BC-FOI-CHENEY-COMMENTARY:MCT — op-ed (1030 words)
Cheney v. U.S. District Court: Are we missing the point?
(ARCHIVE CARICATURE)
FOCUS ON FREEDOM OF INFORMATION
(MCT)
In the slew of cases announced by the Supreme Court just before the summer break, one of particular import slipped under the radar. Sandwiched in the midst of the enemy combatant decisions, the court's opinion in Cheney v. U.S. District Court for the District of Columbia was glossed over by most analysts as preliminary and procedural.
Unfortunately for those of us who are interested in open government, that is not quite accurate.
By way of background, the lower courts had ordered Vice President Dick Cheney to turn over to the plaintiffs (one liberal public interest group, one conservative) the records of the administration's Energy Task Force. Alternatively, according to the lower courts, the White House could assert the doctrine known as "executive privilege," decline to produce the documents, and submit them to the District Court for a judicial determination of the appropriateness of that assertion.
The White House rejected these rulings. Solicitor General Ted Olson, arguing for the administration, adamantly and consistently insisted that the vice president need not turn over the documents and need not assert executive privilege. In other words, according to Olson, the vice president was entitled to withhold the documents, and the decision to do so was not subject to review by anyone, including the courts.
Given the concern that the energy industry was dictating, or at least influencing, President Bush's energy policies, and the probability that such a circumstance would either be confirmed or refuted by exposing the task force's files to the bright light of day, the issue was far more than academic.
The stated justification for the White House's argument was stunning for its aggressive deviation from established legal principles, that is, that, in chairing the Energy Task Force, the vice president was acting pursuant to the "executive powers" vested in the president by the Constitution.
If this interpretation of the Constitution were correct, the other two branches would be barred from interfering under the tripartite, checks-and-balances structure of our government. What made this position so surprising was that the information that the administration sought to shield related not to national defense or international relations (the realms in which the executive branch has historically been accorded supremacy, at least by the courts, if not by Congress) but to domestic policy (the realm in which conflicts between the branches have historically been subject to determination by the courts).
But, the most stunning aspect of the case, at least so to date, is that the Supreme Court agreed with Olson's argument: In one small line, on the 20th page of the 21-page majority opinion in favor of Cheney, the Supreme Court said, "(the Court of Appeals) labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government's separation-of-powers objections."
Translated into non-legalese, the high court's conclusion was this: Even when confronted with a subpoena and a judicial order to disgorge documents, the administration need not invoke a doctrine that would subject its conduct to judicial review.
When that conduct is the decision to cloak matters of domestic policy in secrecy, the immediate import, and the potential impact, are downright frightening.
Maintaining the delicate balance of powers among the three branches of government is no easy task. For the last 50 years, since the principle later to be known as "executive privilege" was first enunciated by the Supreme Court during the Eisenhower administration, a wary compromise has evolved pursuant to which various presidents have either honored judicial subpoenas in matters of domestic policy, or asserted executive privilege and allowed the courts to decide the validity of the assertion.
This is not to suggest that every president has embraced the burden that accompanies the privilege — i.e., judicial review — but every president has at least acceded to it. Even Richard Nixon, who fought mightily to withhold his secret Oval Office tapes, grudgingly accepted the determination of the Supreme Court that executive privilege was not absolute, and that disgorgement was required in his case.
Now, in one decision, seemingly barely noticed and certainly not fully appreciated, a 50-year evolutionary process has been reversed.
With that reversal, the balance of powers has undeniably changed. The Supreme Court having excused the White House from complying with the only process that assures the right of judicial review when the executive branch refuses to honor a subpoena, one of the strongest assurances of an open, or at least accountable, presidency has been removed.
Previously the pursuit of full disclosure regarding the formulation of domestic policy rested ultimately in the hands of a non-elected federal judiciary, appointed for life or good behavior. Today, it rests with the very elected executives whose conduct is under review. Common sense tells us what the correlation will be between questionable behavior and willingness to disclose. For those of us who favor an open and accountable government, this development can hardly be considered positive.
It is true that the U.S. District Court may, once again, order Vice President Cheney to disgorge the documents. It is also true, although more difficult under the language of the Supreme Court decision, that the Court of Appeals may hold that order proper and enforceable. But, the real issue is this: If such an order is entered and affirmed, will the White House comply?
And if it does not, who has the power to do anything about it?
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ABOUT THE WRITER
Joan Lukey is a senior partner at Wilmer Cutler Pickering Hale and Dorr LLP in Boston. A regent of the American College of Trial Lawyers and a past president of the Boston Bar Association, she writes frequently on matters of legal concern.
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© 2004, Joan Lukey
Distributed by McClatchy-Tribune Information Services
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ARCHIVE CARICATURE on MCT Direct (from MCT Faces in the News Library, 202-383-6064): Dick Cheney