MikeB
05-24-2004, 11:03 AM
The Constitution Defeats Condi: A Victory for the People's Right to Know
by Danilo Q. Lawhorn
The White House's decision--a stunning reversal of a position it was clinging to even as late as Monday night--to allow White House national security adviser Condoleezza Rice to testify before the 9-11 commission is a victory for freedom. It is a victory for accountability. It is a victory for democracy. The full text of the letter attached below, it's worth reading and savoring; because although the administration never wanted to have to write such a letter, it's your right to read it!
The American people, in their wisdom, might decide to re-elect George W. Bush--or they might not. But in any case, after Rice's testimony, it will be more clear that the People's Right to Know takes precedence over precedent--or, more precisely, the Bushies' opportunistic and self-serving version of constitutional precedent. As Bill Schneider said of the Bush people on CNN Tuesday morning, "they appear to be hiding behind legalisms that don't make a lot of sense to most Americans." And when the likes of Tom Kean and John Lehman--both Bush appointees to the 9-11 commission-- so the Bush-Rice cover-up could not stand.
In plain point of fact, the Bush defenses weren't so much legalisms as sophistries--that is, excuses they made up to avoid a Reckoning with the Truth about 9-11. Indeed, the notion of "executive privilege" isn't some ancient legal concept that goes back to the Founding of the Republic in the 18th century; instead, it is a notion conjured up by President Dwight Eisenhower in the 1950s. That's right: this whole business goes back only five decades or so.
So why did the White House try so desperately to avoid letting Rice testify? Here's what I think--two things.
First, there are plenty of punctilious lawyers floating around the Bush Administration. Most of them are associated with the Federalist Society, which is a group of conservative--they like to call themselves "constitutionalists"--lawyer think that they are the leading arbiters of Constitutional Truth for America. They're a smart enough bunch, but that doesn't make them correct in their view, or transparent about the full presentation of their views. One of their big ideas over the last two decades has been enhancing the power of the presidency. Of course, they mostly worry about this presidential enhancement when a Republican is in the White House. In the 90s, when Bill Clinton was in the Oval Office, such leading Federalists as Ken Starr, the Whitewater/Lewinsky Independent Counsel, were perfectly eager to puncture a Democratic president's privileges and immunities in the name of partisan advantage. So once again, we are reminded that the law is an ass--or maybe an ox. And whoever's ox is gored squeal--and does the squealing through a pinstriped lawyer.
Second, Rice plainly has a lot to hide. It's obvious that the White House wasn't ready for 9-11. As former anti-terror czar Richard Clarke details in his new book, Against All Enemies, the Bush people, convinced that the Clinton people knew nothing (did they lack "moral clarity?") about tough-guy foreign policy, decided to start all over again when it came to counter-terrorism. So Clarke was demoted from cabinet rank, thus making him a subordinate player in the defense of America. In the meantime, the Bushies undertook a laborious new planning process for dealing with terror. And of course, complicating things further was the huge paradigm shift inside 43rd president's team; that is, the shift the emphasis away from al-Qaeda and toward Iraq. After that happened, Saddam's days were numbered--but Osama Bin Laden got a break.
Indeed, al-Qaeda hadn't gone away; Osama Bin Laden wasn't going to slow down his planning just because the White House was rewriting memos and strategy documents. Which explains why were so helpless, and hit so badly, on 9-11. If Rice were to testify truthfully about all that--about her errors in judgment, about George W. Bush's blunders--there'd be no problem. At least not a legal problem. But instead, of course, Rice will be strongly inclined to shade her testimony before the 9-11 Commission--and down that road lies perjury.
Ivote2004 will be following these hearings closely. Because whatever one might think of Bush, or the war on terror, or the war on Iraq (and the war on terror and the war on Iraq are two different things, by the way), the fact remains that Tuesday was a great day for the People's Right to Know.
A few notes on this text: the body of this letter--902 words--is a masterpiece of obfuscation. Which, of course, is what lawyers get paid to do, so Al Gonzalez earned his pay. Although the White House will claim that this is not a precedent for the future, of course it is. The next time that there's a major disaster such as 9-11, it will be that much harder for anyone in the government to not testify about it. And that's a good thing. Also, the White House will claim victory insofar as no one other than Rice will have to testify under oath in public. But as Slade Gorton, yet another Bush appointee said on Tuesday, "we hadn't planned to" ask anyone else from the White House.
THE WHITE HOUSE
WASHINGTON
March 30, 2004
Thomas H. Kean, Chairman
Lee H. Hamilton, Vice Chairman
National Commission on Terrorist Attacks Upon the United States 2100 K St. N.W. Washington, D.C. 20037
Dear Chairman Kean and Vice Chairman Hamilton:
As we discussed last night, the President is prepared, subject to the conditions set forth below, to agree to the request of the National Commission on Terrorist Attacks Upon the United States for public testimony, under oath, by the Assistant to the President for National Security Affairs, Dr. Condoleezza Rice.
The President has consistently stated a policy of strong support for the Commission and instructed the Executive Branch to provide unprecedented and extraordinary access to the Commission. To my knowledge, the Executive Branch has provided access to documents or information in response to each of the requests issued by the Commission to date, including many highly classified and extremely sensitive documents that have seldom, if ever, been made available outside the Executive Branch.
As an additional accommodation, the Executive Office of the President has available more than 20 EOP officials, including the National Security Advisor, for private meetings with the Commission. As you know, based on principles underlying the Constitutional separation of powers, Presidents of both parties have long taken the position that White House advisors and staff are not subject to the jurisdiction of legislative bodies and do not provide testimony - even on a voluntary basis - on policy matters discussed within the White House or advice given to the President. Indeed, I am not aware of any instance of a sitting National Security Advisor testifying in public to a legislative body (such as the Commission) concerning policy matters.
We continue lo believe, as I advised you by letter dated March 25, 2004, that the principles underlying the Constitutional separation of powers strongly against such public testimony, and that Dr. Rice's testimony before the Commission occur only with recognition that the events of September 11, 2001 present the most extraordinary and unique circumstances, and with conditions and assurances designed to limit harm to the ability of future Presidents to receive candid advice.
Nevertheless, the President recognizes the truly unique and extraordinary circumstances underlying the Commission's responsibility to prepare a detailed report on the facts and circumstances of the horrific attacks on September 11, 2001. Furthermore, we have now received assurances from the Speaker of the House and the Majority Leader of the Senate that, in their view, Dr. Rice's public testimony in connection with the extraordinary events of September 11, 2001 does not set, and should not be cited as, a precedent for future requests for a National Security Advisor or any other White House official to testify before a legislative body. In light of the unique nature of the Commission and these additional assurances, the President has determined that, although he retains the legal authority to decline to make Dr. Rice available to testily in public, he will agree, as a matter of comity and subject to the conditions set forth below, to the Commission's for Dr. Rice to testify publicly regarding matters within the Commission's statutory mandate.
The necessary conditions are as follows. First, the Commission must agree in writing that Dr. Rice's testimony before die Commission does not set any precedent for future Commission requests, or requests in any other context, for testimony by a National Security Advisor or any other White House official.
Second, the Commission must agree in writing that it will not request additional public testimony from any White House official, including Dr. Rice. The National Security Advisor is uniquely situated to provide the Commission with information necessary to fulfill its statutory mandate. Indeed, it is for reason that Dr. Rice privately met with the Commission for more than four hours on February 7, fully answered every question posed to her, and offered additional private meetings as necessary. Despite the fact that the Commission will therefore have access to all information of which Dr. Rice is aware, the Commission has nevertheless urged public confidence in the work of the Commission would be enhanced by Dr. Rice appearing publicly before the Commission. Other White House officials with information relevant to the Commission's inquiry do not come within the scope of the Commission's rationale for seeking public testimony from Dr. Rice. These officials will continue to provide the Commission with information through private meetings, briefings, and documents, consistent with our previous practice. I greatly appreciate the strong support you expressed to me last for an agreement to the conditions on which we are proposing this extraordinary accommodation and your commitment to strongly advocate for the full support of the Commission. If the Commission accepts the terms of this agreement, I hope that we can schedule a time as soon as possible for such a public appearance by Dr. Rice. I want to reiterate once again, however, that Dr. would be made available to the Commission with due regard for the Constitutional separation of powers and reserving all legal authorities, privileges, and objections that may apply, including with respect to other governmental entities or private parties.
I would also like to take this occasion to offer an accommodation on another issue on which we have not yet reached an agreement - Commission access to the President and Vice President. I am authorized to advise you that the President and Vice President have agreed to one joint private session with all 10 Commissioners, with one Commission staff member present to take notes of the session.
I look forward to continuing to work with the Commission to help it obtain the information it needs to fulfill its statutory mandate.
Sincerely,
Alberto R. Gonzales
Counsel to the President
###
Contact DQL@ivote2004.com
by Danilo Q. Lawhorn
The White House's decision--a stunning reversal of a position it was clinging to even as late as Monday night--to allow White House national security adviser Condoleezza Rice to testify before the 9-11 commission is a victory for freedom. It is a victory for accountability. It is a victory for democracy. The full text of the letter attached below, it's worth reading and savoring; because although the administration never wanted to have to write such a letter, it's your right to read it!
The American people, in their wisdom, might decide to re-elect George W. Bush--or they might not. But in any case, after Rice's testimony, it will be more clear that the People's Right to Know takes precedence over precedent--or, more precisely, the Bushies' opportunistic and self-serving version of constitutional precedent. As Bill Schneider said of the Bush people on CNN Tuesday morning, "they appear to be hiding behind legalisms that don't make a lot of sense to most Americans." And when the likes of Tom Kean and John Lehman--both Bush appointees to the 9-11 commission-- so the Bush-Rice cover-up could not stand.
In plain point of fact, the Bush defenses weren't so much legalisms as sophistries--that is, excuses they made up to avoid a Reckoning with the Truth about 9-11. Indeed, the notion of "executive privilege" isn't some ancient legal concept that goes back to the Founding of the Republic in the 18th century; instead, it is a notion conjured up by President Dwight Eisenhower in the 1950s. That's right: this whole business goes back only five decades or so.
So why did the White House try so desperately to avoid letting Rice testify? Here's what I think--two things.
First, there are plenty of punctilious lawyers floating around the Bush Administration. Most of them are associated with the Federalist Society, which is a group of conservative--they like to call themselves "constitutionalists"--lawyer think that they are the leading arbiters of Constitutional Truth for America. They're a smart enough bunch, but that doesn't make them correct in their view, or transparent about the full presentation of their views. One of their big ideas over the last two decades has been enhancing the power of the presidency. Of course, they mostly worry about this presidential enhancement when a Republican is in the White House. In the 90s, when Bill Clinton was in the Oval Office, such leading Federalists as Ken Starr, the Whitewater/Lewinsky Independent Counsel, were perfectly eager to puncture a Democratic president's privileges and immunities in the name of partisan advantage. So once again, we are reminded that the law is an ass--or maybe an ox. And whoever's ox is gored squeal--and does the squealing through a pinstriped lawyer.
Second, Rice plainly has a lot to hide. It's obvious that the White House wasn't ready for 9-11. As former anti-terror czar Richard Clarke details in his new book, Against All Enemies, the Bush people, convinced that the Clinton people knew nothing (did they lack "moral clarity?") about tough-guy foreign policy, decided to start all over again when it came to counter-terrorism. So Clarke was demoted from cabinet rank, thus making him a subordinate player in the defense of America. In the meantime, the Bushies undertook a laborious new planning process for dealing with terror. And of course, complicating things further was the huge paradigm shift inside 43rd president's team; that is, the shift the emphasis away from al-Qaeda and toward Iraq. After that happened, Saddam's days were numbered--but Osama Bin Laden got a break.
Indeed, al-Qaeda hadn't gone away; Osama Bin Laden wasn't going to slow down his planning just because the White House was rewriting memos and strategy documents. Which explains why were so helpless, and hit so badly, on 9-11. If Rice were to testify truthfully about all that--about her errors in judgment, about George W. Bush's blunders--there'd be no problem. At least not a legal problem. But instead, of course, Rice will be strongly inclined to shade her testimony before the 9-11 Commission--and down that road lies perjury.
Ivote2004 will be following these hearings closely. Because whatever one might think of Bush, or the war on terror, or the war on Iraq (and the war on terror and the war on Iraq are two different things, by the way), the fact remains that Tuesday was a great day for the People's Right to Know.
A few notes on this text: the body of this letter--902 words--is a masterpiece of obfuscation. Which, of course, is what lawyers get paid to do, so Al Gonzalez earned his pay. Although the White House will claim that this is not a precedent for the future, of course it is. The next time that there's a major disaster such as 9-11, it will be that much harder for anyone in the government to not testify about it. And that's a good thing. Also, the White House will claim victory insofar as no one other than Rice will have to testify under oath in public. But as Slade Gorton, yet another Bush appointee said on Tuesday, "we hadn't planned to" ask anyone else from the White House.
THE WHITE HOUSE
WASHINGTON
March 30, 2004
Thomas H. Kean, Chairman
Lee H. Hamilton, Vice Chairman
National Commission on Terrorist Attacks Upon the United States 2100 K St. N.W. Washington, D.C. 20037
Dear Chairman Kean and Vice Chairman Hamilton:
As we discussed last night, the President is prepared, subject to the conditions set forth below, to agree to the request of the National Commission on Terrorist Attacks Upon the United States for public testimony, under oath, by the Assistant to the President for National Security Affairs, Dr. Condoleezza Rice.
The President has consistently stated a policy of strong support for the Commission and instructed the Executive Branch to provide unprecedented and extraordinary access to the Commission. To my knowledge, the Executive Branch has provided access to documents or information in response to each of the requests issued by the Commission to date, including many highly classified and extremely sensitive documents that have seldom, if ever, been made available outside the Executive Branch.
As an additional accommodation, the Executive Office of the President has available more than 20 EOP officials, including the National Security Advisor, for private meetings with the Commission. As you know, based on principles underlying the Constitutional separation of powers, Presidents of both parties have long taken the position that White House advisors and staff are not subject to the jurisdiction of legislative bodies and do not provide testimony - even on a voluntary basis - on policy matters discussed within the White House or advice given to the President. Indeed, I am not aware of any instance of a sitting National Security Advisor testifying in public to a legislative body (such as the Commission) concerning policy matters.
We continue lo believe, as I advised you by letter dated March 25, 2004, that the principles underlying the Constitutional separation of powers strongly against such public testimony, and that Dr. Rice's testimony before the Commission occur only with recognition that the events of September 11, 2001 present the most extraordinary and unique circumstances, and with conditions and assurances designed to limit harm to the ability of future Presidents to receive candid advice.
Nevertheless, the President recognizes the truly unique and extraordinary circumstances underlying the Commission's responsibility to prepare a detailed report on the facts and circumstances of the horrific attacks on September 11, 2001. Furthermore, we have now received assurances from the Speaker of the House and the Majority Leader of the Senate that, in their view, Dr. Rice's public testimony in connection with the extraordinary events of September 11, 2001 does not set, and should not be cited as, a precedent for future requests for a National Security Advisor or any other White House official to testify before a legislative body. In light of the unique nature of the Commission and these additional assurances, the President has determined that, although he retains the legal authority to decline to make Dr. Rice available to testily in public, he will agree, as a matter of comity and subject to the conditions set forth below, to the Commission's for Dr. Rice to testify publicly regarding matters within the Commission's statutory mandate.
The necessary conditions are as follows. First, the Commission must agree in writing that Dr. Rice's testimony before die Commission does not set any precedent for future Commission requests, or requests in any other context, for testimony by a National Security Advisor or any other White House official.
Second, the Commission must agree in writing that it will not request additional public testimony from any White House official, including Dr. Rice. The National Security Advisor is uniquely situated to provide the Commission with information necessary to fulfill its statutory mandate. Indeed, it is for reason that Dr. Rice privately met with the Commission for more than four hours on February 7, fully answered every question posed to her, and offered additional private meetings as necessary. Despite the fact that the Commission will therefore have access to all information of which Dr. Rice is aware, the Commission has nevertheless urged public confidence in the work of the Commission would be enhanced by Dr. Rice appearing publicly before the Commission. Other White House officials with information relevant to the Commission's inquiry do not come within the scope of the Commission's rationale for seeking public testimony from Dr. Rice. These officials will continue to provide the Commission with information through private meetings, briefings, and documents, consistent with our previous practice. I greatly appreciate the strong support you expressed to me last for an agreement to the conditions on which we are proposing this extraordinary accommodation and your commitment to strongly advocate for the full support of the Commission. If the Commission accepts the terms of this agreement, I hope that we can schedule a time as soon as possible for such a public appearance by Dr. Rice. I want to reiterate once again, however, that Dr. would be made available to the Commission with due regard for the Constitutional separation of powers and reserving all legal authorities, privileges, and objections that may apply, including with respect to other governmental entities or private parties.
I would also like to take this occasion to offer an accommodation on another issue on which we have not yet reached an agreement - Commission access to the President and Vice President. I am authorized to advise you that the President and Vice President have agreed to one joint private session with all 10 Commissioners, with one Commission staff member present to take notes of the session.
I look forward to continuing to work with the Commission to help it obtain the information it needs to fulfill its statutory mandate.
Sincerely,
Alberto R. Gonzales
Counsel to the President
###
Contact DQL@ivote2004.com