Scalia Shows His Cards

By David Sirota and Christy Harvey and Judd Legum, The Progress Report. Posted April 28, 2004.

In a last ditch effort to keep the American people in the dark, Solicitor General Theodore Olson argued before the Supreme Court that the activities of Vice President Cheney's 2001 energy task force should remain completely secret. The argument has already been rejected by two federal courts. To avoid making even the most preliminary disclosures, the vice president has had to defy an explicit court order.

At issue is a relatively obscure 1972 law, the Federal Advisory Committee Act, which requires government advisory committees that have members from outside the government to meet in public. Although no formal members of Cheney's energy task force were from outside government, a 1993 federal appeals court ruling -- stemming from efforts by conservatives to learn the details of then first lady Hillary Clinton's health care task force -- found that outsiders who play an active role should be considered members. It is already well-known that former Enron CEO Ken Lay and other energy industry executives were involved in shaping the nation's energy policy through the task force. But Dick Cheney doesn't believe the American people have the right to know the extent of their involvement. See the amicu s brief American Progress filed with the Supreme Court about this case.

Particularly receptive to Cheney's arguments: long-time friend and duck hunting partner Justice Antonin Scalia. After flying on Cheney's government jet to a private Louisiana retreat in January, Scalia insisted that "his friendship with Cheney did not effect his ability to impartially decide the legal issue before the court." Specifically, Scalia claims his friendship with Cheney is irrelevant because "nothing the court says on those subjects will have any bearing upon the reputation and the integrity of Richard Cheney." Yet, during yesterday's argument Scalia "left little doubt that he agreed with the Bush administration's argument." At one point during the argument Scalia said "I'm asking whether they were members of the committee, and the answer has to be no." Scalia elaborated that the notion a private individual should be considered a member of the panel regardless of that person's formal designation was "not plausible."

Many have suggested the administration has devoted significant taxpayer resources to withhold information from the American people, hoping to avoid " a major embarrassment for the president" by revealing how he allowed energy executives to write the nation's energy policy. But Paul Krugman suggests an even more frightening motivation: "the administration is really taking a stand on principle." The case is indicative of the "administration's deep belief that it has the right to act as it pleases, and that the public has no right to know what it's doing." The arguments presented in yesterday's case were "'strikingly similar' to those [the administration] makes for its right to detain, without trial, anyone it deems an enemy combatant."

However the Supreme Court rules, it is clear that the national energy policy produced by the vice president has the fingerprints of industry executives all over it. First, the task force recommends opening up the nation's treasured Arctic National Wildlife Refuge to oil drilling and examining "the potential for the regulated increase in oil and natural gas development on other federal lands." Another revolutionary idea: more coal power plants. The task force notes "the U.S. has enough coal to last for another 250 years. Yet very few coal-powered electric plants are now under construction." Meanwhile, the task force cautions "the day [renewable energy sources] fulfills the bulk of our needs is still years away."

Visit the The Center for American Progress.

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