"This is a case about the separation of powers," Solicitor General Theodore Olson said. He said disclosure of the records would intrude on the president's power to get opinions from subordinates in making legislative proposals to Congress.
Democrats in Congress have accused the Republican administration of lack of openness and accountability, pointing also to its reluctance to turn over some documents to the commission investigating the Sept. 11, 2001, attacks.
The Sierra Club environmental group and Judicial Watch, a watchdog group, sued to find out the names and positions of Cheney's task force members and to learn about their contacts with industry executives.
They claimed Cheney, the former chief executive of energy and construction
company Halliburton Co. Justice Antonin Scalia, who refused to remove himself from the case even
though he went on a duck-hunting trip with Cheney in January, seemed supportive
of the government's argument.
He repeatedly asked whether outside officials could be considered members of
the task force, and thus covered under the federal open-government law at issue,
when they did not vote on the various recommendations.
Several justices questioned the government's argument that the Supreme Court
has jurisdiction over the dispute.
"Why should we accept your position on jurisdiction?" Justice David
Souter asked Olson. He said the case could go back to a federal judge for an
order on what must be turned over, and that the government then could appeal.
NIXON WATERGATE TAPES CASE CITED
Olson said appellate courts have jurisdiction over the case, just like the
Supreme Court had jurisdiction in its 1974 historic ruling to require
then-President Richard Nixon to turn over the Watergate tapes.
Several justices asked Olson why the administration had not asserted
executive privilege -- a legal doctrine that can be invoked by the president to
shield certain documents from disclosure.
Olson replied that the objections in the Cheney case go to the entire process
and executive privilege would not cover all of the issues. "Executive
privilege may not cover every scrap of paper," he said.
Alan Morrison, representing the Sierra Club, argued the government does not
have the right to withhold the documents.
Paul Orfanedes, representing Judicial Watch, cited five meetings between task
force members and executives of Enron Corp., Justice John Paul Stevens replied, "What does that prove?" Stevens
added, "Just because they talked to a lot of people doesn't prove anything
to me."
A ruling in the case is due by the end of June.
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