Cheney wins a round on paper trail

Supreme Court rules 7 to 2 not to force the vice president to release energy task force records.

Vice President Dick Cheney has won a key battle to prevent public disclosure of the inner workings of the 2001 national energy task force.

But rather than resolve the dispute, the US Supreme Court has set the stage for even more federal litigation over the propriety of White House confidentiality by sending the case back to the lower courts.

"It's a significant victory for Cheney, but it's obviously not an ultimate resolution," says C. Boyden Gray, White House counsel under the first President Bush.

The decision is important because it puts federal judges on notice that they must be sensitive to White House claims of secrecy and confidentiality and not simply treat the president or vice president as any other party in a lawsuit. It is also arises in an election year - a time when the White House is facing increasingly hostile members of Congress seeking disclosure of memos reflecting an internal administration debate over the possible use of torture in the war on terror.

"All courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings," Justice Anthony Kennedy writes in the energy task-force decision. "Special considerations applicable to the president and the vice president suggest that the courts should be sensitive to requests by the government [for extraordinary appeals]."

Bush administration lawyers had argued that a federal judge had overstepped his authority and violated the separation of powers when he ordered the White House two years ago to release a limited quantity of energy task-force documents. The judge's ruling was upheld last year by a federal appeals court panel.

By a 7-to-2 margin

In a 7-to-2 decision announced Thursday, the nation's highest court sent the case back to the lower courts with instructions to reexamine the issues.

Specifically, the majority justices rejected the appeals courts' reasoning that the Bush administration must first invoke executive privilege in order to properly fight the documents request.

The appeals court "labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the government's separation-of-powers objections," Justice Kennedy writes.

In a dissent joined by Justice David Souter, Justice Ruth Bader Ginsburg says the White House never moved to narrow in any way the federal court's disclosure order. Failing such efforts by the administration, she says, the lower court orders should be upheld, she says.

The decision is significant for political reasons because it heads off what almost certainly would have become a nasty - and potentially embarrassing - election-year dispute between the White House, the courts, and two watchdog groups seeking public disclosure of the full extent of energy industry influence in the task force's work.

White House lawyers said they were fighting the case to uphold the principle that the president must be able to receive private, unvarnished advice.

"It's not about principle. It's more about politics," says Tom Fitton, president of Judicial Watch, one of the groups suing for the documents. "They're not terribly interested in an election year, or in any other year, in detailing the meetings that [former Enron Chairman] Ken Lay had with administration officials about energy policy," he says.

The case was sparked by two watchdog groups, the Sierra Club and Judicial Watch. Both groups filed suit under the Federal Advisory Committee Act (FACA) seeking to uncover the behind-the-scenes role of industry officials and lobbyists in the drafting of the administration's energy plan back in 2001.

The two groups argued that industry officials were granted so much access and participated so heavily in the process that they became de facto members of the national energy-policy task force.

The administration's view

Under FACA, advisory committees set up by the president that are composed entirely of federal officials do not have to publicly disclose details of their inner workings. The Bush administration said the energy task force was just such a committee.

The watchdog groups disagreed. They cited an appeals court interpretation of FACA that required full public disclosure whenever private individuals participate as "de facto" members of the committee.

The federal judge in 2002 said it was not possible to determine from publicly available information whether industry officials had become de facto task-force members. So the judge ordered the White House to disclose enough internal task-force information to permit the court to make that determination.

White House lawyers representing Vice President Dick Cheney, the task-force chairman, argued that the judicial discovery order amounted to unconstitutional interference in the president's ability to receive unvarnished advice.

Rather than address the federal law, the justices sent the case back to the lower courts.

A potential downside for White House

Mr. Fitton says the court's action suggests a majority of justices have rejected the administration's argument that the administration is shielded by the federal disclosure law.

Sanjay Narayan, an attorney at the Sierra Club, agrees. "The vice president wanted this case gone, but the court has left the door open for the public to learn who formulated the administration's dangerous polluting energy policy," she says.

The Cheney energy task-force case is also well known because it is the case behind the controversy over a duck hunting trip last January by Justice Antonin Scalia and his friend, Cheney.

Lawyers for the Sierra Club asked that Justice Scalia be removed from the case, but the justice refused, saying mere social contacts with senior government officials would not give rise to reasonable questions about his ability to be fair and impartial.

In the Cheney case, Scalia voted with the majority.

Linda Feldmann contributed to this report.

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