Court rules Cheney task force papers stay secret for now

WASHINGTON – A Supreme Court ruling Thursday will allow the Bush administration to keep its secrets about Vice President Dick Cheney’s energy task force at least until November, wiping a potential election-year issue from the political radar.

The court, in a 7-2 ruling on procedural grounds, didn’t address the administration’s extraordinary request for secrecy head-on. The justices said a lower court was wrong to summarily dismiss an effort by the administration to avoid revealing any information about the task force in a lawsuit brought by government watchdogs and environmentalists.

The case now goes back to the lower court, where there couldn’t possibly be a final decision and subsequent appeals by Election Day in November.

“This ruling means that for now the public will remain in the dark about the Bush administration and energy industry executives’ secret meetings about national energy policy,” said David Bookbinder, the Washington legal director for the Sierra Club, which brought the suit with Judicial Watch, a conservative legal watchdog organization.

The vice president’s office had no immediate comment.

The case is a major test of presidential power. It’s come to symbolize for many critics of the administration the perception that this White House is too tight-lipped about the public’s business.

“Executive secrecy is the enemy of effective accountability,” said Ralph Neas, the president of the liberal group People for the American Way. “We know all too well how dangerous power without accountability can be.”

The suit asks Cheney, who convened a task force to formulate the administration’s energy policy, to disclose documents that would show how the task force worked and who influenced it.

The Sierra Club, in particular, suspects that oil and other energy executives played a big part in formulating the policy, which has been criticized for being lax on polluters and friendly to energy companies.

The Bush administration resists the suit by saying it’s entitled to near-unassailable authority to make policy in private, and that such privacy is necessary for candid discussions between the president and those who advise him.

The case boils down to the interpretation of a Watergate-era federal law governing the openness of government task forces. It says the work of federal employees must be publicized; the work of informal, nongovernment advisers can be secret. The groups seeking information say energy executives are essentially members of the task force whose work should be public.

No court has begun considering how the law might apply in this case because the Bush administration contends that merely forcing it to comply with requests for information would violate Cheney’s right to secrecy.

The administration used a very rare procedural motion to appeal the usual process of exchanging documents – called discovery – before a trial begins. A federal district court had ordered Cheney to turn over records, but the vice president refused. When an appeals court agreed with the lower court, Cheney asked the Supreme Court to get involved.

The justices on Thursday overruled the appeals court, saying it must consider the administration’s concerns more carefully. Writing for the majority, Justice Anthony Kennedy said that while the president wasn’t above the law, “the judiciary must afford presidential confidentiality the greatest possible protection.”

“Special considerations control when the executive branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated,” Kennedy wrote.

He said the court of appeals had to balance the broad scope of the district court’s order to turn over documents against the “paramount necessity of protecting the executive branch from … litigation that might distract it from the energetic performance of its constitutional duties.”

Even if the appeals court were to hear the case again this summer and reach a decision, either side could appeal that ruling back to the Supreme Court, which wouldn’t be able to reconsider the case before November.

In a sharp dissent, Justice Ruth Bader Ginsburg, joined by Justice David Souter, said the court of appeals was right to turn away the administration’s procedural effort to avoid disclosure. Ginsburg wrote that the administration should have attempted to narrow the district court’s broad order for documents if it thought it was too invasive. But “the government did not file specific objections” to the district court’s ruling and didn’t “supply particulars” to support its claims of executive privacy.

“More than once, the district court expressed its readiness to rein in discovery should the government so move,” Ginsburg said in a statement read from the bench. “But the government made it plain that no discovery, not narrowed discovery, was its objective.”

The appeals court was right to turn away that suggestion and the administration’s attempt at a procedural end run, Ginsburg added. “This court has no cause to disturb that judgment,” she said.