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Public Vs. Private In Cheney Fight

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, the Bush administration's top Supreme Court lawyer argued Tuesday.

"This is a case about the separation of powers," Solicitor General Theodore Olson told the justices at the start of lively arguments about privacy in White House policy-making.

The nearly three-year fight over access to records of Vice President Dick Cheney's work on a national energy strategy came to the high court after a federal judge ordered what Olson called a broad, unconstitutional release of White House documents.

The White House is framing 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. Environmental and other interest groups claim the records will show whether the energy industry got special access or favors.

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.

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

The legal issues in the case have been almost overshadowed by a political controversy involving Justice Antonin Scalia. He has refused to step down despite a controversy over a hunting trip he took with Cheney, an old friend, weeks after the high court agreed to hear Cheney's appeal.

Scalia took his seat behind the court's high bench as usual Tuesday, and almost immediately posed a hard question to the administration lawyer. Since the case concerns whether outsiders influenced the outcome of the task force's work, why not release voting records of the energy task force, Scalia asked.

Told that such a disclosure would raise privacy concerns, Scalia sounded skeptical.

"All I'm saying is, why would that be such an intrusion … just to know whether anybody who voted on any of the recommendations was a nongovernment employee?" he asked.

But later, Scalia fired question after question at Morrison, at one point telling him his arguments were implausible.

The high court is expected to rule by July. The case began in July 2001 when a government watchdog group sued over Cheney's private meetings. The case has never gone to trial, but a federal judge ordered the White House to begin turning over records two years ago.

The Bush administration has lost two rounds in federal court. If the Supreme Court makes it three, Cheney could have to reveal potentially embarrassing records just in time for the presidential election.

The case requires the court to clarify a federal open-government law.

Watchdog group Judicial Watch and the environmental group Sierra Club sued to get the task force papers. The Sierra Club accused the administration of shutting environmentalists out of the meetings while catering to energy industry executives and lobbyists.

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."

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

The Supreme Court also is known for private meetings.

"The court utilizes the process of confidential deliberation just as the executive branch does. Memos are drafted, deliberations occur and drafts of opinions are circulated — all behind closed doors," said Kris Kobach, a constitutional law professor at the University of Missouri-Kansas City. "In both branches, deliberation is more candid, honest and valuable if it sometimes is sheltered from public scrutiny."

Kobach is running for Congress as a Republican in Kansas' 3rd District.

Martin Shapiro, a Supreme Court expert at the University of California, Berkeley, said while the court engages in private consultation, "the justices are used to themselves making decisions on the basis of what they hear from two sides publicly."

Most of the talk among spectators who began lining up the night before was about Scalia, not the case.

"The big deal is Scalia," said 23-year-old law student Peter Stockburger of Austin, Texas. "It was dumb that he went on the hunting trip. It was stupid, but it wasn't illegal."

Scalia had said he did not discuss the case with Cheney when they flew together on a government jet to Louisiana for the duck hunt at a camp owned by an oil rig services executive.

"If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," Scalia wrote in rejecting the Sierra Club's request that he disqualify himself.

The National Energy Policy Development Group, chaired by Cheney, was formed by President Bush in January 2001 to develop a national energy policy. The task force 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 have 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.

Last year, the GAO 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.