Executive Privilege and the 9-11 Commission

We’ve heard the administration throwing around “separation of powers” and “executive privilege” a great deal lately, as excuses for various officials not testifying openly to the 9-11 Commission. I had only a vague notion of whether this was valid or not, so I delved a bit.

The Constitution, of course, doesn’t explicitly enumerate a right of executive privilege. Nevertheless, from Washington onward, presidents have claimed a right of confidentiality for their conversations, “internal” papers, and similar protections for their advisors. (Michael Dorf has an excellent history on FindLaw). And there’s little precedent for the conditions under which courts can strike down claims of executive privilege — except the case of United States v. Nixon (418 U.S. 683), decided by the Supreme Court in 1974.

Writing for a united court (Rehnquist did not participate), Chief Justice Burger noted that “Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” Yet Burger and the Court sharply limited the right of confidentiality whenever it would impede a criminal investigation. As a result, Nixon had to surrender his Oval Office tapes, and resigned several days later.

Clearly, the case of the Bush Administration and the 9-11 Commission doesn’t fall neatly into the standards established by the Burger Court. It’s not a criminal investigation or criminal case before a court. The 9-11 Commission, however, is a legally constituted investigative body, established by Public Law 107-306 (107th Congress). The commission has the right to “require, by subpoena or otherwise, the attendance and testimony of such witnesses…as the Commission or such designated subcommittee or designated member may determine advisable.” Individuals who are summoned for testimony under subpoena and fail to appear, are subject to the normal penalties for failing to appear under subpoena.

Thus, clearly it’s not due to lack of appropriate authority that the Commission can’t force Condoleezza Rice to appear and testify under oath; the commission must not feel that it’s politically appropriate to try to compel such testimony. Likely this is covered by the following:

Sec. 606 (c) Public Hearings. Any public hearings of the Commission shall be conducted in a manner consistent with the protection of information provided to or developed for or by the Commission as required by any applicable statute, regulation, or Executive order.

Damn. This is where the wiggle room comes in. If there’s an Executive order, even a classified one, which says that the President or National Security Advisor won’t talk about certain subjects, they can claim that the Commission can’t ask them about it.

The upshot here is that the Commission itself is emasculated enough to be unable to compel testimony — even if they did subpoena Condi Rice, the Administration could claim that this could violate an Executive order or decision. The courts have the power, given United States v. Nixon, to break the wall of executive privilege in criminal cases, but this won’t go far enough. We’ll have to be satisfied with pressuring them politically.

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