Attorneys for the Bush administration, Judicial Watch and the Sierra Club will appear before the Supreme Court Tuesday to argue the case over whether Vice President Dick Cheney can be compelled to divulge the names of energy executives who may have had a hand in crafting the administration’s energy policy three years ago.
Since then, Judicial Watch, a public watchdog group, and the Sierra Club, a national environmental organization, have sought through the courts to obtain the records of the energy task force, particularly how it operated and the identities of outside individuals with whom it met. The two groups and other critics contend that large Bush campaign contributors, such as former Enron Corp. Chairman Kenneth Lay, had a direct pipeline to the task force and unduly influenced the drafting of the energy policy.
The Bush White House has refused to furnish the sought-after information to the organizations on the grounds that it would encroach on the authority of the executive branch. Cheney chaired the task force, which was made up of the heads and staff members of various agencies. The task force issued the energy policy in spring 2001.
“We got the proverbial hand to the face” from Cheney’s attorneys when Judicial Watch pursued the release of the task force records, said the group’s President Tom Fitton on C-SPAN Sunday. This prompted Judicial Watch to file a lawsuit in 2001. It was later joined by the Sierra Club.
Judicial Watch plans to argue before the high court that the Bush administration’s refusal to disclose the task force information is a violation of the Federal Advisory Committee Act (FACA), or the open-meeting law. At issue is whether the “assistant secretary of Interior, or even the vice president, or some flunkey in the White House staff can meet repeatedly with Ken Lay or any other lobbyist for the energy industry and have them create and lord over us…public policy without us knowing about it,” Fitton said.
John Duffy, a law professor at George Washington University, said he believes the administration’s case will rest on an exception to FACA — namely, that FACA does not apply when a committee or task force is comprised solely of government employees.
Judicial Watch’s attorney, Paul Orfanedes, who will be making his first appearance before the Supreme Court, likely will counter that the exception shouldn’t apply because “de facto” (non-governmental) members participated to some extent on the task force and in creating President Bush’s energy policy, Duffy noted.
He believes U.S. Solicitor General Theodore B. Olson, who will represent the Bush administration, will argue that the FACA exception depends only on the “formal” governmental membership of the task force, not upon any “informal” participation that might have occurred with outside individuals.
Fitton said Judicial Watch’s position is based on the rulings of the lower courts, which have said that “when, in fact, the non-governmental officials are involved in such a way that make[s] them indistinguishable from the government officials, then the law [FACA] is triggered here.”
The Bush administration contends that court-ordered disclosure of the task force records would severely restrict the ability of it and other administrations to seek advice from outside advisers in the future. But Fitton claims otherwise, noting that presidents still would be able to informally obtain information from their advisers. Only when formal committees, task forces or panels are created for this purpose would FACA kick in, he said.
“There’s nothing that prevents the president from bypassing this law by engaging in this sort of policy formulation in an informal way,” he said on C-SPAN.
Duffy expects the nine members of the Supreme Court to focus on two questions — the first being the “technical issue” of whether the U.S. Court of Appeals for the District of Columbia had jurisdiction over this issue, and the second will address the merits of the need for confidentiality by the president and his closest advisers.
In September 2003, the Washington, DC appellate court upheld a lower court’s order that required the Cheney task force to disclose the identities of the energy companies and executives that participated in the crafting of the Bush energy policy. The Supreme Court agreed in December to hear a petition by the Bush administration to block the appeals court’s ruling.
Although the Judicial Watch and Sierra Club lawsuits have been consolidated, the Supreme Court said it will allow the groups to present separate arguments. Washington lawyer Alan Morrison on behalf of Sierra Club will argue a procedural issue — that the case shouldn’t even be before the high court.
Because of the widespread interest in the case, the Supreme Court in an unprecedented move will release the audiotapes Tuesday shortly after the close of the oral arguments.
The audio tapes can be heard on C-SPAN 3 and C-SPAN Radio beginning at 11:15 a.m. (EST).
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