Tornado Alley (PROG)

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Beyond the Duck Hunt

washingtonpost.com
Wednesday, April 28, 2004; Page A20

THE CONTROVERSY over Justice Antonin Scalia's duck hunt with Vice President Cheney has largely overshadowed the case to which it was related, which the justices -- including Mr. Scalia -- finally heard yesterday. The case deals with the energy policy task force that President Bush created after taking office, which Mr. Cheney ran and which produced the administration's deficient energy proposal. The administration has fought tenaciously on a number of legal fronts to keep the task force's proceedings -- including such basic information as whom it met with -- from the public. As a matter of policy, this secrecy has never made much sense. Just read the task force report, and you know that energy executives had greater input than environmentalists. The insistence on secrecy has simply kept the controversy simmering for the entirety of Mr. Bush's first term.

As a matter of law, the case now before the Supreme Court is a bit more complex. It involves a suit by the Sierra Club and the conservative watchdog Judicial Watch, which allege that the task force violated the Federal Advisory Committee Act (FACA). The act requires that government advisory groups disclose all sorts of information about their proceedings. It does not apply to committees composed only of government officials. The administration maintains that the task force included only officials as members and is consequently exempt. The plaintiffs allege that some outside advisers were so involved in the proceedings that they became de facto members. Citing an appeals court decision in a similar controversy over Hillary Rodham Clinton's health care task force, they argue that this involvement triggers the law's disclosure obligations. A lower court ordered limited production of materials to assess whether the claims have any merit.

This creates a potential Catch-22 for the government. If there were a legitimate reason for the secrecy, forcing the government to disclose information in the course of the trial might make Mr. Cheney the loser even if he eventually won the case. Consequently, the government is before the Supreme Court arguing that the law is unconstitutional if interpreted in that fashion.

But the lower courts sought to limit disclosure carefully to the sorts of information required to assess the claim. If those documents don't prove the plaintiffs' case, the court could dismiss the case and protect the executive's interest in the secrecy of the rest. More importantly, the government has not bothered to assert executive privilege over any of these materials -- though, as some of the justices noted at arguments yesterday, some of the documents probably would be shielded by such a move. The White House is effectively asking the court to relieve it of the political embarrassment of such a step -- an invitation the court should decline.

There are times when fighting tenaciously to preserve executive powers -- even the power of secrecy -- is appropriate. This is not such a case. Legally, the president can keep litigating these questions and dragging the matter out, until the courts finally force his hand. But the secrecy associated with the task force was ill-considered from the start. The energy policy might have been more balanced, and more likely to win support in Congress, had the task force conducted more of its proceedings in public and heard from a broader range of interests. The public now should at least get to find out how this energy policy came to be made.

© 2004 The Washington Post Company

http://www.washingtonpost.com/wp-dyn/articles/A47948-2004Apr27.html