Article

A Precedent-Setting Appearance

Condoleezza Rice appears today before the Sept. 11 Commission on condition that her testimony "should not be cited as a precedent." In fact, it is an important precedent and it should be cited as such.

As a matter of principle, the president has no right to exempt the national security adviser from public questioning. After all, the secretary of state has traditionally been the president's principal adviser on foreign affairs, and yet he testifies regularly before the Congress, as well as special investigatory commissions. If confronted with a particular question that raises a matter of executive privilege, the secretary may refuse to testify and challenge his questioners to hold him in contempt. The notion that he could entirely exempt himself from public questioning is utterly alien to our Constitution.

Why is Condoleezza Rice different? In constitutional terms, the Secretary of State is "the principal officer" of one of the "Executive Departments." But the National Security Advisor is merely one of the countless "Inferior Officers" that the Constitution says that Congress can create, if it thinks "proper." It is odd to suggest that an inferior officer can pretend to an independence that is denied to one of the president's "principal" officers.

Lawyers for the executive branch respond by pointing out that the national security adviser is appointed by the president without the consent of the Senate. But this fact undermines their position, rather than supporting it. The Constitution makes it plain that Congress may "vest the appointment of … inferior officers… in the President alone, in the Courts of Law, or in the Heads of Departments." So the fact that Rice took her office without Senate consent is a mark of her constitutional inferiority, not her superiority.

Indeed, it would make far more constitutional sense to exempt the secretary from public questioning than the national security adviser. By requiring that the secretary be confirmed by a majority of the Senate, the Constitution provides some assurance that he or she is a person who commands broad public confidence. A secretary who refuses to testify at least will have been exposed to public scrutiny at the beginning of his tenure.

The public has no such assurance in the case of the national security adviser. Because she is not required to withstand the test of public approval at the outset of her tenure it is especially important to hold her accountable through public questioning before responsible boards of inquiry.

Nor is the president's claim supported by sustained historical practice. To the contrary, Rice's position can be traced back only to 1947, when Congress created a tiny staff to serve as the nucleus of the newly created National Security Council in the White House. President Eisenhower then created the first "National Security Assistant" under an obscure statute authorizing the appointment of White House employees, but the President continued to chair the meetings of the NSc=

Personalization of power started with McGeorge Bundy in the Kennedy administration, but Bundy was given the rank of deputy undersecretary to avoid the statutory requirement of Senate confirmation that applies to officers of higher rank. Only in 1968 did President Nixon make Henry Kissinger the first "national security adviser." When he also was appointed secretary of state, he regularly testified publicly before Congress in his dual capacity. Both Carter national security adviser Zbigniew Brzezinski and Clinton national security adviser Samuel Berger also testified publicly, albeit on issues peripheral to their main concerns. It would take far more than this brief and checkered history to transform an inferior officer into an extraordinary constitutional potentate.

Even the president himself is not immune from public questioning — or so the Supreme Court famously held in Paula Jones' suit against President Clinton. I would be very reluctant to extend this decision broadly in the case of the president himself. His time is precious and should not be easily diverted to answering the peremptory demands of others. But it is quite another matter to allow the president to extend a broad mantle of protection to his assistants, who have never been held accountable by either the voters or the Senate.

Rather than looking upon Rice's public testimony as an exceptional event, it should be viewed as a precedent confirming the true constitutional status of presidential aides, as inferior officers created by Congress and answerable to the American people.

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale Law School.