Court Sidesteps Cheney Ruling

Dick Cheney, U.S. Vice President, appears at a fundraiser, Kansas City, Missouri, 12-12-03 AP

The Supreme Court refused Thursday to order the Bush administration to make public secret details of Vice President Dick Cheney's energy task force, but kept the case alive by sending it back to a lower court.

Justices said 7-2 that a lower court should consider whether a federal open government law could be used to get documents of the task force.

The decision extends the legal fight over the information. Justices could have allowed a judge to immediately move ahead with ordering the release of the papers.

"Special considerations applicable to the president and the vice president suggest that the courts should be sensitive to requests by the government" in such special appeals, Justice Anthony M. Kennedy wrote for the majority.

CBS News legal analyst Andrew Cohen says the decision "settles one narrow issue in favor of Cheney but there still are other legal avenues that can be used to get access to those records."

"You could tell from oral argument in the case in late April that many of the justices were skeptical about requiring the vice president to turn over the documents now in these circumstances," Cohen said. "If there is a silver lining for the folks trying to get that information it's that the case isn't yet over."

In a separate ruling, the court rejected arguments on behalf of more than 100 death row inmates who claimed they were wrongly sentenced.

Shortly after taking office, President Bush put Cheney, a former energy industry executive, in charge of the task force which, after a series of private meetings in 2001, produced recommendations generally friendly to industry.

The Sierra Club, a liberal environmental club, and Judicial Watch, a conservative legal group, sued. They argued that the public has a right to information about committees like Cheney's. The organizations contended that environmentalists were shut out of the meetings, while executives like former Enron Corp. Chairman Kenneth Lay were key task force players.

The Bush administration argued that privacy is important for candid White House discussions on difficult issues. The high court did not specifically address that question, however.

The case had become a potentially embarrassing election-year problem for the administration.

The issues in the case have been overshadowed by conflict-of-interest questions about one justice.

Justice Antonin Scalia had defiantly refused to step down from hearing the case involving Cheney, despite criticism that his impartiality has been brought into question because of a hunting vacation that he took with Cheney will the court was considering the vice president's appeal.

The White House framed the case as a major test of executive power, arguing that the forced disclosure of confidential records intrudes on a president's power to get truthful advice.

In April arguments before the high court, Solicitor General Theodore Olson told the justices that the Constitution gives presidents and vice presidents power to gather advice and make decisions without being forced to reveal every detail of how those decisions are made.

But environmental and other interest groups claim the records will show whether the energy industry got special access or favors.

During oral arguments, justices were told that former Enron chairman Ken Lay and others were players, but until the government produces records, it won't be clear if they actually drafted the government's policies.

"The question is what happened at those meetings," said Alan Morrison, the attorney for the Sierra Club.

Olson told the justices in court filings that no energy industry officials participated improperly in meetings.

In a signal of the importance of the case, the Supreme Court took the rare step of releasing an audiotape of the oral arguments, reports CBS News Correspondent Bob Fuss.

The National Energy Policy Development Group, chaired by Cheney, submitted its final report in May 2001.

The Cheney energy plan called for expanded oil and gas drilling on public land and easing regulatory barriers to building nuclear power plants. Among the proposals: drilling in the Arctic wildlife refuge and possibly reviving nuclear fuel reprocessing, which was abandoned in the 1970s as a nuclear proliferation threat.

The nonprofit groups suing to get the documents picked up a fight abandoned by the General Accounting Office, the investigatory arm of Congress.

In February 2003, GAO dropped a suit aiming to force Cheney to hand over the documents after a federal court indicated it did not wish to intervene in a dispute between two branches of government.

The GAO has said it was unable to determine how much the White House's energy policy was influenced by the oil industry because they were denied documents by Cheney.

Documents from the task force already handed over to Judicial Watch include maps of Middle Eastern countries — including Iraq — and catalogues of current oil exploration and extraction projects, including one document titled "Foreign Suitors for Iraqi Oilfield Contracts."

The 5-4 death penalty decision spares at least four states from having to decide whether to spend millions of dollars for new sentencing hearings or consent to prison sentences for the convicted killers.

It was issued on the two-year anniversary of the Supreme Court's ruling that the constitutional right to a trial by jury means that jurors should weigh factors that determine whether a particular killing merits death or life in prison. Justices said in the follow-up decision that the 2002 ruling does not apply retroactively.

The case involved the biggest death penalty issue of the court's term, which is expected to end next week. Next fall, justices will consider a broader subject, whether it is unconstitutional for states to execute people who committed their capital crimes when they were juveniles.

In Thursday's case, justices ruled against Arizona prisoner Warren Wesley Summerlin, sentenced to die more than 20 years ago by a judge who later lost his job because of a drug problem. Summerlin was convicted of raping and bludgeoning to death a bill collector who came to his house in 1981 to collect a payment for a piano.
  • Dan Collins

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