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High court may hear Cheney appeal

Energy case focuses on confidentiality, presidential powers

WASHINGTON -- The Bush administration's sustained campaign to build up the powers of the presidency and to extend the confidentiality of White House decision-making is due for a major test in the Supreme Court, possibly as early as today.

The justices appear ready to decide whether they will hear an appeal by Vice President Dick Cheney, who is defending his refusal to disclose files of the task force that he headed in developing the administration's energy policy, which is now stalled in Congress.

If the court grants a review, a final decision would be months away. The administration has raised the stakes on the preliminary decision by arguing that the case threatens "fundamental principles of the separation of powers" between the branches of government.

Because of the sweeping constitutional arguments being made, the case has the potential to sharply curtail the power of the courts and, by implication, Congress to oversee the workings of the executive branch.

The key argument is that the Constitution's separation of powers among the three branches means that the other two branches are without authority to second-guess the president when he and his staff are deciding how to use executive powers.

The position of the administration in the case parallels arguments against judicial interference in the president's handling of the war on terrorism, arguments being made with increasing frequency in court cases involving terrorist suspects or "enemy combatants."

The White House has been making similar arguments in a running battle over access to internal presidential papers that are being sought by the National Commission on Terrorist Attacks Upon the US, an independent body that is investigating the Sept. 11, 2001, attacks.

Cheney is not only the leading figure in the task-force dispute that is now ready for the Supreme Court's reaction. He also is the central officer of the administration waging the public campaign for greater presidential authority.

Early last year, he told a television talk show that in 34 years in Washington, "I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job." It is a theme he repeats often in public appearances, and that Justice Department lawyers regularly make in briefs filed in court.

In the energy task force case, those arguments have been losing for the past two years, as a federal judge and then a federal appeals court have ruled that courts may order at least limited inquiry into the decision-making process that the agency used.

Two private groups, Judicial Watch, a conservative legal advocacy organization, and the Sierra Club, an environmental protection group, have sued Cheney, Cabinet officers, and other government officers, seeking to force into the open the role that energy industry executives might have played in influencing administration policy.

So far, the case is nowhere near going to trial, because Cheney has steadfastly refused to acknowledge that the courts may order such an intrusion into the decision-making process. Although given a chance by the federal judge to cite specific documents that the White House could claim were shielded by "executive privilege," the administration has refused to assert that claim as to any document, standing on its view that it need not do so in order to maintain confidentiality.

In the past, challenges over the confidentiality of presidential documents have often been ended, or settled, after presidential assertions of executive privilege -- a broad confidentiality doctrine first outlined by the Supreme Court in 1974 in the White House tape recordings case during the Watergate scandal.

But Cheney and President Bush have refused to invoke that privilege in the energy policy case, saying the independence of the executive branch does not require it. Besides, Cheney has argued, the president should not be bothered with the task of going over each document sought and deciding whether to claim a privilege to withhold it.

Cheney's appeal insists that the task force's work involved only government officials giving advice to the president. But the case against him by Judicial Watch and the Sierra Club argues that industry executives served as influential advisers, too, and their lawsuit seeks documents to show who attended meetings and what role advisers played. US District Judge Emmet G. Sullivan has allowed the case to go forward, at least to the point of requiring the disclosure of some task force papers -- unless the government claims they are privileged.

Last week, Senate leaders decided not to press for final congressional action on the broad energy measure during the current session of Congress, because of the threat of a Democratic-led filibuster. The bill will be brought up again next month.

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