- The Washington Times - Monday, June 28, 2004

Secrecy for the sake of secrecy awakens suspicion. President William Jefferson Clinton and first lady Hillary Rodham Clinton blundered by wrapping in secrecy the President’s Task Force on National Health Care Reform chaired by the first lady, a folly upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Association of American Physicians and Surgeons, Inc. vs. Clinton (1993). The health care proposals that ensued shipwrecked in Congress.

President George W. Bush might have profited from the Clinton example. But like characteristic White House occupants, the Bush administration generally forgets nothing, and learns nothing. Accordingly, Vice President Richard B. Cheney aped the Clinton blunder in a U.S. Supreme Court pyrrhic victory last week (Cheney vs. United States District Court for D.C.) that preserved the secrecy of Mr. Bush’s National Energy Policy Development Group (NEPDG). There may have been better ways to reinforce public suspicion that the president and vice president skew policy to favor their business benefactors, but if there are, they do not readily come to mind.

A few days after assuming office and long before September 11, 2001, Mr. Bush appointed Mr. Cheney to chair the NEPDG, whose remaining formal membership consisted of several agency heads and assistants, all federal employees. The group was tasked to “develop[e] … a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future.” It addressed nonsensitive, benumbing policy questions of the type routinely shared with Congress and regularly reported in the media. The thick financial and employment ties between the Bush administration and the energy industry, symbolized by Enron and Halliburton, made an NEPDG sunshine policy highly advisable. Energy moguls traipsing in and out of the White House on secret business would be first cousin to Mr. Clinton’s infamous Lincoln Bedroom sleepovers.

Mr. Cheney could have followed the Federal Advisory Committee Act of 1972 (FACA) to dispel nonfanciful worries of compromised advice to the president to profit business pals.

FACA’s chief purpose is to inform Congress and the public of federal advisory committee activities. Their meetings must be public. Notice of them must be given in the Federal Register. Detailed minutes must be prepared. And all records, reports and documents used by the committee must be revealed unless exempt from disclosure under the Freedom of Information Act. Precautions are suggested to ensure committee advice and recommendations “will not be inappropriately influenced by … any special interest.”

FACA, however, excludes from mandatory coverage advisory committees “composed wholly of full-time, or permanent part-time, officers or employees of the federal government.”

Vice President Cheney rejected FACA sunshine in favor of confidentiality in preparing NEDPG’s final report to the president. Mr. Cheney reasoned the group was exempt because its members were exclusively federal employees.

Following the report’s publication, Judicial Watch and the Sierra Club sued in the U.S. District Court for the District of Columbia. The complaint alleged a FACA violation on the theory that nonfederal employees, including private lobbyists, had become de facto members of the NEDPG in regularly attending and fully participating in nonpublic meetings.

The vice president resisted discovery of information sought by the plaintiffs.. According to Mr. Cheney, any application of FACA to the NEDPG would violate principles of separation of powers and confound the constitutional prerogatives of the president and vice president.

The district court authorized limited discovery, subject to White House claims of constitutional privilege regarding particular documents or questions. The Supreme Court disapproved. It explained that even sheepish preliminary inquiries into unclassified White House policy documents detract from the constitutional majesty of the president and his nonstop devotion to official duties.

Justice Anthony Kennedy, writing for the majority, fretted that breaching the confidentiality of NEDPG energy records or deliberations would impair candor in communications with the president. But Mr. Cheney failed to submit even one affidavit or unsworn statement from any person consulted to support that speculation. I served in the Justice Department and the Federal Communications Commission under four presidents, yet never heard a syllable of concern that public disclosure would frustrate unornamented nonnational security advice.

Justice Kennedy also insisted wholesale privilege claims of the president must be presumptively honored to forestall “vexatious litigation that might distract [the Executive Branch] from the energetic performance of its constitutional duties.”

The Supreme Court, however, has repeatedly disputed that the president enjoys an impermeable constitutional shield from lawsuits or judicial process, with as yet no litigation explosion.

President Richard M. Nixon was compelled to disclose incriminating tapes to special prosecutor Leon Jaworski. President Clinton was denied immunity from the sexual harassment lawsuit of Paula Jones, and was questioned under oath by the Office of Independent Counsel.

The Iran-Contra affair occasioned the testimony of President Ronald Reagan. And President Bush himself has been questioned by a U.S. Attorney concerning the leak of the identity of a Central Intelligence Agency employee.

Not a crumb of evidence suggests these occasional distractions seriously disabled presidential performance.

The Supreme Court stumbled in blindly celebrating presidential secrecy. But the Mr. Cheney stumbled more in seeking the celebration.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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