- The Washington Times - Tuesday, December 10, 2002

A federal judge yesterday rejected efforts by the General Accounting Office to force Vice President Richard B. Cheney to reveal the names of those who served on a presidential task force that helped shape the Bush administration's energy policy.
U.S. District Judge John D. Bates dismissed a lawsuit by Comptroller General David M. Walker, noting that no court "has ever before granted what the comptroller general seeks" and calling the suit an unprecedented act that raised serious separation-of-powers issues between the legislative and executive branches.
Judge Bates, a Bush appointee, also said that Mr. Walker, as head of GAO, lacked standing in the case because he failed to show the "personal, concrete and particularized injury required" under the Constitution.
"This vigorous standing assessment may seem overly protective of the vice president, and hence of the executive branch, at the expense of the statutory responsibilities of the comptroller general and the constitutional obligations of Congress," Judge Bates said in a 41-page ruling.
"The question is whether the comptroller general can require the courts to enter and resolve this inter-branch dispute in light of the weighty separation of powers considerations," he said. "Such an excursion by the judiciary would be unprecedented and would fly in the face of the restricted role of the federal courts under the Constitution.
"Accordingly, the complaint must be dismissed," he said.
The ruling, in U.S. District Court in the District of Columbia, was applauded yesterday by the Justice Department, which said in a statement that the decision "protects and respects the right of the president to have an independent decision-making process."
The GAO investigation began in May 2001 at the request of two Democrats Reps. John D. Dingell of Michigan, ranking member of the House Energy and Commerce Committee, and Henry A. Waxman of California, ranking member of the House Government Reform Committee.
The two questioned the "conduct and composition of the task force" in shielding its members and deliberations from public scrutiny. They said that the task force meetings included "exclusive groups of non-governmental participants, including political contributors, to discuss specific policies, rules, regulations and legislation," and they demanded information on who had attended the sessions.
Democratic Sens. Carl Levin of Michigan, Joseph I. Lieberman of Connecticut, Ernest F. Hollings of South Carolina and Byron L. Dorgan of North Dakota later joined in the demand.
Mr. Waxman, in a statement yesterday, called the ruling "a convoluted decision by a Republican judge" that gives President Bush and Mr. Cheney "near total immunity from scrutiny," allowing the administration to "operate in complete secrecy with no oversight by Congress."
"The only good news is that this decision is not the final word. It is inconceivable that the appellate court will uphold the embarrassing reasoning used by the district judge," he said. "This is an ominous decision that defies fundamental and traditional American values of open government."
The White House has acknowledged that Mr. Cheney met Enron Corp. representatives to discuss the administration's energy policy on one occasion, with his aides doing the same in five other instances.
The six meetings included one session just before Enron made the largest corporate bankruptcy filing in U.S. history late last year. Several company executives have since been charged or targeted in federal fraud investigations.
Mr. Walker filed suit in February, seeking access to documents showing who was present at each of the task force meetings, information on whom the vice president met to gather information for the national energy policy, how Mr. Cheney and other task force members determined who would be invited, and the costs incurred in developing the policy.
The Cheney task force eventually recommended to Mr. Bush an expansion of oil and gas drilling on public land and the easing of regulatory barriers in the construction of nuclear power plants.
In asking for dismissal of the case, Deputy Solicitor General Paul Clement said Congress could have sought the information without relying on the GAO or a lawsuit by the comptroller general, including the issuance of a congressional subpoena.
Carter Phillips, who represented Mr. Walker and the GAO, argued that Mr. Bush and Mr. Cheney were not immune from Congress' oversight responsibilities and that dismissing the suit would impede the GAO's ability to perform as the investigative arm of Congress.
Judge Bates acknowledged that the case raised "compelling statutory and constitutional questions" about the authority of Mr. Walker and the GAO to require the vice president to produce information concerning Mr. Bush's decision-making on national energy policy.
"Each side casts its position in core constitutional terms invoking competing theories of the proper balance of power between the legislative and executive branches, and insists that its opponent seeks to 'work a revolution' in separation of powers principles," the judge said.
"The case thus engenders a struggle between the political branches that is historically unprecedented and that transcends both the specific information sought and the political identity of the legislative and executive branch players involved," he said.
The task force was created by Mr. Bush in January 2001. Four months later, it issued a report recommending a set of policies, including proposed legislation that was approved by the president as the national energy policy. Both the House and Senate have passed versions of the energy bill, but no conference committee agreement has been reached.

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