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Court backs Cheney on energy meetings

Details on private strategy sessions to remain as such

WASHINGTON -- A federal appeals court ruled yesterday that Vice President Dick Cheney will not have to release details about the role of energy executives in private meetings Cheney held to craft national energy strategies, a decision that probably brings an end to a long-running and politically charged lawsuit.

The Circuit Court of Appeals for the District of Columbia unanimously ruled that there was no evidence that energy lobbyists were official participants in Cheney's private energy policy task force meetings, so its records do not have to be disclosed.

''In making decisions on personnel and policy, and in formulating legislative proposals, the president must be free to seek confidential information from many sources, both inside the government and outside," the court wrote.

The decision, which the anticorruption group Judicial Watch called a ''defeat for open government," means that the judicial branch will avoid the political nightmare of ordering the executive branch to produce records against its will. If that order had come, Cheney had vowed to invoke executive privilege, creating a constitutional separation-of-powers battle.

Although the plaintiffs, Judicial Watch and the environmentalist group Sierra Club, could appeal, further litigation appears unlikely. In an earlier phase of the case last June, the Supreme Court voted 7-2 in favor of Cheney. Two appeals court judges who had sided against Cheney in the earlier phase voted in his favor this time.

''The Supreme Court's decision obviously changed the landscape," said Sanjay Narayan, a lawyer for the Sierra Club.

Cheney's task force called for helping the oil, coal, and nuclear industries increase energy supplies by subsidizing them with tax breaks, opening more public lands for drilling, and relaxing air pollution standards at power plants.

Judicial Watch and the Sierra Club sued to open the records of the task force's meetings, saying that the regular participation of energy executives had made them de facto members of the advisory committee.

Under a 1972 law, the White House is allowed to keep policy meetings secret if only government officials are involved. But if private sector advisors participate, such task forces must work in public. A similar lawsuit in 1993 forced the Clinton administration to disclose the meeting records of Hillary Rodham Clinton's health care task force.

A lower court judge ordered Cheney to turn over enough records to establish the extent of energy executive participation. But Cheney appealed to the Supreme Court last year, declaring that the president needed to preserve the right to receive confidential advice.

The case attracted further attention after the Sierra Club asked Supreme Court Justice Antonin Scalia to recuse himself because he and Cheney had gone duck hunting together on a trip hosted by the owner of an oil rig servicing company. Scalia refused, then voted in Cheney's favor.

After the Supreme Court ruled that Cheney did not have to release the preliminary records, a Cheney aide provided an affidavit swearing that outside participants only provided ''stakeholder" input and did not vote on any recommendations.

Yesterday, the appeals court ruled that because the energy executives and lobbyists had not voted on policy, the task force comprised only government officials and its work was not subject to public disclosure.

A spokeswoman for Cheney, Jennifer Mayfield, said the vice president was pleased. ''The court's decision, like the earlier Supreme Court decision in the case, will help preserve the confidentiality of internal deliberations among the president and his senior advisers that the constitution protects as essential to wise and informed decision-making," Mayfield said.

But Chris Farrell of Judicial Watch said the decision was a blow to open government. The ruling, he said, fits the ''trend" of increasing secrecy and ''stonewalling" in the Bush administration.

And Narayan said that the ruling -- which for the first time defined ''participation" in an advisory committee as meaning having the power to veto or vote -- undermines the law's intent. ''The bottom line of this decision is it returns us to a world where industry can dominate the public process and the public is being left in the cold, and this energy policy is the best example of what happens when that occurs," he said.

Judicial Watch also filed a separate lawsuit under the Freedom of Information Act against non-White House participants in the task force. Several Commerce Department records it obtained showed that the task force had developed a map of Iraq's oil fields and oil companies with Iraqi drilling rights in March 2001, two years before the war.

Some task force proposals have been implemented through regulations. Others, such as opening the Arctic National Wildlife Refuge for drilling, require congressional approval, and are contained in an energy bill pending in the Senate.

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