Court hesitant about releasing Cheney's task force records

Wednesday, April 28, 2004

WASHINGTON -- The Supreme Court appeared troubled Tuesday by the prospect of letting the public have a look into private White House policy meetings, a hopeful sign for the Bush administration's aggressive defense of secrecy in the case of Vice President Dick Cheney's energy task force.

The court is the latest stop in a nearly three-year fight over access to records of the task force that prepared a national energy strategy. The president put Cheney, a former energy industry executive, in charge and the group's recommendations were friendly to industries. Most stalled in Congress.

Raising the gravest concerns about unnecessary snooping into the executive branch was Justice Antonin Scalia, who stayed in the case despite conflict-of-interest questions relating to his friendship with Cheney. He said a president has broad authority to keep matters private.

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

Other justices also expressed concerns about a ruling that would disrupt behind-the-scenes work of government.

At the same time, the court could disappoint the administration by deciding that the case is premature for a ruling because the lower court that ruled against the Bush administration had not worked out exactly which documents should be released. Several justices, including Sandra Day O'Connor, hinted at the possibility of such an outcome.

The Bush administration argues that privacy is important for candid White House discussions on difficult issues. It was sued by watchdog and environmental groups under a federal open-government law.

The groups accused the administration of letting energy industry executives and lobbyists help write the task force policy.

The administration has lost two rounds in federal court. If the Supreme Court makes it three, Cheney could have to reveal potentially embarrassing records just before the presidential election. A lower court would have to work out details.

Justices were told by lawyers for the suing groups that the public has a right to information about committees like Cheney's. Former Enron Corp. Chairman Kenneth Lay and others were task force players, lawyers argued, but until the government produces records it won't be clear if they actually drafted the government's policies.

A ruling will come before July.

During arguments, Justice Ruth Bader Ginsburg questioned why the government was balking at the release of some records while giving out 36,000 pages from agencies on the same subject. "If the whole thing is so misguided, if the application of this (law) violates the separation of powers, why did the government respond to the requests for information from the agencies?" she asked.

Solicitor General Theodore Olson said the administration did not want to be unnecessarily confrontational so it cooperated with some requests.

Conservatives and some liberal court members seemed sympathetic to Olson's arguments.

Justice John Paul Stevens said there was nothing unusual about outsiders giving government advice, and Justice Stephen Breyer said the work that goes into most major policies involves dozens of meetings with "everyone under the sun."

Several justices questioned why the White House had not just refused to release information citing presidential executive privilege, instead of challenging the bounds of the open-government law. Presidents contend that under the constitutional separation of powers, they can sometimes withhold information from the other two branches of government.

The legal issues in the case have been almost overshadowed by the political controversy involving Scalia, who was asked by private groups to recuse himself because of a hunting trip he took with Cheney weeks after the high court agreed to hear the vice president's appeal.

Scalia, a Reagan administration appointee asked questions of all the lawyers. His most intensive questioning went to attorneys for the Sierra Club and Judicial Watch, which want the documents.

The Supreme Court holds many of its own meetings in private, and Olson told justices to imagine if Congress told the court it had to open up details of its consultations.

The Constitution gives presidents and vice presidents power to gather advice and make decisions without being brought into court to reveal every detail of how those decisions are made, he said.

The case is Cheney v. U.S. District Court, 03-475.


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Audio of Solicitor General Ted Olson's argument is available at:

Audio of arguments by the Sierra Club's Alan Morrison and Judicial Watch's Paul Orfanedes is available at:

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