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Cheney and Scalia Protest Too Much
April 15, 2004
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 public inspection.

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 his court.

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 is laughable.

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 industry.

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 tolerated.

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 Center.

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 are spent.

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 the policy.

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.

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