Dohiyi Mir
    In Which NTodd Says His Peace

Sunday, March 28, 2004
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Condi's Political Apothegm


Atrios is as indignant as I am about Condi's excuse for not testifying before the 9/11 panel. I wanted to blog about it since Weds, but haven't had the time. Allow me to expand on a comment I left on Eschaton...

Condi said on Weds:

I have a responsibility to maintain what is a longstanding separation — constitutional separation between the executive and the legislative branch.

This body is — the commission is a body under Article II of the legislature, and so I have to maintain that separation.


Uh, WTF is "Article II of the legislature"? "Article II of the Constitution" establishes the Executive branch. And nowhere do I see anything in the doc that states the Exec can't talk to the Leg. In fact, members of the Exec--e.g., Cabinet member Rummy--did last week. And while powers are indeed explicitly separated in the Constitution, it is for the purpose of checks and balances. For me, Federalist 481 boils it down exactly:

An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.

In other words, the Leg has a duty to limit the overreach of the Exec. And Rice is full of it.

ntodd

1 - Aptly titled "These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other".

[Update: FAS has a PDF of a Congressional Research Service report called "Presidential Advisers' Testimony Before Congressional Committees: A Brief Overview" (this is what informed Josh Marshall's posting on the subject last week). Some snips:

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.
...
Executive privilege was invoked during the Nixon Administration when congressional committees sought the testimony of a White House aide at a Senate confirmation hearing and the testimony of the White House Counsel at Senate committee hearings on the Watergate incident and related matters.
...
[E]xecutive branch officials who may appropriately assert executive privilege...and the circumstances under which they may do so, remains unresolved by the courts,and is a matter that may be determined by case-by-case accommodation between the political branches. Some guidance in this regard was offered by Chief Justice William Rehnquist, when he was Assistant Attorney General in the Nixon Administration. Rehnquist distinguished between "those few executive branch witnesses whose sole responsibility is that of advising the President," who "should not be required to appear [before Congress] at all, since all of their official responsibilities would be subject to a claim of privilege"...

Why is Nixon always the common thread in all such shenanigans?]


['nother update: In light of the CRS report above, it's interesting to note this tidbit from the ROAD MAP FOR NATIONAL SECURITY (PDF) produced in February 2001 by the U.S. Commission on National Security/21st Century (aka the Hart-Rudman Commission):

We recommend...that the President's National Security Advisor and NSC staff return to their traditional role of coordinating national security activities and resist the temptation to become policymakers or operators...The higher the profile of the National Security Advisor the greater will be the pressures from Congress to compel testimony and force Senate confirmation of the position.

Condi's certainly had a high profile in the administration, and in all her public spin appearances.]


[Last one: On April 12, 2003 during a forum on the role of the National Security Advisor, Andrew Goodpaster, who served under Ike, said:

Going back, particularly to the Eisenhower time when he really established in modern years the idea of executive privilege and the idea of confidential advice that the president is entitled to receive that need not be reported in any other place. Now, so long as it's advice, that works...When you come to the Congress, it's a little different. There is such a thing as accountability in our government, and the national security advisor is either the top advisor to the president or among the top two or three advisor to the president on foreign policy. Why should not a national security advisor, who holds this position, not be directly accountable to the American people through the Congress?

A lot of it comes down to whether the NSA should be confirmed by the Senate, and how that might change the role. The whole discussion is very interesting.]
 
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A non-violent, counter-dominant, left-liberal, possibly charismatic, quasi anarcho-libertarian Quaker's take on politics, volleyball, and other esoterica.

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