Condoleezza Rice and Executive Privilege

Tue Mar 30 06:36:53 PST 2004

Thanks very much.  I haven't read Profesor Silverstein's book (Executive Privilege wasn't my principal area of focus at OLC); but it sounds as if I ought to do so.  Until I do, hope you don't mind if I press the issue a bit further.  If I understand the argument, it is not so much that the NS Advisor's advice requires a greater assurance of confidentiality, or concerns more sensitive subject matter, than the advice of other officials -- i.e., it is not based on the usual justifications for the assertion of Executive Privilege.  Instead, if I'm properly understanding Prof. Silverstein's first paragraph, the argument for a special Executive-Privilege status for the NS Advisor appears to be predicated on the notion that Congress ordinarily does not have any legitimate oversight function over the NSC that would justify a compelled invasion of the privilege for congressional testimony -- that is to say, that there is no countervailing congressional interest in such cases to place on the other side of the scales in the Executive Privilege "balance."  

There is, of course, something to the notion that Congress's oversight functions are more pronounced as to cabinet-level officials.  But even if we were to indulge a strong version of the fiction that Congress has little or no oversight authority vis-a-vis the NSA, does that really preclude Rice's testimony here, where (i) the Commission in question is not an arm of Congress, and clearly does have a mandate to investigate the role of NSA; (ii) the NS Advisor already has testified before that Commission for several hours in closed session; and, perhaps most importantly, (iii) the President's interest in the assurance of confidentiality (i.e., the interest on the other side of the equation) has been substantially eviscerated by the White House's willingness to reveal extensive advice given to and requested by the President, by officials in and out of NSA, on matters at the heart of national security, to congressional committees, to the 9/11 Commission, to Bob Woodward, to Ed Bradley, to FoxNews, etc.?

The last point is especially salient, I think.  I would be very sympathetic to Administration assertions of Executive Privilege (that's the OLC alum in me speaking) if the Administration took seriously the notion of confidential advice on matters of national security.  But this is an Administration that offers Bob Woodward a contemporaneous, if selective, blow-by-blow account of the President's specific advice and decisionmaking process on matters of war while the war is still being waged.  And it's an Administration that is nominally very hawkish on matters of information classified for national security purposes, until such information might reveal information that would assist in political damage control, at which point apparently it is permissible to have the CIA selectively cull through and declassify only that classified information that will assist the White House's version of spin in attacking its perceived enemies, see   http://www.talkingpointsmemo.com/archives/week_2004_03_28.php#002779 (quoting an NBC story last night:  "U.S. officials told NBC News that the full record of Clarke's testimony two years ago would not be declassified. They said that at the request of the White House, however, the CIA was going through the transcript to see what could be declassified, with an eye toward pointing out contradictions.").  (And don't even get me started on Valerie Plame.) 

On the other hand, perhaps the Administration's argument isn't one of Executive Privilege at all, even though E.P. is what they've been chattering about in public.  Perhaps it's a much broader separation-of-powers argument that would prevent Congress from requiring the Executive Branch to reveal internal deliberations to anyone, even in cases where no showing of the need for confidentiaity could plausibly be asserted, if the advice was rendered in the service of one of the President's exclusive powers, such as the Appointment, Pardon, Opinion, Recommendations, and Commander-in-Chief powers.  This sounds very much like the breathtakingly broad constitutional avoidance argument the SG has made in the Cheney case in support of a narrow construction of FACA.  See http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2003-0475.mer.aa.pdf:  "Congress's legitimate interests are non-existent when it comes to investigating the discharge of functions within the exclusive province of another Branch.  See Barenblatt, 360 U.S. at 111-112. Congress could not validly regulate the process by which the President gathers advice and information to formulate his policies and recommendations, and it has no greater legislative authority to empower private individuals to intrude into that process."  From this premise it apparently follows that virtually any legislative regulation of the president's advisors' functions "within the exclusive province" of the President is suspect -- including simply a sunshine requirement -- regardless of whether such a regulation might be any impediment at all on the President's ability to exercise his powers under, e.g., the Opinions, or Recommendations, or Commander-in-Chief, clauses. This separation-of-powers argument is, according to the SG, "both broader than and antecedent to any specific future claims of privilege":  it is that "separation-of-powers principles preclude all discovery into the process by which the President received advice in the exercise of his Article II powers, not merely discovery of matters protected by a separate Executive privilege."  As long as we're on the subject, I'd love to hear others' reactions to the government's constitutional arguments in the Cheney case, which are, suffice it to say, much more interesting and important than whether Justice Scalia and the Vice President shared a blind during their duck-hunt.

----- Original Message ----- 
  From: Gordon Silverstein 
  To: Marty Lederman ; Conlawprof at lists.ucla.edu 
  Sent: Tuesday, March 30, 2004 12:12 AM
  Subject: RE: Condoleezza Rice and Executive Privilege

  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 Senate.

  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 alone.

  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 berkeley.edu

  *************************************** 

     -----Original Message-----
    From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Marty Lederman
    Sent: Monday, March 29, 2004 8:32 PM
    To: Conlawprof at lists.ucla.edu
    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 -- http://www.salon.com/news/wire/2004/03/29/rice/ -- 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 following:

    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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