Lawsuit will test right to privacy in the White House

GAO seeks records of Cheney meeting with Enron staff. Vice president sees chilling effect.

By , Staff writer of The Christian Science Monitor

Vice President Dick Cheney's refusal to turn over details about whom his energy task force met with - the subject of an unprecedented lawsuit expected to be announced yesterday by the General Accounting Office - can be seen as part of a broad White House effort to draw more of a curtain around the executive branch.

The standoff has to do with which energy companies Mr. Cheney consulted with and how much influence they had over the White House energy plan. Congress's interest in the information has grown in the wake of the Enron scandal, since Cheney and his staff have admitted meeting with Enron executives at least six times. Cheney refuses to release the documents, saying it would set a dangerous precedent, making it impossible for future presidents to receive "unvarnished" advice.

The move is the most dramatic attempt yet on the part of the Bush administration to resurrect a greater wall of privacy around the executive branch - something past presidents have tried to do with varying degrees of success. It follows White House efforts to delay the release of the Reagan presidential papers, its refusal to hand over Justice Department records to Congress (including some dealing with Clinton fundraising), and a general intolerance of leaks to the press.

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But critics and some independent analysts say that, while the administration has a right to withhold information dealing with national security, any meetings with private industry or lobbyists for the purpose of formulating policy should be disclosed. And, they add, it's notable the vice president seems to be the one intent on setting a precedent. Releasing the papers would not prevent the president from protecting other documents in the future, but should Cheney win this fight, it could lead to a revised notion of what the White House can keep secret.

"What's bizarre is not just that the executive branch has staked out a fairly extreme separation-of-powers point of view, but they seem to be looking for fights to pick about it," says Peter Shane, a professor of law and public policy at Carnegie Mellon University in Pittsburgh, Pa. "Unless they're covering something up, this is an odd thing to go to the mat over."

Fights between the president and Congress over access to information are nothing new, of course. As far back as 1792, George Washington tried to withhold documents about a disastrous military campaign - the so-called St. Clair incident - from Congress. In that case, the president finally relented, in order to exonerate officials who were being accused of wrongdoing.

"Washington wanted to establish the principle that a president has the right to withhold information from Congress," says Mark Rozell, a professor of politics at Catholic University here. "But he made it very clear in his correspondence that a president may only do that when it's in the public's interest - not just to save the administration from embarrassment."

While the US Supreme Court has held that the executive branch does have a constitutional right to keep certain documents private, it has also ruled that such privacy must be balanced with Congress's right to know what's going on. As a result, the court forced President Nixon to turn over the White House tapes during the Watergate scandal, since the material was relevant to a criminal investigation.

In fact, say legal experts, most court battles involving an administration's efforts to withhold information have tilted in favor of the party seeking disclosure. "In our democratic system, the balance generally tips in favor of openness of information," says Mr. Rozell.

The relevant law in this case is the Federal Advisory Committee Act, which requires all policy meetings with outside advisers to be open, to avoid the appearance of deals being cut with lobbyists behind closed doors. The GAO and other critics contend that the vice president's energy task force should be subject to these rules. It's asking for basic information regarding "who asked whom about what, when, where - and how much did it cost," says Jeff Nelligan, a GAO spokesman.

But the White House says that the GAO is overreaching its legal authority in demanding this information from the vice president. In many ways, the situation is similar to that involving former first lady Hillary Rodham Clinton's task force on healthcare, say critics. "When [Mrs. Clinton] had secret meetings and refused to provide documents about that, conservatives and Republicans were up in arms - and they should be equally up in arms about what Vice President Cheney is doing," says Larry Klayman, head of Judicial Watch, a conservative watchdog group that is also suing the administration to get access to the energy task force documents. Mrs. Clinton eventually backed down.

But it's in part because of such past clashes that Cheney is taking such an unyielding stand. He says he is trying to reverse an erosion of executive branch authority that has taken place for decades, with Congress increasingly emboldened to demand information from presidents who often acquiesce under political pressure.

"In 34 years [in Washington], I have repeatedly seen an erosion of the powers and ability of the president of the United States to do his job," Cheney told ABC News. "We are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years."

Yet critics say the public today expects more transparency. "It's an old-world view of government, that people should not ask questions," says Mr. Klayman.

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