Free Press Releases
******************************************************************Thursday, June 24, 2004; 2:35 PM
Cheney Energy Documents Remain Sealed Supreme
Court Sends Case Back to Lower Court
By William Branigin Washington Post Staff Writer
The Supreme Court today refused to order Vice
President Cheney to release secret records of his
2001 energy task force, but prolonged a legal
fight over the issue by sending the case back to
a lower court.
By a vote of 7 to 2, the court
voted to require the U.S. Court of Appeals for
the District of Columbia to reconsider its ruling
in the case, which effectively allowed two
private groups to use a federal open-meetings law
to obtain records of the task force's
deliberations on a national energy policy.
A lower court had granted the
groups access to some of the task force's records
to try to prove their claim that energy industry
lobbyists and executives of such companies as
Enron Corp. were de facto members of the task
force and played a major role in drafting the
Bush administration's energy strategy.
The administration argued that
deliberations among the president's advisers
needed to be kept confidential to ensure candor
and that requiring disclosure of the records
would violate the constitutional separation of
powers.
The White House indicated it
was pleased with the decision, which appeared
likely to postpone a resolution of the issue
until after the November elections.
"We believe the president
should be able to receive candid and unvarnished
advice from his staff and advisers," White
House spokesman Scott McClellan told reporters.
"It's an important principle."
A spokesman for the campaign of
Democratic presidential candidate John F. Kerry
said after the Supreme Court's ruling, "The
Nixon legacy of secrecy is alive and well in the
Bush White House." In a statement, the
spokesman, Phil Singer, said that in any case,
Americans should not have to rely on court orders
to learn which lobbyists are writing White House
policies.
"The president should come
clean and make this information public,"
Singer said. "George Bush and Dick Cheney
have forgotten that the White House belongs to
America, not Enron, and they owe it to the public
to disclose this information."
Tom Fitton, the president of
Judicial Watch, one of the two groups seeking the
energy task force's records, disputed the notion
that today's ruling represents a victory for the
Bush administration. He said there would have
been a delay in obtaining the records even if the
court had ruled in Judicial Watch's favor and
that remanding the case to the appeals court
would not help the administration in the end.
"It virtually guarantees
that the dispute will be kicked into the fall
election season, and the administraiton will be
arguing to the court that meetings with [former
Enron executive] Ken Lay ought not to be
subjected to any scrutiny at all," Fitton
said.
Today's decision represents
"the sort of normal deference that the
Supreme Court often gives the Executive
Branch," he said. "We're confident that
the appeals court . . . will rule in our favor,
that certain documents will have to be made
available to us."
Writing for the majority in the
case, Justice Anthony M. Kennedy said that
"all courts should be mindful of the burdens
imposed on the Executive Branch in any future
proceedings." He added, "Special
considerations applicable to the president and
vice president suggest that the courts should be
sensitive to requests by the government" in
such appeals.
Justices Ruth Bader Ginsburg
and David H. Souter dissented, saying that the
appeals court judge in the case should be allowed
to consider which records to release. They said
they would affirm the appeals court's judgment
and were confident that the release of records in
the case would be kept "within appropriate
limits."
Justices Clarence Thomas and
Antonin Scalia voted with the majority, but
issued a separate opinion arguing that the U.S.
District Court that initially heard the case
"clearly exceeded its authority" and
that the appeals court judgment should be
reversed.
The case had been largely
overshadowed by a dispute over whether Scalia
should recuse himself on grounds that his
impartiality was called into question by a
duck-hunting trip with Cheney in January on an
oil-services entrepreneur's land in Louisiana.
Scalia issued an unusual memo
defending the trip and arguing that his
impartiality was not an issue because, while
Cheney is a friend, the case did not expose the
vice president to any criminal or civil
punishment.
"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," Scalia wrote in the memo.
The case challenging the
president's National Energy Policy Development
Group, chaired by Cheney, was brought by two odd
political bedfellows: the Sierra Club, a liberal
environmental group, and Judicial Watch, a
conservative anti-corruption organization. They
charged that records of the energy task force
must be disclosed under a 1972 law, the Federal
Advisory Committee Act, which governs
public-private advisory commissions. The law
requires that advisory committees conduct their
business publicly unless all the members are
government officials.
The Sierra Club and Judicial
Watch argued that officials of Enron and other
private companies were intimately involved in
formulating the task force's recommendations. To
prove that the task force, which operated from
January to September 2001, was actually a
public-private body, the groups obtained a
"discovery" order in 2002 from the U.S.
District Court for the District of Columbia that
granted access to the task force's documents and
testimony.
Cheney, represented by
Solicitor General Theodore B. Olson, fought that
order, asking the appeals court to issue a
"writ of mandamus" to modify or
dissolve the discovery order. The appeals court
declined to issue such a writ.
The Supreme Court today did not
find that the appeals court abused its discretion
by failing to issue the writ, but had
"prematurely terminated its inquiry after
the government refused to assert privilege and
did so without even reaching the weighty
separation-of-powers objections raised in the
case. . . ."
Staff writer Charles Lane
contributed to this report.
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