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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: Neocon who wrote (225924)	2/7/2002 9:38:40 AM
From: Zoltan!	Read Replies (1) \| Respond to of 769670

This is the best analysis of why the GAO will lose against Cheney. The GAO has neither the power or authority to act as the Dems' stalking agent: Cheney Is Right to Fight the GAO By DOUGLAS W. KMIEC Will Enron drag Dick Cheney down with it? The General Accounting Office is threatening to sue the vice president if he doesn't spill the beans about the closed-door sessions of his energy task force -- including, reportedly, meetings with top Enron executives. Despite no evidence of any wrongdoing, Democrats and the press are striving hard to create the dreaded "appearance of impropriety." But think a moment about what the GAO is demanding. If its demand are met, the executive branch would have to report on conversations held in private. It would mean disclosing the names of everyone Mr. Cheney or the task force talked with, and what they talked about, including market and proprietary information that competitors don't share with one another. How can anyone, whether in government or out, work effectively without being able to hold private meetings? To those who have balked at the audacity of its request, the GAO has retorted that this is all "routine." Unfortunately, the agency is telling the truth. The GAO has been in the habit of interfering with the constitutional functions of the presidency for the last quarter-century. By statute, as Congress's auditor, the GAO has specific responsibilities: It is empowered to conduct financial audits that ensure federal dollars are not misspent. And it is empowered to evaluate the effectiveness of government programs created by statute. Nowhere is it authorized to play grand inquisitor, with the right to tell the vice president and the president who they can talk to, or how to formulate policy. The GAO's mission creep doesn't have to be tolerated. Back in 1988, I had a face-off with GAO over its desire to supervise the National Security Council in its formulation of policy toward Panamanian dictator Manuel Noriega. The Department of Justice's ruling at the time left little wiggle room for GAO overreaching then -- or now. "GAO's investigative authority . . . is limited to auditing the finances of government agencies and is thus inadequate basis for the GAO Noriega investigation, which clearly goes well beyond a financial audit ," Justice concluded. GAO's justification of its actions on the basis of a catch-all authority to "evaluate the results of a program or activity the Government carries out under existing law" was also rejected. The phrase "program or activity under existing law," we noted at the time, only refers to activities that are carried out pursuant to statute -- not to any and every activity carried out by the president in the course of discharging his constitutional responsibilities. Vice President Cheney would be well advised to make a similar argument. Providing, that is, he doesn't ask the president to summarily dismiss the lawsuit altogether. That course of action, while perhaps politically dicey, would be perfectly justified -- the president is authorized by statute to terminate the GAO's misdirected actions. Judicial enforcement is denied the GAO "whenever the Director of the Office of Management and Budget or the President certify that the information could be withheld," and "disclosure reasonably could be expected to impair substantially the operations of the Government." Note that in all of this, the president need not even fall back on "executive privilege" to prevent the disclosure of information given to him in confidence. Executive privilege has never fully recovered from the black eye President Nixon gave it when he misapplied it to cover up executive wrongdoing. But like other legal "privileges" (e.g., attorney-client), it exists for a good reason. As numerous judicial rulings make clear, executive privilege protects information about state secrets, pending law enforcement matters, or the pre-decisional conversations of those helping the president. To be sure, the privilege is not absolute. Mr. Nixon had to give way to a Supreme Court ruling which forced him to turn over the White House tapes in order to ensure a fair trial for Watergate defendants. But often forgotten is the fact that the federal courts did not require Mr. Nixon's famous tapes be supplied to the Senate Watergate Committee -- only to the courts. That committee's work could be completed with the partial transcripts, the courts ruled, that the president had already delivered. In our present moment, similar considerations should apply. Congress has already been given a comprehensive task force report by which to evaluate President Bush's energy policy. Aside from the Democrats' desire to cast suspicion on the president by insinuation, neither Congress nor its offshoot, the GAO, needs to know the strategies that were revealed to the vice president under the promise of confidentiality. Government is necessarily dependent upon the informational expertise of regulated industries in fashioning economically efficient and effective regulation. Those who say otherwise are spinning an unhelpful yarn. What about Hillary Clinton's health-care task force? scream the Democrats. Didn't Republicans (and this editorial page) castigate Mrs. Clinton for not disclosing who her outside advisers were meeting with as they formulated an overhaul of the nation's health-care system? Yes, but there's an important difference. The energy task force, made up entirely of executive officers, is outside the statutory scope of the open meeting requirements of the Federal Advisory Committee Act. Those requirements only apply when nongovernmental individuals are given direct say over policy making -- a line that Mrs. Clinton's task force (but not Mr. Cheney's) crossed. Likewise, Congress has long exempted from the Freedom of Information Act the very kind of pre-decisional, consultative material that GAO now seeks. These exemptions are critical to preserving the constitutional balance secured by the separation of powers. This is what the vice president is fighting for, as Congress, and the GAO, aim to tar a highly popular president with the misdeeds of a failed corporation. Mr. Cheney is not fighting for political advantage; he is fighting for high principle. Mr. Kmiec, an assistant attorney general in the Reagan and Bush administrations, is dean of the Catholic University of America School of Law. online.wsj.com