Wednesday, April 28, 2004
Two groups are suing for access to records of a Cheney-led task force.
WASHINGTON POST
WASHINGTON -- The Supreme Court gave what seemed like a sympathetic hearing to Vice President Dick Cheney's arguments for White House confidentiality Tuesday, as several justices expressed concern about the validity of lawsuits by two public-interest groups trying to gain access to the internal workings of the energy policy task force Cheney led in 2001.
The Sierra Club, a liberal environmentalist organization, and Judicial Watch, a conservative anti-corruption organization, say Cheney's task force was not a purely governmental body but took heavy input from energy-industry lobbyists, and therefore must disclose its deliberations under a federal open-meetings law governing public-private advisory commissions.
A federal district judge, in a ruling that was upheld by the U.S. Court of Appeals for the District of Columbia Circuit, has granted them access to some of the task force's records to prove that contention.
But members of the Supreme Court repeatedly implied that they see some merit in the Bush administration's argument that it would violate the separation of powers to require disclosure of conversations among the president's advisers based on the Sierra Club's and Judicial Watch's accusation that energy lobbyists were "de facto" members of the task force.
"They talked to a lot of people, got a lot of advice," Justice John Paul Stevens told Paul Orfanedes, a lawyer for Judicial Watch. "Does that make them de facto members of the committee?"
When Orfanedes responded that "these are not mere unsupported allegations," Justice Stevens replied: "Well, I'm not sure that's right."
Scalia controversy
The complex legal issues in the case have been overshadowed in recent weeks by a related debate over Justice Antonin Scalia's refusal to remove himself from the case. The Sierra Club said Justice Scalia's impartiality was questionable because of his January duck-hunting trip with Cheney on an oil-services entrepreneur's land in Louisiana.
But Justice Scalia said no reasonable person could question his impartiality because the case does not expose Cheney, an acknowledged social friend, to any criminal or civil punishment.
The justice was in court Tuesday, and implied that he, too, thinks the Sierra Club-Judicial Watch suits are misconceived.
"Involvement of private individuals in the task force does not equate with membership of private individuals in the task force," he noted.
Potential impact
The political stakes in the case are high as well. If the internal records of the energy task force show that officials of such companies as the now-discredited Enron Corp. were intimately involved in formulating Bush administration policy, as the administration's opponents in the case suspect, it would be a major embarrassment for the president.
For its part, the administration is seeking Supreme Court validation of one key aspect of its broader attempt to keep internal White House information off-limits to the press, Congress and interest groups.
The mere fact that Justices Stevens, Scalia and other members of the court were challenging the basis of the lawsuit was a victory for Theodore Olson, the solicitor general of the United States, who represented Cheney in court Tuesday.
Technically, what is before the court is the district court's 2002 order granting Cheney's opponents "discovery" -- a legal term meaning access to documents and testimony -- so they can try to substantiate their contention that the National Energy Policy Development Group, which operated from January to September 2001, was actually a public-private body made up of Cheney and other officials, plus "de facto" members from the energy lobby.
If it was, then Cheney would be required to disclose its internal proceedings under the Federal Advisory Committee Act, or FACA.
Normally, the Supreme Court would not hear a challenge to a lower court's discovery order before it has been precisely formulated with input from both parties to the case, as remains to be done in this case.
Justice Ruth Bader Ginsburg drove home that point Tuesday, referring to that "firm, final judgment rule" as "the first hurdle" for Olson.
But Olson argued that this case is unique, because it touches on the very process of policy deliberation within the White House.