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High court hears arguments on Cheney task force

Bush administration contends case about separation of powers

From Bill Mears
CNN Washington Bureau

CNN's Bob Franken reports from the Supreme Court on arguments in the executive privilege case involving meetings of Vice President Dick Cheney and the National Energy Policy Development Group.
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The Cheney case weighs the conflict between confidentiality and need for open government .

CNN's John King looks at how the White House has dealt with the issue of secrecy.
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White House
Dick Cheney

WASHINGTON (CNN) -- Attorneys for two public interest groups argued Tuesday for the release of Vice President Dick Cheney's energy task force records, with the Bush administration calling it a case of "separation of powers."

Supreme Court justices questioned lawyers on both sides as the administration asserted the files should be kept secret.

Cheney contends that forcing him to disclose his task force's 2001 contacts with industry executives and lobbyists would hurt the White House's ability to receive candid advice.

"This case is about the separation of powers and the president's discretion to receive the opinions of subordinates," Solicitor General Theodore Olson told the court during oral arguments Tuesday morning.

The Sierra Club and Judicial Watch are seeking records from Cheney's task force, which met behind closed doors. They argue the vice president's contacts with industry leaders were improper while he was developing government policy that benefited their businesses.

The groups said they want to know whether lobbyists for the energy industry privately helped craft the U.S. government's long-term energy policy.

Chief Justice William Rehnquist and Justices Stephen Breyer, Anthony Kennedy, David Souter and Antonin Scalia raised questions about whether the groups had a right to obtain those records, with Breyer suggesting the request was too broad.

"I hear echoes of every discovery request I've ever heard," Kennedy said.

Judicial Watch attorney Paul Orfanedes said the government can't withhold records from the public when private citizens participated in the task force. But Breyer and Scalia questioned whether such participation effectively made them members of the group.

Scalia, whose January hunting trip with Cheney became an issue in the case, said the president "has the power to say, 'No, this intrudes too much on my power, and I won't do it.' "

The White House argues that the courts and Congress have no business making inquiries, even limited ones, into the decision-making power of federal agencies and officers. It rejects critics' descriptions of its operation as overly secretive and cozy with big business.

The case tests the constitutional balance between confidentiality and public scrutiny for government leaders, issues that have particular resonance in this election year.

David Bookbinder, the Sierra Club's legal director, said the White House appears to have violated laws supporting open government.

"What the panel said to energy executives was: Help us decide what the energy policy should be," Bookbinder said. "A line has been crossed because the process should have been transparent. The panel was inordinately influenced by the energy industry."

In one of his first acts in office, President Bush tapped Cheney to lead the National Energy Policy Development Group in January 2001. The task force was commissioned to gather information and recommend a set of energy polices.

Before becoming Bush's running mate, Cheney was chairman and chief executive officer of the Texas-based Halliburton Co., one of the world's largest service providers to the oil and gas industry.

Among those reportedly advising the group were former Enron Chairman Kenneth Lay and two of the company's lobbyists -- Haley Barbour, a former Republican Party chairman and now Mississippi governor, and former Montana Gov. Marc Racicot, now chairman of Bush's re-election campaign.

The task force developed a report that recommended opening up more federal land to oil, natural gas and coal development, including the remote Arctic National Wildlife Refuge in northeast Alaska. The energy bill crafted by the administration remains stalled in Congress.

Paul Orfanedes of Judicial Watch

In a January 2002 interview, after Enron's collapse, Cheney denied any improper contacts involving his advisory group.

"It's sort of of a classic feeding frenzy in Washington," he told CNN. "Nobody's got a charge to make; nobody did anything wrong. Enron didn't receive any special treatment. They were treated and dealt with just like a lot of other energy companies were that we talked to during this process."

Cheney argues that the executive branch needs to defends its right to confidentiality against "continual encroachment by Congress."

The government has not formally exerted executive privilege, under which it could refuse to turn over records or provide witnesses to testify. Instead, officials have claimed separation of powers allows them to keep certain documents private.

In court papers, Judicial Watch said executive privilege would not apply if energy executives and lobbyists participated in developing energy policy.

The White House also argues federal agencies already have turned over about 40,000 documents after a federal judge ordered their release in 2002. But Judicial Watch President Tom Fitton contends another 100,000 potentially relevant files have been withheld.

Alan Morrison of Sierra Club

A ruling is expected by July. Whatever the outcome, years of further litigation in the case is expected.

With the case pending, Scalia refused the Sierra Club's call to recuse himself after he accompanied Cheney on a duck-hunting trip in January. Scalia said he did not believe his impartiality "can reasonably be questioned."

"If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," he wrote last month.

The hunting trip came three weeks after the court agreed to hear the government's appeal in the Cheney case. Scalia said that he did not remember ever being alone with the vice president and that they never discussed the case.

Supreme Court justices have the power to decide for themselves whether they should be removed from pending cases. Scalia concluded friendship alone did not meet the standard.

The case is Cheney v. U.S. District Court for the District of Columbia (03-0475).

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