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Dick Cheney Secrecy Case Goes to High Court

Posted on: Tuesday, 27 April 2004, 06:00 CDT

By GINA HOLLAND

WASHINGTON (AP) -- A nearly three-year fight over privacy in White House policy-making is going before a Supreme Court known for guarding its own secrecy.

Justices were being asked by the Bush administration Tuesday to let it keep private the records of Vice President Dick Cheney's work on a national energy strategy.

The White House is framing the case as a major test of executive power, arguing that the forced disclosure of confidential records intrudes on a president's power to get truthful advice.

At the Supreme Court, which will rule before July, the administration finds a last hope in a dispute that began in July 2001 when a government watchdog group sued over Cheney's private meetings. The case has never gone to trial, but a federal judge ordered the White House to begin turning over records two years ago.

The Bush administration has lost two rounds in federal court. If the Supreme Court makes it three, Cheney could have to reveal potentially embarrassing records just in time for the presidential election.

Most of the talk among spectators who began lining up the night before was about Justice Antonin Scalia, not the case. He has refused to step down despite a controversy over a hunting trip he took with Cheney, an old friend, weeks after the high court agreed to hear Cheney's appeal.

"The big deal is Scalia," said 23-year-old law student Peter Stockburger of Austin, Texas. "It was dumb that he went on the hunting trip. It was stupid, but it wasn't illegal."

Watchdog group Judicial Watch and the environmental group Sierra Club want the task force papers made public to see what influence energy industries had in outlining national energy policy.

The Sierra Club accused the administration of shutting environmentalists out of the meetings while catering to energy industry executives and lobbyists.

Solicitor General Theodore Olson told the justices in court filings that no energy industry officials participated improperly in meetings. He maintains that forcing information about the sessions into the open violates the separation of powers among the branches of government.

The Supreme Court also is known for private meetings.

"The court utilizes the process of confidential deliberation just as the executive branch does. Memos are drafted, deliberations occur and drafts of opinions are circulated - all behind closed doors," said Kris Kobach, a constitutional law professor at the University of Missouri-Kansas City. "In both branches, deliberation is more candid, honest and valuable if it sometimes is sheltered from public scrutiny."

Martin Shapiro, a Supreme Court expert at the University of California, Berkeley, said while the court engages in private consultation, "the justices are used to themselves making decisions on the basis of what they hear from two sides publicly."

The case requires the court to clarify a federal open-government law. Scalia had said he did not discuss the case with Cheney when they flew together on a government jet to Louisiana for the duck hunt at a camp owned by an oil rig services executive.

"If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," Scalia wrote in rejecting the Sierra Club's request that he disqualify himself.

The case is Cheney v. U.S. District Court, 03-475.

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