Use of executive privilege gives way to

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Use of executive privilege gives way to
Wed, 03-31-2004 - 2:21pm

http://seattlepi.nwsource.com/national/167059_anal31.html

Use of executive privilege gives way to political reality


Wednesday, March 31, 2004


By DAVID E. SANGER
THE NEW YORK TIMES


WASHINGTON -- When George W. Bush and Dick Cheney came to office three years ago, they made no secret of their intention to restore powers and prerogatives that they believed had withered under the onslaught of Washington's cycle of televised, all-consuming investigations.


But time and again, that effort by the Bush White House has fallen victim to political reality -- as it did once more yesterday, when the president made a four-minute appearance in the White House press room to announce that he was giving in to demands from the 9/11 commission that he had resisted for months.


His decision to reverse course and drop his claims of executive privilege to prevent the public, sworn testimony by his national security adviser, Condoleezza Rice, was part of a distinct pattern that has emerged inside the highly secretive White House.


The first reaction to most demands for outside inquiries or the revelation of details about intelligence concerning Iraqi weapons or Nigerian uranium or energy commission decisions has been to build walls. Bush, or more often Cheney in his stead, asserts a clear, inviolate principle that the president and his advisers need the freedom to gather information, develop policy and exchange ideas behind the most heavily guarded of doors.


But eventually other forces come into play. Gradually pressure builds until Bush's advisers, including Rice herself, in this case, several officials said, declare that the cost is too high.


"It was only in the last few days, down at the ranch, that the president began to think that the public wasn't getting the right impression about our cooperation with the commission," Dan Bartlett, his director of communications and one of his most influential advisers, said yesterday. "It was a debate all about process, and he wanted to shift it back to the substance."


Bartlett did not explain why that decision took so long, since the sparring with the commission had been going on for months. Other administration aides say it takes time to move the president and Cheney because of their ingrained reluctance to give ground.


"I think it goes to a deep feeling -- much of it surrounding Cheney and his office -- that the powers of the presidency were eroded for years, and that this administration has to claw them back," one senior U.S. diplomat who has sat in some of those meetings said yesterday. "Then the pressure grows. And grows. And now people know that if you keep it on long enough, these guys will give way."


In fact, Bush and Cheney resisted the creation of the 9/11 commission for more than a year after the terrorist attacks, saying that a public airing of what went wrong in the intelligence community, in the White House and at the FBI would inevitably detract from a focus on fighting terrorism.


They cited the example of the Pearl Harbor inquiry, which came years after the Japanese attack. But eventually, the demand even from some Republicans for a full inquiry into what led to the biggest foreign attack in history on U.S. soil overwhelmed them.


The next fight was over whether the commission could see the most highly classified documents in government: Bush's Presidential Daily Brief, the eyes-only intelligence warnings Bush, Cheney, Rice and only a small handful of others receive each morning. After months of negotiations, Bush granted access to four commission officials.


Similarly, Bush resisted the formation of another commission to examine the intelligence failures that led to a great overestimation of Iraq's weapons stockpiles; as Democrats cried cover-up, he created one. Most telling was the uproar about how the president came to assert, in a State of the Union speech, that Saddam Hussein had sought uranium in Africa. It took a month of news stories before the White House declassified a National Intelligence Estimate and conceded that the evidence was so weak Bush never should have uttered the statement.


"They wait until a gallon of blood has been shed," one administration official said. The leaders of the 9/11 commission seemed to sense that, the official added, and bided their time as pressure built and Richard Clarke, the former counterterrorism chief, declared that Bush and Rice had dragged their feet.


On Monday, commission Chairman Thomas Kean, a former Republican governor of New Jersey, upped the ante and demanded that Rice testify under oath and "under the penalty of perjury." The deal was struck in hours.


The exception to this dynamic has been Cheney himself, who has steadfastly resisted, despite shaking heads within the White House, all calls that he release information from his energy task force. The issue has become fodder for Democrats, and on April 27, it goes to the U.S. Supreme Court.


White House officials say that it is the exception precisely because it is Cheney's own case and thus has only an indirect political affect on the president.


Not surprisingly, White House officials see those same events in a very different light.


Bartlett argues that the image of a president who makes declarations and then backtracks under pressure is a creation of Washington's talking heads and that his boss sticks to principles. "We never said we were opposed to a 9/11 commission, only that we had concerns about timing," he said.


Similarly, he argued that the issue surrounding the Presidential Daily Briefs concerned some of the most sensitive material shown to the president. He makes the case that Bush's decision to create a Department of Homeland Security after the White House had resisted the idea arose from concerns about reorganizing the government "in the midst of a war."


Certainly other administrations have had to back down on issues big and small. "Everybody does this sometimes," said Sandy Berger, the national security adviser under President Clinton, who could be seen chatting with Rice yesterday afternoon at a ceremony, just as the White House was deciding to give in to the commission's demands. "And whenever you do it, you say you are not setting a precedent."


But Berger, who is advising Sen. John Kerry in the presidential campaign, said he thought that in the case of the 9/11 commission, "the position that they would not fully cooperate was always untenable, in the light of public opinion."


"It puzzles me," he continued. "People want all the answers."


Bush's bet now appears that by having Rice testify, possibly as early as next week, he can get the issue of cooperation off the front pages and try to regain ground on the substantive question: Did the administration do all it could before 9/11 to prevent the attacks? Have the miscommunications between the FBI and the CIA been solved?


Her testimony will pave the way for the interview the commission has been trying to seal for months with Bush and Cheney themselves. The two men have now, as part of the same deal, dropped limits on how long they will testify and who on the commission can question them.


But they will appear together, and thus presumably be able to correct each other's memories and pick up on each other's signals. And in the end, it is their performance -- behind closed doors, but likely to leak quickly -- that may prove the most politically crucial.


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