Cheney wins a round on paper trail

"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.

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.

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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