WASHINGTON – The Pentagon will comply with a House subpoena for internal documents detailing Hurricane Katrina-related correspondence except, perhaps, from Defense Secretary Donald H. Rumsfeld, an official said Friday.
Rumsfeld may claim executive privilege to resist turning over e-mails spanning nearly a month before and after the Aug. 29 storm, said Assistant Defense Secretary Paul McHale, the Pentagon's top homeland defense official.
McHale said in an interview that the Pentagon planned to provide a House inquiry with thousands of e-mails about military preparations and response. Asked, however, if the documents would include e-mails from Rumsfeld, McHale said, "I'm hesitant to say that at this moment."
That decision is "subject to a continuing review of the communication for legitimate issues of legal privilege and confidentiality," McHale said.
The House committee, chaired by Rep. Tom Davis, R-Va., requested hundreds of thousands of documents from local, state and federal officials in its investigation of the government's response to Katrina.
Davis issued the subpoena Wednesday for internal communications from Rumsfeld and eight other top military officials between Aug. 23 to Sept. 15. The committee is also considering a subpoena against the White House.
McHale said the Pentagon already has turned over more than 200,000 documents, and he hoped that the e-mails would satisfy the committee.
"Some of those e-mails will undoubtedly will be taken out of context," said McHale, who served three terms as a House Democrat in the 1990s. "Others will be subject to legitimate criticism. But, on balance, the e-mails that we release will be comprehensive, entirely accurate and more than sufficient to enable the Congress to effectively complete the investigation."
"I don't think there's anything in the e-mails that will, in any material way, conflict with those general positive reviews of DoD activity in response to Katrina," he said.
Davis spokesman David Marin said the Pentagon "has assured the committee that it will provide the information we've requested, consistent with the production of other agencies and departments."
Ellery Gould, a spokesman for Rep. Charlie Melancon, D-La., said that without Rumsfeld's e-mails, "we don't consider that full compliance."
Whether Rumsfeld can successfully claim executive privilege appears open to interpretation, according to interviews with legal scholars.
St. John's University law professor John Barrett said administration officials can claim privilege if their communications — even when outside the White House — gather information for the president. "You don't want to err on the side of jeopardizing the advising process that allows the president to do his job," Barrett said.
University of North Carolina law professor Michael Gerhardt said that only the president has authority to grant privilege.
"Secretary Rumsfeld doesn't have roaming authority to claim executive privilege on his own," Gerhardt said.