Cheney case tests open policy-making

Wednesday, May 5, 2004

WASHINGTON — Some of the thorniest cases argued recently before the Supreme Court have involved separation of powers and executive authority. But the cases are being closely watched not only for their impact on these issues. First Amendment and freedom-of-information advocates are also awaiting the outcome.

In Cheney v. United States District Court, press groups joined in a brief arguing that Vice President Dick Cheney’s now-defunct energy task force should be required to release information about its meetings and contacts with nongovernment officials such as energy industry executives.

“The public needs to be assured that the government’s energy policy is not the subject of undue influence from any particular interest,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “The only way this can happen is if the public has access to the proceedings of the energy task force.”

Public-interest groups Judicial Watch and the Sierra Club initially brought the case against Cheney under FACA — the Federal Advisory Committee Act, which requires executive-branch advisory committees to meet in public and make records accessible — but not if their membership is confined to full-time or permanent part-time federal employees.

A federal judge responded to the suit by ordering the government to respond to discovery to determine if any outsiders had become “de facto” committee members. The Bush administration resisted the order, and the case quickly made its way to the Supreme Court. The case was framed as a test of executive power to deliberate on policy without scrutiny from the courts or Congress, though much of the oral argument on April 27 dealt with technical issues concerning the appeal.

Justices pointed out that 36,000 pages of documents relating to the task force had already been released under the Freedom of Information Act by other government agencies. But Solicitor General Theodore Olson said presidential and vice-presidential documents were different, and that the administration should not be forced to invoke executive privilege every time such documents are sought.

Olson also said the government was entitled to a “presumption of regularity,” namely a presumption that the government is not trying to evade the law.

If a lawsuit under FACA can be triggered by unfounded claims that outsiders have talked to advisory committees, Olson said, “virtually everything the president might do, asking the attorney general or assistant attorney general … to formulate something, and they go out to talk to people, that would be a FACA lawsuit in a heartbeat.”

But the brief filed by the Reporters Committee said the government should not be able to evade the requirements of the advisory-committee law. “All the government would have to do to hide the activities of an advisory committee from the news media and the public would be to associate it with upper-level executive officials, and no court could even look behind that assertion into the actual workings of the committee,” said the brief filed on behalf of the Reporters Committee, the American Society of Newspaper Editors and the Society of Professional Journalists.

The next day at the Supreme Court, the justices heard arguments in a pair of cases testing whether the government can designate U.S. citizens as “enemy combatants” and hold them without access to lawyers or the courts.

The cases are Hamdi v. Rumsfeld, brought by Yaser Hamdi, a U.S. citizen captured in Afghanistan, and Rumsfeld v. Padilla, brought by Jose Padilla, a New York City native who the United States says was plotting a radioactive “dirty bomb.” Padilla is the first American accused of bringing al-Qaida’s terrorist campaign to U.S. soil.

The Committee to Protect Journalists, and Reporters Without Borders, as well as humanitarian aid groups, filed a friend-of-the-court brief in the Hamdi case. They argued that if the U.S. government is allowed to capture and hold enemy combatants without due process, then journalists and aid workers could be held under similar circumstances.

“Humanitarian aid workers and international journalists are very much part of this new world of porous borders and ill-defined battlefields,” the organizations told the Court in the brief. “Their active presence in combat zones puts them at risk of being mistakenly detained by the military” without judicial review.

The brief notes that in 2001, eight journalists were killed in Afghanistan, while in Iraq 14 journalists have been killed since hostilities began.

“Under the circumstances in which relief organizations and journalists work, it is all too easy for the military to mistake a neutral party for an enemy. Such errors can occur in the fog of war,” the brief observed.

In January, the U.S. military arrested three journalists near Baghdad, one working for NBC and two for Reuters. They were detained for three days as “enemy personnel posing for media” before being released.

The issues raised by the journalism organizations did not come up during oral argument. The arguments were dominated by questions about due process and habeas corpus, with the government invoking national security and wartime necessities as reasons for not giving the detainees traditional constitutional guarantees.