Speaking of legal minutiae, I’ve read a few articles about the Cheney secrecy case that was heard before the Supreme Court yesterday and it’s all pretty fascinating stuff. The issues are a lot more involved than just “Cheney is a corporate whore who’s selling our government to the highest bidder”. Yeah, that’s the root cause, but there’s a lot of details in there :
The watchdogs contend that “task force” was just a series of cozy get-togethers in which energy executives and lobbyists, including Ken Lay, took turns sitting on Cheney’s lap, licking his ear, and requesting special favors. The final report issued by the commission sort of reads that way. When Cheney was ordered to produce the rosters and minutes of these meetings as part of pretrial discovery, he appealed that order all the way up to the U.S. Supreme Court.
So, how do you get to the Supreme Court? “Mandamus, mandamus, mandamus.” The government leapfrogged over the usual procedures and filed for extraordinary relief?in the form of a writ of mandamus?in the appeals court. And when the D.C. Circuit Court of Appeals denied that writ, noting that the case needed to be fully decided in the lower court first, Cheney took the up elevator to the Supreme Court instead of the down elevator back to the trial court.
This becomes one of the key issues in Cheney v. U.S. District Court for the District of Columbia. (That’s right, he’s named the lower court as his opponent.) It’s a bedrock legal principle that courts of appeals don’t decide issues over which they have no jurisdiction, and that courts of appeals don’t decide cases when there has been no final decision from a lower court, unless there’s a pretty good reason. And it’s the issue on which the first half-hour is spent, as the justices take turns beating on Solicitor General Ted Olson with the “final judgment” stick. Olson contends that this case is about “the separation of powers,” and that Congress and courts simply don’t have the authority to use private litigation to impede the executive branch.
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Olson points out that under the Federal Advisory Committee Act, the statute in question today, an executive committee “consisting of all government employees” is exempt from having to disclose its records to the public. This is true, but it assumes the answer to the core question about whether nongovernment people were on the energy task force. That Cheney’s people promise only federal employees served doesn’t seem to satisfy the watchdog groups.
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Olson says that the problem with the discovery order is “it’s much broader than the relief itself.” By giving the watchdog groups all the information they’d need to know if FACA had been violated, they’d be giving them all the information they sought in the first place.
And taking a page from the Scalia songbook, Olson refers disdainfully to the groups’ “unadorned allegations” gleaned “from media reports” (ewwwwwwwwww, media reports) that outsiders participated on the task force. Kennedy tries to get Olson to define the scope of the exemption from FACA sought by the executive branch, and Olson says that the president shouldn’t have to choose between obeying an “unconstitutional order” and subjecting himself to intrusive discovery, or having to assert the executive privilege. He keeps mentioning the “presumption of regularity,” which means, it seems, that we should presume everything the president does in secret is regular.
If interested, you should definitely read the whole article, since it’s a pretty good breakdown of the entire hearing. The Slate article along with another one from the LA Times seems to indicate that the court will probably end up siding with Cheney on this one, although I think the court is just as likely to punt this one down to the lower courts and avoid getting their hands dirty. As you could probably guess, either of those outcomes would disappoint me.
When reading about this case, I have the same reaction that I had when I saw David Frum praise touch-screen voting machines on Bill Maher’s show a month or two ago. Frum argued that the use of punch-cards was “the era of stuffed ballot boxes” (which is true) and that if the Diebold machines don’t work, then we can always just throw them out and try something else (which is not true). The huge flaw in his argument is the fact that we don’t have a way of know if and how things go wrong : There’s no way to recount the votes, the counting mechanism is proprietary (and thus, untraceable), and there have already been numerous security holes pointed out which would make it nearly impossible to tell if the machines had been hacked. Without some transparency, we’ll never be able to evaluate the effectiveness of a system.
And this is roughly how I feel about this Cheney case as well. The way the law seems to be structured right now is that we should just take the executive branch at their word as to whether or not what they’re doing should be allowed to remain secret (nevermind the other abuses of this power). In this case, The Sierra Club and Judicial Watch have circumstantial evidence that suggests that the Bush Admin’s energy policy was written by and for their corporate backers, but the law seems to put us in a bind here.
How do we know if the energy taskforce meetings were fixed or not?? That should be the central question here and it’s one that will remain unanswered if the executive branch is allowed to maintain its veil of secrecy over everything it does. If the court ultimately decides that the law allows the executive branch to do whatever the hell it wants, then we need some stricter laws, now.
