[Toivaluadiora]

March 30, 2004

9/11 Panel Wants Rice Under Oath in Any Testimony

By PHILIP SHENON and RICHARD W. STEVENSON

WASHINGTON, March 29 — The chairman and vice chairman of the independent commission investigating the Sept. 11 attacks said on Monday that they would ask Condoleezza Rice to testify under oath in any future questioning because of discrepancies between her statements and those made in sworn testimony by President Bush's former counterterrorism chief.

"I would like to have her testimony under the penalty of perjury," said the commission's chairman, Thomas H. Kean, the former Republican governor of New Jersey, in comments that reflected the panel's exasperation with the White House and Ms. Rice, the president's national security adviser.

Ms. Rice has granted one private interview to the 10-member, bipartisan commission and has requested another. But the White House has cited executive privilege in refusing to allow her to testify before the commission in public or under oath, even as she has granted numerous interviews about its investigation.

The White House declined to respond to Mr. Kean's comments. One official who had been briefed on discussions between the White House and the commission said Monday night that several options were under consideration that might lead to a compromise over Ms. Rice. The official, who asked not to be named because of the delicacy of the negotiations, declined to specify the options and said nothing had yet been decided.

The decision to restrict her availability has led Democrats and other critics to accuse the White House of trying to hide embarrassing information about its failure to pre-empt the Sept. 11 attacks.

"I think she should be under the same penalty as Richard Clarke," Mr. Kean said in an interview, referring to Richard A. Clarke, the former White House counterterrorism adviser who testified to the panel last week that the Bush administration had not paid sufficient attention to the threat from Al Qaeda before Sept. 11, 2001.

Congressional Republican leaders have said Mr. Clarke may have lied under oath in describing the Bush administration's counterterrorism record and requested that previous Congressional testimony by him be declassified.

In a private interview in February with several members of the commission, Ms. Rice was not required to be under oath, and panel officials said no transcript was made of the four-hour conversation. The commission has required all witnesses testifying at public hearings to be sworn in, opening them to perjury charges if they are found to be lying, while all but a handful of the hundreds of witnesses questioned behind closed doors have not been sworn in.

In separate interviews, Mr. Kean and the panel's vice chairman, Lee H. Hamilton, a former Democratic House member from Indiana, said they would continue to press for Ms. Rice to testify under oath in public.

But they said that if the White House continued to refuse to have her answer questions at a public hearing, any new private interviews with Ms. Rice should be conducted under new ground rules, with the national security adviser placed under oath and a transcription made.

Mr. Kean and Mr. Hamilton also said that if the White House agreed, they were ready to declassify and make public the notes taken by commissioners when they interviewed Ms. Rice on Feb. 7, along with the transcripts of nearly 15 hours of private questioning of Mr. Clarke that was conducted by the commission before last week's hearing. "My tendency is to say that everything should be made public," Mr. Kean said.

Throughout the day on Monday, there were signs of a debate within the administration over whether to hold fast to the principle of not allowing White House aides to testify before Congress or to seek a deal that would allow Ms. Rice to appear before the commission.

White House officials said Ms. Rice herself was looking for ways she could be permitted to respond to the commission, despite the reservations of the White House counsel's office and the potential difficulty of explaining why the administration was reversing course on what it had made a matter of principle.

One outside adviser to the White House said Mr. Bush's political staff was inclined to compromise on Ms. Rice's testimony, judging the political costs of continuing to fight in the midst of a tight re-election campaign to outweigh any cost from showing flexibility on the principle.

"It's fair to say many of the senior political advisers understand the principle but have a more pragmatic view," said the adviser, who insisted on anonymity, saying he wanted to keep his role behind the scenes.

This adviser said Karl Rove, Mr. Bush's senior adviser and political strategist, wanted to move the election away from questions like "Were there intelligence failures?" and to put the focus instead on which candidate could better protect against any future efforts by terrorists to attack the United States.

"If we're going to have a discussion about W.M.D. and intelligence failures and Osama bin Laden, that's not an election George W. Bush wins," the adviser said. "If it's about who keeps you safer, that's the ground we want to be on."

The White House has cast its objections to allowing Ms. Rice to make a formal appearance before the commission as a matter of upholding the principle of separation of powers between Congress, which created the commission, and the executive branch.

In a letter to the commission last week, Alberto R. Gonzales, the White House counsel, said that in order to protect the ability of any president "to receive the best and most candid possible advice from their White House staff" on national security issues, it was important that "these advisers not be compelled to testify publicly before Congressional bodies such as the commission."

A second outside adviser said that White House officials believed they could endure the political firestorm raging now but that they were concerned that giving up the privilege could come back to haunt them down the road.

After finding herself at the center of the political furor over Mr. Clarke's testimony, Ms. Rice asked last week for a separate meeting with the commission, specifically to rebut the accusation made by Mr. Clarke in his testimony and in his new, best-selling memoir.

"With other witnesses, our policy has been to conduct interviews under oath when key factual matters are in dispute, and there are obviously some factual matters here under dispute," Mr. Hamilton said. He said the commission would probably go ahead with the interview even if Ms. Rice refused. "If she decided not to be placed under oath, that would be her decision, and we are still going to want her testimony."

The commission has voted in the past against issuing a subpoena for Ms. Rice, and panel members said today that they were unlikely to reconsider given the lengthy court challenge that might result.

Opinion polls over the last week offer no clear signs on whether the furor over Mr. Clarke's accusations will affect Mr. Bush's hopes for re-election.

A poll by the Pew Research Center conducted March 22 through Sunday showed Mr. Bush running even with Senator John Kerry of Massachusetts in a head-to-head match-up among registered voters. A poll by Newsweek taken after Mr. Clark's testimony showed that while the president's overall approval rating remained steady at 49 percent, the percentage of voters who said they approved the way he had handled terrorism and domestic security issues had dropped.

Ms. Rice has given a flurry of interviews to news organizations over the last week in which she has challenged Mr. Clarke's truthfulness, including his depiction of her as slow-footed in responding to intelligence warnings throughout 2001 that Al Qaeda was plotting a catastrophic attack on the United States.

Members of the commission, Democrats and Republicans alike, say they are angered by her interviews. They say the White House has made a major political blunder by continuing to assert executive privilege in blocking public testimony by Ms. Rice while continuing to use her as the principal public spokeswoman in defending the Bush's administration's actions before Sept. 11.

"I find it reprehensible that the White House is making her the fall guy for this legalistic position," said John F. Lehman, Navy secretary in the Reagan administration and a Republican member of the commission. "I've published two books on executive privilege, and I know that executive privilege has to bend to reality."

While there is precedent for the White House argument that incumbent national security advisers and other White House advisers should not be required to testify in public, constitutional scholars say that the position is based only on past practice, not law, and that presidents have repeatedly waived the privilege, especially at times of scandal or other intense political pressure.

Copyright 2004 The New York Times Company

Chart: Testimony by National Security Advisers