Jewish World Review April 1, 2004 / 11 Nissan 5764

Paul Greenberg

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'Condoleezza Rice, do you swear . . .' | There was a wonderful, almost Orwellian moment Tuesday morning here at the Arkansas Democrat-Gazette. It happened in our editorial conference room, where Ralph Reed - the Bush campaign's man in the Southeast - was being interviewed. He had just told us that he didn't think Condoleeza Rice should testify before the 9/11 Commission when word arrived that she would - the administration had changed its mind. Quick as a flash, Reed responded: "I think she should testify."

The guy has a sense of humor.

And the White House had a point, if not the decisive one, when it was arguing against letting the president's national security adviser testify. To do so, it contended, would breach the Constitution's separation of powers, since she was appointed solely by the president but would be reporting to the Congress. Or at least a commission it established.

Harry Truman would understand the problem. He was once asked to testify before a congressional committee about what he knew about Communists in government and when he knew it.

In his pithy way, Mr. Truman summed up the reasons any president would have for declining a summons from Congress. The separation of powers "would be shattered, and the president, contrary to our fundamental theories of constitutional government, would become a mere arm of the legislative branch of the government if he would feel during his term of office that his every act might be subject to official inquiry and possible distortion for political purposes."

Mr. Truman was in good company. The doctrine of executive privilege is almost as old as the Constitution itself, and flows naturally from it. The privilege has been invoked by presidents going back to George Washington in 1796. Among others who've cited it were Presidents Jefferson, Monroe, Jackson, Tyler, Polk, Fillmore, Buchanan, Lincoln, Grant, Hayes, Cleveland, both Roosevelts, Coolidge and Hoover. And, in more recent times, Richard Nixon and Bill Clinton.

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But if Condoleezza Rice shouldn't talk to this commission, why did she talk - for hours - to this same commission in secret? The constitutional principle involved is much the same, whether she appears in public or privately. In either case, it would be clear that she was appearing voluntarily, rather than under subpoena from the legislative branch. She is now to testify under oath, but there is no reason to believe she'll say anything different. Her aye has always been aye, her nay, nay.

Was she declining the commission's invitation to testify because her words might be the subject of what Mr. Truman called distortion for political purposes? But she can still invoke executive privilege if the questions grow too intrusive. Besides, it was her refusing to testify in public that was letting her critics distort her political position. Silence was giving consent - for others to tar her.

Condi Rice has scarcely been silent. She's been appearing all over the television networks to rebut Richard Clarke's charges against this administration - and doing a good job of it. Why not say the same things before the commission?

My theory is that, when the administration declined to let her appear before the commission in open session, it was listening to its lawyers rather than the dictates of either constitutional logic or political reality. It was just following policy, not thinking. Just because a close adviser to the president may decline to testify in public doesn't mean she should decline.

Suppose some high-ranking adviser to Lyndon Johnson had refused to testify before the Warren Commission in open session about the assassination of John F. Kennedy. Imagine the rumors that would have been started. A lot of them were started anyway. (Oliver Stone made a career of turning conspiracy theories into films.)

By not letting Dr. Rice testify in public, the administration was giving the appearance of having something to hide. Which can't help it or the country. With all these partisan distractions competing for our attention, Americans may lose sight of who was really to blame for September 11th: the terrorists.

Suppose that, just a couple of years after Pearl Harbor, a congressional commission had forced one of FDR's closest advisers to testify about the nation's preparedness, or lack thereof, before December 7, 1941. And that a once-trusted intelligence officer who'd been denied a promotion had proceeded to make the most serious charges against the commander-in-chief.

How much aid and comfort would the nation's enemies have derived from that spectacle? How much will they derive from this growing squabble?

The commission's hearings already had taken on a partisan cast, and a bitter debate-by-sound bite was taking place between Dick Clarke, the star witness for the prosecution, and Condi Rice, who was playing defense. All this hullabaloo had obscured the commission's early findings, namely that both the Bush and Clinton administrations had failed to act effectively against the gathering danger. Not just civility but perspective was being lost. Perhaps now the air can be cleared. But only if all concerned act responsibly - and remember that there's a war on, not just a presidential election.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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