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For Immediate Release
Thursday June 24, 2004
Contact: Meredith Fuchs 202-994-7059
Tom Blanton 202-994-7068

Supreme Court Refuses to Approve the Immunity
from Discovery Sought by Vice President Cheney

Washington D.C., June 24, 2004 - The United States Supreme Court today remanded to the D.C. Circuit Court of Appeals a case concerning the application of a federal open government law to the Energy Task Force chaired by Vice President Cheney in 2001.

"Although today's decision permits the Vice President to continue to delay release of details about who wrote the nation's energy policy, the Supreme Court refused to accept the radical argument voiced by his lawyers that the Administration is free from any inquiry into how it conducts its affairs," explained Meredith Fuchs, the Archive's General Counsel.

In 2001, President Bush established an advisory committee on energy policy, and appointed Vice President Cheney chairman of the committee. After the committee made its recommendations, the Sierra Club and Judicial Watch filed suit arguing that the advisory committee violated the Federal Advisory Committee Act (FACA) and that the committee should release its documents to the public. Vice President Cheney has argued that the committee is not required to disclose who participated in its meetings. The National Security Archive, along with a coalition of organizations, filed an amicus curiae brief in the Supreme Court in support of the Sierra Club and Judicial Watch's position. The joint statement of the coalition is reproduced below.

Contact: Herb Ettel or Robert Shull, OMB Watch
202-234-8494 ext. 207 or 280 ettelh@ombwatch.org
www.OpenTheGovernment.org and www.ombwatch.org

Supreme Court Denies Cheney's Bid to Avoid Discovery in Energy Task Force Decision

Statement from Organizations Which Jointly Filed an Amicus Brief
Supporting the Suit Brought by Sierra Club and Judicial Watch

While it is disappointing that the Supreme Court declined to take this opportunity to embrace the principle of openness in Cheney v. United States District Court, it is heartening that the Court did not side with the administration, and instead remanded the case to the lower court.

In short, we are pleased the Court made these choices:

It declined to address the argument raised by the Vice President that his office is categorically exempt from discovery. As Justice Ginsburg's dissent observed, the Vice President had argued before the district court that the injury is submitting to discovery in the absence of a compelling showing of need and, throughout the underlying litigation, underscored its resistance to any and all discovery. Although the majority did emphasize that the court of appeals should have weighed the burden of discovery on the executive branch's constitutional prerogatives, it declined to endorse the radical position of the Vice President that his office could claim a blanket freedom from disclosure.

Instead of exempting the Vice President from discovery altogether, it identified a number of factors -- the nature of the case, the breadth of the discovery sought and the narrowness of the legal question to which the discovery would be relevant -- that suggest a role for the district court in narrowing discovery from the Vice President. Although this choice effectively delays resolution of the matter, it also avoids the worst possible outcome -- allowing the Vice President to continue operating in secret. Instead the court went out of its way to encourage the lower courts to consider the possibility of narrowing the scope of discovery.

Although we still look forward to a decision that allows the public to know what industry interests participated in important policy decisions, we are pleased that the Supreme Court declined to endorse the administration's preference for secrecy.

Signed by the following organizations, which signed onto the Amicus Brief:

Mary Alice Baish, American Association of Law Libraries
Patrice McDermott, American Library Association
John Podesta, Center for American Progress
Celia Wexler, Common Cause
Meredith Fuchs, National Security Archive
Gary D. Bass, OMB Watch
Rick Blum, OpenTheGovernment.org
Elliot Mincberg, People for the American Way
Tim Ericson, Society of American Archivists
Doug Newcomb, Special Libraries Association

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