Justices Appear to Support Cheney Task Force Secrecy
Wed Apr 28, 7:55 AM ET
story.news.yahoo.com
By David G. Savage Times Staff Writer
WASHINGTON - In a closely watched test of the president's right to
operate behind closed doors, the Bush administration urged the
Supreme Court on Tuesday to preserve the freedom of the executive
branch to solicit private outside advice.
Most of the justices signaled that they were
prepared to do just that.
The high court was asked to overturn two
lower-court rulings that ordered Vice
President Dick Cheney to
turn over documents disclosing who met with
his task force to help formulate the
administration's national energy policy in 2001.
"This is a case about the separation of powers," U.S. Solicitor Gen.
Theodore B. Olson began. He went on to describe a "constitutional
immunity" that protects the White House from all legal demands for
information, except when the president himself is under a criminal
investigation.
Olson won a generally friendly reception from the justices. In one
exchange, he asked them to imagine a law that would require the
Supreme Court to disclose its inner workings.
It was a point well-made. The justices enforce a strict rule of secrecy for
their internal debates, and Olson said the president deserved the same
right to consult in private with outside advisors.
The case was not really about Cheney, he said. "This is the president's
authority," Olson said, adding that he had the right to seek confidential
advice from outsiders.
Moreover, neither Congress nor the courts may force the president to
turn over information through so-called discovery orders, he said. "We
are submitting that the discovery itself violates the Constitution," he said.
"All discovery?" asked Justice Ruth Bader Ginsburg .
"Yes," Olson replied.
In this case, the advisors were oil industry lobbyists and prominent
corporate executives such as then-Enron Chairman Kenneth L. Lay, a
Texan who was close to Bush and Cheney.
The task force helped create an energy policy that called for an
expansion of nuclear power and oil and gas exploration.
Environmentalists criticized what they saw as a cozy relationship
between the Bush White House and the energy industry. In 2001,
lawyers for the Sierra Club and Judicial Watch sued
to find out who met with Cheney's task force.
The Supreme Court voted to take up the administration's appeal after a
federal judge and the U.S. Court of Appeals here ruled that Cheney had
to turn over documents.
Tuesday's argument included a face-to-face clash between Justice
Antonin Scalia and a veteran Washington lawyer,
Alan Morrison, who had asked the justice to withdraw from the case
because he went duck hunting with Cheney in south Louisiana in
January.
Scalia refused, saying his friendship with Cheney did not affect his ability
to impartially decide the legal issue before the court. On Tuesday, Scalia
left little doubt that he agreed with the Bush administration's argument.
"I think executive privilege means whenever the president feels that he is
threatened, he can simply refuse to comply with a court order," Scalia
told Morrison in one exchange. "He has the power … to say, 'No, this
intrudes too much upon my powers. I will not do it.' " The justice added
that the president should not even be forced to fight the issue before a
judge.
"If you view executive privilege that way, forcing [Bush]
to assert executive privilege is really pushing things to
an extreme that should not very often occur in this
republic," Scalia said.
Morrison, who is representing the Sierra Club,
disagreed. "I don't think the government has the right
to withhold that kind of information in this kind of
case," he said.
Although much of the argument focused on the
president's powers under the Constitution, the outcome
may turn on the meaning of the Federal Advisory
Committee Act, an obscure open-government measure
enacted in 1972. It says that when the government
sets up advisory committees to seek outside advice, the
committees must meet in public.
In their lawsuit, the Sierra Club and Judicial Watch
claimed that Cheney's task force violated that law by
meeting in private with outside advisors. A federal
judge in Washington said it was not clear whether the
law had been violated, but he ordered Cheney to turn
over information on who met with his task force.
The administration's lawyers refused to comply. They
argued that the law did not apply to Cheney's task
force, since all of its members were government
officials, not outsiders. And if the law did apply, it was
unconstitutional because it intruded on the president's
special powers.
Such court orders are "invasive of fundamental
presidential prerogatives," Olson argued.
Significantly, liberal-leaning Justice John Paul Stevens
said he agreed with Olson's
argument that the 1972 law did not authorize lawsuits
against the president and vice president. It "does not
create a cause of action," he said. "And the vice
president is not an agency."
Stevens also said he was unimpressed with claims that
Cheney had talked with Lay or other corporate
executives.
"What does that prove? Does that make [corporate
officials] members of the advisory committee? They may
have talked to a lot of people, but I don't see what that
proves."
Justice Stephen G. Breyer, another of the court's
liberals, also said he did not believe the 1972 law
authorized lawsuits whenever government officials met
with outsiders. "Congress could not possibly have
intended to have created that circumstance … putting
government in a cocoon when it develops legislative
policy," he said.
But the two lawyers challenging the government said
the law applied only to formal advisory committees that
sought outside advice, not phone calls and meetings of
top officials.
"The executive office of the president and anyone else
can call anyone they want at any time without
triggering FACA," said Morrison, using the acronym for
the Federal Advisory Committee Act.
"It requires a certain degree of formality and structure
and continuity," said Paul Orfanedes of Judicial Watch,
adding that Cheney's task force met the test.
Scalia disagreed. Bush and Cheney said all the
members of the task force were government officials,
not outsiders, he noted. Therefore, the law did not
apply.
But Morrison and Orfanedes argued that outside
corporate lobbyists were sitting in meetings and
drafting legislation for the administration. They were
acting as de facto members of the task force, they said.
"I'm asking whether they were members of the
committee, and the answer has to be no," Scalia said.
"Now, suppose I bring … a private individual with me to
give me advice. Suddenly, the private individual
becomes a member of the committee?"
"It is certainly a plausible interpretation, your honor,"
Morrison responded.
"Not plausible to me," Scalia replied.
The issue of who is a member of the advisory
committee is crucial to the lawsuit.
In 1993, when former President Clinton authorized First Lady Hillary Rodham Clinton
to devise a healthcare reform law,
the White House set up a task force to seek ideas and
to formulate a legislative proposal. But Mrs. Clinton
was accused by Republicans of violating the same
advisory committee act by meeting in private without
outside advisors, much as Democrats have criticized
the secrecy of the Cheney task force.
A federal judge and the U.S. court of appeals ruled in
1993 that the advisory committee act was violated
when outsiders met with her task force. But the
Supreme Court did not take up the dispute.
In the Cheney case, the same U.S. Appeals Court
applied the same rule to say that if outsiders, such as
Lay, participated in the Bush administration's task
force, then its records and deliberations must be
opened.
But the Bush administration's lawyers argued that the
presence of outside advisors in Cheney's task force did
not violate the law, and therefore they could not be
forced to turn over documents describing its meetings.
Chief Justice William H. Rehnquist, among others,
indicated that he agreed with the argument. By
focusing on that narrow issue, the high court could
throw out the lawsuit against Cheney's task force
without ruling on Olson's claim that the Constitution
shields the White House from all such orders.
In the opening minutes of the argument, two justices
- Ginsburg and David H. Souter - questioned whether
the high court should rule on the issue, because the
government failed to comply with the judge's original
order. They suggested the court should send the
matter back to the trial judge to decide just what
information must be turned over.
By the end of the argument, most of the justices
sounded as though they were ready to resolve the
matter, and most likely to side with the government.
A decision in the case of Cheney vs. U.S. District Court
is expected by late June. |
