Dick Cheney- Corporate Criminal
Details the myriad illegal, immoral, and unethical activities of Dick Cheney when CEO of Halliburton, his obstruction of justice, and lies to the American public since his appointment as Vice President. For information on an equally corrupt politician, see link to Tom DeLay-Corporate Whore. Be sure to visit our cavernous vault of archives.
Testimony expected to detail Halliburton's alleged profiteering
By Robert O'Harrow Jr., Washington Post July 22, 2004
WASHINGTON -- In the spring of 2003, not long after John Mancini arrived in Kuwait City as a procurement employee for Halliburton Co., he came to an unsettling conclusion: No one cared about his skill at buying goods and making sure government money was wisely spent.
Over the next three months, Mancini said in a recent interview, he watched as colleagues at Halliburton subsidiary KBR paid inflated fees for cellphone services, bought hundreds of rolls of duct tape for $60 each, and obscured the waste by failing to file paperwork properly. In one case, he said, a fellow procurement employee recorded a multimillion-dollar purchase as a $200 order, then dismissed it as a mistake.
After he and others raised questions, Mancini said, the company sent in a team to prepare for government audits. "The waste was unbelievable," said Mancini, who left KBR after three months. "This was pure negligence."
Stories like Mancini's will be the focus of a hearing today by the House Committee on Government Reform, as it examines allegations of waste, abuse, and profiteering related to the Army's contracts in Iraq with Halliburton, the oil services company that Dick Cheney ran from 1995 to 2000, before he was vice president.
Halliburton spokeswoman Wendy Hall said that she did not know the particulars of Mancini's allegations, but that the company would look into them.
Mancini is not scheduled to testify, but the committee will hear from several KBR executives. Halliburton officials have acknowledged some misspending in Iraq, including $6 million in overcharges the company repaid, but have said repeatedly that the company is doing a good job overall.
"KBR is pleased to have the opportunity to appear before the Committee . . . so we may describe our efforts in Iraq to support our troops in a very difficult, demanding, and dangerous mission," Hall wrote in an e-mail. "We recognize that any effort like this demands oversight."
The hearing is shaping up as a political sparring match over Halliburton because of the Cheney connection. The minority Democrats, led by Henry Waxman of California, pressured Republicans leaders to allow whistle-blowers to testify, in part to promote the company as an election year issue.
Committee chairman Thomas Davis III, Republican of Virginia, said "the so-called whistle-blowers" simply misunderstood the logistical reality of life during wartime. He said he was giving the Democrats an opportunity "to put up or shut up" on an issue that would not go away.
"They're taking a series of anecdotes and trying to turn them into some kind of scandal," Davis said in an interview yesterday.
Under a wide-ranging contract called LogCAP, Halliburton furnished the Army with logistical support throughout the Middle East. It was guaranteed a certain level of profit and could pass on all costs to the government, with the assumption that it would operate efficiently. Halliburton has been awarded work in Iraq worth about $5.6 billion through May, according to a report by the Government Accountability Office.
Scheduled to testify are several former employees interviewed earlier by Waxman's staff. One told of filling out time cards saying he worked 12-hour days, seven days a week, even though he put in no more than a week's worth of labor. Another said the company removed spare tires from new Mercedes and Volvo trucks, then abandoned one that had a flat tire.
Halliburton Subpoenaed Over Unit's Iran Work
Mon Jul 19, 2004 08:06 PM ET
By Matt Daily
HOUSTON (Reuters) - A U.S. grand jury issued a subpoena to Halliburton Co. seeking information about its Cayman Islands unit's work in Iran, where it is illegal for U.S. companies to operate, Halliburton said on Monday.
The oilfield services company, formerly headed by Vice President Dick Cheney, said it understood that the investigation of its subsidiary's work in Iran had been transferred to the U.S. Department of Justice from the Treasury Department, which first initiated an inquiry in 2001.
"In July 2004, Halliburton received from an Assistant U.S. Attorney for the Southern District of Texas a grand jury subpoena requesting the production of documents. We intend to cooperate with the government's investigation," Halliburton said in a filing to the U.S. Securities and Exchange Commission.
Halliburton said it had previously replied to requests for information from the Treasury Department's Office of Foreign Assets Control in 2001 and again in January 2004.
The U.S. Attorney's office in Houston declined to comment.
Halliburton's engineering and construction unit KBR, formerly called Kellogg Brown & Root, is also the subject of U.S. Justice Department and SEC investigations for possible overcharges for fuel and food service contracts in Iraq, where it is the largest contractor, holding contracts that could eventually be worth $18 billion.
Halliburton said it would comply with the subpoena, and reiterated it believed its links to Iran through the Cayman Islands unit were in compliance with applicable laws and regulations.
"It is important to understand, especially in the current political environment, that this is not a condemnation of the company, but a method of further studying the facts. We welcome a thorough review of any and all of the company's business," Halliburton spokeswoman Wendy Hall said in an e-mail.
The company said in its annual report that revenues from its subsidiary's business in Iran amounted to about $80 million, or one-half of 1 percent of total revenues of $16.3 billion in 2003.
In a report issued in October 2003 in response to shareholder complaints about its Iranian links, Halliburton said that it was not illegal for U.S. companies' independent foreign subsidiaries to conduct business in Iran, and that it had taken steps to isolate its U.S. operations and managers from its work there.
U.S. Senator Frank Lautenberg, a Democrat, said the probe into possible sanctions violations should address the role of the Republican vice president.
"The question must be asked: did this possible violation occur between 1995 and 2000 while Dick Cheney was the CEO of Halliburton?" Lautenberg said in a statement released by his office.
Halliburton said its Cayman Islands subsidiary, Halliburton Products & Services Limited, has its headquarters in Dubai and is active only in Iran, where it provides a range of services to the state-run Iranian National Oil Company (NIOC).
Members of Lautenberg's staff said his office has passed to the Treasury Department some documents that had been sent by NIOC's British arm, Kala, to Halliburton's subsidiary in 1997 and 1998 seeking bids for oil services work in Iran.
In addition to that subsidiary, Halliburton has three British-based units and a Swedish-based unit that conduct business with Iran, the company said.
The United States first imposed economic sanctions against Iran in 1979 after the Islamic revolution when student fundamentalists held 52 American hostages for 444 days. Those sanctions were tightened under Presidents Ronald Reagan and Bill Clinton, although some exemptions were granted in 2000.
President Bush has included Iran in the "Axis of Evil" for its support of "terrorist" organizations.
Criminal violations for corporations in violation of the sanctions can range up to $500,000, with penalties for individuals of up to $250,000 and 10 years in jail.
U.S. INTELLIGENCE ON IRAQ: He just won't let it goBy Eric Mink
Of the Post-Dispatch
Post-Dispatch columnist Eric Mink
Vice President Dick Cheney's claims that Saddam Hussein and al-Qaida worked together are getting bizarre.
Late last week, yet another august body - this time the Senate Select Committee on Intelligence - issued yet another massive report again confirming that the U.S. intelligence establishment got just about everything wrong when it came to Saddam Hussein's nonexistent biological, chemical and nuclear weapons.
But buried deep in the Senate report - little noticed and even less remarked upon - is something important that the committee credits the intelligence community for getting right. And it puts the torch to whatever flimsy tissue of credibility the Bush administration had left:
With respect to contacts between Iraq and al-Qaida during the 1990s, the committee found that the CIA "reasonably assessed . . . that these contacts did not add up to an established formal relationship." With respect to al-Qaida attacks against the United States, the committee found that the CIA came to a reasonable and objective conclusion that "to date there was no evidence proving Iraqi complicity or assistance."
And with respect to who knew what when, the committee determined that the above CIA judgments "were widely disseminated, though an early version of a key CIA assessment was disseminated only to a limited list of cabinet members and some subcabinet officials in the Administration," the report said.
In other words, Bush and his top officials knew very early on - earlier than Congress and the public - that there was very little justification for claims of any meaningful relationship between Iraq and al-Qaida.
They made the claims anyway - too many times to count - and they've continued to make them.
Indeed last month, the Bush administration unleashed its principal attack dog, Vice President Dick Cheney, when new staff reports for the independent 9/11 commission said essentially the same thing the intelligence committee said last week. The commission report said that contacts between Iraq and al-Qaida during the 1990s "do not appear to have resulted in a collaborative relationship." And it said there was "no credible evidence that Iraq and al-Qaida cooperated on attacks against the United States."
Cheney launched an offensive against the report, couching it as dissatisfaction with what he called "outrageous" press coverage that sowed confusion.
But it was Cheney who spread misinformation in his key interview at the time, a June 17 exchange with correspondent Gloria Borger on CNBC's "Capital Report": Borger asked Cheney about the claim - debunked by the commission report - that 9/11 hijacker Mohamed Atta met with an Iraqi intelligence official in Prague in April 2001. "You have said in the past," Borger pointed out, "that it was 'pretty well confirmed.' " "No, I never said that," Cheney snapped back. "I never said that. Absolutely not." Yes, he did. On Dec. 9, 2001, Cheney appeared on NBC's "Meet the Press" and told host Tim Russert, "It's been pretty well confirmed that he (Atta) did go to Prague and he did meet with a senior official of the Iraqi intelligence service." Borger pursued the issue of the Prague meeting. "This report says it didn't happen," she said to Cheney. "No," Cheney replied. "This report says they haven't found any evidence."
Borger was right. "Staff Statement No. 16," released June 16, says that after examining all available evidence, "we do not believe that such a meeting occurred." Cheney also insisted that the commission's staff report discussed Iraq and al-Qaida only in the context of the 2001 attacks on New York and Washington and "did not address the broader question of a relationship between Iraq and al-Qaida in other areas, in other ways."
Cheney was wrong. "Staff Statement No. 15," also released June 16, is a detailed review of the history of al-Qaida, including its relationships with various countries - separate and distinct from the Sept. 11, 2001, attacks. It found evidence that al-Qaida had definite relationships over time with Sudan and Afghanistan but not with Saddam's Iraq.
Cheney then reversed himself: He acknowledged that the report concluded there was no broad relationship between Iraq and al-Qaida but said he disagreed with that judgment. "Do you know some things that the commission does not know?" Borger asked. "Probably," Cheney replied.
The next day, the chairman and vice chairman of the commission - Republican Tom Kean and Democrat Lee Hamilton, respectively - asked that Cheney provide the commission with that additional information. He provided nothing.
After waiting nearly three weeks, Kean and Hamilton issued a restrained put-down: "The 9/11 commission believes," said a one-sentence statement dated July 6, "it has access to the same information the vice president has seen regarding contacts between al-Qaida and Iraq prior to the 9/11 attacks."
Over the past two and a half years, no one in the Bush administration has been more strident than Cheney in citing a meaningful relationship between al-Qaida and Saddam's Iraq as a justification for going to war, particularly as the WMD rationale evaporated.
The limited-in-scope Senate Intelligence Committee report - on top of last month's 9/11 commission staff reports - now renders those claims meaningless. Given the intelligence committee's additional finding that the administration has long known that the assertions were flimsy at best, it's impossible to say whether Cheney and the administration have continued to proclaim them out of desperation, deception or self-delusion. But there's certainly no longer any reason to pay attention to them.
Hear the Rumor on Cheney? Capital Buzzes, Denials Aside
By ELISABETH BUMILLER
Published: July 15, 2004
WASHINGTON, July 14 - In the annals of Washington conspiracy theories, the latest one, about Vice President Dick Cheney's future on the Republican ticket, is as ingenious as it is far-fetched. But that has not stopped it from racing through Republican and Democratic circles like the latest low-carb diet.
The newest theory - advanced privately by prominent Democrats, including members of Congress - holds that Mr. Cheney recently dismissed his personal doctor so that he could see a new one, who will conveniently tell him in August that his heart problems make him unfit to run with Mr. Bush. The dismissed physician, Dr. Gary Malakoff, who four years ago declared that Mr. Cheney was "up to the task of the most sensitive public office" despite a history of heart disease, was dropped from Mr. Cheney's medical team because of an addiction to prescription drugs.
"I don't know where they get all these conspiracy theories," said Matthew Dowd, the Bush campaign's chief strategist, who has heard them all. "It's inside-the-Beltway coffee talk, is all it is."
It may be inside the Beltway, but in recent days the Washington summer clamor about dropping Mr. Cheney has so greatly intensified that Mr. Cheney himself was forced to address it on Wednesday. Asked in a C-Span interview if he could envision any circumstances under which he would step aside, Mr. Cheney replied: "Well, no, I can't. If I thought that were appropriate, I certainly would."
In the interview, to be broadcast Sunday, Mr. Cheney also said that Mr. Bush "has made very clear he doesn't want to break up the team," but that chatter of his stepping down was to be expected.
"I suppose right now, because we're in the run-up to the convention, people don't have much to talk about so you get speculation on that," he said. "It's normal. When we get to the convention, I think that'll put an end to that." Who would replace Mr. Cheney has nonetheless became a favorite Washington guessing game, with the names of Secretary of State Colin L. Powell and Senator John McCain of Arizona whispered about the most. Never mind that neither has a particularly cordial relationship with Mr. Bush, and that neither has expressed interest in the job. Other names that keep popping up include Condoleezza Rice, the national security adviser, and Bill Frist, the Senate majority leader.
There is also something of an under-the-radar campaign among Republicans promoting their friends for a job that may never come open. As an example, boosters of Rudolph W. Giuliani, the former mayor of New York, have long tried to toss his name in the mix, despite the fact that friends of the president say he would never pick Mr. Giuliani.
The rumblings about Mr. Cheney are similar to those that plagued Vice President Dan Quayle in 1992, when Secretary of State James A. Baker III led efforts to push Mr. Quayle off the ticket. But the reasons are different.
Mr. Quayle was seen as a bumbler who could not spell "potato," making him an easy target for Bill Clinton's campaign. Mr. Cheney, who has suffered four heart attacks, has faced persistent questions about his powerful role in promoting the war in Iraq and insisting that Saddam Hussein had unconventional weapons.
But like Mr. Quayle, Mr. Cheney suffers from low approval ratings. Last month, a New York Times/CBS News poll found that 21 percent of voters had a favorable impression of Mr. Cheney, compared with 39 percent for Mr. Bush.
Democrats, as part of their campaign to discredit the competition, are energetically promoting the idea that Mr. Cheney is a drag on the ticket. But none of them are suggesting that Mr. Bush should drop him.
"He has come to be a polarizing figure who repels voters," said Tad Devine, a senior adviser to Senator John Kerry. But asked if that did not make Mr. Cheney a dream candidate to run against, Mr. Devine demurred. "I'm not going to lob one in that direction," he said. "I don't want to be the Kerry guy who says 'We want Cheney.' "
Republicans close to the Bush campaign say that the Democrats are using Mr. Cheney as a powerful way to attack Mr. Bush and undermine the White House. "When the Democrats attacked Dan Quayle, it didn't matter a lot," said Vin Weber, a former congressman who is the Bush campaign's chairman for the upper Midwest. "Nobody thought Dan Quayle was the president's most trusted adviser, with broad responsibilities. But Democrats understand that when you go after this vice president, you really go after the administration.''
But even some Republicans are now questioning whether Mr. Cheney should stay on the ticket. As one House Republican said, conspiratorially, outside the House chamber this week, "Watch Cheney." Another Republican member of Congress said that Mr. Cheney was increasingly viewed as a political liability.
"I don't think you fix the problem by changing the No. 2 horse, but Bush is facing so much heavy baggage going into November, he's going to have to throw some of that baggage off," said the Republican, who insisted on anonymity because of the sensitivity of the issue.
One recent contribution to the buzz about Mr. Cheney came Tuesday in a column by Charlie Cook, the editor of the nonpartisan Cook Political Report. "Stipulating that dumping a totally loyal, integral part of his inner circle is something that is absolutely not in George W. Bush's DNA, losing with plenty of notice does not appear to be part of his genetic makeup either," Mr. Cook wrote. He concluded that in an election year as close as this one, "the president badly needs something to shake this race up, and I can think of just one thing. Cheney may need to watch his back."
Mr. Cook's column came less than a week after Alfonse M. D'Amato, the once-influential Republican senator from New York, said on the cable station NY1 that Mr. Bush should replace Mr. Cheney with Mr. Powell or Mr. McCain. Mr. D'Amato's motives have stirred speculation among New Yorkers, although some who know him well said that getting attention might have been primary among them. An assistant in Mr. D'Amato's office said Wednesday that he would have no further comment on the matter.
Representative Peter T. King, Republican of New York, said that Mr. D'Amato's comments had not thrown the White House into any evident frenzy. As Mr. King recounted it, he was recently at the White House with another member of Congress and had a brief conversation with Mr. Bush. The other member of Congress mentioned Mr. D'Amato's comments to Mr. Bush, Mr. King said, and Mr. Bush laughed.
"He didn't seem concerned or angry," Mr. King said. "And then I said that Al is getting married on Sunday and he's got other things on his mind." Mr. Bush responded, Mr. King said, by saying, "Tell him the president wishes him well on his wedding day."
Former Enron Chief’s Indictment Raises More Questions About Energy Task Force
Judicial Watch Urges Bush Administration To Release Documents From Vice President’s Energy Task Force
(Washington, D.C.) Judicial Watch, the public interest group that investigates and prosecutes government corruption, again called on the Bush administration to release documents from the Energy Task Force in the wake of today’s indictment of former Enron chief Ken Lay on criminal charges related to the collapse of the energy company.
The White House has admitted that Mr. Lay met with Vice President Cheney and the Energy Task Force at least six times in 2001. After learning about those meetings and about the participation in task force deliberations of other energy company officials, Judicial Watch requested access to and documents from the meetings under the Federal Advisory Committee Act (“open meetings” law). When it was denied, Judicial Watch brought a lawsuit against the Vice President and the task force to extract information about the meetings.
A U.S. District Court ordered the Bush administration to turn over task force documents, or assert executive privilege. The administration appealed the case to the U.S. Supreme Court, which in June ruled that the U.S. Court of Appeals for the District of Columbia Circuit should determine whether the federal open meetings law can be used to obtain records and information from the Energy Task Force.
“The criminal indictment of Ken Lay raises more questions about the nature of the Energy Task Force meetings and about the Bush administration’s extraordinary legal efforts to prevent the release of information about meetings with Mr. Lay and others,” said Judicial Watch President Tom Fitton. “Mr. Lay is under indictment, and the Bush administration is stonewalling inquiries into its contacts with him. What is the Bush administration hiding about Ken Lay?”
Cheney Had No New Data on Saddam, Al Qaeda-Panel
Tue Jul 6, 7:27 PM ET
By David Morgan
WASHINGTON (Reuters) - The Sept. 11 commission, which reported no evidence of collaborative links between Iraq (news - web sites) and al Qaeda, said on Tuesday that Vice President Dick Cheney (news - web sites) had no more information than commission investigators to support his later assertions to the contrary.
The 10-member bipartisan panel investigating the 2001 attacks on New York and Washington said it reached its conclusion after reviewing available transcripts of Cheney's public remarks on the subject.
The vice president has asserted long-standing links between the former Iraqi president and Osama Bin Laden's Islamist militant network.
"The 9-11 Commission believes it has access to the same information the vice president has seen regarding contacts between al Qaeda and Iraq prior to the 9-11 attacks," the commission said in a statement.
The vice president's office had no immediate comment. Nor were commission Chairman Thomas Kean or Vice Chairman Lee Hamilton available to elaborate on the panel's statement.
Al Qaeda is blamed for the Sept. 11, 2001, attacks that killed about 3,000 people and prompted President Bush (news - web sites) to launch his war on terrorism with an invasion that ousted Afghanistan (news - web sites)'s former Taliban regime.
Assertions that Iraq possessed weapons of mass destruction and could be prepared to provide chemical or biological agents to al Qaeda for attacks on the United States were a main justification for Bush's decision to invade and occupy Iraq.
No such weapons have been found, and recent opinion polls have suggested growing public skepticism about the Bush administration's reasons for launching a war in which 870 U.S. soldiers have died and nearly 5,400 have been wounded.
The commission called White House claims about links between Saddam Hussein (news - web sites) and al Qaeda into question on June 11 with a staff report that found no evidence of a collaborative relationship between the Iraqi leader and al Qaeda before the day of the attacks.
But Bush and his top aides stood firm, with Cheney forcefully maintaining that evidence depicting an Iraqi role in the Sept. 11 attacks may yet emerge.
"The notion that there is no relationship between Iraq and al Qaeda just simply is not true," the vice president said in an interview with CNBC.
The New York Times later reported that Kean and Hamilton hoped to see any additional information Cheney had on the subject.
As part of the White House reaction to the Sept. 11 commission's report, national security adviser Condoleezza Rice (news - web sites) who said she believed the panel was actually denying that Saddam had control over al Qaeda. Kean and Hamilton flatly rejected her interpretation.
The Supreme Court's Ruling on Cheney's Energy Task Force:
Still Secret, But More Litigation Will Follow
By JOHN W. DEAN
Friday, Jul. 02, 2004
On June 24, in Cheney v. U.S. District Court, the Supreme Court gave Vice President Dick Cheney only a partial victory in the suit that seeks to learn how his National Energy Policy Development Group developed its recommendations.
The plaintiffs in the suit suspect that - and want to find out whether - there was extensive involvement and improper influence by private industry in what was supposed to be a government group. They note that the Group's recommendations had a decidedly pro-energy slant.
Cheney wanted the suit to be dismissed. Instead, the Court sent the case back to the U.S. Court of Appeals for the D.C. Circuit for further adjudication.
As I noted in an earlier column, this case is laden with important implications. That is still true. Indeed, the Court may have avoided an ultimate decision in the case in part because of the political reverberations that would doubtless have resulted from their examining the separation of powers issues (read: the secrecy powers of the presidency) in an election year.
How the Justices Voted: Scalia Sides with Cheney as Expected
This case received a great deal of press attention because Justice Antonin Scalia refused to recuse himself from it, despite his duck hunting trip with Cheney. And unsurprisingly, Scalia did indeed side with Cheney in the case.
But rather that write an opinion, Scalia joined a brief dissent by Justice Clarence Thomas that would have resolved the matter in Cheney's favor - and resolved it on the merits, going into the constitutional issues involved.
But that did not happen. Five other Justices -- Kennedy, Rehnquist, Stevens, O'Connor and Breyer - preferred to send the case back to the Court of Appeals, as noted above. They based their ruling on a number of fairly esoteric procedural grounds.
Finally, the remaining two Justices, Ginsburg and Souter, wanted to send the case all the way back to the trial judge - and allow it to proceed.
The Issues in the Case: FACA's Scope, and Permissible Discovery
The core issue in this case is whether the Federal Advisory Committee Act of 1972 (FACA) applies to the National Energy Policy Development Group. If so, then the Group's proceedings must be revealed.
Cheney's position is that FACA does not apply, by its own terms, since the president appointed only federal officials to serve on the panel.
But the plaintiffs in the case -- Judicial Watch and the Sierra Club - argue that in fact, it's not true that only federal officials served on the panel. To the contrary, they say, a number of energy industry lobbyists (such as Enron's Ken Lay) were so deeply involved in the work of the Group, they were effectively members. And the D.C. Circuit ruled in 1993, in Association of Physicians & Surgeons v. Clinton, that in such a situation, FACA does apply.
The Court left the question whether FACA applies for the Court of Appeals. But it did speak, at least to some extent, to the discovery issues the case also raised. The plaintiffs had served discovery requests -- principally requests for documents, and written interrogatories - on Cheney.
Cheney refused to respond. He also refused to invoke executive privilege. Thus, were it not for his decision to seek Supreme Court review, he would have had to either invoke executive privilege, or produce documents and respond to the interrogatories. On this issue, the Court sided with Cheney.
It held that: "Given the breadth of the discovery requests in this case …, our precedent provides no support for the proposition that the Executive Branch "shall bear the burden" of invoking executive privilege with sufficient specificity and of making particularized objections."
But it also pointed out that the federal trial courts in the District of Columbia had previously fashioned discovery requests from the Executive that did not require an invocation of executive privilege, and caused no separation of powers problems. Thus, the Court left the ultimate issue of whether similar requests could be fashioned in this case, to the D.C. Circuit.
What Will Occur Next? It Depends on November's Election Results
What will likely happen next in the case? That will be influenced by the results of the election.
First, suppose Kerry wins. A new president and attorney general might not be invested in defending Cheney's records - but since Bush and Cheney will still have control over the records, and the information requested in the interrogatories, it won't be entirely up to the new Administration what to do. Even if the government wanted to settle, Bush and Cheney could make it difficult.
Still, the new Administration could change the status of the case by not pressing for secrecy as Cheney did. If a new Administration takes a more moderate position, when the case arrives back at the Supreme Court, it may not be such a landmark case after all, for the Executive and Judiciary may be more of one mind as to what should occur.
If Bush wins, and Cheney is still his Vice-President, it is difficult to predict what will happen. But there are a number of possibilities.
First, discovery may show that no private person was effectively - in legal parlance, "de facto" - a member of the Group. If so, the case will be dismissed. If not, it may go forward.
Second, even if discovery does show that the Group had a de facto member, the Supreme Court may not agree with the D.C. Circuit that, under such circumstances, FACA applies. It may hold instead that FACA applies only when a private person is formally a member of a government group. And such a holding is more likely if additional conservatives Justices join the Court in a second Bush term - after all, Bush's ideal Justice is Scalia.
On the other hand, however, the Supreme Court may agree with the D.C. Circuit - which gave persuasive reasons for its "de facto member" doctrine.
The D.C. Circuit has also noted, in one of the few FACA cases, that "[t]he very reason that presidential communications deserve special protection, namely the President's unique powers and profound responsibilities, is simultaneously the very reason why securing as much public knowledge of presidential action as is consistent with the needs of governing is of paramount importance." This logic might lead the appeals court to fashion some intermediate solution, rather than just dismissing the case naming Cheney outright.
In short, it is not clear what will happen - and much depends on what the D.C. Circuit does. Still, I remain hopeful that the underlying lawsuits in Cheney v. District Court will open the records of the National Energy Policy Development Group.
That is the right result legally and constitutionally - and the right outcome for our democracy. We deserve to know if private interests are unduly influencing purportedly governmental bodies.
The Supreme Court's Justices Aren't Well Situated to Resolve Secrecy Issues
It is not clear, however, if the Court will agree, should this case return to the Supreme Court. Justices, who operate in secret, and who are unaccountable to anyone so long as they do not commit an impeachable offense, have never struck me as good judges of matters relating to secrecy. More importantly, they have little insight and understanding of what is -- and is not -- necessary privacy for a Chief Executive to carry out his (or her) responsibilities under Article II of the Constitution.
For example, look at how a unanimous Supreme Court failed to understand the situation in Clinton v. Jones. Former President Clinton discusses this in his autobiography, My Life: "The Court said that adopting a principle of delay involving a President's unofficial acts could cause harm to the other party in the suit, so the Jones's suit should not be delayed. Besides, the Court said, defending the suit wouldn't be unduly burdensome or time-consuming for me. It was one of the most politically naïve decisions the Supreme Court had made in a long time."
The high Court is, in fact, remarkably unsophisticated in the workings of the modern presidency. As in Cheney v. District Court (and countless other rulings), the Court talks of "afford[ing] Presidential confidentiality the greatest protection." But in the end, the Court's decisions have merely been license for presidents so disposed to maintain the shroud of secrecy -- at the expense of the accountability that is so essential to democracy.
The Chief Executive (and the Executive Branch) often assert that forcing openness on them would have a negative impact on their ability to carry out their responsibilities under Article II of the Constitution. But in fact, the reverse is true. Openness would merely encourage conscientious governance. And closed doors encourage just the opposite.