Jewish World Review April 9, 2004 /19 Nissan, 5764

Terry Eastland

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Bush was right to permit Rice to testify on 9-11 | To allow National Security Adviser Condoleezza Rice to testify under oath before the Sept. 11 commission, President Bush had to stand down from a claim of executive privilege. Mr. Bush was right to do that, but let's give the privilege its due.

Mr. Bush has described executive privilege as a "principle" of separation of powers. That's an all too brief way of putting it. The framers of the Constitution understood that there are three kinds of power — legislative, executive and judicial — and that good government lies in the distribution of at least the bulk of each kind of power to Congress, the president and the courts.

The framers also understood that the elective branches might clash. Indeed, you could say that clashes between the two are inevitable. After all, a Congress that wants from a president information that it regards as necessary to its legislative task is within its rights to insist that he give it up. And a president who wants to maintain his ability to carry out his executive function is equally within his rights to assert a privilege to hold back the information.

Mr. Bush justified his claim, as past presidents have, by citing the need for receiving confidential and candid advice from staff members: "A president and his advisers, including his adviser for national security affairs, must be able to communicate freely and privately, without being compelled to reveal those communications to the legislative branch."

It would be nice to have a tidy solution when the two branches so fundamentally disagree. But the framers failed to provide one. Not that they could have, for disputes between branches can't be governed by rules drawn up in advance. As University of Texas political scientist Jeffrey Tulis has observed, "There is no formula independent of political circumstance with which to weigh such competing institutional claims." Ordinarily, things are worked out through some sort of compromise acceptable to both branches.

In February, the commission interviewed Dr. Rice in private. She wasn't under oath, and the interview wasn't recorded. When the commission asked her to return for a public interview under oath, the president's lawyers countered by offering her for another private interview that would be recorded and then transcribed and made public. But the commission stood its ground, and the president yielded.

"Political circumstances" surely affected Mr. Bush's change of mind. Consider that if there is one case in which the national security adviser's public testimony before Congress is absolutely essential, it would have to be the one at hand. For here we have a body created by Congress and sanctioned by the president himself that's probing what went wrong before the Sept. 11 attacks and what changes should be made.

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Consider, too, that the commission has demonstrated that it isn't embarked on some effort to undermine executive power. In return for her public, sworn testimony, the commission was willing to agree not to request any additional testimony of that kind from Dr. Rice or other White House aides, nor to regard her appearance as setting a precedent for making future requests for such testimony.

Though Mr. Bush won't concede the point, his claim of privilege wasn't helped by another "political circumstance" — Dr. Rice's frequent media appearances in which she sought to rebut a former counterterrorism aide's criticism of the administration. Had Dr. Rice stayed off television, the president's assertion of the need for strictly private communications with his advisers would have been more persuasive.

When Dr. Rice takes her seat today before the commission, the debate will shift from what the president's spokesman calls "process" to "substance" — from the dispute over executive privilege to the issues involving Sept. 11. Yet given our government of separated powers, process questions inevitably will return, with this president and this Congress and with future ones. Executive privilege will be back.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2003, Terry Eastland