Supreme
Court Refuses to Approve the Immunity
from Discovery Sought by Vice President Cheney
Washington D.C., June 24, 2004
- The United States Supreme Court today remanded
to the D.C. Circuit Court of Appeals a case concerning
the application of a federal open government law to the Energy
Task Force chaired by Vice President Cheney in 2001.
"Although today's decision
permits the Vice President to continue to delay release of details
about who wrote the nation's energy policy, the Supreme Court
refused to accept the radical argument voiced by his lawyers that
the Administration is free from any inquiry into how it conducts
its affairs," explained Meredith Fuchs, the Archive's General
Counsel.
In 2001, President Bush established an advisory committee on
energy policy, and appointed Vice President Cheney chairman of
the committee. After the committee made its recommendations, the
Sierra Club and Judicial Watch filed suit arguing that the advisory
committee violated the Federal Advisory Committee Act (FACA) and
that the committee should release its documents to the public.
Vice President Cheney has argued that the committee is not required
to disclose who participated in its meetings. The National Security
Archive, along with a coalition of organizations, filed an amicus
curiae brief in the Supreme Court in support of the
Sierra Club and Judicial Watch's position. The joint statement
of the coalition is reproduced below.
FOR
IMMEDIATE RELEASE JUNE 24, 2004
Contact: Herb Ettel or Robert Shull, OMB Watch
202-234-8494 ext. 207 or 280 ettelh@ombwatch.org
www.OpenTheGovernment.org
and www.ombwatch.org
Supreme Court Denies Cheney's Bid to Avoid Discovery
in Energy Task Force Decision
Statement
from Organizations Which Jointly Filed an Amicus Brief
Supporting the Suit Brought by Sierra Club and Judicial Watch
While it is disappointing that the Supreme Court declined to take
this opportunity to embrace the principle of openness in Cheney
v. United States District Court, it is heartening that the Court
did not side with the administration, and instead remanded the
case to the lower court.
In short, we are pleased the Court made these choices:
It declined to address the argument raised by the Vice President
that his office is categorically exempt from discovery. As Justice
Ginsburg's dissent observed, the Vice President had argued before
the district court that the injury is submitting to discovery
in the absence of a compelling showing of need and, throughout
the underlying litigation, underscored its resistance to any and
all discovery. Although the majority did emphasize that the court
of appeals should have weighed the burden of discovery on the
executive branch's constitutional prerogatives, it declined to
endorse the radical position of the Vice President that his office
could claim a blanket freedom from disclosure.
Instead of exempting the Vice President from discovery altogether,
it identified a number of factors -- the nature of the case, the
breadth of the discovery sought and the narrowness of the legal
question to which the discovery would be relevant -- that suggest
a role for the district court in narrowing discovery from the
Vice President. Although this choice effectively delays resolution
of the matter, it also avoids the worst possible outcome -- allowing
the Vice President to continue operating in secret. Instead the
court went out of its way to encourage the lower courts to consider
the possibility of narrowing the scope of discovery.
Although we still look forward to a decision that allows the public
to know what industry interests participated in important policy
decisions, we are pleased that the Supreme Court declined to endorse
the administration's preference for secrecy.
Signed by the following organizations, which signed onto the
Amicus Brief:
Mary Alice Baish, American Association of Law Libraries
Patrice McDermott, American Library Association
John Podesta, Center for American Progress
Celia Wexler, Common Cause
Meredith Fuchs, National Security Archive
Gary D. Bass, OMB Watch
Rick Blum, OpenTheGovernment.org
Elliot Mincberg, People for the American Way
Tim Ericson, Society of American Archivists
Doug Newcomb, Special Libraries Association