Executive privilege folly

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National Security Adviser Condoleezza Rice will testify Thursday publicly and under oath regarding the Bush administration's forewarnings and counterterrorism planning before the September 11, 2001, abominations.

Her questioning by the independent National Commission on Terrorist Attacks Upon the United States will not cause the constitutional sky to fall. It will not engender distortion or suppression of advice received by presidents. Absolutely nothing adverse to a president's constitutional powers will ensue from Miss Rice's disclosures of confidential counterterrorism communications that steer wide of intelligence sources or methods.

What astonishes is why the White House initially resisted the national security adviser's sworn testimony until March 30, 2004, relying on a theory of constitutional separation of powers contradicted by history and experience.

President George W. Bush should replace "secrecy for the sake of secrecy" with "sunshine is the best disinfectant" as the creed for his administration. As James Madison sermonized, popular government without popular information or the means of acquiring it is either a farce or a prelude to tragedy.

White House counsel Alberto R. Gonzales sent the commission an ill-reasoned letter capitulating to the swelling demand for public sworn testimony from Miss Rice. That demand followed testimony by Richard A. Clarke, the president's former counterterrorism chief, accusing the administration of complacency amid clues of a looming terrorist attack on U.S. soil.

Mr. Gonzales asserted that, "We continue to believe ... that the principles underlying the constitutional separation of powers counsel strongly against such public testimony, and that Dr. Rice's testimony before the commission can 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."

President Bush's counsel set forth two conditions for the national security adviser's testimony: that it would not be cited as precedent for future requests by Congress or the commission; and, that the commission forswear any additional public testimony from Miss Rice or other White House officials.

Contrary to Mr. Gonzales' insinuation, presidents have uniformly received candid and unskewed confidential advice from their inner circles despite the risk of public disclosures to Congress or the courts. Past National Security Advisers Robert McFarland, John Poindexter, Zbigniew Brzezinski and Sandy Berger have all appeared before Congress without repercussions to uninhibited advice, including that which Miss Rice has provided to President Bush.

Moreover, every White House adviser operates on the well-founded assumption confidential statements may instantly leak to the media. Yet history is bereft of even a crumb of evidence that confidential presidential advice had been slanted because the adviser feared public disclosure.

The U.S. Supreme Court recognized a qualified constitutional privilege for confidential presidential communications in United States vs. Nixon (1974). Writing for the court, Chief Justice Warren Burger unconvincingly argued: "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. Whatever the nature of the privilege of confidentiality of presidential communications in the exercise of Article II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties."

But the chief justice misapprehended the Constitution's separation of powers. As Madison amplified in Federalist 47, it is disturbed not by partial control of one department over the acts of another, but by the usurpation of one branch of the whole power of a coordinate branch.

Nothing in the 215-year history of the presidency indicates its functioning would be handicapped by customary public disclosure of presidential communications for bona fide legislative or judicial purposes.

Indeed, it is unthinkable that a national security adviser would ever shade counterterrorism advice to the president where thousands of lives are at stake -- irrespective of the risks of public dissemination.

Just as secrecy for the sake of secrecy has no place in the presidency, exposure for the sake of exposure has no place in the Congress. Thus, neither Miss Rice nor her successors should be compelled to reveal presidential communications to satiate legislative voyeurism.

But the impending September 11 commission public questioning is no political lark. As the White House counsel acknowledged in his letter, "The national security adviser is uniquely situated to provide the commission with information necessary to fulfill its statutory mandate. Indeed, it is for this reason that Dr. Rice privately met with the commission for more than four hours on Feb. 7, fully answered every question posed to her, and offered additional private meetings as necessary."

And President Bush himself declared, "I've ordered this level of cooperation because I consider it necessary to gaining a complete picture of the months and years that preceded the murder of our fellow citizens on September 11."

Counterterrorism is a centerpiece of the 2004 presidential sweepstakes. Didn't the electorate from the outset deserve to know of Miss Rice's communications with President Bush to evaluate his counterterrorism credentials?

Bruce Fein is a constitutional lawyer and international consultant with Fein & Fein and the Lichfield Group.