and Scalia Protest Too Much
By Evelyn Pringle
Just as the debate was heating up over Justice Antonin Scalia's
refusal to recuse himself from a case pending in the US Supreme
Court involving Vice President Cheney, a lower court ordered
7 government agencies to release documents related to Cheney
and his National Energy Policy Development Group (NEPDG).
The lower court's ruling involves a Freedom of Information
(FOIA) suit brought by Judicial Watch and the National Resources
Defense Council. Federal Judge Paul Friedman said the agencies
had an obligation to release the requested information and
ordered that it be turned over by June 1.
The case now pending in the Supreme Court involves the exact
same issues. The plaintiffs - the Sierra Club and Judicial
Watch - argue that Cheney and his staff violated the open-government
Federal Advisory Committee Act (FACA) by meeting behind closed
doors with energy industry executives, analysts and lobbyists.
The suit was originally filed in 2001 seeking the names and
positions of members of the task force.
The FACA was enacted in 1972 after Nixon left office. It
limits secret Presidential Advisory Committees so that only
those made up entirely of federal employees are exempt from
the requirement that proceedings and documents be open to
FACA only kicks in if non-government employees take part
in a proceedings. According to an ACLU handbook, it is "intended
to protect against undue influence by special interest groups
over government decision making." If non-government employees
are involved, committees must announce meetings, hold them
in public, provide for differing view points, and make their
materials available to the public.
For its part, the administration argues that the courts
and Congress have no right to make inquiries into the decision-making
power of federal agencies and offices. The plaintiffs claim
that the public has an absolute right to know if lobbyists
and energy industry executives were involved in creating the
government's energy policy.
Recently, after it was revealed that Justice Scalia went
on a duck hunting trip with Cheney three weeks after the Court
agreed to review his case, the Sierra Club filed a motion
seeking his recusal. In accordance with Supreme Court Rules,
the motion was submitted to Scalia himself for a determination.
In the case now pending in his court, the question is over
the validity of a lower court order directing Cheney to identify
the people who participated in task force meetings, so that
a determination can be made on whether FACA applies.
In answer to Sierra's motion for recusal, Scalia issued
a 21-page memorandum, in which he tried to shift the focus
from the impropriety of taking a vacation with a litigant
to an inquiry of whether friendships between justices and
government officials require recusal.
However, this argument misses the point. No one is saying
Scalia's friendship with Cheney warrants disqualification.
The misdeed that requires recusal is his failure to cancel
the trip once he learned that Cheney would be a litigant in
In his memo, Scalia claims that a vacation at a hunting
camp with 12 other hunters was not an intimate setting. He
says he was never alone with Cheney except for maybe brief
unintentional instances and that "Of course we said not
a word about the present case."
That comment might be reassuring, except that I cannot believe
he said it. In light of the fact that the underlying suit
questions the legality of secret conversations and meetings,
the suggestion that people are being overly suspicious if
they wonder whether Cheney and Scalia had secret conversations
Scalia claims the law only requires recusal where the personal
fortune of a friend is at issue, not if only official action
is at issue. He admits that there could be political damage
for Cheney from a disclosure that he favored business interests,
and especially one he was connected with. But he also says
Justices can not be expected to assess political consequences
or to make recusals depending upon what degree of political
damage a particular case might inflict.
This argument is feeble because Cheney's personal fortune
could well be at stake if it turns out that Halliburton illegally
influenced his decisions in developing the Energy Policy -
Cheney still owns half a million shares of Halliburton stock
and still receives money from the company every year.
Also, Cheney is a politician. An adverse ruling from Scalia
may very well force him to reveal information detrimental
to his political career right smack in the middle of his run-up
for re-election in November.
In fact, from what we know already, its clear that the records
Cheney fought so hard to keep secret for 3 years will be damaging.
They may prove once and for all, that oil interests played
a crucial role in the motives for invading Iraq.
A lot has been revealed about Iraq since this case was filed.
For instance, Oil and Gas International reported that the
US had a plan to reorganize Iraq's oil and business relationships
which was underway by November 2002. In January 2003, the
Wall Street Journal reported that Halliburton, Exxon
Mobil, ChevronTexaco, and Conoco Phillips, were meeting with
Cheney's staff to plan for post-war revival of Iraq's oil
And finally, documents disclosed thus far reveal that the
task force reviewed maps of the Middle East and Iraqi oilfields,
pipelines, refineries and terminals, and two charts detailing
Iraqi oil and gas projects, along with a list of Foreign Suitors
for Oilfield Contracts, detailing the status of their efforts.
The minutes from the meetings might further prove that Bush
did indeed have underlying motives for going to war in Iraq.
Using the Court's decision in the Clinton-Jones case as
precedent, the Sierra Club argues that Cheney should not be
granted immunity from the discovery process. If Clinton had
no immunity in a private suit brought by Paula Jones, Cheney
should have no immunity in a case that involves a much more
serious question. Cheney is asserting unprecedented power,
the right to operate in secret, without being accountable
to anyone. Such secrecy in the executive branch cannot be
In essence, Cheney is sticking to his story that no non-governmental
employees were involved with his task force. However, there
is no way to that he's lying because he refuses to provide
the information needed to make that determination.
Another case cited by Sierra relevant to the FACA secrecy
issue involved former First Lady Hillary Clinton and her health
care advisory group. In that case, legal experts claimed that
since Hillary was not a government employee her participation
on her task force triggered FACA and that other people should
be allowed to attend meetings.
Citing FACA, a doctor's group and two public interest groups
wrote and asked that their staff members be allowed to attend
meetings with the task force. The White House response was
that FACA did not apply to Hillary and the request was denied.
Soon thereafter, Hillary and the six Cabinet members on
her task force were sued by the three groups, the Association
of American Physicians and Surgeons, the American Council
for Health Care Reform, and the National Legal and Policy
The Justice Department answered the suit and claimed Hillary
should not be considered a private citizen. In the end, the
Judge in that case ruled that the group had to open its meetings
because she was not a government employee. However, in hindsight,
the question of whether FACA applied should have been moot
because even if her participation did not trigger it, the
presence of other non-government employees did.
On appeal, it became apparent that the makeup of the group
was different from the original picture presented by the White
House and that non-governmental employees were indeed involved.
The court was very angry when it realized that the group had
intentionally delayed and stonewalled the plaintiffs for a
year and ordered it to comply with all discovery requests
immediately. Eventually 250 boxes and approximately 500,000
documents were released.
The exact same thing is going to happen in Cheney's case.
By now, everyone involved in the case knows that countless
non-governmental employees met with his task force and that
his claims to the contrary are bald-faced lies.
In fact, according to Sierra, individuals representing energy
interests who donated many millions in the 2000 campaigns
have enjoyed unfettered access to the NEPDG. Of the top 25
donors to the Republican Party, 18 sent representatives to
meet with Cheney or his task force. They include Enron, Halliburton,
Southern Company, Exelon Corporation, BP, the TXU Corporation,
FirstEnergy and Anadarko Petroleum.
Exelon Corporation, one of the nation's largest electric
utility companies, said its officers were among those who
met with Cheney, and that another of its executives met with
Karl Rove and Lawrence Lindsey.
The chairman of Ashland Petroleum met with Energy Secretary
Abraham. The chairman of BP, the 10th largest contributor,
met with Cheney and other administration officials. The chairman
of Anadarko Petroleum, the 14th biggest donor, met with Cheney.
Officials from Lehman Brothers, the sixth largest contributors
to Republicans, and owner of the world's largest coal mining
company, attended task force meetings set up by the Edison
Electric Institute, the power industry's main lobbying group.
The number one donor, Enron, contributed over $1.7 and appeared
to have the most access to the task force. Its executives
had six meetings with the task force between February and
October of 2001.
If and when the records of the task force are ever released,
they will likely read like a list of who's who in the world
of Republican campaign donors.
Tax payers should be balking over having to fund endless
legal battles for Cheney. The two suits discussed above are
merely the latest cases. There was yet another lawsuit filed
against Cheney in 2001 by the General Accounting Office that
he managed to get dismissed. In that case tax-payers funded
both sides of the battle.
The General Accounting Office (GAO) is a non-partisan agency
with authority to investigate matters related to the use of
public money, so that it can judge the expenditures and effectiveness
of programs, and report to Congress on what it finds. In a
nutshell, its duty is to keep an eye on how our tax dollars
The dispute between GAO Comptroller General David Walker
and Cheney began when Congressmen Henry Waxman and John Dingell
asked the GAO to investigate the energy task force after Cheney
refused to disclose information they asked for as members
of oversight committees. So the GAO sent a letter stating:
We request records providing the following information
with regard to each of [the task force] meetings: (a) the
date and location, (b) any person present, including his
or her name, title, and office or clients represented, (c)
the purpose and agenda, (d) any information presented, (e)
minutes or notes, and (f) how member of [the task force],
group support staff, or others determined who would be invited
to the meetings.
Basically, it wanted an answer to one question: What process
was used by the group to develop the Nation's Energy Policy?
To that end, it asked for the names of people present at meetings
and what direct and indirect costs were incurred in developing
Cheney refused to release the records and triggered a showdown
with the GAO. In January 2002, after 9 months of trying to
gain access to the records, Walker announced that he would
sue the administration to get them. It was the first time
in GAO's 81-year history that it had to sue to obtain information
from the executive branch.
In answer to the suit, Attorney David Addington responded
for Cheney and claimed the Energy Group was not subject to
FACA and that the GAO was trying "to intrude into the heart
of Executive deliberations, including deliberations among
the President, the Vice President, members of the President's
Cabinet, and the President's immediate assistants, which the
law protects to ensure the candor in Executive deliberation
necessary to effective government."
GAO's Counsel, Anthony Gamboa, replied and said the GAO
had full authority to "intrude into the heart of Executive
deliberations," and cited the law along with its legislative
history to make it clear that: "The mere fact that materials
sought are subject to... deliberative process and therefore
exempt from public disclosure does not justify withholding
them from the Comptroller General."
The GAO also told Cheney that it was not inquiring into
the deliberative process. Rather, its focus was on gathering
factual information regarding the process of developing the
Energy Policy and therefore there was no reason for Cheney
not to respond.
But true to form, Cheney led the public to believe that
the GAO requests were overly burdensome and intrusive and
stuck to the Bush administration's usual tactic of getting
their minions out there to repeat a lie over and over until
people believed it. If the public had been made aware of how
little the GAO was actually seeking, it would have been much
harder for Cheney to sell the lie that the requests were unreasonable.
In December 2002, US District Court Judge John Bates issued
a ruling that said the GAO lacked sufficient grounds to compel
Cheney to disclose the records of his task force and dismissed
the whole lawsuit.
A Bush appointee, Judge Bates is the same John Bates who
worked for Ken Starr during the Clinton administration. He
supervised the investigation into Vince Foster's death and
the probe into the billing records from Hillary's law firm.
Looks like his faithful service to Ken Starr paid off nicely
once Republicans got back in the White House.
Walker did not appeal the court's decision. He later revealed
that several Republican lawmakers had threatened to cut GAO
funding if he continued on with the case. He said the threat
was a factor he considered when he decided to drop it, which
demonstrated the use of another common tactic by the Bush
administration: Find something to threaten critics with so
that they will do as they are told.
At the time, Democrats strongly criticized Walker's decision.
Rep. Waxman rightfully pointed out that: "If you have
a GOP Congress not interested in exercising the role of oversight,
and GAO doesn't act independently of the Congress, there is
nobody providing the job of checks and balances called for
in our Constitution."
People need to keep Waxman's warning in mind when considering
what will happen if Cheney prevails in Scalia's court. If
he wins, the Court will effectively be saying that oversight
of the executive branch is limited to only what a president
and vice president decide to permit. Such a decision would
represent one more blow in the Bush administration's assault
on American democracy.
We shouldn't have to try to figure out what all the secrecy
is about. The administration is wasting millions of tax dollars
on legal battles to hide something from us, and as American
citizens and tax payers, we have an absolute right to know
what that is.