Pyrrhic Secrecy Victory

Article excerpt


Secrecy for the sake of secrecy awakens suspicion.

President William Jefferson Clinton and first lady Hillary Rodham Clinton blundered by wrapping in secrecy the President's Task Force on National Health Care Reform chaired by the first lady, a folly upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Association of American Physicians and Surgeons, Inc. vs. Clinton (1993). The health care proposals that ensued shipwrecked in Congress.

President George W. Bush might have profited from the Clinton example. But like characteristic White House occupants, the Bush administration generally forgets nothing, and learns nothing. Accordingly, Vice President Richard B. Cheney aped the Clinton blunder in a U.S. Supreme Court pyrrhic victory last week (Cheney vs. United States District Court for D.C.) that preserved the secrecy of Mr. Bush's National Energy Policy Development Group (NEPDG). There may have been better ways to reinforce public suspicion that the president and vice president skew policy to favor their business benefactors, but if there are, they do not readily come to mind.

A few days after assuming office and long before September 11, 2001, Mr. Bush appointed Mr. Cheney to chair the NEPDG, whose remaining formal membership consisted of several agency heads and assistants, all federal employees. The group was tasked to "develop[e] ... a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." It addressed nonsensitive, benumbing policy questions of the type routinely shared with Congress and regularly reported in the media. The thick financial and employment ties between the Bush administration and the energy industry, symbolized by Enron and Halliburton, made an NEPDG sunshine policy highly advisable. Energy moguls traipsing in and out of the White House on secret business would be first cousin to Mr. Clinton's infamous Lincoln Bedroom sleepovers.

Mr. Cheney could have followed the Federal Advisory Committee Act of 1972 (FACA) to dispel nonfanciful worries of compromised advice to the president to profit business pals.

FACA's chief purpose is to inform Congress and the public of federal advisory committee activities. Their meetings must be public. Notice of them must be given in the Federal Register. Detailed minutes must be prepared. And all records, reports and documents used by the committee must be revealed unless exempt from disclosure under the Freedom of Information Act. Precautions are suggested to ensure committee advice and recommendations "will not be inappropriately influenced by ... any special interest."

FACA, however, excludes from mandatory coverage advisory committees "composed wholly of full-time, or permanent part-time, officers or employees of the federal government."

Vice President Cheney rejected FACA sunshine in favor of confidentiality in preparing NEDPG's final report to the president. …