Energy task force members to stay a secret

WASHINGTON – A federal appeals court decided the White House’s right to privacy trumped the public’s right to know in the legal saga involving Vice President Dick Cheney and the energy task force he headed.

The ruling Tuesday was the likely end to a four-year battle that saw the Bush administration successfully fend off questions from congressional Democrats, the General Accounting Office, a federal judge and advocacy groups about what role energy industry executives played in formulating the administration’s energy plan.

The basis for energy legislation now before Congress, the Cheney plan calls for more drilling, more nuclear power plants and the opening of the Arctic National Wildlife Refuge to oil companies.

While the case dripped with political intrigue, it was bit players like Justice Antonin Scalia and former Enron chairman Ken Lay who kept the controversy in the public eye: Scalia because of a hunting trip he took with Cheney while the task force case was pending before the Supreme Court; Lay because he met with Cheney – a fact the White House acknowledged to Congress in 2002 only after Enron collapsed in scandal.

Scalia then issued a forceful defense rejecting calls for him to step aside and let the other eight justices rule.

Lay’s contact was among six meetings between Enron executives and Cheney or his task force aides.

The day after meeting with Lay, Cheney said the Bush administration would not support price caps on wholesale energy sales in California.

Cheney’s office praised the decision as a key ruling preserving the constitutional principle allowing a president to get confidential advice in important issues.

Judicial Watch and the Sierra Club, the advocacy groups that brought the case, said it would have a chilling impact on public disclosure.

“The American people have a right to know whether lobbyists became de facto members of the energy task force,” Judicial Watch President Tom Fitton said in a statement.

The two private groups that sued failed to establish that the government had a legal duty to produce documents detailing the White House’s industry contacts, the court said in an 8-0 decision.

The Sierra Club and Judicial Watch alleged that energy executives and lobbyists effectively became members of the task force, while environmental groups and others were shut out of the meetings. Outside participation made the task force a federal advisory committee with an obligation to disclose its operations, the groups argued, a position the court rejected.

“The outsider might make an important presentation, he might be persuasive, the information he provides might affect the committee’s judgment,” U.S. Appeals Court Judge A. Raymond Randolph wrote. “But having neither a vote nor a veto over the advice the committee renders to the president, he is no more a member of the committee than the aides who accompany congressmen or Cabinet officers to committee meetings.”

In a statement, Cheney’s office said the court guarded the confidentiality of internal deliberations and that the Constitution protects such deliberations as essential to informed decision making.

David Bookbinder, a senior attorney at the Sierra Club, said the decision “is not going to be helpful in assuring open and accountable government.”

The appeals court directed U.S. District Judge Emmet Sullivan to dismiss the case. Sullivan earlier had ordered the White House to produce some documents.

The Sierra Club and Judicial Watch could ask the appeals court to reconsider or could ask the Supreme Court to take the case, as it did once before. Either option would be considered a long shot.

The focus of the lawsuit: several thousand task force e-mails and 12 boxes of documents.

Democrats hoped the Supreme Court would uphold an earlier ruling by the appeals court and force the administration to reveal potentially embarrassing details about its relationship with energy company executives ahead of the November election. But the high court sent the case back on a 7-2 vote, saying there was a “paramount necessity of protecting the executive branch from vexatious litigation.”

Even the investigative arm of Congress got into the act, filing a lawsuit seeking the identities of the people with whom the task force met. Under pressure from congressional Republicans, the Government Accountability Office did not pursue the case.

University of North Carolina political science professor Terry Sullivan said the Bush White House’s position supporting confidentiality was sound in principle but could be unwise politically.

“There is a balance between the need for confidentiality and how that process works when it is being carried out; it’s a Caesar’s wife problem,” Sullivan said. “For example, it certainly was embarrassing to have the likes of Ken Lay advising them.”