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Title: Cheney Wins Court Ruling On Energy Panel Records
Source:
Washington Post
URL Source: http://www.washingtonpost.com/wp-dy ... 005/05/10/AR2005051000599.html
Published: May 11, 2005
Author: Carol D. Leonnig and Jim VandeHei
Post Date: 2005-05-12 11:22:13 by robin
Keywords: Records, Cheney, Ruling
Views: 21
Comments: 1
A federal appeals court in Washington dismissed a lawsuit yesterday that sought to force Vice President Cheney to turn over records of private meetings his office held in 2001 to shape the administration's energy policy. The unanimous ruling was a major legal and political victory for the White House, further solidifying the president's power to deliberate and seek advice behind closed doors without disclosing details. The court's eight judges supported the Bush administration's contention that forcing the executive branch to produce information about its internal policy deliberations is unnecessarily intrusive and violates the president's constitutional powers. "The president must be free to seek confidential information from many sources, both inside the government and outside," Judge A. Raymond Randolph wrote for the U.S. Court of Appeals for the District of Columbia Circuit. The court, prompted by a 2004 ruling by the U.S. Supreme Court, stressed the necessity of protecting the separation of powers for the executive branch. In lawsuits filed four years ago, the advocacy groups Judicial Watch and Sierra Club contended there was evidence that members of large energy corporations and industry groups effectively became members of Cheney's energy task force and helped write the administration's energy policy, parts of which are now before Congress. Suing under the open meetings law, the two groups sought minutes of task force meetings and records showing who attended. But the court concluded that the groups failed to show that people other than federal officials were members of the energy task force under the court's admittedly narrow definition. Randolph noted that White House officials had testified that industry members offered opinions only at advisory meetings and did not have a vote or veto in writing the administration's recommendations. Therefore, he wrote, Cheney had no duty to disclose details of internal government meetings. "What this court decision does . . . is to preserve the confidentiality of internal deliberation among the president and his advisers that the Constitution protects as essential to wise and informed decision making," said Steve Schmidt, a senior Cheney adviser. But environmentalists and advocates of open government said the decision was a double blow. "As a policy matter, we see the Bush administration has succeeded in its efforts to keep secret how industry crafted the administration's energy policy," said David Bookbinder, the Sierra Club's lead attorney on the case. "As a legal matter, it's a defeat for efforts to have open government and for the public to know how their elected officials are conducting business." The case was one of the most politically charged suits against the government since President Bush took office. Some Democratic strategists said they had hoped that it would embarrass the administration and that the suit would produce revelations in 2004 that would hurt Bush's reelection chances. The court decision is unusual for two reasons, say law professors and lawyers involved in the case. First, it was unanimous, an atypical result for a court whose members hold a broad spectrum of views and are not hesitant to disagree. Some experts say unanimity is the judges' way of signaling that their court should not be used to settle political scores. "Rightly or wrongly, this is their view of the way to get good government: to have discussions in secret," said Richard J. Lazarus, a Georgetown University law professor. "At a time when the judiciary is under attack for being partisan, and in this very high-profile case, they made clear they were speaking with one voice." The decision also hinges on accepting, without question, assertions by two senior administration officials who said industry members were not task force members. Randolph wrote that Karen Knutson, who was one of Cheney's deputy assistants for energy policy, said in her affidavit that industry members participated in smaller stakeholder meetings but that these "were simply forums to collect individual views rather than to bring a collective judgment to bear." "The only individuals the President named to the [task force] were federal officials; only federal officials signed the final report," he wrote. Jonathan Turley, a George Washington University professor of constitutional and environmental law, said the court's ruling creates "an absurd standard" because it required the Sierra Club and Judicial Watch to prove their assertions but prohibited them from gathering records or information from the White House. "It's impossible to establish that industry substantially participated in these meetings, if you deny them basic discovery needed to show those facts," Turley said. In 2002, a U.S. District Court judge allowed the plaintiffs to seek a limited number of energy task force documents from Cheney's office as part of the discovery process. The government appealed, and the circuit court ruled that the White House could protect the materials from release, but only by citing executive privilege, a step it had not taken. The government appealed to the Supreme Court, which last year sent the case back to the appeals court with directions that it consider "the weighty separation-of-powers objections" of the government and reexamine whether to order the complaint's dismissal. "Bottom line: This is a significant win for those who believe the presidency needs more power and has lost power over the past 30 years," said American University's James A. Thurber, who is writing a book on presidential power.
Vice President Dick Cheney addresses supporters at a fundraiser for U.S. Rep. Marilyn Musgrave (R-Colo.) in Denver.
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This is how the regime won its case: "It's impossible to establish that industry substantially participated in these meetings, if you deny them basic discovery needed to show those facts," Turley said.
"As a policy matter, we see the Bush administration has succeeded in its efforts to keep secret how industry crafted the administration's energy policy," said David Bookbinder, the Sierra Club's lead attorney on the case. "As a legal matter, it's a defeat for efforts to have open government and for the public to know how their elected officials are conducting business."
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