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In an effort to keep Vice President Dick Cheney’s National Energy Policy Development Group � popularly known as the Cheney Task Force � cloaked in as much secrecy as possible, the Bush administration is advancing arguments that threaten to erode the separation of powers and, in particular, to drastically curtail the role of the federal courts in enforcing open-government laws. The Supreme Court is apparently taking the administration’s arguments seriously: Last month, it accepted the government’s request to review one of the cases involving the task force, Cheney v. U.S. District Court. The Court should rule against the administration and in favor of the public’s right to know. Cheney’s Sweeping Mandate President George W. Bush established the task force in early 2001, and assigned it a sweeping mandate to formulate the nation’s energy policy. Vice President Cheney was appointed as the chairman, and the secretary of energy and other Cabinet members were also appointed to the task force, which held a series of closed-door meetings before issuing its report in May 2001. The report contained many controversial recommendations for boosting the nation’s oil, coal, and nuclear power production. Many of the recommendations have already been implemented by executive branch agencies, and others have been incorporated into legislative proposals (including in the massive energy bill now pending before Congress). From the inception of the task force, a wide spectrum of public interest groups and other observers were concerned that its advice was being heavily influenced by energy companies. To explore those concerns, several organizations invoked the nation’s premier “open government” laws � the Freedom of Information Act and the Federal Advisory Committee Act. The administration’s immediate and ongoing response has been to use every means possible to resist complying with these laws. For example, when the Natural Resources Defense Council requested task force documents from the Department of Energy under FOIA, the NRDC was compelled to file a lawsuit simply to force the processing of its request. In February 2002, in response to that suit, Judge Gladys Kessler of the U.S. District Court for the District of Columbia ruled that the government had “no legal, or practical, justification for working at a glacial pace” in providing documents to the public. Because of the “extraordinary public interest” in the work of the task force, Judge Kessler � and, in a related case, Judge Paul Friedman of the same U.S. District Court � ordered the rapid release of many documents. Those papers revealed that the task force had indeed afforded special access to energy industry representatives, while taking great pains to exclude consumer and conservation advocates. At the same time, federal agencies refused to release, or even search for, thousands of other documents that would shed further light on the task force’s activities. Judge Friedman has scheduled a Jan. 26 hearing on the legality of those withholdings under FOIA. In the case pending in the Supreme Court, Judicial Watch and the Sierra Club contend that the Cheney Task Force has also failed to comply with FACA, a 1972 statute designed to regulate the executive branch’s use of federal advisory committees. The House report explained that “one of the great dangers in the unregulated use of advisory committees is that special interest groups may use their membership on such bodies to promote their private concerns.” At the same time, Congress also recognized in the text of the law that federal advisory committees are “frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government.” FACA’s Balancing Act To address these competing interests, FACA broadly authorizes the use of federal advisory committees, but establishes “standards and uniform procedures [that] should govern the[ir] establishment, operation, administration, and duration.” FACA provides that meetings of federal advisory committees must generally be open to public scrutiny, although they can be closed for national security and other valid reasons. Similarly, the records generated by or for federal advisory committees must generally be made available to the public, although, once again, Congress provided that particular documents may be kept confidential. Congress created only a few wholesale exemptions from the statute, such as for committees advising the Central Intelligence Agency. Of particular pertinence to the Cheney Task Force case, Congress also provided that FACA’s safeguards do not apply to committees composed “wholly” of officers or employees of the federal government. Such committees were excluded because they do not implicate FACA’s core purpose of preventing “special interests” from having undue influence on federal policy. In their consolidated suits, the Sierra Club and Judicial Watch claimed that FACA’s protections apply because, although the formal membership of the Cheney Task Force consisted only of federal officers, as a matter of fact various representatives of the energy industry (including former Enron chief Kenneth Lay) were allegedly permitted to participate as full members, thus placing the task force squarely within FACA’s coverage. The Sierra Club’s complaint also alleged that task force subcommittees had private-sector members, and hence these entities were also required to comply with FACA. Hillary’s Case In support of the argument that the “de facto” membership of the task force and subgroups subjected them to FACA, the plaintiffs relied heavily on a D.C. Circuit ruling in a case brought by conservative groups against President Bill Clinton’s ill-fated Task Force on National Health Care Reform. In that 1993 case, Association of American Physicians and Surgeons v. Clinton, the court held that the Clinton task force itself, composed entirely of federal employees and chaired by Hillary Clinton, did not need to comply with FACA because the first lady could be considered a “federal employee.” But the court, in an opinion written by Judge Laurence Silberman, nonetheless allowed the case to proceed against a “working group” created by the task force. Although the Clinton administration insisted that all of the working group members were full-time federal employees � thus shielding the entire advisory apparatus from FACA � the D.C. Circuit held that “expedited discovery” was necessary to ascertain who the members were and what they did. The court further held that, if discovery revealed that so-called “consultants” to the task force drawn from the “ranks of the medical profession” and from the business community regularly attended and fully participated in meetings with federal employees “as if they were members, then they should be regarded as members” for the purposes of mandating compliance with FACA’s openness requirements. If that same approach is applied to the Cheney Task Force � as it should be � it is evident that the Sierra Club and Judicial Watch must at least be permitted to conduct discovery in order to explore whether, as they have alleged in their complaints, energy industry “consultants” participated as full members of the task force. Indeed, that was the very conclusion reached in the U.S. District Court by Judge Emmet Sullivan, who rejected the Bush administration’s request to dismiss the suits and, instead, authorized “tightly reined discovery” of the identify of, and role played by, nonfederal parties. Judge Sullivan also expressly invited the government to invoke executive privilege with respect to particular documents or areas of inquiry. Yet without asserting executive privilege, Cheney and other administration officials filed an extraordinary mid-litigation appeal and “emergency” request for a writ of mandamus. The D.C. Circuit (over Judge A. Raymond Randolph’s vigorous dissent) concluded that it lacked jurisdiction to consider the appeal on the merits. Relying heavily on the Richard Nixon tapes case and other authorities, the panel majority explained that the government could not demonstrate the threatened harm necessary to short-circuit the ordinary process of judicial review. Undaunted by that ruling, or by the denial of a subsequent request for en banc rehearing, the administration sought immediate Supreme Court involvement. The government’s cert petition reflects a breathtakingly broad view of executive power and a concomitantly narrow reading of the role of the federal judiciary in ensuring that legislative enactments are enforced. Keeping Powers Separated? Thus, according to Solicitor General Theodore Olsen, the lower courts were wrong to require the government to assert a specific claim of executive privilege for particular materials because “here, the separation of powers arguments do not take the form of � and are logically antecedent to � a privilege claim.” Rather, according to the petition, the vice president’s separation of powers objection “could not be adequately addressed by the district court on remand or by appeal after final judgment, because the very essence of those objections is that any discovery” in the case “would violate the separation of powers.” In short, the government is expressly asserting a blanket immunity from “ any discovery” aimed at the Office of the Vice President, regardless of the sensitivity or confidentiality of the particular information sought, or its importance to plaintiffs’ FACA claims. No court has ever sustained such a sweeping assertion of executive power and “immunity” from judicial process � and for good reason. If accepted, it would essentially insulate the president, vice president, and perhaps other executive branch officers from any judicial enforcement of statutes like FACA. In practical effect, this approach would undermine, rather than protect, the separation of powers, by allowing the president, instead of the courts, to say what the law is. Indeed, the administration candidly argued in its cert petition that the “President and the Vice President are . . . in the best position to know whether the [task force's] advisory activities are structured to fall within FACA’s disclosure requirements.” But that is a clear encroachment by the president on the traditional function of the judiciary. The notion that executive branch officials may assert wholesale protection from discovery in a civil case seems especially far-fetched in light of the Supreme Court’s 1997 holding in Clinton v. Jones. If, as the Supreme Court held unanimously, a sitting president can be compelled to attend a deposition in a suit brought by a private party seeking damages, then it seems absurd to suggest that the Office of the Vice President could avoid categorically mere document requests and interrogatories that will be handled entirely by lawyers. The Court should reject the government’s novel approach. Even if the government loses, though, it will have still largely succeeded in avoiding meaningful, timely public scrutiny of the Cheney Task Force. But a Supreme Court decision against excessive secrecy will at least signal to future presidents that, in the words of James Madison, “popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.” Eric R. Glitzenstein is a partner at Meyer & Glitzenstein in Washington, D.C. He filed an amicus brief for the NRDC at the District Court level in the FACA litigation now before the Supreme Court, and he and his firm represent the NRDC in the related FOIA litigation discussed above.

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