Bush-Congress Showdown Is a Goldilocks Tale
Case in point: the administration's invoking of executive privilege to prevent the turnover of classified President's Daily Briefs (PDBs) and testimony from the president's staff advisers to the national commission examining the government's failure to prevent 9/11 attacks. The commission was created by Congress, and by statute it was a legislative branch entity. Several of the commissioners also happened to be former members of Congress. So Addington, and, ironically, Alberto Gonzales, who was then White House counsel, were deeply concerned that any negotiations would set precedents for executive-branch dealings with Congress. Gonzales was the official point person for the administration, but as always, Addington was a force behind the scenes. So Gonzales refused to turn over classified President's Daily Briefs to the commission. After weeks of acrimony and negotiations–that dance of accommodation–Gonzales relented and agreed to make summaries of the PDBs available to three commissioners and Executive Director Philip Zelikow. Gonzales also initially refused to allow Bush's national security adviser, Condoleezza Rice, a staffer, to testify before the commission.
The White House was relying on a series of opinions from the Justice Department's office of legal counsel that concluded that under the separation-of-powers principle, it would be unconstitutional for Congress to insist on testimony from White House officials because it would take them away from the president and impair the functioning of the presidency, says Daniel Marcus, the general counsel of the 9/11 commission. "No national security adviser, they told us," says Marcus, "had ever testified under oath before a congressional committee on policy matters."
When Rice's former counterterrorism czar, Richard Clarke, testified and excoriated the Bush administration's handling of the pre-9/11 intelligence, the administration was forced to publicly respond. So Rice wallpapered the airwaves, rebutting Clarke's allegations in a series of television interviews. But Addington would not relent. He was still "adamantly opposed" to Rice testifying, says an administration official. It was a public relations nightmare for the White House.
"While he was right on the law," says this official, "it was clear the train was coming down the tracks and that she was going to have to be a witness." In the end, Rice did testify but only after the White House decided that the commission although technically located in the legislative branch was a "unique" institution and so Rice's testimony would not create a precedent for dealing with Congress after all.
The White House even insisted that the commission agree to that legal construct in writing before Rice's appearance. "The White House did an about-face," says Marcus. Despite the intense criticism, Addington made the right call, says Cunningham, who negotiated with the commission. "He was never in my recollection absolutely yes or no," says Cunningham. "It was always, let's make sure the next president doesn't come in and say we gave away the store without good reason."
Indeed, 9/11 commission sources say the White House was equally adamant about protecting Clinton administration documents that it viewed as privileged.
"They did not have a double standard," says Marcus.
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