Supreme Court Refuses to Order Cheney to Release Energy Papers
By THE ASSOCIATED PRESS
WASHINGTON -- The Supreme Court refused Thursday to order the Bush administration to make public secret details of Vice President Dick Cheney's energy task force, but kept the case alive by sending it back to a lower court.
Justices said 7-2 that a lower court should consider whether a federal open government law could be used to get documents of the task force.
The decision extends the legal fight over the information. Justices could have allowed a judge to immediately move ahead with ordering the release of the papers.
The issues in the case have been overshadowed by conflict-of-interest questions about Justice Antonin Scalia.
Scalia had defiantly refused to step down from hearing the case involving Cheney, despite criticism that his impartiality has been brought into question because of a hunting vacation that he took with Cheney while the court was considering the vice president's appeal.
"Special considerations applicable to the president and the vice president suggest that the courts should be sensitive to requests by the government" in such special appeals, Justice Anthony M. Kennedy wrote for the majority.
White House press secretary Scott McClellan said Thursday that while the White House hasn't had a chance to review the decision, it is pleased with the 7-2 decision that he says affirms the Bush administration's decision. "We believe the president should be able to receive candid and unvarnished advice from his staff and advisers. It's an important principle," McClellan said.
At issue was a 1972 open government law, the Federal Advisory Committee Act, which requires government panels to conduct their business in public, unless all members are government officials.
Until the government produces some records, it won't be clear who drafted the government's policies, lawyers for the suing groups argued.
Shortly after taking office, President Bush put Cheney, a former energy industry executive, in charge of the task force which, after a series of private meetings in 2001, produced recommendations generally friendly to industry.
The Sierra Club, a liberal environmental club, and Judicial Watch, a conservative legal group, sued. They argued that the public has a right to information about committees like Cheney's. The organizations contended that environmentalists were shut out of the meetings, while executives like former Enron Corp. Chairman Kenneth Lay were key task force players.
The Bush administration argued that privacy is important for candid White House discussions on difficult issues. The high court did not specifically address that question, however.
The case had become a potentially embarrassing election-year problem for the administration.
Thursday's decision buys the administration more time. If it loses in the appeals court, the administration can return to the Supreme Court in another extended appeal before having to release information as to whether Cheney's task force was cozy with energy executives, including those with his former company, Halliburton.
The suing groups allege the industry representatives in effect functioned as members of the government panel, which included Cabinet secretaries and lower-level administration employees. The open government law requires advisory committees with nongovernment members to conduct their business in public, and allow the public to inspect their records.
Until the government produces some records it won't be clear who drafted the government's policies, lawyers for the Sierra Club and Judicial Watch argued.
The Sierra Club had asked Scalia to stay out of the case, because the justice flew with Cheney to hunt in Louisiana in January, weeks after the high court agreed to hear the vice president's appeal. Dozens of newspapers also called for his recusal.
Scalia, a Reagan administration appointee and close friend of the vice president, had said the duck hunting trip was acceptable socializing that wouldn't cloud his judgment. "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 in an unusual 21-page memo.
He joined the seven justices who agreed to send the case back for more consideration. But he and Justice Clarence Thomas wrote separately to say a federal court "clearly exceeded" its authority in ordering the administration to release records.
Justices Ruth Bader .25 and David H. Souter said in a dissent that the judge in the case should be allow to consider what records should be released.
The Supreme Court was the latest stop in a nearly three-year fight over access to records of the task force that prepared a national energy strategy in 2001. Most of the recommendations stalled in Congress.
A separate lawsuit seeks thousands of documents under a separate law, the Freedom of Information Act. A judge ruled this spring that those documents should be released.
The case is Cheney v. U.S. District Court, 03-475.