| The Sierra Club and the Judicial Watch made the request about the task force because it was alleged that the advice upon which Cheney relied to make reasoned and careful decisions regarding the energy industry was … from the leaders of energy companies! This concern was magnified when the task force’s recommendations were released and looked suspiciously identical to what the energy companies had been asking for — to paraphrase, the right to rapaciously overcharge consumers, freely destroy the environment and basically have free rein to pursue profit above all else.
The citizens groups first requested the information outside of the court, pointing out that the Federal Advisory Committee Act of 1972 requires the work of advisory bodies that include non-federal employees to be public. The administration countered that the citizens groups didn’t know that non-federal employees actually were involved in the advisory panel. The citizens groups then requested an account of the identities of the advisers, to determine whether any of them were nonfederal employees. The administration refused.
It was only after this repeated stonewalling that the citizens groups sued in the District Court of Washington, D.C. This court ordered Cheney to release the requested documents. Cheney appealed the decision to a three-justice appellate court panel, and lost again. He then appealed for his case to be heard by the full appellate court, and his appeal was denied. After that failure, he sought review by the U.S. Supreme Court.
The immediate criticism of his petition to the Supreme Court — and the issue with which the first portion of oral argument before that court was concerned — was that Cheney violated important principles of legal procedure. When he asked the appellate court for a writ of mandamus before the case had been decided by the District Court — and then petitioned the Supreme Court when the appellate court refused that request — he persisted in his improper requests to higher and higher courts. It is a firmly established legal principle that cases do not move to the appellate level before final resolution in the lower court; Cheney’s steamrolling through the mechanisms of justice ignored this.
The substantive issue presented by Cheney’s adamant secrecy is even more unsettling: the Bush administration’s unprecedented refusal to release information to the public. Chronicled in a number of accounts, most recently John Dean’s book, “Worse than Watergate,” the current regime seems hell-bent on keeping any knowledge about its decision making from the public. Worse, the guiding principle seems to be that if the administration can use novel and unheard-of ways to keep that information secret, all the better!
Bush sent records of his own, even personal information such as his arrest record, to his father’s presidential library in order to keep the material out of the public sphere. Bush also issued an executive order to override a law passed by Congress specifying that the National Archives control presidential papers and documents. The unprecedented step of using executive order to ensure that Bush can continue to secrete away documents even after he is out of office was remarked upon very little in the press, but is a shocking change from longstanding public policy as determined by Congress.
This official secrecy is especially galling when it is put in the larger context of how Republicans conducted themselves during the Clinton administration. There were two high-profile arguments over this issue of executive branch secrecy during the Clinton years, and in both, Republicans were firmly on the other side of this particular divide. First, the same type of request for information was made of then-first lady Hillary Rodham Clinton’s work with the health care task force, the makeup and business of which she had hoped to not release. The same process was followed, with the exception that, when the appellate court ruled against Hillary Rodham Clinton, she rightly acquiesced to their judgment and released the information.
The shameful right-wing sneak attack on Clinton’s presidency via his sex life also demonstrates how Republicans previously and hypocritically have rejected the very argument they put forward today. One of Clinton’s defenses against Paula Jones’ lawsuit was grounded in the separation of powers, saying that a sitting president should not be encumbered by petty nuisance lawsuits. Republicans argued vigorously against it — yet that didn’t keep Solicitor General Theodore Olson from proffering that very justification in the present proceedings before the Supreme Court.
In fact, Olson’s whole argument before the court was a hodgepodge of ridiculous generalizations and vague defenses of the office of the presidency, as though this country never has had to deal with a commander in chief that was not exactly on the up-and-up. His first defense was to point out that the Federal Advisory Committee Act only requires disclosure of advisory groups that include nongovernmental members. As in the lower courts, several of the justices countered that there was no way to know whether the advisory group included nongovernmental members when the administration wouldn’t even release the identities of the advisers.
In an attempt to clarify the administration’s argument (beyond Olson’s reliance on “because we say so”), Justice Anthony M. Kennedy asked what type of exemption from the Federal Advisory Committee Act the administration was asserting. All Olson came up with was chanting “presumption of regularity,” adding, “because clearly the president wouldn’t do anything wrong!” to his vigorous and principled legal defense.
The policy underpinning the advisory committee act, and the widely accepted (by everyone except Republican usurpers) transparency of government, of course, is that the president might do something wrong. The Federal Advisory Committee Act — along with other bedrock legal principles of openness in government — was passed in the wake of Watergate, that most disillusioning of events regarding the morality of elected officials. But the principle of transparency significantly predates Nixon’s misdeeds — and the bounds of executive privilege are extremely narrow.
The only previously accepted justification for executive branch secrecy is in matters directly related to national security. It is difficult to imagine how national security could be threatened by revealing how Cheney formulated his shockingly industry-friendly policies. Thankfully, he has not insulted our intelligences by attempting to say so … yet. But as we see more and more avenues of public inquiry being walled off by an administration that seems deathly frightened of the American people finding out what it is up to, it would not be a surprise to see that argument in the future.
Much has been written about the destruction the Bush administration has wreaked upon the constitution. Bush seems willing not only to use the tragedy of Sept. 11 to advance the partisan politico-economic interests of the super wealthy corporations he serves, but also to move America significantly closer to a police state approach to law and order.
The cynical use of “executive privilege” by Cheney to conceal the administration’s sell-America-cheap energy policies strikes deeply and dangerously at democracy and at our system of constitutional government. Without information about what the government is doing, neither the courts nor the citizens (at the ballot box) can effectuate the checks and balances designed by the Founding Fathers to protect liberty from an overpowering government.
Although Bush wouldn’t understand the reference, he has done Shakespeare one better: The Bard had a tyrant looking to enslave the people of England say, “First, kill all the lawyers.” Bush would say, “First, kill all the reporters.” In either scenario, if the tyrants have their way, we are all the losers.
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