To Disclose Or Not Disclose: Obama's Decision On Detainee Photos Analyzed

In case you were wondering, I am of the opinion that President Barack Obama's decision to not release those detainee abuse photos is a mistake. The decision cuts against the value of transparency that this White House continually asserts as a governing priority. It is a pure and simple contradiction. But, more to the point, "transparency" is more than a value, or a goal one seeks to attain. More and more, "transparency" is an inevitability. We live in an age where the available technology and the incentive to push information out into the public sphere have become so dramatically advanced and accelerated that it's no longer possible to imagine that stuff is just going to disappear without a trace. In fact, the probabilities have shifted, rather decidedly, in the direction of exposure and disclosure. So, the Obama administration can either have a hand in steering that disclosure, or they can be caught with their pants down, the choice is theirs.

Similarly, I find the whole argument that keeping these pictures under wraps will prevent the inflammation of anti-American violence and thus protect our troops to be a bit of a canard. I mean, that these images exist is an open secret. That they depict detainee abuse is widely known. Are we to believe that it will be the photographic composition that will set people off? The photographers' use of color and light? This strikes me as, well... idiotic.

Sarabeth of 1115.org isolates the specific strain of idiocy, here:

As long as the photos are not released, everything is hunky dory. Knowing that hundreds of these photographs exist, knowing that the President of the United States regards them as dangerously inflammatory -- so much so that he is willing to back out of a previously executed agreement (see below) -- that doesn't count. As long as the photographs are not seen, they don't count.

I mean, President Obama is basically saying -- out loud, mind you -- "Hoo boy! The stuff that's in these photos! It's pretty bad!" So, the cat of inflammation has, I believe, vacated the bag of uncertainty.

BUT! Since I'm only going to get emails on the awesome THIRD DIMENSIONAL CHESS that's behind this decision, I'll go ahead and present that argument, for your digestion and/or dissection. And, to be certain, I think that John Cook of Gawker prosecutes it quite well, arguing that the release of the photos is inevitable, so Obama may as well be seen as supporting the troops:

First off, Obama did not actually decide not to release the photos, despite the way his reversal has been characterized. The decision isn't his to make. The Pentagon is currently compelled by a court order [pdf] to turn 22 photos over to the ACLU, which sued the government under the Freedom of Information Act for their release in 2003. The Pentagon lost in district court and lost again on appeal; earlier this year Pentagon lawyers decided not to appeal to the Supreme Court and struck a deal with the ACLU. The government has no say at this point in whether or not those photos get released -- either the FOIA compels their release or it doesn't, and it's up to a court to decide that question. All Obama did yesterday was authorize the Pentagon to ask the Supreme Court to take the case. The Court might take the case or it might not. And if it does, it will almost certainly uphold the decisions of the district and appeals courts and order the photos to be released.

[...]

It's almost unthinkable that the Supreme Court, if it takes the Pentagon's appeal, will side with the government. Doing so would open a massive hole in the FOIA that Congress clearly didn't intend, and constitute a mammoth act of "legislating from the bench." It would mean that any federal law enforcement agency could keep a lid on any documents that could conceivably make someone, somewhere angry enough to hurt someone else. Any evidence of military or police misconduct would be off the table--what if someone gets mad about it and attacks a cop or a soldier? Want to FOIA FBI documents about investigations into AIG -- well, what if they make people mad at AIG executives?

The government's legal argument is laughable -- it was, the appeals court judges noted in their opinion, tossed in as an afterthought in the government's district court brief -- and Obama surely knows it. And since the Pentagon already agreed to release the photos before Obama's reversal, it's not in a terribly strong position to argue that the threat from anger in the Arab world is very substantial -- if these photos will actually put soldiers' lives in real danger, then why did you agree to release them before all your legal options were exhausted? By trying to take that argument to the Supreme Court, all Obama is doing is delaying the photos' release and earning points as a moderate and loyal Commander in Chief. He knows that the photos will come out before his next election, and any lingering anger from his supporters will have long since dissipated.

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So there you have it. Some wish -- no must -- make their disgust at this abuse perfectly clear. Others are here for chess. Is the U.S.? If so, why foul the atmosphere?

UPDATE: Spencer Ackerman points out the flaw that will ensure Obama loses this game:

Does President Obama really want to make this argument for why he's flip-flopping on the release of the torture photographs:

I want to emphasize that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib ...

I haven't seen the photographs, of course, but this can't possibly be true. If the photos are "not particularly sensational," then they wouldn't, as Obama went on to say, "further inflame anti-American opinion and to put our troops in greater danger." How can unsensational photographs put troops in danger? Furthermore, at some point, the photos are going to come out -- whether in the near future, as the ACLU is going to press its Freedom of Information Act request, or decades from now, when the time limit on their classification expires. When they're released, will Obama really want to stand by describing their contents as "not particularly sensational"?

And if these photos truly are "not particularly sensational," Obama is just going to look dotty for not having simply released them.

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Comments

[Dimitra Ekmektsis]

You are absolutely right, Jason! In this day and age it's not possible to keep something like these pictures classified for very long. I'm not going to start digging for them, because the last time I dug for something, I found it, and I couldn't sleep for 2 weeks: it was Saddam's hanging video.

[Scent]

I think there is another real problem:

The media have sold the war for Bush to the people by NOT showing anything "bad". They cut every single body out of any footage, so people at home didn´t see the blood, the body parts, and the suffering the US caused. Journalists were KILLED to get them to not report on the use of white phosphorous in fallujah. Seek out the pictures and look at them. Only then can You make an educated decision to support the war - or not. That we don´t see the pictures is not only wrongh, because thruth sometimes MUST hurt to let us see the suffering we caused. To let us step back and realize that we condoned crimes. Not just fraud an embezzling to make even Wall Street jealous, but real life death and suffering on a level not seen since the second world war. 2 MILLION dead in Iraq alone. That is staggering. And we can only see it as a mistake if we can see - really see the damage we cause. No one - not a single man and not a nation - will damit to having made a mistake as long as no damage is seen.

Democracy means that people make educated decisions about what they want. To withhold evidence - be it about 911 or after - is to lie to the people to make them choose in a way they would not shoose if they knew the truth.

[showmestategal]

Thank you Mr President for not disclosing Pix!!! There has been enough damage done to Our Troops all already due to the heinous behavior of the previous administration towards human rights & justice,
Keep OUR TROOPS and us Safe from the enemies they have CREATED.
Work to show our True Moral Values & restore Trust in the World Community now that cheney is out of Power.
Thank God a gitmo was not created by the enemies in Retaliation for us to be addressing Now as a Nation.

[ROinReno]

The reason the President gave for not releasing the photos was it would only provide reason for international outrage. None of us need any more of that.
It was the responsible thing to do.
At last we have an adult in the white house.

[hollybork]

I disagree with Jason. I want a President with the presence of mind and flexibility to keep his priorities straight. His chief priority is to keep Americans, including our GI's, safe and secure. It would endanger our GI's to release those photos. It would inflame the middle east, and put a recruiting tool into the hands of terrorists. I support the President's decision to delay as long as we are at war, the release of photos that could put our troops into harms way. I don't have to be a mother of one of those troops to feel their safety in the theatre of war is paramount.

[tundramonkey]

Everybody in the Middle East knows what kind of abuse we are dumping on their people. Only Americans are blissfully ignorant of the monsters we have unleashed and the atrocities our sainted soldiers commit every day under the guise of "following orders." If you think Iraqis and Afghanis and all the rest of the brown people we are victimizing for oil and money don't know exactly what kind of demons we are, you are ignorant and naive beyond belief. American exceptionalism appears now to mean what perversions and atrocities we as supposed citizens of a republic with a democratic system of government will allow and ignore are clearly exceptional. We're monsters now, too.
Read about the IRF teams, troops who are tasked with beating, raping, sodomizing, poisoning, infecting with diseases, and otherwise torturing as part of their perverted day to day humdrum activity. Now picture these monsters coming home and running your kids' daycare, policing your communities, coaching LIttle League. Torturers and abusers egged on by a corrupt series of presidential degenerates. Sweet dreams.

[aspen7698]

I agree that Obama is being very shrewd in navigating this one. What I don't hear any mention of is the fact that for years and years now, we've been hearing Republicans insist that torture was not creating more enemies or being used as a recruiting tool for extremists. Now that there is a good possibility that these photos will be released, they are screeching from the rooftops that this will do irreparable damage to our national security.

[Schneb]

I'm trying to keep faith/trust in Obama--but decisions like this make that difficult.

In order to do so with this particular issue in mind, I turn to a long-term view--a hypothetical view--of what Obama may be thinking--and what I hope he will do.

It helps to know the FOIA background of the photos. I hadn't caught that in the headline-based understanding of this. With that in mind, I'm assuming Obama is letting himself be forced to release the photos. If there are revenge attacks, or even if the negative outcome is just a gut-punch feeling on the part of Americans who see how badly our troops can behave, this gives Obama some cover.

BUT--he needs to follow up on the eventual release with a thorough investigation and airing of the torture related intel that led us into the war. As Borowitz column outlines, it's looking like Bush/Cheney used torture to get the confessions linking Saddam Hussein with 9-11/WMD, so they could move on Iraq Iraq's oil (see Cheney Energy Task force maps).

A key part of the investigation needs to be giving the soldiers in the pics a chance to say who/how they were directed to conduct those acts and who they saw doing similar acts. They were wrong to carry out such abuse, but it's a cowardly lie to shift all blame on them when clearly their conduct was part of a systemic policy.

[thehonestpolitician]

I agree with pres. on this one...call him a flip flop all you want.... This is a good decision -. I think we can all agree that his intentions were to release them to give "America" an idea of what has happened in the previous administration, but forgetting how the world would react to them.... Our troops are 1st and foremost important - and would endanger them if however if they would be released. I'm sure that Americans along with other countries like Europe and Canada were just at the edge of their seats to get a visual of the 'hot topic' that has been on everyone's mind since the declassified memos were released. I'm a little disappointed too, but rather have this disappointment than to be attacked a year from now - or the efforts in bringing peace to middle east to either a halt or to be hesitant. As said in Spiderman - "With great power comes great responsibility." - Obama may have flip flopped, but it's a good flip-flop.

[strangelet]

1. I agree with Jason and Spencer that the photos should be released.

2. However, from the 3-D chess perspective, I do not agree that the photos *must* be more horrifying than. say, those from Abu Ghraib. Obama is obviously playing defense here. Once the photos are released, even if they are relatively non-terrible, the first subsequent US casualty will start up the right-wing echo chamber squawking that the release of the photos was the cause of it. By kicking the matter up to the right-wing Supreme Court, Obama effectively undercuts that argument. The same reasoning applies if the new photos do happen to be particularly horrifying, but that is not a necessary condition. If they turn out to be "relatively ho-hum", Obama may look slightly over-protective of the military, but politically, is this a bad thing?

3. Reconciling points 1 and 2 above: Politically, this is a good 3-D move, and it may even be better because it's a reversal (ACLU, meet Sista Souljah). I don't like the maneuver mostly because I have seen too many cases where too many clever political moves resulted in permanent changes to the behavior of the politician. I believe that almost all politicians start out as idealists (even if their ideals are antithetical to mine), but very few who have a long political career end as idealists. I would hate to see this happen to our President.

3.

[Jonni Rae]

If we want to win hearts and minds in Afghanistan, do development, deal, maybe, with moderate Taliban, this will be more difficult with the pictures (the ones we saw already were already so horrifying; I have heard there are more, involving abuse of women. ) Who knows what they show. I agree with Exhibit A in Court. If one soldier dies because of revenge rage inflamed by these pix, who is to blame? The Bush Administration? No, it's Obama's watch now. He is trying to protect Americans, soldiers and civilians. But yes, we must have a special prosecutor. We must clean house.

[uneeda]

henceforth potus will be known as president flip flop

[Suny]

The last time I checked, "transparency" is not a synonym of "voyeurism." What is it that the visuals will show that has not already been established by the CIA memos that Obama has already released? Obama's decision does serve a greater good, particularly because DOJ can still go forward. His decisions ward off the typical scapegoating of underlings by the Republican leadership -- from executive to legislative to judicial to military -- that we have witnessed repeatedly.
It is wise to set aside "childish things" (motivated perhaps by vengeance and political rage) for love of this country and our soldiers who are clearly further exposed by the graphic evidence. We MUST however focus on Holder going forward with finding a hot shot special prosecutor to hold those who enabled the horrors committed in our name to be rectified.

[hollybork]

Good point. Transparency is not voyeurism. For sure those pictures are sickening and inflammatory.
I would not want those pictures to be seen by any children, or any parents of GI's. Nor should they fall into the recruiting hands of Al Qa'eda operatives. They could do damage.

[divinemsk]

Best. Musical theatre reference. EVAR.

< pedantry > Except it's technically "Are the U.S.?" < /pedantry >

[Adagio]

Here's what I think about this notion of endangering our soldiers. Ask just about any soldier what he is fighting for and he will say to protect our freedom. Our freedom depends on our government being open rather than secretive. Sometimes that means exposing things that make us uncomfortable or are embarrassing, but that is a price we gladly pay to ensure the sanctity of our democracy.

By this action the President does not protect our soldiers he belittles them.

[pd78758]

"Are we to believe that it will be the photographic composition that will set people off?

Yes we are. Though we know the acts were committed, it is real only in an abtract sense and so does not compel as strong an emotional reaction. Its like how you may react differently if I told you your loved was sexually assaulted in some way versus if I showed you a video.

It is correct that showing these photos will yield no new information about the abhorrent act committed by the previous admin. Save their impact for the court room someday.

[Michael Francis]

dead on. glad someone said it.

[res-nyc]

I tend to agree. I don't need, (nor want) to see further graphics. I'm willing to accept for now that the risk of public release outweighs the benefit. At this point in time, it's much more important to expend energy to get all written documents and communications, along with the photos to a special counsel to do a full investigation.

The photos can be released later as part of the larger narrative.