New push to shield task force
By Lyle Denniston, Globe Correspondent, 2/6/2002
WASHINGTON - The Bush administration mounted a vigorous new constitutional argument yesterday in defending its refusal to disclose the internal discussions of an energy policy task force that was chaired by Vice President Richard Cheney.
The new, broader approach came in a reply to a federal judge's order in a private lawsuit that seeks to find out what the task force talked about and who took part.
The administration said that a breach in the privacy of the task force's discussions, by either the courts or Congress, would be unconstitutional as ''a direct intrusion by the other branches into the process by which the president carries out his constitutional functions.''
Such an intrusion, the administration contended, ''would chill future deliberations by senior presidential advisors who would fear that their candid comments or their disagreements might some day be disclosed publicly or in litigation.''
That sweeping argument relies on the basic independence of the presidency and seeks to maintain a clearcut constitutional separation of the branches. It is thus broader than ''executive privilege,'' another kind of privacy claim, but one that depends ultimately on acceptance by the courts.
The administration told US District Judge Emmet G. Sullivan yesterday that an executive privilege claim could shield at least some of the task force documents from disclosure to a court or Congress. But the filing said the administration was trying to fight off intrusions into the executive branch's independence, not just to protect the confidentiality of the documents.
The new argument was in keeping with the vice president's increasingly public campaign - fully supported by President Bush - to prevent erosion of the executive branch's ability to make policy in private.
Cheney and other officials are fighting on several fronts to keep a curtain of privacy around the internal planning work of the group. Challengers are attempting to learn whether the energy industry - particularly, Enron,
the now-failed energy giant - had a major influence
on the administration policy that emerged last May.
The GAO, the investigative arm of Congress, and the administration are heading toward a possible court battle over secrecy for the task force.
Yesterday's court filing was in response to a lawsuit filed last July by Judicial Watch, a conservative group that uses lawsuits to pursue what it thinks may be public corruption. Its suit claims that the Cheney group was a federal advisory committee that, by law, had to do its work in public, and must disclose who was involved, what topics were discussed, and what decisions were made.
Judical Watch's president, Tom Fitton, said
that the administration's filing ''doesn't
answer the questions'' the judge asked late
last week about the constitutional reasons
for resisting the present lawsuit. The judge
asked for specifics, but the administration
did not provide them, Fitton said.
The Bush administration last fall urged Sullivan to dismiss the case, arguing that the advisory committee law is unconstitutional if it could be used to bring the task force's internal workings into public view. Judicial Watch countered it was too early to dismiss the case since there had been no opportunity to gather information about how the task force worked to determine if it was an advisory committee or not.
Late last week, Sullivan ordered the Justice Department to offer explicit constitutional reasons why Judicial Watch should not be allowed to gather information about the number of meetings the task force had, where and when it met, the subjects discussed, the names and number of private individuals and federal officers who took part, and the notes or minutes taken.
The judge said he needed to know more about ''the constitutional concerns'' the government would have if it had to answer those questions. A hearing will be held Tuesday on that request.
This story ran on page A8 of the Boston Globe on 2/6/2002.
© Copyright 2002 Globe Newspaper Company.
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