Show Congress The Paperwork, Vice-President Cheney
Ever present on the minds of those in Congress and groups like Judicial Watch, The Sierra Club, and the Natural Resources Defense Council is the question of who's writing the Bush administration's policy on energy? Is it the task force that President Bush appointed Vice President Dick Cheney to head or "big oil" special interest groups like the now bankrupt Enron?
On February 22, the General Accounting Office (GAO), the investigative arm of Congress that keeps an eye on the operations and spending of federal agencies, made an unprecedented move to find out with a suit filed against Vice President Cheney - Walker v. Cheney.
It is the lawsuit David Walker, head of the GAO and comptroller general of the United States had been promising since January 30th if Cheney did not hand over documents revealing the names, dates, locations, agendas, and costs associated with meetings Cheney's task force orchestrated in efforts to draft the Bush administration's energy policy. "Frankly, I don't cherish the fact of having to file a lawsuit," said Walker, "but I think it's reasonable for Congress to be able to know, and for the American people to be able to know, who met with whom, when, about what and how much it cost."
The documents disclosing this information are documents Cheney has been refusing to relinquish since May of 2001 when his report was first released, and Cheney calls his refusal a matter of principle.
The principle at stake? Executive Privilege. Cheney challenges the GAO's perspective that both Congress and the public have a right to know what special interest groups or lobbyists are influencing the president's public policy on the grounds that Congress's right to know erodes presidential authority. Cheney further suggests that the GAO's demands represent a threat to presidential powers that will hinder executive branch leaders' ability to seek legitimate outside counsel on public policy.
The White House fully supports the Vice President and warns that it will take the matter all the way to the Supreme Court if necessary. "The president will fight for this right in the court of law, and the White House expects to prevail because our case is strong. It's based on sound policy and the principle is on our side," said White House spokesperson Scott Stanzel. However, President Bush has yet to invoke the defense of executive privilege - the discretionary right of the president to keep secret the internal materials and procedures of the White House, a right the Supreme Court does recognize. The White House is expected first to argue that the 81-year old law that created the GAO gives this investigative arm no license to monitor the activities of task forces like the Cheney-headed National Energy Policy Development Group (NEPDG). The Bush administration may also argue that not even the courts have a right to force disclosure from the executive branch because that too would erode presidential powers.
Presidential authority would seem to be a right that Cheney is adamant about defending - a defense that the Bush administration has put at the very top of their agenda. Cheney said recently on ABC's This Week, "One of the things that I feel an obligation on, and I know the president does, too...is to pass on our offices in better shape than we found them. We are weaker today as an institution because of the unwise compromises that have been made over the last 30 or 35 years." Cheney's talk against compromise on this issue seems to compromise Bush's promise of an administration characterized by honesty. Why is this issue important enough to the Bush administration that they would risk appearing dishonest? Is it truly a matter of principle - a wish to restore respect for presidential privacy? Or is it simply an attempt to hide administrational wrongdoings and an obvious grip on U.S. energy policy by multinational oil companies?
Congress seems to suspect something closer to the latter - that the Bush administration has something to hide. There are specifically three concerns that cause Congress via the GAO to continue their assertion of a right to know over the White House overtures of presidential authority? Rep. Sherrod Brown of Ohio, a Democrat on the Energy and Commerce Health Subcommittee voices one concern regarding a pattern in the outside influence exerted over public policies, including not just the energy policy, but also the Prescription Drug Plan and the Patients Bill of Rights. Brown says, "There is a pattern here, and I think the president really does not want the public to know about the pattern."
Second is the concern that allowing the White House to prevail in keeping secret the requested documents would set a precedent that gives the White House license to hide all activities it doesn't want Congress or the public to know about under the guise of a Vice President-headed task force. This is certainly an important concern given the secrecy in which the Bush administration already shrouds its activities in the name of a War on Terror, and accusations of a shadow government absent of a system of checks and balances. "If all you've got to do is create a task force, assign people from different departments and agencies to staff it, put somebody in the West Wing in charge - whether it be Vice President Cheney, Tom Ridge or whoever it might be - and then say Congress can't do reasonable oversight, the GAO can't do a review, that's a huge loophole," said Walker.
Although perhaps the most worrisome concern involves possible special favors given to special interests groups such as Enron - especially Enron, a corporate giant who admits to unethical behavior that led to major financial losses for lower level company employees while executives of the company walked away richer than ever. The Houston Chronicle reports, "White House officials have [already] said the task force met with Enron executives at least six times last year, and officials acknowledge that a three-page memo [Ken] Lay gave to Cheney at one of those meetings resembles parts of Cheney's energy plan."
Is this something the American public needs to be concerned about given the recent cloud over Enron dealings? It's a question that can only be answered once the documents in question are released. And then there are the other questions that accompany the Bush administration's connection to Enron including: Is the Bush administration letting big business run the White House and are the top members of the Bush administration still too closely linked to large corporations who have special interest in government policy? Valid questions to ask since "the meetings [of this energy task force] and internal White House discussions led to proposals for oil drilling in the Alaskan wilderness, for offering tax incentives to build nuclear power plants, and for encouraging development of alternative energy sources (Stephen Koff of The Plain Dealer, 2002)."
So who's right in this battle between the executive and legislative branches of government? Cheney's argument regarding executive privilege and presidential authority certainly seems sound. And it is true that sometimes the public doesn't have a right to know, but isn't this only when national security is at stake? Is that the case now? It doesn't seem to be. The worry that the Bush administration may be trying to hide unethical and perhaps illegal behavior in regards to their connections to big business seems to supercede presidential authority in this case. Did the Bush administration write an energy policy that benefits the likes of Enron? This is a question that needs to be answered. Thus, it would seem Congress occupies the moral high ground on this issue. It would also stand to reason that if the Bush administration has acted above board then they would want to release the documents in question to leave no doubts in anyone's mind. Furthermore, in regards to Cheney's arguing executive privilege, does it really extend to all the members who participated on the energy task force?
Many argue it does not, since there is no precedent that says it would.
However, the issue of who is right and who is wrong in this constitutional struggle between the legislative and executive branches may not matter as the rulings in other court cases testing the secrecy of these task force documents come to a head. It seems the GAO has had to stand in line in the mad dash to get a look at the secret energy documents. While Judicial Watch, a conservative legal advocacy group still has a case pending against the Energy Department in regards to documents very similar to the ones sought by the GAO, the Natural Resources Defense Council, an environmental group, has already received a favorable ruling against the Energy Department in its lawsuit that orders the agency to hand over any and all records pertaining to the Bush administration's energy policy. U.S. District Court Judge Gladys Kessler agreed that the Natural Resources Defense Council had a right to know under the Freedom of Information Act, calling the information sought "of extraordinary public interest." In her decision, Kessler ordered the Energy Department to produce the majority of documents by March 25th and the rest by April 10th.
This is a ruling that will surely help decide the Walker v. Cheney case, since the Natural Resources Defense Council won without the Congressional authority that the GAO claims. Although the GAO's suit is a harder claim to win since it seeks documents the Energy Department would not have - documents that only Vice President Cheney would. Also, the White House is not subject to the Freedom of Information Act.
So, why doesn't the White House just turn over the requested documents? Are they guilty of something? Who knows? But the idea of an anonymous task force immune from Congressional review looks like a slippery slope to a day where the narrow interests of "powers behind the throne" rule the day. If Vice-President Cheney is really concerned about future damage done to the executive branch of government, he should discontinue his obfuscation over the matter, which in and of itself, raises more suspicion than it produces confidence in government.
The further the Vice-Presdent goes in keeping documentation from seeing the light of day, the more this Bush administration looks like the previous administration which Republicans excoriated for the mere appearance of impropriety. Interestingly, it has been the Bush administration that has approved the release - to congressional investigators - of transcripts of private White House conversations involving President Clinton. In the Bush administration's preventing access to the task force papers, some see little difference between this administration and the previous one.
Already, some of the Clinton administration's worst enemies are recognizing a similarity. Larry Klayman of Judicial Watch has put it best, "Cheney...is playing the same game that the Clinton administration played: Let's delay as long as possible and by the time we have to produce anything, maybe the public won't care about Enron any more."
While the Vice- President styles his defense differently, to us, it looks like politics as usual. If Mr. Cheney truly wants to hand the reigns of power over to future generations stronger than when he received and held them, he should participate in a full disclosure, rather than engaging us all in a superficially plausible but disingenuous argument.
Monday, March 11, 2002