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Supreme Court Sets Aside Cheney Energy Task Force Case

BY Admin  June 24, 2004 at 2:50 PM EDT

However, the Supreme Court sent the case back to an appeals court for reconsideration under an open government law.

By a 7-2 margin, the justices found the lower court’s reasoning flawed. Justice Anthony Kennedy wrote the majority opinion, while liberal Justices David Souter and Ruth Bader Ginsberg dissented.

Judicial Watch, a government watchdog group, and the Sierra Club, an environmental advocacy group, sued the government seeking the release of the papers under the Federal Advisory Committee Act. The 1980 law requires any advisory group that includes members that aren’t government employees to make public records of its meetings.

The groups said energy industry lobbyists and corporate executives participated in the meetings as “de facto” members of the Cheney-led Energy Policy Development Group, which met over a period of months in 2001. The groups said the public should know about industry influence in the administration’s energy policy.

The White House defended the secrecy of the meetings, arguing that the president must be able to keep deliberations confidential in order to ensure the best, “unvarnished” advice possible, and that the president’s ability to confer with advisers can’t be infringed upon by the Judiciary or Congress because of powers granted him in the Constitution.

The case bogged down in arguments over “discovery,” the preliminary phase of a trial when both sides are allowed to gather evidence. The plaintiffs said they needed task force documents to bolster their claim that non-governmental advisers were actually members of the energy task force.

The White House argued that an order to release the documents to the plaintiffs’ attorneys during the discovery phase would in effect hand the plaintiffs a victory before the trial began because the heart of the case centered on disclosure of the same documents.

In 2002, the federal district judge hearing the case ruled the groups who brought the suit should get some access to task force documents for the discovery phase of the trial. The judge said the White House could invoke executive privilege, a legal defense reserved for the president in disclosure cases, if it wished to keep sensitive documents secret.

Government lawyers appealed, saying mounting an executive privilege defense for every possible meeting of advisers would be too costly and time consuming.

The District of Columbia Circuit Court of Appeals upheld the district court’s ruling, adding the it lacked jurisdiction in the case because the White House could invoke executive privilege.

On Thursday, however, the Supreme Court set aside the appeals court’s ruling and instructed it to move ahead and consider whether FACA actually applies to the case, without requiring the preliminary disclosure of documents.

“President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual,” wrote Kennedy for the majority. “While the president is not above the law, the Judiciary must afford presidential confidentiality the greatest possible protection, recognizing the paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

President Bush’s spokesman responded to the ruling by reiterating the importance of confidentiality in White House deliberations.

“We believe that the president should be able to receive candid and unvarnished advice from his staff and advisers,” said White House spokesman Scott McClellan. “It’s an important principle. And we’ll be looking at this decision.”

The head of Judicial Watch, Tom Fitton, expressed hope that the documents will eventually be released.

“Ultimately, we can’t believe courts will endorse the Bush administration’s assertion of unchecked executive secrecy and power,” Fitton said.

In a statement on its Web site, the Sierra Club accused the Supreme Court of “ducking” the issue and said the energy task force case “has highlighted the Bush administration’s penchant for secrecy while asserting the public’s right to know how the policies that govern it are created.”

The groups who brought the suit had asked that Justice Antonin Scalia recuse himself from the case because he had gone on a duck hunting trip with the vice president. Scalia refused, saying that his association with Cheney did not affect his ability to render an impartial judgement.

Scalia joined Justice Clarence Thomas in writing a concurring opinion that agreed with the majority on the discovery issue but went on to say that the district court should have ruled in favor of the government on the merits of the case.