Bush can keep energy details secret
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| Fri, 06-25-2004 - 10:43am |
http://seattlepi.nwsource.com/national/179466_scotus25.html
Bush can keep energy details secret
Supreme Court ruling effectively delays any decision until after election
Friday, June 25, 2004
By REBECCA CARR
COX NEWS SERVICE
WASHINGTON -- The Supreme Court ruled yesterday that the Bush administration could keep secret -- at least for now -- details about an energy task force that special interest groups assert was run by energy companies and lobbyists.
In a 7-2 decision, the justices sent the case back to a lower appeals court to consider whether a federal open-government law requires the White House to release documents about the 1991 National Energy Policy Development Group headed by Vice President Dick Cheney.
The decision was viewed by legal experts as a victory for the White House. Even if the appeals court forces the administration to release the task force's records, the case will be tied up in appeals well beyond the November presidential election.
"It surely was a victory for the government, but that victory was obtained when they embarked on their delay-at-all-costs strategy," said Alan Morrison, who argued the case before the Supreme Court on behalf of the Sierra Club, one of the plaintiffs in the case.
Writing for the majority of the court, Justice Anthony Kennedy said a federal district court judge was overly broad in his order requesting that the White House release the task force's records to the Judicial Watch, a conservative watchdog group, and the Sierra Club, a national environmental group.
"While the president is not above the law, the judiciary must afford presidential confidentiality the greatest possible protection," Kennedy wrote. There is a "paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties."
Judicial Watch and the Sierra Club argued that the public has a right to know who participated in the task force with Cheney, a former energy industry executive, and how they devised an energy policy that environmental groups say is industry friendly. The groups allege in court filings that energy industry officials, including Ken Lay, former chairman of Enron Corp., all but dictated the White House energy policy while environmental groups were kept at bay.
But the Justice Department has defended the White House's decision to shield the names of businesspeople and private citizens who consulted with the task force. It is the right of the president and vice president to develop policies away from the public spotlight, U.S. Solicitor General Theodore Olson argued before the court.
The case raised a number of legal issues concerning separation of powers. But it also raised allegations of a conflict of interest question, a rare controversy for the court.
The Sierra Club requested that Justice Antonin Scalia recuse himself because he went on a holiday duck hunting trip last January with Cheney just as the court was considering the government's appeal.
"If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," wrote Scalia in response.
Scalia sided with the majority, but he and Justice Clarence Thomas went even farther than the rest of the court yesterday in siding with the White House. Scalia and Thomas wrote that they would reverse the judgment of the appeals court to turn over the documents because the initial judge, U.S. District Court Judge Emmet Sullivan, "clearly exceeded" his authority in this case.
Justices Ruth Bader Ginsburg and David Souter dissented, saying the lower court should be allowed to select which records should be released.
Also yesterday, the justices:
This report includes information from The Associated Press.
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Hardly a close call
~Rhonda
New York Times Editorial
A Loss for Open Government
Published: June 25, 2004
he case involving Dick Cheney's energy task force, which the Supreme Court ruled on yesterday, has been mired in controversy, notably over Justice Antonin Scalia's refusal to recuse himself from hearing it. But the legal issues, though important, are narrow, involving the power of a federal judge to order the executive branch to disclose the information necessary to enforce a federal law. The Supreme Court reached an unfortunate, if tentative, result, unduly shielding Vice President Cheney from answering questions about his task force's activities.
Shortly after taking office, Mr. Cheney headed up an energy task force whose meetings were secret. Its critics suspected that lobbyists had been invited to participate and help draft energy policies. Judicial Watch and the Sierra Club sued to get the task force's records. They relied on the Federal Advisory Committee Act, a law that promotes government integrity by compelling such committees to disclose information about their activities, unless they are entirely made up of federal employees.
The Bush administration argued that all of the task force's members were federal employees so the law did not apply. Judicial Watch and the Sierra Club insisted that it did because outside lobbyists had been members of the task force in all but name. To resolve this dispute, the trial judge authorized a tightly focused inquiry into the task force's structure and membership. But Mr. Cheney argued that even this narrow inquiry into the workings of the executive branch violated the separation of powers.
The case made national headlines earlier this year when it came out that Justice Scalia had gone duck hunting with Mr. Cheney while the matter was pending. There were widespread calls for Justice Scalia to recuse himself. Although federal law requires a justice to do so "in any proceeding in which his impartiality might reasonably be questioned," Justice Scalia chose to stay on the case.
In its ruling yesterday, the court — with Justice Scalia in the seven-member majority — sent the case back to a lower court, instructing it to give greater consideration to Mr. Cheney's separation-of-powers argument. Although the decision does not resolve the dispute, it makes it more likely that the task force records will remain secret. Even if they eventually become public, they are not likely to do so before this year's election.
The court is right that inquiries aimed at the executive branch must meet a higher standard, but its ruling leans too much toward secrecy. As Justice Ruth Bader Ginsburg notes in a dissent, Mr. Cheney could have asked the trial court to narrow the questions it allowed. Instead, he challenged its ability to elicit any information at all.
When Congress passed the Federal Advisory Committee Act, it wanted the public to be able to monitor the influences exerted on government policy makers. The court's decision is likely to frustrate that important goal.
http://www.nytimes.com/2004/06/25/opinion/25FRI1.html
And the reaction from the right?