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The rules of engagement have been set for National Security Adviser Condoleezza Rice’s appearance this week before the commission investigating the Sept. 11, 2001, terrorist attacks. The rules, which draw on precedent while carving out new ground to cover the sensitive current circumstances, were carefully crafted by White House lawyers. But that framework will be tested Thursday morning, when Rice faces the 10-member National Commission on Terrorist Attacks Upon the United States and the television cameras in the Hart Senate Office Building. Rice’s testimony has taken on heightened importance in the wake of claims by former White House official Richard Clarke that the Bush administration had largely ignored the terrorist threat before Sept. 11. A political groundswell forced the White House to change course last week by making Rice available for public questioning by the bipartisan panel. The key ground rules for Rice’s 2 1/2 hours of testimony were set out in a two-page March 30 letter from White House Counsel Alberto Gonzales to the chairman and vice chairman of the Sept. 11 commission. The Gonzales letter is being supplemented by informal understandings between the commission and White House staff. Rice will sit alone at the witness table, but National Security Council staffers and attorneys will be in the hearing room as well, says NSC spokesman Sean McCormack. McCormack says one of those present will be John Bellinger III, the NSC’s legal adviser. According to McCormack, Bellinger is taking the lead in helping Rice prepare for her appearance. “I don’t think we’ve fully settled on who will be there,” says McCormack, “but Bellinger will definitely be there.” McCormack says Rice is also consulting with her top deputies and with junior members of Bellinger’s staff. Bellinger served as counsel for national security matters at the Department of Justice for four years during the administration of President Bill Clinton. He was also counsel to the Senate Intelligence Committee and, earlier, a special assistant to then-CIA Director William Webster. From 1991 to 1995, Bellinger was an associate and then a partner at Wilmer Cutler Pickering. According to McCormack, Bellinger played a role in drafting the Gonzales letter that sets forth the conditions under which Rice will appear. “John was consulted by Judge Gonzales in preparing the letter, but the White House took the lead,” McCormack says. A White House spokesman did not respond to a request for comment about what input Gonzales had from others about the letter. A critical legal and practical question, of course, concerns what rights Rice may retain under the Gonzales letter to decline to answer questions. “Bellinger will discuss any privilege issues with her, while the substantive NSC staff will make sure she is up to speed on all the substantive issues,” says Eleanor Hill, a D.C. partner at King & Spalding who dealt with the NSC extensively in 2002 when she was staff director of a congressional inquiry into the Sept. 11 attacks. A source familiar with the Bush administration says three other White House offices — legislative affairs, communications and the chief of staff — are also likely involved in Rice’s preparation. The commissioners have also started to work on their questions, but they seem to have a much less elaborate mechanism than Rice does. “I do all my own preparation,” says one commissioner, speaking on the condition of anonymity. As Hill points out, the privilege question is no doubt going to take up some of Rice’s preparation time. The Gonzales letter that granted the commission one public session with Rice also stated that President George W. Bush was letting his national security adviser testify “as a matter of comity” and without setting “any precedent for future Commission requests, or requests in any other context” for testimony by an NSC official. The letter also declared that the White House continued to reserve “all legal authorities, privileges, and objections that may apply, including with respect to other governmental entities or private parties.” Many observers think that language left open the possibility that Rice could assert some sort of privilege at the April 8 session in response to a specific line of questioning. Beth Nolan, who was White House counsel under President Clinton, says two separate issues arise whenever a high-ranking aide to the president who is not in a Senate-confirmed post is called upon to testify by Congress or a quasi-congressional body like the Sept. 11 commission. There are, in other words, two kinds of executive privilege that officials like Rice can invoke — one that can be used to try to prevent questioning altogether, and one that would allow the subject to stay silent on certain questions. “First, there is a distraction-and-diversion issue. Such an aide is immune from testifying at all because she is serving the president directly, at all times, and should not be subject to others’ needs,” says Nolan, now a partner at Crowell & Moring. Nolan says that under law and precedent, the White House can waive this concern by having Rice appear before the panel — without waiving the second issue, its privilege not to have Rice reveal confidential advice given to the president. The Gonzales letter does, after all, continue to reserve “privileges and objections.” A source close to the commission says it is “possible, though highly unlikely” that Rice would seize on such a theory of privilege and refuse to answer certain questions Thursday. Nolan points out that politics would strongly counsel against Rice asserting a privilege on the witness stand. “Any assertion of privilege,” Nolan says, “would be subject to the same political considerations that compelled them to reverse their position and to make her available for public testimony.” The commission, for its part, seems confident that it will get the answers it is seeking. Commission member Jamie Gorelick, a partner at Wilmer Cutler, says that “in all the back-and-forth between the commission and the White House, no one suggested in any way that the White House was reserving a right on behalf of Dr. Rice not to answer our questions within the scope of our inquiry.” Another member of the commission, who did not wish to be identified by name, says the language used by Gonzales “will not affect Rice’s testimony at all.” “This decision has been made,” this commissioner says. “And from everything I know, this was something that Condi Rice wanted to do from Day One, to appear publicly and answer questions.” The White House used that language, this commissioner says, with an eye on future panels, such as the one looking into intelligence failures preceding the war in Iraq, established by President Bush in February. That body, which is only now beginning its work, may seek testimony from Rice as well. The idea behind the Gonzales letter, says this commissioner, is to ensure “that every committee, especially the Iraq inquiry, can’t just say, ‘OK, we can put her up here as well.’ That’s really what’s cooking there.” The questions for Rice are expected to focus on what warnings the administration may have had before Sept. 11 about possible al-Qaida attacks on the nation, how seriously such warnings were taken, and whether the administration was so focused on Iraq that it neglected to focus on the al-Qaida threat. Rice will also be asked to clarify any contradictions between her previous statements about these matters and the testimony of Clarke, the former anti-terrorism adviser. The March 30 letter from Gonzales also gave the commission the opportunity to question President Bush and Vice President Dick Cheney together at a private, untranscribed session. Hill, the former staff director of the congressional probe, says it’s “always clearly preferable to interview two people individually. You want the best possible independent recollections so you can weigh them together, free of influence or suggestion from the other person.” But, Hill concedes, “It doesn’t always happen that way. After all, it is the president of the United States that we are talking about.” Richard Ben-Veniste, a Sept. 11 commission member and partner at the D.C. office of Mayer, Brown, Rowe & Maw, says, “It’s unusual, and I don’t understand why they insisted on it. But we can deal with it by directing our questions to the appropriate witness. I don’t think that a question will be put to one individual and answered by another.” Says Gorelick: “It’s unorthodox and a bit odd. But I believe that we’ll have our questions answered in a satisfactory way.” Another commissioner points out that unlike the public testimony by Rice, which is limited to the one session on Thursday, the Bush-Cheney private testimony has no time restriction. “Since they’re not limiting the time,” says this member, “they’re not limiting our ability to get it done.”

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