One of the first and, so far, longest running secrecy battles of the Bush Administration has been the effort of the President and Vice President to withhold from the public information about the membership of the National Energy Policy Development Group—more commonly known as the Cheney Energy Task Force. Headed by Vice President Cheney, the Energy Task Force was formed soon after President Bush took office, and issued its report on national energy policy in May 2001.
Critics of the Administration's energy policy have charged that representatives of the energy industry were given preferential access to the deliberations of the Task Force as compared to representatives of environmental groups, consumer advocates, and others whose agendas differed from those of Enron, Exxon and their ilk. Committees formed to advise the government on policy matters that include persons who are not government employees are required to comply with the Federal Advisory Committee Act (or "FACA"), which, among other things, requires balanced membership and open meetings. The Task Force seemingly had neither.
The Administration denied that the Task Force was subject to FACA, in part because, according to the White House, it had no members from outside the government. But the office of the Vice President and other federal agencies involved in the Task Force refused—even when requested by the General Accounting Office—to provide the documents concerning the Task Force's activities that would be necessary to resolve the issue. More broadly, President Bush and Vice President Cheney have asserted that the advice they received via the Task Force, both from executive branch employees and from outside lobbyists, is protected from disclosure to the public by executive privilege.
The Administration's position has not gone unchallenged. Judicial Watch, a right-wing government watchdog group that made its reputation by hounding the Clinton Administration, and the Sierra Club, a liberal environmental organization, brought lawsuits claiming that the withholding of information about the Task Force violates FACA. And the General Accounting Office, after months of hesitation, filed a lawsuit to enforce a subpoena it issued for information about the Task Force's activities.
In both cases, the Administration took hard-line positions. In the GAO suit, the Administration argued that the GAO, as a legislative branch agency that reports to Congress, has no standing to enforce its requests for information against the executive branch. And in the Judicial Watch/Sierra Club suit, the Administration has argued that it would violate executive privilege for the Vice President even to have to respond to the plaintiffs' discovery requests.
Unfortunately, the GAO lawsuit resulted in a stinging defeat for the GAO when a federal district court in Washington, D.C., accepted the Administration's argument that the GAO has no standing to bring a lawsuit to enforce a subpoena against anyone in the executive branch. The GAO, possibly influenced by the Republican congressional majority, has chosen not to appeal, leaving on the books a decision that may have a crippling effect on the GAO's power to assist Congress in overseeing executive branch activities.
In the Judicial Watch/Sierra Club suit, however, the tide has been running against the Administration—at least so far. In the summer of 2002, the district court denied the Administration's motion to dismiss the claims under FACA, and, later in the fall, it firmly rejected the Administration's contention that executive privilege excused the Vice President from even having to respond to the plaintiffs' discovery requests for the documents necessary to resolve the FACA issue. Although such rulings are normally not appealable, and the district court denied the government's request that it specially certify the case for appeal, the Administration has attempted to appeal anyway. Both the district court and the appellate court denied the government's motion for a stay of discovery pending the appeal, and the case was argued before the U.S. Court of Appeals for the D.C. Circuit in April 2003. The court of appeals panel was reportedly very skeptical of the Administration's position; an opinion is expected later this spring.
To see key rulings in the two cases, use the links below.(The documents are in pdf format and require Acrobat Reader for viewing.)