06/14/2009 05:12 am ET Updated May 25, 2011

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.

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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