Condoleezza Rice and Executive Privilege

Gordon Silverstein gsilver at
Mon Mar 29 21:12:18 PST 2004

At its most basic, the privilege claim  is an assertion by the President
that the National Security advisor, like any political or personal counselor
to the President, is a just that -- a personal counselor to the President.
She does not run a cabinet office, she is not a constitutional officier in
the line of succession, and is not subject to confirmation hearings by the
Senate -- She is not subject to the advise and consent function, and
therefore unless there is a charge of illegal activity, should not be
subject to formal testimony on questions concerning her personal counsel.

This of course, makes this a very appealling alternative way to develop and
execute foreign policy. And it was prescisely these advantages that led the
Kennedy Administration first, and most dramatically the Nixon administration
(with Henry Kissinger) to relie ever more heavily on an NSC advisor in place
of the person the Constitution anticipates playing this role -- the
Secretary of State -- who can and often is held accountable by the House and

Though set up by Truman under statutory authority of the National Security
Act of 1947 and revised in 1949, it was under Kennedy that the NSC began to
dramatically change from an inter-agency coordinating group administered by
an executive secretary into something closer to the President's personal
department of state -- a transformation that really came to full flower
under Nixon and Kissinger.

The real question is -- is it any longer tenable to treat the NSC advisor as
no more nor less than Karen Hughes and Karl Rove? Given that the NSC staff
is essentially a substitute for the State Department, does this continue to
make sense -- if it ever did)?

But to do something about this would require real backbone by the
institution most damaged in this -- the Congress. The Congress in general,
and the Senate in particular, has lost crucial oversight authority and power
in foreign policy. Ultimately, Rumsfeld and Powell know that their office,
their budget, their power can be significantly trimmed by Congress -- not so
the National Security Advisor who serves the President and the president

But Congress has gone along with this for a very long time. Many of the cold
war incentives to do so are now gone, and yet Congress still refuses to
assert its authority and challenge the Executive (and this was as true of
Bush-the-Elder as it was of Clinton and Bush-the-Younger).

If I may be permitted a bit of shameless self-promotion (For those with at
least a passing interest in this topic) this question is discussed at some
length in a book a published a few years ago: "Imbalance of Powers:
Constitutional Interpretation and the Making of American Foreign Policy."
(Oxford University Press, 1996).

- Gordon Silverstein


Gordon Silverstein
Assistant Professor
Department of Political Science
210 Barrows Hall
The University of California
Berkeley, CA  94720

ph: 510-642-4683
fx: 510-642-9515

email: gsilver at


   -----Original Message-----
  From: conlawprof-bounces at
[mailto:conlawprof-bounces at]On Behalf Of Marty Lederman
  Sent: Monday, March 29, 2004 8:32 PM
  To: Conlawprof at
  Subject: Condoleezza Rice and Executive Privilege

  Perhaps, as an OLC alum, I ought to know the answer to this question, but
what is the theory behind the White House's assertion that Condi Rice's
testimony before the 9/11 Commission is prohibited by Executive Privilege?
In this story -- -- Charles
Fried is quoted as suggesting that there is such a privilege that prevents
her testimony; but, in fairness to him, he's not quoted extensively enough
to understand what the theory might be, particularly in light of the

  1.  Fried concedes that cabinet-level officials (e.g., Rumsfeld and
Powell) "have leeway to testify before Congress because their appointments
are confirmed by the Senate" -- even though presumably they would be
testifying about the same matters.  (This sounds vaguely like a distinction
I recall overhearing while at OLC, although for the life of me I can't
remember the argument.)

  2.  Rice herself has been all over television, radio and print media
providing extensive information concerning advice that she and others gave
to the President.

  3.  Rice testified in closed session before the Commission.

  4.  Other NSC advisors have testifed before congressional and other
committees in the past.

  5.  Richard Clarke and others (e.g., Armitage, Tenet) have testified at
length concerning the same events and advice to the President, all
presumably without any White House objection based on executive privilege.
(The White House, for instance, cleared Clarke's book for publication.)

  6.  The President and all of his advisors, presumably including Rice, have
given journalists such as Bob Woodward extensive access to their internal
deliberations (or their preferred version of them, anyway) concerning
foreign affairs, terrorism, and the Iraq War.

  Also, and I'm not certain which way this cuts, the 9/11 Commission is not
a congressional entity.

  (I apologize in advance if any of the above is not accurate; they are my
understandings based on very casual exposure to the debate in the press.)

  In light of the extremely bad press that the White House is suffering
because of Rice's failure to publicly testify, there must be some principled
argument in favor of the assertion of privilege here.  Can anyone shed some
light on what it might be?
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