Supreme Court Refuses to Order Cheney to Release Energy Papers
The Supreme Court handed a major political victory to the Bush administration today, ruling 7 to 2 that Vice President Dick Cheney is not obligated, at least for now, to release secret details of his energy task force.
The majority of the justices agreed with the administration's arguments that private deliberations among a president, vice president and their close advisers are indeed entitled to special treatment — arising from the constitutional principle known as executive privilege — although they said the administration must still prove the specifics of its case in the lower courts.
"A president's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual," the court said in a summary of the majority opinion written by Justice Anthony M. Kennedy.
By sending the case back to the lower federal courts, the majority removed a significant political headache for President Bush and Vice President Cheney. As a practical matter, the outcome today means that the final resolution will not come until well after the November elections.
Critics of the Bush administration have long complained that its energy policies are far too friendly to the energy industry. It is no coincidence, the critics have said, that Mr. Cheney was formerly the chief executive of Halliburton. In pursuit of their claims, the critics have been trying to learn the names of the industry officials consulted by the administration when it was developing its policies in early 2001.
The critics scored a significant, albeit temporary, victory when the lower courts held that Judicial Watch, a conservative legal organization, and the Sierra Club, a liberal environmental group, were entitled through the discovery process, or pretrial information-gathering, to the names and roles of the private citizens who deliberated with the energy panel.
Discovery orders are ordinarily not appealable before a trial on the principle that they would create far too many piecemeal appeals. The administration urged the justices to make an exception, asserting that discovery itself, in this case, violated the Constitution by intruding on a president's "core functions" of seeking advice and developing legislation.
The seven justices in the majority acknowledged that argument. "This is not a routine discovery dispute," they held. "Special considerations control when the Executive's interests in maintaining its autonomy and safeguarding its communications' confidentiality are implicated."
But the victory was not a complete one for the White House, as the justices rejected Mr. Cheney's request that they immediately determine that he is not subject to discovery. Instead, the justices said Mr. Cheney still had to prove his case.
Justices Ruth Bader Ginsburg and David H. Souter dissented, declaring that the lower courts ought to be able to consider right now what should be available through discovery.
The case has been enlivened by personal considerations, most notably Justice Antonin Scalia's well publicized duck-hunting trip with his good friend the vice president. Justice Scalia rejected any suggestion that he not take part in the case, noting that he was also a good friend of Alan B. Morrison, who argued before the Supreme Court on behalf of the Sierra Club.
The White House was restrained in expressing its pleasure over the ruling. "We believe the president should be able to receive candid and unvarnished advice from his staff and advisers," the White House spokesman, Scott McClellan, told reporters. "It's an important principle."
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