[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Page 4880]
[From the U.S. Government Publishing Office, www.gpo.gov]




              CHENEY TASK FORCE RECORDS AND GAO AUTHORITY

                                 ______
                                 

                          HON. HENRY A. WAXMAN

                             of california

                    in the house of representatives

                      Wednesday, February 26, 2003

  Mr. WAXMAN. Mr. Speaker, on February 12, I gave a statement on the 
floor discussing the serious implications of GAO's decision to drop its 
lawsuit seeking access to the Vice President's energy task force 
records. Since then, I have received a letter from the Comptroller 
General responding to my remarks and asking that I make the press 
release that GAO issued when he decided to drop the lawsuit a part of 
the Record. In accordance with his request, I would like to make both 
his response and the press release a part of the Record.

                                    General Accounting Office,

                                Washington, DC, February 19, 2003.
     Hon. Henry A. Waxman,
     House of Representatives.
       Dear Mr. Waxman: I am writing in connection with your floor 
     statement of February 12 concerning my recent decision not to 
     appeal the district court decision in the Walker v. Cheney 
     case. I appreciate your inserting my recent letter to you in 
     the record and believe that it addresses several important 
     issues. At the same time, I would respectfully request that 
     you consider inserting my related press statement of February 
     7, 2003, into the record if you have the opportunity to do 
     so. I have enclosed another copy of that statement with this 
     letter.
       There are three aspects of your floor statement that are of 
     concern to me. First, as you know, we do not believe that 
     failure to appeal the district court decision precludes us 
     from filing suit against another executive branch party in 
     connection with a different matter in the future. Second, 
     while I did solicit input from a wide range of Congressional 
     leaders from both parties before I made my decision the 
     decision was mine. I was not directed, threatened or unduly 
     pressured to take the action that I did. Just as in the case 
     of my decision to file suit a year ago, my latest decision 
     was based on what I felt was the right thing to do based on 
     all the facts that were available to me. In addition, the 
     input that I did receive was not divided along party lines 
     and there was significant bi-partisan support for my decision 
     not to appeal.
       Finally, my decision to seek a vote by at least a full 
     committee of jurisdiction prior to any possible future legal 
     action to obtain records is one that I believe is both 
     prudent and appropriate, given my experience as Comptroller 
     General and in light of the recent district court decision. 
     Specifically, if we are ever ``stonewalled'' again in 
     connection with a matter that in my professional and 
     independent judgment we should pursue, I would formally 
     request that an appropriate committee of jurisdiction vote 
     regarding whether they would support a related court action. 
     I can assure you that my related recommendation would be 
     based on the merits of the case and not partisan 
     considerations.
       I look forward to continuing to work with you in the future 
     on issues of mutual interest and concern.
           Sincerely yours,

                                              David M. Walker,

                                               Comptroller General
                                             of the United States.
       Enclosure.
                                  ____


                GAO Press Statement on Walker v. Cheney

       After thorough review and analysis of the district court's 
     decision in Walker v. Cheney, as well as extensive outreach 
     with congressional leadership and others concerning various 
     policy matters and the potential ramifications of the court's 
     decision, for the reasons outlined below, GAO has decided not 
     to appeal the decision.
       As Comptroller General Walker has made clear on a number of 
     occasions, GAO would not have filed this suit absent a formal 
     written request from at least one full Senate committee with 
     jurisdiction over this matter. Contrary to the district 
     court's decision, and as re-confirmed in a letter to the 
     Comptroller General dated January 24, 2003, two full 
     committee chairs and two subcommittee chairs of the Senate, 
     acting on behalf of their respective committees and 
     subcommittees, all of which had jurisdiction over this 
     matter, asked GAO to pursue its NEPDG investigation prior to 
     GAO filing suit last year. Importantly, under GAO's governing 
     statute, the agency is required to perform work when 
     requested by a committee. In this case, GAO had made 
     exhaustive efforts to reach an accommodation with the 
     Administration, and only after all such attempts had failed 
     did GAO file suit as its only remaining option. This is 
     precisely the process that Congress directed GAO to follow 
     when it enacted GAO's access statute in 1980.
       For a number of reasons, GAO strongly believes the district 
     court's decision is incorrect. In GAO's view, the district 
     court misapplied the Supreme Court's decision in Raines v. 
     Byrd to GAO. Unlike the legislator-plaintiffs in Raines, who 
     sought to invalidate a statute which had been enacted by the 
     Congress, GAO sought to carry out--not invalidate--the 
     information-gathering responsibilities which Congress 
     assigned to it in GAO's access statute. The district court's 
     decision thus has prevented GAO from discharging its 
     statutory responsibilities in this case. Furthermore, the 
     opinion was based, in part, on a material factual error 
     relating to the role various Senate chairs played as noted 
     above. The opinion also leads to the highly questionable 
     result that private citizens have more authority to enforce 
     their rights to obtain information from the Executive Branch 
     than the Comptroller General of the United States, acting in 
     his official capacity as head of GAO.
       Despite GAO's conviction that the district court's decision 
     was incorrect, further pursuit of the NEPDG information would 
     require investment of significant time and resources over 
     several years. At the same time, several private litigants 
     are attempting to obtain much of the same information GAO has 
     been seeking, and this information will be made available to 
     GAO if they are successful in their cases.
       Importantly, because the district court's decision did not 
     address the merits, it has no effect on GAO's statutory audit 
     rights or on the obligation of agencies to provide GAO with 
     information. In addition, the court's decision is confined to 
     the unique circumstances posed by this particular case and 
     does not preclude GAO from filing suit on a different matter 
     involving different facts and circumstances in the future.
       GAO will continue to fulfill its statutory mission: to 
     support the Congress in the discharge of Congress' 
     constitutional responsibilities and to help assure reasonable 
     transparency and appropriate accountability in government. 
     GAO also will continue to perform its audit, evaluation, and 
     investigative work in a professional, objective, fact-based, 
     non-partisan, non-ideological, fair, and balanced manner.
       According to Comptroller General Walker, ``In the final 
     analysis, transparency and accountability in government are 
     essential elements for a healthy democracy. In America, all 
     public servants, including constitutional officers, work for 
     the people. While reasonable people can disagree on the 
     proper amount of transparency and the appropriate degree of 
     accountability, in the world's greatest democracy, we should 
     lead by example and base public disclosure on what is the 
     right thing to do rather than on what one believes one is 
     compelled to do. Based on my extensive congressional outreach 
     efforts, there is a broad-based and bi-partisan consensus 
     that GAO should have received the limited and non-
     deliberative NEPDG-related information that we were seeking 
     without having to resort to litigation. While we have decided 
     not to pursue this matter further in the courts, we hope that 
     the Administration will do the right thing and fulfill its 
     obligations when it comes to disclosures to GAO, the 
     Congress, and the public, not only in connection with this 
     matter but all matters in the future. We hope that GAO is 
     never again put in the position of having to resort to the 
     courts to obtain information that Congress needs to perform 
     its constitutional duties, but we will be prepared to do so 
     in the future if necessary.''

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