WASHINGTON, D.C. — There is no ironclad legal doctrine buttressing National Security Adviser Condoleezza Rice's refusal to testify publicly before the panel investigating the Sept. 11 attacks, law experts said Monday.
Rice already has spoken to the commission in private. But she says public testimony is protected by executive privilege. That principle says presidential advisers cannot be legally forced to disclose their confidential communications if that would adversely affect the operations of the executive branch.
It is rare for White House advisers to testify publicly before Congress or congressionally appointed panels like the Sept. 11 commission. But exceptions exist, and legal scholars say they poke holes in Rice's argument.
She also has spoken openly to the media about the attacks and the advice she offered President Bush about terrorism.
"The whole idea of executive privilege is that the president's advisers should be able to give advice in confidence," said Herman Schwartz, a constitutional law professor at American University. "That means the advice should be kept confidential. But she's talked to everybody under the sun.
"What is the difference between appearing before the commission privately, telling them her story, and saying it publicly under oath? She can't have it both ways," he said.
But Charles Fried, a constitutional law professor at Harvard Law School, said previous instances involving testimony by White House staff were special situations involving criminal prosecutions or closed-door testimony.
He noted that Cabinet officials such as Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, rather than presidential advisers, have leeway to testify before Congress because their appointments are confirmed by the Senate, he said.
"If the Bush administration caved, it would open the door to not only this president, but future presidents, Democrat and Republican, being forced" to have close advisers testify in non-criminal matters relating to confidential political advice, said Fried, a solicitor general under President Reagan.
Rice wants a second private interview with the commission to clear up "a number of mischaracterizations" following former counterterrorism adviser Richard Clarke's charges that the Bush administration was slow to act against the threat of al-Qaida.
White House spokesman Scott McClellan said discussions about such a meeting are under way with the commission.
"Condi very much looks forward to meeting with the commission again and answering all their questions," he said.
McClellan sidestepped questions about whether the discussions include a compromise proposal, such as allowing her to testify privately but then publicly releasing her statements.
Al Felzenberg, a spokesman for the commission, said only the White House can make such a decision. He said there is no talk about publicly disclosing what Rice said during her Feb. 7 meeting with the panel.
There are several instances in which sitting national security advisers or White House aides testified before legislative bodies. Among them:
-Zbigniew Brzezinski, national security adviser to then-President Carter, testified before the Senate in 1980 regarding alleged lobbying or criminal activities by the president's brother, Billy Carter, on behalf of Libya.
-Sandy Berger, national security adviser to then-President Clinton, testified in 1997 before a Senate committee reviewing the Clinton campaign's fund-raising practices.
-Several presidential aides during the Nixon administration testified before the Senate about Watergate, including White House counsel John Dean, former chief domestic adviser John Ehrlichman and former White House aide H.R. Haldeman.
Louis Fisher, a senior specialist on separation of powers at the Congressional Research Service and author of the 2004 book "The Politics of Executive Privilege," called the Bush administration's legal claims "a scarecrow."
Rice "has the same risk on TV of disclosing confidences when people ask her about what did you say to President Bush," he said. "The argument isn't persuasive."
On the Net: http://www.9-11commission.gov