In article <c4tkdu$1fq0$1@pencil.math.missouri.edu>, srobin21@comcast.net
says...

White House's Ground Rules for Rice Testimony Will Be Tested

Legal Times By Jonathan Groner April 5, 2004

http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1080858017759

WASHINGTON -- The rules of engagement have been set for National
Security Adviser Condoleezza Rice's appearance this week before the
commission investigating the Sept. 11, 2001, terrorist attacks.

The rules, which draw on precedent while carving out new ground to
cover the sensitive current circumstances, were carefully crafted
by White House lawyers.

But that framework will be tested on Thursday morning, when Rice
faces the 10-member National Commission on Terrorist Attacks Upon
the United States and the television cameras in the Hart Senate
Office Building.

Rice's testimony has taken on heightened importance in the wake of
claims by former White House official Richard Clarke that the Bush
administration had largely ignored the terrorist threat before Sept.
11. A political groundswell forced the White House to change course
last week by making Rice available for public questioning by the
bipartisan panel.

The key ground rules for Rice's 2 1/2 hours of testimony were set
out in a two-page March 30 letter from White House Counsel Alberto
Gonzales to the chairman and vice chairman of the Sept. 11 commission.
The Gonzales letter is being supplemented by informal understandings
between the commission and White House staff.

Rice will sit alone at the witness table, but National Security
Council staffers and attorneys will be in the hearing room as well,
says NSC spokesman Sean McCormack.

McCormack says one of those present will be John Bellinger III, the
NSC's legal adviser. According to McCormack, Bellinger is taking
the lead in helping Rice prepare for her appearance.

"I don't think we've fully settled on who will be there," says
McCormack, "but Bellinger will definitely be there." McCormack says
Rice is also consulting with her top deputies and with junior members
of Bellinger's staff.

Bellinger served as counsel for national security matters at the
Department of Justice for four years during the administration of
President Bill Clinton. He was also counsel to the Senate Intelligence
Committee and, earlier, a special assistant to then-CIA Director
William Webster. From 1991 to 1995, Bellinger was an associate and
then a partner at Wilmer Cutler Pickering.

According to McCormack, Bellinger played a role in drafting the
Gonzales letter that sets forth the conditions under which Rice
will appear.

"John was consulted by Judge Gonzales in preparing the letter, but
the White House took the lead," McCormack says. A White House
spokesman did not respond to a request for comment about what input
Gonzales had from others about the letter.

A critical legal and practical question, of course, concerns what
rights Rice may retain under the Gonzales letter to decline to
answer questions.

"Bellinger will discuss any privilege issues with her, while the
substantive NSC staff will make sure she is up to speed on all the
substantive issues," says Eleanor Hill, a D.C. partner at King &
Spalding who dealt with the NSC extensively in 2002 when she was
staff director of a congressional inquiry into the Sept. 11 attacks.

A source familiar with the Bush administration says three other
White House offices -- legislative affairs, communications and the
chief of staff -- are also likely involved in Rice's preparation.

The commissioners have also started to work on their questions, but
they seem to have a much less elaborate mechanism than Rice does.

"I do all my own preparation," says one commissioner, speaking on
the condition of anonymity.

As Hill points out, the privilege question is no doubt going to
take up some of Rice's preparation time. The Gonzales letter that
granted the commission one public session with Rice also stated
that President George W. Bush was letting his national security
adviser testify "as a matter of comity" and without setting "any
precedent for future Commission requests, or requests in any other
context" for testimony by an NSC official.

The letter also declared that the White House continued to reserve
"all legal authorities, privileges, and objections that may apply,
including with respect to other governmental entities or private
parties."

Many observers think that language left open the possibility that
Rice could assert some sort of privilege at the April 8 session in
response to a specific line of questioning.

Beth Nolan, who was White House counsel under President Clinton,
says two separate issues arise whenever a high-ranking aide to the
president who is not in a Senate-confirmed post is called upon to
testify by Congress or a quasi-congressional body like the Sept.
11 commission.

There are, in other words, two kinds of executive privilege that
officials like Rice can invoke -- one that can be used to try to
prevent questioning altogether, and one that would allow the subject
to stay silent on certain questions.

"First, there is a distraction-and-diversion issue. Such an aide
is immune from testifying at all because she is serving the president
directly, at all times, and should not be subject to others' needs,"
says Nolan, now a partner at Crowell & Moring.

Nolan says that under law and precedent, the White House can waive
this concern by having Rice appear before the panel --without waiving
the second issue, its privilege not to have Rice reveal confidential
advice given to the president. The Gonzales letter does, after all,
continue to reserve "privileges and objections."

A source close to the commission says it is "possible, though highly
unlikely" that Rice would seize on such a theory of privilege and
refuse to answer certain questions Thursday.

Nolan points out that politics would strongly counsel against Rice
asserting a privilege on the witness stand.

"Any assertion of privilege," Nolan says, "would be subject to the
same political considerations that compelled them to reverse their
position and to make her available for public testimony."

The commission, for its part, seems confident that it will get the
answers it is seeking.

Commission member Jamie Gorelick, a partner at Wilmer Cutler, says
that "in all the back-and-forth between the commission and the White
House, no one suggested in any way that the White House was reserving
a right on behalf of Dr. Rice not to answer our questions within
the scope of our inquiry."

Another member of the commission, who did not wish to be identified
by name, says the language used by Gonzales "will not affect Rice's
testimony at all."

"This decision has been made," this commissioner says. "And from
everything I know, this was something that Condi Rice wanted to do

>from Day One, to appear publicly and answer questions."

The White House used that language, this commissioner says, with
an eye on future panels, such as the one looking into intelligence
failures preceding the war in Iraq, established by President Bush
in February.

That body, which is only now beginning its work, may well seek
testimony from Rice as well.

The idea behind the Gonzales letter, says this commissioner, is to
ensure "that every committee, especially the Iraq inquiry, can't
just say, OK, we can put her up here as well.' That's really what's
cooking there."

The questions for Rice are expected to focus on what warnings the
administration may have had before Sept. 11 about possible al Qaeda
attacks on the nation, how seriously such warnings were taken, and
whether the administration was so focused on Iraq that it neglected
to focus on the al Qaeda threat.

Rice will also be asked to clarify any contradictions between her
previous statements about these matters and the testimony of Clarke,
the former anti-terrorism adviser.

The March 30 letter from Gonzales also gave the commission the
opportunity to question President Bush and Vice President Dick
Cheney together at a private, untranscribed session.

Hill, the former staff director of the congressional probe, says
it's "always clearly preferable to interview two people individually.
You want the best possible independent recollections so you can
weigh them together, free of influence or suggestion from the other
person."

But, Hill concedes, "It doesn't always happen that way. After all,
it is the president of the United States that we are talking about."

Richard Ben-Veniste, a Sept. 11 commission member and partner at
the D.C. office of Mayer, Brown, Rowe & Maw, says, "It's unusual,
and I don't understand why they insisted on it. But we can deal
with it by directing our questions to the appropriate witness. I
don't think that a question will be put to one individual and
answered by another."

Says Gorelick: "It's unorthodox and a bit odd. But I believe that
we'll have our questions answered in a satisfactory way."

Another commissioner points out that unlike the public testimony
by Rice, which is limited to the one session Thursday, the Bush-Cheney
private testimony has no time restriction.

"Since they're not limiting the time," says this member, "they're
not limiting our ability to get it done."

Jonathan Groner is editor at large at Legal Times, a Recorder
affiliate based in Washington, D.C.

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