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Dead Constitution See other Dead Constitution Articles Title: Appeals Court closes door on Cheney, Bush administration disclosure Vice President Dick Cheney won a major victory Tuesday in a case that has dragged on for years, with a federal appeals court striking down an attempt to make public the secret records of the National Energy Policy Development Group. Cheney was chairman of the group, and the Justice Department conducted the legal fight for the administration in what some will see as a landmark victory for the separation of powers and the narrow avoidance of a constitutional crisis. But the other real winner in the dispute is the private sector, especially industries with a stake in government policy. Tuesday's ruling effectively allows lobbyists and company officials to attend closed-door discussions of government advisory groups -- and to keep the knowledge of that participation from the public -- as long as they do not have a formal vote in the group's decisions or a veto over them. The ruling by the full U.S. Court of Appeals for the District of Columbia Circuit effectively ends the case. The appeals court indicated it was following instructions from the Supreme Court. At the core of the dispute was whether energy lobbyists and officials from energy producers such as the Enron Corp. participated in the group's closed-door deliberations and whether that meant the group's records must be made public under law. "In re Cheney" has been up and down the legal ladder, reaching the Supreme Court last term, but the roots of the dispute go back to 2001. President George W. Bush established the National Energy Policy Development Group as one of the first acts of his administration. The president ordered the panel to "develop a national energy policy designed to help the private sector, and as necessary the appropriate federal, state and local governments, promote dependable, affordable and environmentally sound production and distribution of energy." Bush's order said the group specifically was to consist of the vice president, as chairman; the treasury, interior, agriculture, commerce, transportation and energy secretaries; the director of the Federal Emergency Management Agency; the administrator of the Environmental Protection Agency; and the deputy chief of staff for economic policy and deputy chief of staff for policy, both assistants to the president. Bush also authorized Cheney to invite the secretary of state, the chairman of the Federal Regulatory Commission and "as appropriate, other officers of the federal government." But the presidential directive did not authorize the addition of private citizens to the group, and that turned out to be the key to a final resolution of the case. The policy group issued a public report in May 2001 that encouraged the development of energy supplies and public conservation. The report also contained what officials contend was a complete list of those who participated in the policy-group meetings -- all members of the federal government, in line with Bush's instructions. But almost from the start, the process generated skepticism. The Government Accountability Office, the investigative arm of Congress, filed suit to make the records of the policy group public. When the legal action failed, the GAO dropped the attempt. Then a conservative Washington-based legal advocacy organization, Judicial Watch, continued its own suit in federal court against the policy group, its members and several private individuals, alleging that Cheney had failed to comply with the Federal Advisory Committee Act. FACA compels the public disclosure of all advisory-committee reports, records and documents but does not apply to those groups composed solely of "federal officials." Judicial Watch alleged that in addition to members of the federal government, a number of private individuals -- such as Enron President and Chairman Kenneth Lay and GOP figures Haley Barbour and Marc Racicot, acting as energy lobbyists -- "regularly attended and fully participated" in the group's meetings held behind closed doors, making them in fact members of the group. Before proceedings started in federal court in Washington, the Sierra Club, perhaps the nation's best-known environmental lobby, filed a nearly identical suit, and the cases were consolidated. A federal judge removed the policy group itself as a defendant because it no longer existed at the time of the suit and removed private citizens as defendants because of FACA requirements. But the judge refused to dismiss the suit against the vice president. Cheney and his fellow government defendants ran into trouble early in the process. The government defendants, except for Cheney, produced 36,000 pages of documents before the trial during the "discovery" phase when both sides are required to produce documents or other evidence that might have a bearing on the civil trial. However, the government refused to produce documents on behalf of Cheney, citing the separation of powers: keeping the judicial branch from interfering with the advisory groups of the executive branch. When a federal judge rejected that argument, Cheney appealed, asking for a writ of mandamus prohibiting any discovery against the vice president. An appeals-court panel in Washington, by a 2-1 vote, rejected the appeal as premature and said all questions of facts, the law and constitutionality should be decided at the trial-court level. The panel also noted that the White House had the opportunity to claim "executive privilege" but declined to do so. The split panel also rejected an attempt by Cheney to dismiss his name from the case, saying it did not have jurisdiction over that particular matter until a final ruling by the lower court. That left Cheney in the position of having to produce the documents, then trying to argue later that he should not have been required to do so. The Justice Department asked the Supreme Court for review, with Cheney contending that the dispute was heading toward a constitutional crisis. In a petition filed by the Justice Department on behalf of Cheney and the energy group, U.S. Solicitor General Theodore Olson told the Supreme Court that the combined cases "present fundamental separation-of-powers questions arising from the (judge's) orders compelling the vice president and others to comply with broad discovery requests by private parties seeking information about the process by which the president received advice on important national policy matters from his closest advisers." In April 2004 the Supreme Court heard argument in what was then called "Cheney vs. U.S. District Court" and in June last year ruled 7-2 that the appeals-court panel should have considered the Justice Department's request that the suit be thrown out. The high-court majority said the appeals panel had "prematurely terminated its inquiry" on whether it should have issued an order terminating the suit and did so "without even reaching the weighty separation-of-powers objections raised in the case." The Supreme Court majority threw out the appeals-panel ruling and sent the case back for a new hearing consistent with the high-court decision. The full appeals court then reheard the argument in January, and this time, using Supreme Court guidance, ruled for the vice president. Writing for the full court, U.S. Circuit Judge A. Raymond Randolph said it came down to an interpretation of FACA and its protection for advisory groups consisting solely of federal employees. "As to FACA, the critical question is whether plaintiffs have carried their burden of showing that the (energy policy group) or its so-called 'sub-groups' were 'advisory committees,'" the opinion said, "that is, committees who were advising the president but were not 'composed wholly of full-time, or permanent part-time, officers or employees of the federal government." Randolph's opinion said, "We must construe the statute strictly. We therefore hold that such a committee is composed wholly of federal officials if the president has given no one other than a federal official a vote in or, if the committee acts by consensus, a veto over the committee's decisions." He added later, "Separation-of-powers concerns strongly support this interpretation of FACA." Randolph also pointed to a statement by the executive director of the energy policy group, Andrew Lundquist, in response to questions from Congress and others. Lundquist said "no non-federal employees served as members or staff" of the group. The appeals court ordered the trial-court judge to dismiss the complaints.
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#1. To: Eoghan (#0)
Probably some interesting comments about Iraq in those notes that the government would rather not let us see.
The Appeals Court looked at whole, and basically decided 'for the good of the country we can't, and will not, open this can of worms...'
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