Is Condi Rice Breaking Precedent by Testifying Before the 9-11 Commission?

Roundup: Media's Take

Neil A. Lewis, in the NYT (March 31, 2004), writing about the history of executive privilege:

A study published in 2002 by the Congressional Research Service, a branch of the Library of Congress, cited 20 instances since World War II in which presidents, waiving the privilege, had allowed senior White House aides to testify before Congressional committees.

In the case of Ms. Rice, however, the White House said no other incumbent national security adviser had ever testified in public concerning policy matters.

In 1980, President Jimmy Carter did allow his national security adviser, Zbigniew Brzezinski, to appear before the Senate Judiciary Committee to discuss efforts by the president's brother, Billy, to lobby on behalf of Libya. But that proceeding was considered something akin to a criminal investigation.

Some members of the Sept. 11 commission have noted that in 1994, President Bill Clinton allowed Samuel R. Berger, then his deputy national security adviser, to testify about American policy in Haiti. But Alberto R. Gonzales, the Bush White House counsel, pointed out in a letter to the commission last week that Mr. Berger's appearance had been in closed session.

In a letter on Tuesday in which the administration agreed to make Ms. Rice available for public testimony, Mr. Gonzales said the White House was making an"extraordinary accommodation" that"does not set any precedent."

One authority on executive privilege, Peter Shane, a law professor at Ohio State University, disagreed. Professor Shane said that if anything, Ms. Rice's testimony would bolster the idea that there is no impediment to having the national security adviser testify publicly.

"If the argument is that such testimony will damage the presidency and she goes ahead and testifies and the presidency remains undamaged," he said, that only makes it more difficult to resist the next time.

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