Executive Priviege & Separation of Powers, 911 Comm & White House

I stumbled on this in some light surfing. I found it fascinating.

Not only because of the topic, but because it is surprisingly reasonable & reasoned. You don't see that very often.

For background, Daniel Marcus served as the General Counsel of the 9/11 Commission (2003–2004). So he had a definite "side" in this debate. Nonetheless, this article appears to this (legality-challenged) engineer to be pretty fair & balanced.

I have seen other writings by Mr. Marcus that suggest that he is in the "believed that the White House stonewalled the 911 Commission Investigation" camp, but can not find much indication of that sentiment in this legal brief.

The 9/11 Commission and the White House: Issues of Executive Privilege and Separation of Powers

American University National Security Law Brief, Vol 1, No. 1 (2011)

http://digitalcommons.wcl.american.e...1&context=nslb

These are excepts of the 15 page brief that I found most interesting.

Quote:

Originally Posted by Daniel Marcus, Legal Brief The Commission expected, and encountered, particular resistance to the President or Vice President (who never testify before Congressional Committees or submit to informal questioning) “appearing” before the Commission in any meaningful sense. There were two issues as to which the Commission, unhappy with the position the White House was taking in response to its requests, discussed whether to issue a subpoena to the White House; in the case of the first of those issues the Commission came very close to voting to issue a subpoena. As General Counsel, I was dubious about the wisdom of issuing a subpoena for White House records or testimony, for two reasons: (1) I was convinced that the White House would defy any subpoena, requiring the Commission to bring an enforcement action in District Court in which it was almost certain it could not get a favorable final judgment before the Commission’s statutory life expired; and (2) I believed that the issuance of a subpoena would lead the White House to severely limit its cooperation with the Commission across the board, impairing the effectiveness of the Commission’s remaining investigation and the thoroughness of the Report. The first issue on which the Commission and the White House almost fell off the tightrope concerned the now-famous Presidential Daily Briefs (PDBs)—the highly sensitive daily reports to the President, prepared by the CIA, on the latest intelligence information related to national security. Before 9/11 the existence of the PDBs was not widely known The Commission did issue subpoenas to two Executive Branch agencies–the Federal Aviation Administration and the Department of Defense–and to the City of New York after problems arose in document production. The federal agencies complied fully with the subpoenas. New York City, after initially resisting, agreed to a settlement of the Commission’s demands on the eve of the return date of the subpoena. At that point, the Department of Justice had prepared papers on behalf of the Commission to file in the U.S. District Court for the Southern District of New York to enforce the subpoena. The Commission therefore requested all PDB items (or “articles”) relating to al Qaeda, Osama bin Laden, the Taliban, Afghanistan, Pakistan, and Saudi Arabia from 1998 (the year in which bin Laden issued his fatwa calling for jihad against Americans and al Qaeda bombed the U.S. embassies in Nairobi and Dares Salaam) through September 20, 2001. The White House reported that, while there were more than 300 PDB articles responsive to the Commission’s request, only approximately 20 met the criteria that were important, in their view, to the Commission’s investigation. The initial White House position was that none of the Commissioners or staff could see any of the PDBs—not even the notorious August 6 PDB—because of their sensitive nature. No PDB, they claimed, had ever been shown even to the Chairman of the Senate or House Intelligence Committees (an assertion that, as far as the Commission could determine, was correct). When the Commissioners, unanimously, found the briefing unsatisfactory, the Commission staff embarked on a lengthy and ultimately successful negotiation with the White House lawyers, resulting in a compromise deal (grudgingly approved by the Commission) under which the core group of PDBs would be reviewed by a Commission “Review Team” consisting of the Chair, Vice Chair, and one additional Republican and Democratic Commissioner or senior staff official. Two members of this team were allowed to “check” the rest of the 300-plus responsive PDBs to see whether they thought any of them should be added to the core group of PDBs as to which the Review Team would prepare a “concise summary” report that would be made available to the rest of the ten Commissioners and the senior staff. Both the switch of any PDBs from the larger pool to the core group and the summary report to the full Commission on the core group required approval from the White House Counsel–an approval, per the agreement, not to be unreasonably withheld. Twice – first, when it looked as if the agreement just described would not be reached, and second, when major disputes arose in the implementation of the agreement (as to how many PDBs would be “moved” from the 300+ group to the core group, and as to the length and detail of the “concise summary report”) – the Commission seriously considered subpoenaing either the PDBs themselves or the extensive notes that Commissioner Jamie Gorelick and Executive Director Philip Zelikow had taken on the 300+ group of PDBs. Because these disputes were resolved, the Commission did not need to issue such subpoenas and avoided falling into the chasm of total war with the White House. The second instance in which a number of Commissioners advocated a subpoena was to compel the public testimony of Condoleezza Rice, then the National Security Advisor.65 For months, the White House Counsel had stuck to a simple position on behalf of the President: In line with historical practice in dealing with Congress, the White House would make officials such as Rice, Deputy National Security Advisor Stephen Hadley, and Chief of Staff Andrew Card available for private meetings with Commissioners and staff–not under oath–but not for public testimony, under oath or otherwise. They relied on the OLC opinions, based on separation of powers and the need of the Chief Executive to have the undivided attention of his staff, that Congress could not compel their testimony. This OLC “law,” however, had never been tested in the courts. And it was developed before the Supreme Court’s remarkable decision in Clinton v. Jones, holding that separation of powers does not preclude an Article III court from compelling the testimony of the President himself in a civil lawsuit. To be sure, that case is distinguishable from that of the 9/11 Commission investigation because it involved private rather than official acts of the President.68 And as to official acts, the Court has held that the President is immune from civil damage suits.69 Nonetheless, it undermines a central rationale of OLC’s separation-of -powers reasoning with respect to compelled testimony of White House officials. If the Constitution permits a court to require the President himself to divert his time as Chief Executive to testify in a mundane civil damages case, would it really be unconstitutional to require the President to allow his National Security Advisor to testify publicly before a one-time-only independent Commission investigating the most traumatic event in modern American history? The biggest problem facing the Commission in a judicial action to enforce a subpoena to compel Rice’s testimony—and probably a fatal one—was that it would have been difficult to show that the Commission had a strong need for Rice’s public testimony in view of the fact that it had already interviewed her privately for almost four hours.71 The question of subpoenaing Rice to testify became moot, in any event, when the Administration abruptly changed its position in March 2004, after the Clarke testimony, and requested the opportunity for her to testify–under oath. CONCLUSION: The law of executive privilege evolves slowly, because the White House and Justice Department make strenuous and usually successful efforts, through the process of negotiation and accommodation, to reach compromises with Congressional committees (or the 9/11 Commission) to avoid the need for the President ultimately to invoke the privilege as a basis for refusing to comply with a document request or subpoena. Had the Commission found it necessary to issue a subpoena in either of the two instances described above, the law might have been pushed along a bit. For the reasons stated, I think it might well have been pushed along significantly in the case of the PDBs. The Commission’s arguments, in both cases, would have been aided by what I perceive as the general trends in the law with respect to both common-law privileges and separation of powers. I also believe that, in a real sense, the Commission’s success in obtaining significant if limited access to the PDBs and Condoleezza Rice’s public testimony under oath made some important “law on the ground.” The exaggerated mystique of the PDBs was punctured, at least with respect to historical documents. We learned from the 9/11 Commission Report that we could have a public discussion of intelligence information provided to the President in the past without jeopardizing the ability of our intelligence agencies to operate effectively. That lesson was underlined by the subsequent investigation by the WMD Commission (the Silberman-Robb Commission), an Executive Branch entity which had extensive access to PDBs and issued a public report discussing pre-Iraq War intelligence failures. Similarly, Condoleezza Rice’s public testimony before the 9/11 Commission established an important precedent in fact that may well eventually be reflected in OLC opinions and court decisions. It illustrates the changing role of senior White House officials such as the National Security Advisor. As policymaking for the Executive Branch continues to move from a Cabinet Department-centered system to a White House-centered and White House-directed system, it becomes less plausible to regard officials such as the National Security Advisor exclusively as confidential advisors to the President rather than policy-making officials in their own right. Once that perception changes, the argument that such officials should be immune from compelled testimony before Congress or independent Commissions becomes less viable.

via International Skeptics Forum http://ift.tt/24ZbDIY