the Commission to help it obtain the information it needs to fulfill its statutory mandate.
Sincerely,
Alberto R. Gonzales
Counsel to the President
Re: Brandon
I said:
Brandon9000 wrote:Perhaps her position is that she is happy to answer the questions, but is trying to preserve, for future generation, the idea that the executive branch of the government cannot be compelled to follow the instructions of the legislative branch.
Your reply:
No offense, but this does not lend any creedence to the idea that my statement is wrong.
Brandon
Brandon, I didn't understand your statement, hence the ? since the three branches of government are equal with the final clout being compliance with the Constitution as held by the Supreme Court.
BBB
Re: Brandon
BumbleBeeBoogie wrote:Brandon, I didn't understand your statement, hence the ? since the three branches of government are equal with the final clout being compliance with the Constitution as held by the Supreme Court.
Think of it this way, BBB; can the President order the legislature to pass a bill into law? If not, why not?
Re: Brandon
BumbleBeeBoogie wrote:Brandon, I didn't understand your statement, hence the ? since the three branches of government are equal with the final clout being compliance with the Constitution as held by the Supreme Court.
BBB
Under the Constitution, the three branches of government are coequal. This was done so that no branch of government could become strong enough to rule the country as a dictatorship. Under this system, the legislative branch cannot compel the executive branch to answer questions. Therefore, someone might be willing to testify on a particular subject, but refrain from doing do in order to avoid creating a precendent that the legislative branch is in charge of the executive branch.
Well, now we are in a situation. If Condi offers testimony under oath that is different than Clarks then one of them committed perjury and it won't be enough to just guess which one depending on which side people want to come out looking good. If she says something different I am assuming that the commission will call Clark back in but then Rice won't come back in unless they go back on that statement as well. How will the situation be legally resolved?
The 9/11 Commission is not part of any branch of the government, and most certainly not the legislative branch, as implied by Brandon and Scrat.
This "Constitutional separation of powers" is a red herring, which is why it is no longer an issue now that Dr. Rice has agreed to testify under oath.
Thank you Pdiddie for making it clear that the commission is exactly that, a commission which will make a report of it's findings to the American people. This argument that Rice kept mouthing about not testifying before "Congress" struck me as disingenuous from the gitgo.
