Judges on a federal appeals court expressed doubts Thursday that the Bush administration could be required to reveal secret details about Vice President Dick Cheney’s 2001 energy policy task force and the contacts it had with industry lobbyists.
Many of the eight judges hearing the case at the U.S. Court of Appeals for the District of Columbia Circuit said they were skeptical, in light of a Supreme Court ruling in June, that two public interest groups had any legal basis to review the task force records.
Among the doubters were Judges Harry Edwards and David Tatel, who favored disclosure when the same case was before the court two years ago.
Cheney’s office denied industry sway
The lawsuit, filed by the Sierra Club and Judicial Watch, alleges that industry participants in effect became members of the task force formulating the White House’s industry-friendly recommendations, while environmental groups and others were shut out of the meetings.
During arguments Thursday, Edwards noted that the vice president’s office had already filed an affidavit stating that no industry officials attended formal meetings or helped draft recommendations. A similar statement was sent to the Government Accountability Office, Congress’ auditing arm, which tried to investigate the task force.
“They have said the committees don’t exist as you think they do,” said Edwards, a Carter-era appointee. “Isn’t that the end of the case?”
Paul Orfanedes, a lawyer for Judicial Watch, said the group needed more documents to verify the claim. “We need to know the scope of participation of the private parties,” Orfanedes said.
Tatel, an appointee of President Bill Clinton, said Orfanedes was ignoring the Supreme Court’s decision, which requires courts to be more sensitive about demanding too much information from internal White House deliberations.
Government argues against ‘unwanted intrusion’
Paul Clement, a lawyer for the Justice Department, argued that forcing the White House to produce any documents about the task force was an “unconstitutional and unwarranted intrusion on the executive branch and its internal functions.”
Clement said that task force members may have sought information from industry officials but that private parties had no official policymaking role. As long as the official makeup of the task force was limited to government officials, he said, federal open government laws could not require records be made public.
Orfanedes said the Sierra Club and Judicial Watch had heeded the Supreme Court’s concerns by narrowing the focus of the records they wanted. But other judges said they were mindful of the high court’s warning that the White House must be protected from “vexatious litigation” that might distract it from its duties.
“You’re proceeding as if this were ordinary litigation, and the Supreme Court has said this is not ordinary litigation because of the vice president,” said Chief Judge Douglas H. Ginsburg, an appointee of President Ronald Reagan.
The task force met for several months in 2001 and issued a report that favored opening more public land to oil and gas drilling and proposed a range of other steps supported by industry. Most of the recommendations stalled in Congress.
Last year, Democrats hoped the Supreme Court would uphold an appeals court ruling and force the administration to reveal potentially embarrassing details about its relationship with energy company executives — including former Enron Corp. Chief Executive Kenneth Lay — before the November election.
But the high court sent the case back, saying a federal district judge who ruled against the Bush administration demanded the opening of too much task force information.