Justices hear Cheney energy case.

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Registered: 03-18-2000
Justices hear Cheney energy case.
24
Wed, 04-28-2004 - 9:40am

http://www.chicagotribune.com/news/local/chi-0404280273apr28,1,6770635.story?coll=chi-news-hed


The Supreme Court took up the far-reaching question Tuesday of whether the executive branch has broad constitutional powers to solicit outside advice and make policy decisions without being forced to disclose details of the deliberations to the public.

In lively oral arguments on one of its most important cases this term, the court appeared divided. The justices grilled lawyers for the Bush administration and two public interest groups over whether Vice President Dick Cheney's energy task force should be required to disclose details of its deliberations three years ago on a national energy policy.



The two groups, Judicial Watch and the Sierra Club, had won a lower court decision that would allow them to obtain information about the inner workings of the task force, including its contacts with the energy industry.

The organizations had sued to enforce disclosure, alleging that the energy industry, including bankrupt Enron Corp. and its former chairman, Kenneth Lay, had undue influence in formulating the Bush administration's energy policy.

Rather than complying with this so-called "discovery" of evidence order by a U.S. district court or claiming executive privilege over the documents, the administration made an extraordinary argument that the Constitution protects the president and vice president from revealing any details about the proceedings.

The case went to the high court after an appellate court upheld the district court's decision. If the administration loses in the Supreme Court, Cheney would have to reveal records of the task force in the middle of a presidential campaign. A decision is expected by the end of June.

White House argument

"This is a case about separation of powers," said Solicitor General Theodore Olson, arguing for the administration. "Congress may neither intrude on the president's ability to perform these functions nor authorize private litigants to use the court to do so."

Among those peppering both sides with questions was Justice Antonin Scalia, who stirred up a political storm when it was revealed he went on duck-hunting trip to Louisiana with Cheney, an old friend, shortly after the court agreed to hear the vice president's appeal. Scalia refused to step aside from the case.

In his questions, Scalia expressed sympathy with the administration's position, challenging an argument by the two public interest groups that energy industry interests had "de facto" membership on the task force. They had no power to vote on the decisions, the justice said, and so could not be classified as members.

Scalia also said the president has the right to refuse to reveal details of such discussions.

"He has the power as an independent branch to say, `No, this intrudes too much upon my powers. I will not do it,'" he said.

At another point, Scalia said, "I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order."

Other justices did not appear to want to go so far. Justice David Souter said the administration failed to assert executive privilege against release of documents and details of task force proceedings when the case was before U.S. District Court in Washington, D.C.

"So we don't know what might be subject to executive privilege and sustained, perhaps, and what would not be," Souter said. A constitutional question would only arise when the lower court decides what is to be made public, he said.

But Olson said the district court made an overly broad decision requiring release of information.

Souter: More specifics

Nonetheless, Souter and Justice Sandra Day O'Connor indicated that a final judgment on the constitutional issue raised by Olson might have to await a decision by the lower court on which specific documents should be released.

The two organizations filed suit for release of the information under the Federal Advisory Committee Act, which requires that advisory committees generally must make public their records and documents.

Alan Morrison, arguing the case for the Sierra Club, said advisory groups used by the Cheney task force came within the purview of the law. He added that this law does not prevent the White House from keeping outside advice secret as long as formal advisory committees are not involved.

Breyer's worry

But Justice Stephen Breyer expressed concern that if government officials trying to develop a new policy reached out to outside experts, "every one of these outside people could be hit with a discovery order" about their actions.

Breyer said Congress could not possibly have intended to put "government in a cocoon when it develops legislative policy."

Justice Ruth Bader Ginsberg challenged Olson on why the administration had released more than 36,000 pages from agencies about developing the energy policy while it was now fighting disclosure of other information.

Olson said those documents were released as part of the Freedom of Information Act and that the administration did not want to be too confrontational and cooperated with some requests.

- - -

Court arguments

Solicitor General Theodore Olson: dispute involves bringing the president and the vice president of the United States into court to defend themselves with respect to . . . obligations and responsibilities that they have under the Constitution.

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Sierra Club lawyer Alan Morrison: We believe that, if outsiders participated in the marking up of drafts, they had input into the drafts . . . even though they had no formal vote.

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Morrison: As the district court understood it, we would get the basic information about who went to the meetings, who had access to the drafts. . . .

Justice Anthony Kennedy: Do you think those are fairly concluded within the separation of powers. . . . ?

Morrison: I do not think that the government has any right to withhold that kind of information in this kind of case.

Kennedy: But that's the issue.

cl-Libraone~

 


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iVillage Member
Registered: 04-05-2004
Mon, 05-03-2004 - 10:15am
Good grief, James. You have just agreed with me and you don't even know it. "the RULING will have broader ramifications". This is why I think you should think carefully what you wish for. Who knows what happened in that meeting. What if he loses and you find that there wasn't any political fodder in there after all? What if you can get more mileage out of NOT knowing? Then you would have supported something that didn't really do your side any good, but the broader ramifications could turn around and bite you on the rear end next time there is a liberal in this office.

Then again, what if there is some real red meat? What if it damages Cheney to the point that he decides not to run with the president this time and President Bush choses Colin Powell? You guys would have sunk your own already wobbly boat. Food for thought. I don't see any good coming to your side from this any way you look at it.

And I don't think that Cheney would lose this case even if Scalia recused himself, but it is more convenient for the left that he stays put, you must admit that. People's imaginations are always worse than the actual reality. Remember how the left wanted only the title of the August 6 memo into the record without the entire thing being declassified? Pushing this blew up in your faces, didn't it. Politics as usual... I would just quit while I was ahead...

iVillage Member
Registered: 09-05-2003
Mon, 05-03-2004 - 3:17pm

Actually Imminie, I did not agree with you by mistake, I agreed with you IN PART and quite intentionally.


Here is what I am saying:


1.

iVillage Member
Registered: 04-05-2004
Mon, 05-03-2004 - 4:14pm
Your facts are wrong, James. The court does not have the leeway to rule only against Cheney. The case is about the OFFICE, not about the man himself. If you don't believe me, look it up!

You say "this administration is VERY big on protecting itself from any outside eyes looking through its information". I say this is true for EVERY ADMINISTRATION in the past, too, and this is the first time that this has ever been questioned. I say the left wing is getting exactly what they want out of this, inferences that Cheney and Scalia are wrongdoers. That's really all they want anyway. This asking Scalia to recuse is just smoke and mirrors (as usual).

I was only commenting that if you really thought it through you wouldn't want Scalia to recuse, but most people don't stop and think anymore.

iVillage Member
Registered: 04-16-2003
Mon, 05-17-2004 - 1:44pm
I was looking for the post relative to Afghanistan Pipeline; but this is also related. This article has several thought provoking ideas.

http://www.atimes.com/atimes/Front_Page/FE18Aa03.html

Taliban in Texas: Big Oil hankers for old pals

By Pepe Excobar; May 18, 2004

HOUSTON - The Taliban must have had a ball in this Texas city when they came to visit the control tower of Planet Oil in the late 1990s to negotiate the Trans-Afghan Pipeline (TAP). One can imagine Mullah Omar's finest, in full black-turbaned regalia, at the Houston Galleria - amid all those blond, dermatologically sublime trophy wives credit-carding their way to the Valhalla of conspicuous consumption at Saks, Macy's, Nordstrom and Neiman Marcus. Not to mention all those steak houses! And all those sport-utility vehicles (SUVs) - not only Kandahar-friendly Toyota Land Cruisers but Durangos, Silverados, Pajeros, Discoveries and even BMWs!

Of course this was ages before the cluster-bombing of the Taliban back to Jurassic Park became the secret casus belli for the "war on terra" after September 11, 2001. And it was before those gas-guzzling SUVs had to deal seriously with soaring oil prices, or at least not to the heights we are seeing now. On Monday a barrel of US light crude hit US$41.65, the highest price since the New York Mercantile Exchange launched its crude-oil contract in 1983.

Between the Taliban taking over Kabul in September 1996 and the Group of Eight (G-8) summit in the summer of 2001, neither the administration of president Bill Clinton nor that of his successor, President George W Bush, ever designated Afghanistan as a terrorist or even a rogue state: the Taliban were wined and dined as long as they played the Pipelineistan game in Central Asia (see Pipelineistan revisited, December 24-25, 2003). Unocal - which had put the CentGas Pipeline Consortium in place - hired Henry Kissinger as a consultant. Unocal also hired two very well-connected Afghans: Zalmay Khalilzad, a Pashtun with a PhD from the University of Chicago and former Paul Wolfowitz aide, and Hamid Karzai, a Pashtun from Kandahar. In 1996, both Khalilzad and Karzai were ultra-pro-Taliban. Karzai is now Afghanistan's US-backed ruler. Khalilzad also made splendid career moves: Bush-appointed National Security Council member (working under Condoleezza Rice), "special envoy" to Afghanistan (only nine days after the Karzai government was sworn in), and current US ambassador.

The Taliban didn't want to play ball: every time, they wanted more money and more investments for the roads and the infrastructure of their ravaged country - until an exasperated Washington decided to finish them off. This was discussed in Geneva in May 2001, at the G8 summit in Genoa in July 2001, and finally at a Berlin hotel, also that July, a meeting involving US, Russian, German and Pakistani officials. Asia Times Online later learned in Islamabad that the US plan was to strike against the Taliban from bases in Uzbekistan and Tajikistan before October 2001. Then the terrorist attacks of September 11 happened, providing Washington the perfect excuse to go it alone.

There's still no oil flowing through Afghanistan - not yet. With the price of oil now at its highest level since 1983, the US population is getting restless. The so-called US summer driving season - from April to September - will have gasoline averaging $1.94 a US gallon (about 51 cents a liter; it is already $2.30 a gallon, or more than 60 cents a liter, and up in California). A stop at Continental Airlines headquarters in downtown Houston reveals that the airline has increased its freight rates from 15 cents to 20 cents per kilogram.

But for corporate Houston - where virtually everyone's mood is inextricably related to the price of a barrel - expensive oil is good business. Seth Kleinman, an analyst for PFC Energy Group, goes straight to the point: "These are market fundamentals. Demand is incredibly strong and supply does not follow. Americans love their SUVs. Car makers are offering 0 percent APR financing. And refining capacity also does not follow demand. No new refinery was built in the US in the last 20 years."

Whatever happens, there is a consensus all over Houston: there will be no new oil shock, at least for the foreseeable future - only what financial circles are calling "Chinese torture" - prices slowly going up.

What if they invaded Texas?

Houston is not a down-tempo chill-out groove kind of place; it's more like ZZ Top playing on a turbo Cadillac. But Houston - as people in cooler-than-thou Austin are fond of saying - is desperately trying to be hip. The severe glass-and-steel towers of downtown are being sweetened by water gardens on Main Street. The spectacular collapse of Enron in December 2001 voided two downtown towers, and there are plenty of second-hand Porsches for sale or for rent. Enron - in essence a giant casino - was involved in everything from oil, gas and electricity to timber, water, communications and the Internet, with a turnover of more than $100 billion. But Enron executives were sort of pardoned by the city because they're considered to be the modern version of 19th-century wildcatters.

With Halliburton the story is more complicated. Halliburton is making a killing of some $9 billion in contracts to rebuild Iraq's oil industry and to service US troops. Halliburton's stock has already risen 11 percent this year. But it is not being forgiven. The United for Peace and Justice coalition is calling for a mass protest on Wednesday against war profiteering and crony capitalism outside Halliburton's annual shareholder meeting.

The oil capital of the world is transfixed by Iraq. Referring to the beheading of Nick Berg, John Nugent says: "The abuse of captives at Abu Ghraib, while unjustified, is a poor excuse for murder." John Mundy says, "We should bring all our troops home and recognize that we cannot negotiate with fanatics. We cannot pacify or buy them off with good works." But Anna Miller says, "We did not find weapons of mass destruction or al-Qaeda in Iraq. However, we did find the terrorists, and they are us."

Support for Bush is far from monolithic. "Troops Yes Bush No", reads a bumper sticker on a Jaguar. KPFT 90.1 FM, an excellent community radio, insists on "giving a voice to the voiceless" - and they come from everywhere in this multicultural city of 5 million: India, Pakistan, Bangladesh, black musicians, the Reverend Robert Muhamad, defenders of South Dakota Indians. The Christmas Coup Comedy group produces an outstanding mix with snippets of Bush press conferences and booming metallic beats ("Bring Them On").

At a Brazilian steak house in the steak-house Valhalla of Westheimer Avenue, among the ballet of gauchos serving prime cuts on sticks, the gloves slowly are off. "War is good for business," says a red-meat fan, especially with the barrel at $41.65. "And since it's not going down, this is good for reviving oil production in the Gulf of Mexico." This means more wealth for Houston. Iraq reconstruction is a more problematic affair. Halliburton is making billions, but how long will it last? "What if this Muqtada guy steals the elections?"

"By God, they should be so lucky to be occupied, we're doing them a great favor." This may seem to be a consensus, like "We can't make those Arabs happy. And we can't rule in the Middle East either." Everyone agrees that "similar things go on in our prisons ... Our prison population exploded because of the war on drugs, a third generation of failure ... There's a sheriff in Arizona who ordered pink underwear for people in jail."

But some Texans are somewhat startled when they learn that the British Empire, via Lord Curzon 80 years ago, wanted to create "an Arab facade veiled by constitutional fictions" in Iraq and the Middle East.

They also start thinking when they are reminded that the last time America was occupied was in the early 19th century; as for Britain, it was during the Roman Empire. This leads to a thoughtful conclusion: "That's right. If someone invaded Texas, we would do the same thing."

Big Oil and bigger military

The people at the Petroleum Intelligence Group in Houston confirm it, as well as the Don't Mess With Oil elite at the Petroleum Club (housed since 1963 on the top two floors of the Exxon Tower, only 1,500 selected members, regal lunches with $50 lobsters and bottles of sublime Margaux only for members): Big Oil is not exactly fond of this war and its aftermath - especially with news like this week's bombing of a pipeline near Basra, instantly cutting 25 percent of Iraq's exports. What the oil majors were saying more than a year ago, before the war, has become a reality: Iraq is terribly dangerous. Ergo, bad for business. In terse Texas oilspeak, this is the message: Bush's priorities were never the oil business's priorities. And the elite is really worried about what the neo-cons are up to next.

What do the intellectuals of the conservative establishment have to say about this? On the sprawling, extremely wealthy campus of Rice University, the James Baker III Institute for Public Policy regally sits as a sumptuous neo-Byzantine spectacle - hall of fake Greek columns, round table fit for royalty, priceless Persians, and of course a gallery of photos of the former secretary of state smiling alongside every player and his neighbor during the Cold War.

The director of the institute is ambassador Edward Djerejian, a former official of the administrations of presidents Ronald Reagan, George H W Bush and Bill Clinton, and allegedly one of the best American specialists on the Middle East. But his secretary says his schedule is very hectic, so "he has decided to decline the interview due to time constraints". A Rice University PhD now living in Austin has a different take: "The last thing these people want now in the middle of this mess is to talk to a journalist they don't know about American foreign policy in Iraq and the Middle East." It's also a pity not to hear the hectic Djerejian's take on how his boss - senior partner of the Houston and Washington law firm Baker & Botts - masterminded the scheme to get the Supreme Court to appoint George W Bush president in 2001. Baker & Botts, by the way, keeps a very substantial office in Baku, Azerbaijan, a key node of Pipelineistan. Yes, it is always about oil.

It's raining Texas cats and dogs, so detailed research at Rice University may yield some enlightenment. In January 2001, George W Bush created the National Energy Policy Development Group (NEPDG), directed by Vice President Dick Cheney. When they published the so-called Cheney Report, one thing was clear: the priority for this administration was never the "war on terra", but America's dependence on energy sources. The Cheney Report was not strategic analysis. But it was published during the Enron scandal - with Enron executives working as NEPDG members. Question: What were they really up to?

Last July, the Department of Commerce was forced by the Supreme Court to unveil the documents used by the Cheney Energy Task Force. There are maps of oilfields in Iraq, the United Arab Emirates and Saudi Arabia as well as charts detailing which foreign companies closed deals with Saddam Hussein for oil exploitation in Iraq. Among other things, these documents prove that long before September 11, 2001, regime change in Iraq was the order of the day.

New Mexico Governor Bill Richardson, energy secretary for the last two years of the Clinton administration and now widely tipped to be Democratic presidential candidate John Kerry's running mate, has a starring role in all this. In February 2000, Richardson went on a tour of all member states of the Organization of Petroleum Exporting Countries (OPEC) except Iraq, Iran and Libya. He discovered that none of these countries had excess production capacity. Conclusion: an energy crisis, sooner or later, would be inevitable. Matt Simmons, a consultant for the Council on Foreign Relations, learned about this by e-mail and later became a consultant to the Bush administration.

The eighth chapter of the Cheney Report, titled "Strengthening Global Alliances", says it's imperative for the United States to get rid of strategic, political and economic obstacles in its quest to ensure the extra 7.5 million barrels of oil a day it will need by 2020. This is the equivalent of the current total consumption of India and China put together. As most of the countries that are among these "obstacles" are politically and socially unstable, this means that secure supplies to the US imply the presence of US troops. The Cheney Report stresses the growing US - as well as Asian and Western European - dependence of Middle East oil. And as the solution for the energy problem, it proposes a military solution. This is the meaning of General Tommy Franks saying on the record that "we will be in Afghanistan for years", and the meaning of the 14 US military bases to be built in Iraq.

At the time, the Cheney Energy Task Force also had to refer to the United Nations sanctions imposed on Iraq. Lifting the sanctions on Iraq would mean the go-ahead for contracts frozen by the sanctions - most with Russian and European companies and not with US companies, since Saddam was not in business with the US. So war was the only option to get the big prize - the second-largest oil reserves in the world, which come as well with very low production costs.

It's possible to extract a major conclusion from the Cheney Report. The White House says that the terrorists want to destroy the American way of life. But what if the whole thing is upside down? To preserve an American way of life that guzzles - and wastes - tremendous amounts of energy, Washington is forced to go military all the way, under the pretext of the "war on terra". And the process, on top of it, feeds on itself. Who is the largest world consumer of energy? It's the US Army.

Houston, one of the world capitals of oil, red meat and frenetic consumption, misses its Taliban. But no more Taliban in Texas does not mean that Texas does not need the Taliban. In line with the Cheney Report and with oil ever more expensive, now more than ever there's need for the Trans-Afghan Pipeline (TAP), which would bring oil and gas from Turkmenistan to Pakistani ports and then to the United States. Hamid Karzai cannot maintain order even in Kabul. Fickle Washington may change its mind - again - and issue a "Houston, we got a (Taliban) problem". Then sooner or later those dashing, black-turbaned Pashtuns will be seen parking their brand-new SUVs at the Galleria.

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