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Supreme Court Ruling Favors Cheney in Energy Case

by J.R. Pegg

Court Demands Cheney Release Energy Task Force Records

(ENS) WASHINGTON -- The Supreme Court set aside a lower court ruling on June 24 that ordered Vice President Dick Cheney to hand over secret documents related to a White House energy task force. The ruling is only a partial victory for Cheney, as it sends the case back to the U.S. Court of Appeals for the D.C. Circuit to reconsider the merits of the dispute.

But the ruling also means it is unlikely the White House will have to turn over the information on the membership of the controversial task force prior to the November election.

The case centers on an energy task force created by President George W. Bush shortly after he took office in January 2001.

The group's industry-friendly recommendations were the basis of an energy policy submitted to Congress the following month in June 2001.

Legislation containing many of the policies, which largely center on further support for fossil fuels and nuclear technologies, has stalled in Congress.

In the wake of media reports that energy industry officials and lobbyists were heavily involved in the task force -- and after the White House declined to release information about the meetings of the group -- Judicial Watch and Sierra Club filed suit to force disclosure of relevant documents.

In 2002, a U.S. District Court ordered the vice president to turn over documents or to assert executive privilege.

The Bush administration refused to comply with the order, which it said was far too broad.

But rather than arguing over the scope of the information requested by the public interest groups, the White House said the ruling was unconstitutional and violated the separation of powers.

In July 2003, a three-judge panel of the D.C. Circuit Court of Appeals agreed with the lower court ruling, prompting the Bush administration to appeal to the Supreme Court.

By a 7-2 margin, the Supreme Court ruled that the appeals court did not fully weigh the merits of the administration's contention.

"The Court of Appeals labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the government's separation-of-powers objection," Justice Anthony Kennedy wrote for the majority.

The ruling calls on the appellate court to reconsider the case and to determine whether the 1972 Federal Advisory Committee Act applies to the energy task force.

The law mandates open public access to records of advisory committees that include non-governmental members.

The Supreme Court did not rule on the merits of the administration's argument that the lower court ruling violated the separation of powers.

But it did appear to put some pressure on lower courts to consider the burdens placed on the White House by the plaintiffs' request for the internal documents.

"This is not a routine discovery request," Kennedy wrote. "Special considerations control when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated."

In their dissenting opinion, Justices Ruth Bader Ginsburg and David Souter agreed with the lower court ruling and said the district judge in the case should be allowed to determine what records should be released.

Sierra Club Washington Legal Director David Bookbinder said the Supreme Court is "essentially ducking the issue."

"This ruling means that for now the public will remain in the dark about the Bush administration and energy industry executives' secret meetings about national energy policy," Bookbinder said.

But the decision leaves the door open to the disclosure of the documents and Judicial Watch President Tom Fitton says his organization should ultimately get the information it has requested.

Fitton notes that the D.C. Court of Appeals upheld the constitutionality of the federal open meetings law in a case involving then First Lady Hillary Clinton's health care task force. Under the same laws, the Bush administration should be bound to turn over documents from the energy task force.

"In the end, we can not imagine the court endorsing the Bush administration's concept of unchecked executive secrecy and power, which is so truly at odds with a republican form of government," Fitton said.

The merits of the case have in part been overshadowed by Justice Scalia's close friendship with the vice president.

Sierra Club, citing a January 2004 hunting trip the two took together with several other friends, called on Scalia to refuse himself from the case.

The environmental group, which has been an outspoken critic of the Bush administration, said the trip raised legitimate questions about the justice's impartiality in the case. Judicial Watch said it did not believe there was enough evidence for recusal.

In an unprecedented memorandum released in April, Scalia provided many of the missing details of the trip and refused to remove himself from the case.

"The question simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a government plane," Scalia wrote. "If it is reasonable to that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined."

The Sierra Club said Scalia missed the point and added that if specific details had been provided regarding the trip when the issue first surfaced, they might never have requested the recusal.

In the ruling issued Thursday, Scalia sided with the majority, and, extending his protection of the Bush administration, joined an opinion written by Justice Clarence Thomas that said the ruling should have gone further and blocked any disclosure of the energy task force documents.

The Bush administration is also appealing a lower court decision that ruled it violated the Freedom of Information Act when it refused to turn over documents from federal agencies regarding their role in the energy task force. That case is also before the D.C. Circuit Court of Appeals.

The secrecy surround the energy task force has become a thorny political issue for the Bush administration, which critics say is too cozy with the oil and gas industry.

Phil Singer, spokesman for the campaign to elect Democratic Senator John Kerry as President in November, called on President Bush to "come clean and make this information public."

"Americans should not have to rely on court orders to learn what special interest lobbyists are writing White House policies," Singer said.

© 2004 Environment News Service and reprinted by special permission

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Albion Monitor June 26, 2004 (

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