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Supreme Court: Cheney doesn’t have to disclose task force records

SHARE Supreme Court: Cheney doesn’t have to disclose task force records

WASHINGTON — The Bush administration won't have to reveal secret details of Vice President Dick Cheney's energy task force before the election, after the Supreme Court ruled Thursday that a lower court should spend more time sorting out the White House's privacy claim.

In a 7-2 decision, justices said the lower court should consider whether a federal open government law could be used to get task force documents. Even if that court rules against the administration, appeals would tie up the case well past November.

Justice Anthony M. Kennedy, writing for the majority, said the federal district court judge who ordered records opened to the public had issued too broad a release of documents.

"Special considerations applicable to the president and the vice president suggest that the courts should be sensitive to requests by the government" in such special appeals, he wrote.

The issues in the case have been overshadowed by conflict-of-interest questions about Justice Antonin Scalia, who sided with the majority.

Scalia defiantly refused to recuse himself from the case, rejecting arguments by critics who said his impartiality was brought into question because of a hunting vacation that he took with Cheney while the court was considering the vice president's appeal.

He and Justice Clarence Thomas wrote separately Thursday to say U.S. District Judge Emmet Sullivan "clearly exceeded" his authority in ordering the administration to release records.

Justices Ruth Bader Ginsburg and David H. Souter said in a dissent that Sullivan should be allowed to consider what records should be released. They said it was not enough for the Bush administration to request blanket protection from having to make records public.

White House press secretary Scott McClellan said that while the White House hasn't had a chance to review the decision, it is pleased. "We believe the president should be able to receive candid and unvarnished advice from his staff and advisers. It's an important principle," he said.

At issue was a 1972 open government law, the Federal Advisory Committee Act, which requires government panels to conduct their business in public, unless all members are government officials.

Until the government produces some records, it won't be clear who drafted the government's policies, lawyers for the groups that sued to get the records argued.

Shortly after taking office, President Bush put Cheney, a former energy industry executive, in charge of the task force which, after a series of private meetings in 2001, produced recommendations generally friendly to industry.

The Sierra Club, a liberal environmental club, and Judicial Watch, a conservative legal group, sued to get the records. They argued the public has a right to information about committees like Cheney's. The organizations contended that environmentalists were shut out of the meetings, while executives like former Enron Corp. Chairman Kenneth Lay were key task force players.

The suing groups allege the industry representatives in effect functioned as members of the government panel, which included Cabinet secretaries and lower-level administration employees.

The Bush administration argued that privacy is important to ensure members of such panels can speak candidly. It contended that the open records law did not apply to the task force.

The case had become a potentially embarrassing election-year problem for the administration. Thursday's decision buys the administration more time. If it loses in the appeals court, the administration can return to the Supreme Court in another extended appeal before having to release information.

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 administration 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 an unusual 21-page memo announcing his decision to stay on the case.

The Supreme Court was the latest stop in a nearly three-year fight over access to records of the task force that prepared a national energy strategy in 2001. Most of the recommendations stalled in Congress.

A separate lawsuit seeks thousands of documents under a separate law, the Freedom of Information Act. A judge ruled this spring that those documents should be released.

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