March 30, 2004

Reversal: Rice To Speak

by Chris Geidner

The Post reports it here, and the White House letter detailing the "conditions" are here. From the letter:

[W]e 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.

Such an "assurance" must be made in writing as a "necessary condition[]" of Rice's testimony, as well as another assurance that "it will not request additional public testimony from any White House official, including Dr. Rice."

They never cease to amaze me. What exactly are they thinking? Doesn't an event cause a precedent? I understand how a court opinion might be unpublished, but even that gives me problems as to whether it creates precedent. I certainly don't see how an event could be agreed to by the parties to the event that it creates no precedent. Of course it does; it is to happen. This is, perhaps, the most clear example I've seen of the Bush Administration creating their reality with no regard for actual reality.

March 30, 2004 11:05 AM | TrackBack

Care to explain?

I don't know much about executive privilege except that Clinton asserted it a couple times and was denied 9-0 by the U.S. Supreme Court. Gonzalez's letter takes the position that by making Rice, Bush and Cheney available to the 9/11 Commission, the White House is voluntarily waiving a legitimate claim of executive privilege.

I don't know if it is true. Do you?

Posted by: BTD Steve at March 30, 2004 11:35 AM

This reminds me of the claim in Bush v. Gore that the case has no precedential effect. Nonetheless, it is cited all the time for its "reasoning"; right.

Yet, I am somewhat disappointed that the administration has agreed to public testimony, though the oath requirement is perfectly reasonable. Any venting in the national security area may be dangerous to the process of energetic and dynamic action. I do not see this as some alternate reality at any rate, because words have meaning and deliberative audible intelligence is not subsumed by conduct. America has not become Zarathustra's mountaintop overnight. Asking for the assurance is reasonable for the executive, since the commission is going going to get the testimony of the one person that heads up the show in this arena. As I said, I disagree with the view on Bush's decision insofar as I flat out do not think the NSA should be testifying in public under nearly any conceivable circumstances, and the assurance, etc., is not unreasonable or irrational. I respectully dissent from Zarathustranism.

Posted by: Erik Newton at March 30, 2004 11:54 AM

All that I meant by "their reality" v. "actual reality" is that precedent does not depend on how those involved view a situation; it is only so (or not so) as viewed by those who follow.

Posted by: Chris Geidner at March 30, 2004 12:09 PM

As mentioned, voluntary waiver by one party in a hypothetical suit can't be viewed as precedent the same way the Nixon tapes case is viewed as precedent.

Basically, like any good lawyer, Gonzalez is covering all bases.

Posted by: Brian at March 30, 2004 12:14 PM

Based on the update you posted after I post my comment, I now understand where you are coming from.

However, cases are always distinguishable on their facts. The Bush administration is voluntarily waiving executive privilege in this unique circumstance for explicitly stated reasons. They're just clarifying that the unique facts account for the decision to testify, not a legal obligation. I think getting the 9/11 Commission to agree with that, in writing, is an effective way to avoid waiving more privilege than is intended.

I do not think this must necessarily set a precedent. The fact that some criminal defendants testify in their own trials doesn't dilute the privilege against self incrimination for everyone else. Just because Abraham Lincoln suspended habeas corpus doesn't mean Bush can.

This is no more "creating their own reality" than it is for someone suspected of a crime to provide information in exchange for immunity from prosecution. In both cases, someone does something he's not obligated to do, but only under certain conditions. It's not denying (or defining) reality - it's making a deal.

And these sorts of deals are in the public interest.

Posted by: BTD Steve at March 30, 2004 01:51 PM

To BTD Steve’s point, it seems to me that volunteering Rice’s testimony before the panel is a strategic move. It is designed to avoid any precedent-setting decision requiring her testimony. By voluntarily allowing Rice’s testimony, the White House does not waive any executive privilege claims going forward and does not end up with a precedential case mandating such testimony going forward.

Steve’s analogy is a good one: just because one criminal defendant chooses to testify in his own defense does not mean that all future defendants will be required to testify. This is a concession of convenience.

Posted by: Fool at March 30, 2004 02:46 PM

Precedent is a tricky word here. I think Gonzalez probably meant something like this:

If in the future the Iraq/WMD Commission sued the Executive to compel Rice to testify at those hearings, a federal court couldn't use this current waiver as a dilution of the Executive's interest in keep its privilege when balancing it against any other concern (in Nixon it was in prosecuting the laws/criminal investigation). The Bush administration doesn't want the Court to say, "well, clearly your interest in confidentiality isn't that great since you allowed Rice to testify before, thus we will afford it less weight."

To what extent the signed agreement would actually prevent that from happening is another question entirely.

Posted by: Brian at March 30, 2004 03:04 PM

Then again, I think my co-blogger agrees with Chris.

I guess, sure, some future NSA might come under pressure to testify. But on that score, Dr. Rice was being pressured to testify in this case, despite there being no precedent. So it's not like politicians or the press need a precedent before they exert pressure.

The importance of this transaction, I think, is that it preserves the non-waiver argument for some future administration to make in court.

Posted by: BTD Steve at March 30, 2004 05:32 PM

What about the assertion of executive privilege, a purportedly principled decision until it becomes politically untenable to do so? Who cares about waiving executive privilege or not? If the privilege was so crucial to them, they'd keep invoking it. Waive, shmaive! Executive privilege is, and always has been, a shield by which to deflect politically charged inquiries that could yield potentially embarassing information.

Posted by: Shoo at March 30, 2004 10:51 PM

9-11 is going to be blamed elsewhere, what they wish to avoid is this question- WHY WERE S.T.O.P.s NOT followed for hijacked planes on 9-11?

This will remove liability for negligent homciide if unasked. It is arguably treason and abetting an action against citizens.

Then the "agreement" will cover their tail in the yellowcake lies and the Chalabi shams that led to Iraq.

Covering their ass twice with one event as usual.

And we'll even get CNN to lie about its poll totals, give Bush a huge lead as a result, and steal another election with a 6.5 vote count theft before "recount" theft that lost by half a million.

Bush , the "popular" president who did not win the popular vote.

Posted by: Mr.Murder at March 30, 2004 11:42 PM

How refreshing--a civil discussion of the actual issue here rather than the usual wingnut partisan blather.

Then, as they say, my alarm clock rang.

Posted by: spongeworthy at March 31, 2004 10:09 AM


I sort of understand a few of the things the poster from two posts ago refers to, but can't quite put it together. But S.T.O.P.s? no idea what they are, and I'm a news junkie. The yellowcake is a red herring, Bush didn't actually talk about yellowcake. And of course everyone knows CNN is a puppet of the republican party, so why even bring that up?

Posted by: Leo at April 1, 2004 12:59 AM

The Bush Administration wavered and then insisted upon a waiver. So let's all do the wave led by Yale's most famous head cheerleader. But what if Rice don't know beans? There isn't enough surf up for a real wave, except bye bye.

Posted by: Shag from Brookline at April 2, 2004 02:42 PM
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