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Bush Administration Will Argue For Secrecy in Cheney Case

by TChris

The Bush administration is hostile to traditional notions of oversight and accountability. TalkLeft has called attention -- most recently, here, here and here -- to the administration's efforts to persuade the Supreme Court that it should be able to detain both citizens and non-citizens indefinitely, without access to courts or lawyers and without judicial oversight, so long as the President thinks it is in the interest of national security to do so.

On Tuesday, the administration will again appear before the Supreme Court to argue against oversight -- this time, against both Congressional and judicial oversight of its duty to disclose the identities of persons outside the government who advised Dick Cheney's energy task force in 2001. The administration claims the Federal Advisory Committee Act that requires such discloslures doesn't apply to Cheney's task force, but argues that even if the law applies, it unconstitutionally intereferes with the President's ability to formulate proposed legislation.

So much for checks and balances. As those arguing against the administration point out, requiring an administration to disclose its outside advisors promotes open government -- a goal that might interfere with a desire for secrecy, but that doesn't inhibit the President's ability to craft legislative proposals.

The administration's opponents say the breadth of this argument calls into question long-settled assumptions about the ability of both Congress and the courts to conduct the necessary oversight of executive branch activities and ensure openness in government. "It is an extraordinary assertion of executive power and privilege," Thomas Fitton, president of Judicial Watch, one of the two plaintiffs in the lawsuit, said this week at a symposium on the case sponsored by the Federalist Society, the conservative legal policy organization.

The Federal Advisory Committee Act requires advisory committees to hold their meetings in public and to make their records publicly available. The Act doesn't apply to advisory groups that consist wholly of government employees, and Cheney maintains that his task force consisted solely of federal officials.

But in 1993, ruling in a suit seeking access to information about Hillary Rodham Clinton's health care task force, the federal appeals court here held that private citizens, through close participation, could be deemed "de facto members" of a committee and bring the committee within the law's coverage.

Judicial Watch and the Sierra Club believe that outsiders did, in fact, participate closely in Cheney's task force. They sued to find out, and the district court allowed them to take limited discovery to determine who participated in formulating the 150 recommendations that the task force made with regard to energy policy. The administration doesn't want to say who may have influenced those recommendations, and its argument, if accepted, would essentially prevent Congress from learning who outside of the government is influencing any of the federal committees that advise the President.

Judicial Watch calls the adminstration's argument a "startling bid for effective immunity from judicial process." Immunity from oversight and accountability is this administration's desire, both in this case and in the detention cases. The Supreme Court may start to wonder whether the Bush administration believes that the notion of checks and balances that underlies the Constitution applies to the executive branch of government at all.

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