Weekly Shredder 39:
The Energy Task Force Court Ruling
by James Norton

On the topic of secrecy, James Madison once wrote:

Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.

If there's one classic quote from the founding fathers that the Bush administration grasps intuitively, it's this.

Unfortunately, they've gripped it in reverse:

Knowledge will forever govern ignorance: And a political faction which means to destroy its rivals and rule without question, must deny its opponents the power which knowledge gives.

Once upon a time, the judiciary might have put the reins on an executive branch dangerously hepped up on legislative PCP. But the courts recently handed the Republicans another resounding victory in their quest to prevent the public from knowing what government is up to.

For archives, audio, and background about the column, click here.

A recent lawsuit by Judicial Watch and the Sierra Club was shot down this week. The suit was over access to details of the secret Dick Cheney-chaired energy task force.

SCENE ONE:

[Setting: The Oval Office, January 29, 2001]

PRESIDENT BUSH: Dick, put together a task force to formulate a national energy policy.

CHENEY: I know just the folks.

SCENE TWO:

[Setting: A swank Washington conference room.]

CHENEY: Any ideas, boys?

ENERGY EXECUTIVE 1: Uh... more oil?

EXEC 2: Weaker anti-pollution regulation?

EXEC 3: Panda-burning SUVs?

CHENEY: Excellent.

SCENE THREE:

REPORTER: Can we see some transcripts of the energy task force meeting?

CHENEY: No dice. It's not in the public's interest for the president to have to account for the advice he's given.

It is, of course, more complicated than that.

If you set the wrong kind of precedent on secrecy, you open the door to terrorists — or terror sympathizers, such as, say, the ACLU, the Sierra Club or the March of Dimes — using the US court system to compel the disclosure of documents that would present a national security risk.

Anyone, of course, who has seriously studied Islamo-fascist terror groups knows that one of their primary tactics is the filing of FOIA requests, nuisance lawsuits and amicus briefs.

To quote former counter-terrorism director Richard Clarke: "Al Qaeda's bloodthirsty fanaticism is matched only by its respect for the fairness and efficiency of the American judicial system."

Oh, wait. Clarke didn't say that. I just made it up. The last goddamn thing Al Qaeda cares about is the sort of information you can slowly pry out of the government by following established procedure.

Obviously, however, some government secrecy is needed. But how much?

Like all arguments along these lines, there's a black area, and a gray area and a white area. Let's consider this in the abstract, at a high level of simplification.

Should all government activities be classified in order to prevent our enemies from exploiting America's vulnerabilities? Of course not. That would be paranoid, inefficient and akin to the operating style of the Khmer Rouge or the Taliban.

Abominable things multiply in the pitch blackness of total secrecy.

Democracy cannot function where information is scarce. The founding fathers protected the press explicitly. And Madison, in the Federalist Papers, linked clashing factions and thriving liberty (fed, implicitly, by good public information):

Liberty is to faction what air is to fire, an ailment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

Word. That's what democracy is all about. You can effectively crush your political opponents by suppressing all damaging government reports and data, but only at the expense of liberty itself.

Therefore: Should all government activities be public? Probably not a great idea, either. Disclosing the president's security protocols, or sensitive negotiations with foreign governments or the operating budgets and frequent flier mile accounts for the CIA's secret hit squads might have a very negative impact on national security.

However, when you look at this sort of critical national security information as a percentage of the overall information generated by government and critical for Americans to participate actively and intelligently in their own government, it's a tiny drop in a big, big lake. For every secret Kill Bin Laden 2005 task force (which, some might argue, should be overseen by Congress at the very least), there are 1,000 national energy task forces — projects that all of us have a right to understand.

It's this balance that makes the finding of the D.C. circuit court — which decided that the industry executives who participated in the task force were not part of the task force, thus making it effectively secret — so disappointing.

In light of the severe separation-of-powers problems in applying [the Federal Advisory Committee Act] on the basis that private parties participated in, or influenced, or were otherwise involved with a committee in the Executive Office of the President, we must construe the statute strictly. We therefore hold that such a committee is composed wholly of federal officials if the President has given no one other than a federal official a vote in or, if the committee acts by consensus, a veto over the committeeÕs decisions.

Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee.

This is completely ridiculous, and tragic. Ridiculous because the dictionary definition of "member" is "one of the individuals composing a group." Industry officials met with the task force, contributed information to the task force and helped shape the task force's agenda and report. True, they didn't vote — but is it possible to reasonably deem them members?

Yes. Thus the tragedy: If the court had erred on the side of being more generous with "membership" — saying that industry consultants vital to a task force's meetings and final report are part of the task force — it would have busted the door open on government. It would have checked the power of the executive branch. It would have let the sunshine in.

It would have given the government pause for thought before stacking a meeting with only members of the interest group the meeting will be affecting — and no independent observers or advocates for contrary (in this case, conservationist) viewpoints.

America was founded as a country of checks and balances, and as a country of open, transparent government.

The US Court of Appeals in Washington, D.C. doesn't seem to understand this. Or, more cynically, it doesn't seem to care.

E-mail James Norton at jrnorton@flakmag.com.

— graphic by Derek Evernden (derek@ocellus.net)