News Intelligence Analysis
From the New York Times
May 11, 2005
Appeals Court Backs Cheney in Secrecy Case
By DAVID STOUT
WASHINGTON, May 10 - A federal appeals court said on Tuesday that Vice President Dick Cheney did not have to divulge details about how the White House's energy policies were shaped, ruling in a case that touched on the constitutional separation of powers.
The 8-to-0 decision, handed down months after the lawsuit became an issue in the 2004 election, was a victory for the executive branch in general and the Bush administration in particular.
The ruling, by the United States Court of Appeals for the District of Columbia Circuit, upheld the administration argument that it was not obligated to disclose whom it consulted on energy matters early in President Bush's first term and what was said.
The decision could be the last word in a case that reached the Supreme Court last spring, only to be sent back to the lower courts. And it comes as Congress is weighing energy legislation that Mr. Bush says will combine efficiency with environmental protection, and that his critics say is a gift to the energy industry.
The Sierra Club, a liberal environmental group, and Judicial Watch, a conservative legal organization, jointly filed the suit. They contended that officials in the industry were so deeply involved in policy making that they became de facto members of Mr. Cheney's panel, the National Energy Policy Development Group, and therefore that their identities were subject to disclosure under the Federal Advisory Committee Act.
But the appeals court disagreed. "Neither Judicial Watch nor the Sierra Club explicitly claimed that any nonfederal individual had a vote on the N.E.P.D.G. or had a veto over its decisions," the court said in a decision written by Judge A. Raymond Randolph.
The only people named to the energy development group were federal officials, the court noted. It brushed aside arguments that participation, "even influential participation," by outsiders somehow made them members of the group.
Details on the evolution of energy policy seemed to be potentially damaging for the Bush administration in the 2004 election, given Mr. Cheney's former role as the president of Halliburton, the giant oil-services company, and Mr. Bush's former friendships with executives of Enron, the energy trading corporation that collapsed amid scandal.
But in a 7-to-2 ruling on June 24, the Supreme Court effectively postponed the resolution of the lawsuit until after the election. The justices held that the Court of Appeals acted prematurely in ruling that the plaintiffs were entitled to limited pretrial fact-finding to determine whether the energy industrialists ought to be deemed de facto members of Mr. Cheney's task force. Mr. Cheney argued then that such fact-finding presented "fundamental separation-of-powers questions" and threatened "substantial interference with vital executive branch functions."
The ruling returned the case to the appeals court, which said on Tuesday that the Sierra Club and Judicial Watch "have failed to establish any duty, let alone a clear and indisputable duty," for the administration to give them the information they want.
David Bookbinder, the senior attorney for the Sierra Club, said the issues raised in the lawsuit were "more relevant today than ever," given the pending bill that he called "an energy-industry wish list." Mr. Bookbinder said he would study Tuesday's decision in the hope of finding grounds to get the appeals court to reconsider, or perhaps to persuade the Supreme Court to review the case again.
A statement by Carl Pope, the executive director of the Sierra Club, reflected pessimism as well as anger. "Now the American people will never learn how the polluting energy policy that President Bush continues to push was crafted," Mr. Pope said.
Shannen W. Coffin, a former deputy assistant attorney general who argued on behalf of Mr. Cheney in district court, called the ruling "a complete vindication of the vice president and the privilege he was fighting for."
As for the prospect of further litigation, Mr. Coffin said: "I think the case is over. Sure, they can try again. But this is 8 to 0."
Judge Randolph was appointed by the first President Bush. Two other judges on the court were named by President Ronald Reagan, one by the current President Bush, three by President Bill Clinton and one by President Jimmy Carter.
In its ruling, the appeals court noted that it was commonplace in Washington for House and Senate members of a committee to take aides with them, or for executive branch officials to take their aides to meetings. "An aide might exert great influence, but no one would say that the aide was, therefore, a member of the committee," the court reasoned.
When the case was before the Supreme Court, Justice Antonin Scalia drew criticism for refusing to remove himself after going duck hunting with Mr. Cheney in early 2004. Justice Scalia said in a memorandum that he "never hunted in the same blind with the vice president."
Justice Scalia questioned all the lawyers vigorously when the case was argued. He was in the majority that ruled on behalf of Mr. Cheney.
Copyright 2005 The New York Times Company
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