Tuesday, March 30, 2004

Condi's shaky legal "principle" on testifying:

"Nothing would be better from my point of view than to be able to testify," Dr Rice said on American television's 60 Minutes. But it was a "long-standing principle that sitting national security advisers do not testify before the Congress". From the "60 Minutes" transcript:
ED BRADLEY: But there are some people who look at this and say, "But this - this was an unprecedented event. Nothing like this ever happened to this country before. And this is an occasion where you can put that executive privilege aside. It's a big enough issue to talk in public."

CONDOLEEZZA RICE: It is an unprecedented event. We've said that many, many times. But this commission is rightly not concentrating on what happened on the day of September 11.. So, this is not a matter of what happened on that day, as extraordinary as it is - as it was. This is a matter of policy. And we have yet to find an example of a national security advisor, sitting national security advisor, who has - been willing to testify on matters of policy.

Joshua Marshall points up the line-parsing sophistry of her answer. As he notes, "Then in 1997, when he [Sandy Berger] was NSC Director, he was testifying in the course of an investigation into a scandal -- but certainly one with policy implications, since I'm pretty sure what they were asking him about was whether money affected policy. Why this is a constitutionally significant distinction is lost on me too. But again, that's their out -- it wasn't about 'policy'.

National Security Advisor Zbigniew Brzezinski testified before congress in 1980. But again, that was in the context of an investigation -- into an accusation that Billy Carter, the then-president's brother, had tried to influence the US government on behalf of Libya.

But, again, that's not 'policy'. So apparently by Rice's standard, it doesn't count."

The Washington Post reports that there's legal precedent for Condi Rice's stubborn position, BUT, it notes, "The main exception, historically, appears to be in cases of alleged wrongdoing. When scandal strikes, White House aides testify.

Several Nixon White House aides testified before the Senate Watergate committee, as did Carter's national security adviser, Zbigniew Brzezinski, during the Senate's investigation of alleged lobbying by the president's brother, Billy Carter, on behalf of Libya.

President Bill Clinton's national security adviser, Samuel R. "Sandy" Berger, testified before a Senate committee investigating the Clinton campaign's fundraising practices in 1996. Berger, as deputy national security adviser, testified on Haiti policy in May 1994, but that testimony was behind closed doors.

So it ultimately may be important whether the current commission, created by Congress to "make a full and complete accounting of the circumstances surrounding the attacks, and the extent of the United States' preparedness for, and immediate response to, the attacks" and to recommend "corrective measures," is conducting a probe similar to investigations of such scandals."

Whatever the legal disputes over the issue, there's no question what the morally and politically appropriate response of Rice should be.

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