Supreme Court gives White House victory for now in Cheney

WASHINGTON (AP) - The Supreme Court protected the Bush administration Thursday from having to reveal potentially embarrassing details about Vice President Dick Cheney's energy task force until after the election, sending the case back to a lower court and noting a "paramount necessity of protecting the executive branch from vexatious litigation."

The justices voted 7-2 to have an appeals court decide whether a federal open government law could be used to compel the administration to publicly release task force documents, dragging out an already 3-year-old fight over the records.

It was the second significant case in two weeks resolved without a ruling on the main issues. Last week, justices said a California atheist did not have standing to challenge on behalf of his daughter the words "under God" in the Pledge of Allegiance, sidestepping the broader church-state question.

In the Cheney case, two groups that sued to get access to the task force documents argued the public had a right to know whether energy company executives played a key role in crafting the industry-friendly recommendations.

Justice Anthony M. Kennedy, writing for the majority, said that a federal district court judge who ruled against the Bush administration demanded the opening of too much task force information and that the president and his executives were not given appropriate deference.

While the case was about privacy, that issue has been largely overshadowed in the public eye by conflict-of-interest questions involving Justice Antonin Scalia. He refused to step aside after it was revealed he and Cheney took a hunting trip together shortly after the court agreed to hear the case. Scalia sided with the majority, though he made it clear he felt the court could have dismissed the lawsuit.

The ruling was an anticlimactic end - for now - to a case with the potential to be a major test of executive power. It brought up echoes of the Supreme Court's 1974 ruling that rejected President Nixon's claim of executive privilege and ordered him to surrender secretly recorded White House tapes.

But Justice Kennedy said there was no comparison between the criminal subpoena requests in the Nixon case and the interest by outside groups in what went on at Cheney's closed-door energy task force meetings.

Michael Greenberger, a Justice Department attorney in the Clinton administration, said the court saved Cheney from an "adverse public relations dance of having to assert executive privilege," a last-ditch legal maneuver to avoid disclosure of sensitive material.

Cheney, a former energy industry executive, was put in charge of the task force by President Bush in 2001. Most of its major recommendations, such as opening the Arctic National Wildlife Refuge to oil drilling, have been stalled in Congress.

The Sierra Club, a liberal environmental group, and Judicial Watch, a conservative legal group, sued to get the records. The organizations contended that environmentalists were shut out of the meetings while executives such as former Enron Corp. Chairman Kenneth Lay were key players.

The Supreme Court directed an appeals court to decide if a 1972 law, the Federal Advisory Committee Act, applies to the Cheney panel. The issue was whether energy lobbyists were a type of "de facto" member.

The Bush administration argued that only government officials were on the task force, which would mean the details of meetings could be kept secret.

"We believe the president should be able to receive candid and unvarnished advice from his staff and advisers. It's an important principle," press secretary Scott McClellan said in reaction to the ruling.

Phil Singer, spokesman for Sen. John Kerry, the presumptive Democratic presidential nominee, said, "Americans shouldn't have to rely on court orders to learn what special interest lobbyists are writing White House policies."

The Sierra Club had asked Scalia to stay out of the case because the justice flew with Cheney to hunt in Louisiana in January, weeks after the high court agreed to hear the administration's appeal. Many Democrats and dozens of newspapers also called for his recusal.

Scalia, a Reagan appointee and close friend of the vice president, had said the duck hunting trip was acceptable socializing that wouldn't cloud his judgment. "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," he wrote in announcing his decision to stay on the case.

Scalia and Justice Clarence Thomas wrote separately Thursday to say they would have ruled for the Bush administration outright. U.S. District Judge Emmet Sullivan "clearly exceeded" his authority in ordering the administration to release records, Thomas wrote for the two.

Justices Ruth Bader Ginsburg and David H. Souter disagreed with the ruling. Ginsburg, reading her objections from the bench, said lower courts were sensitive to the executive branch's arguments.

In the main opinion, Kennedy said that the president is not above the law, but there is a "paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties."

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


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