In reversing itself and blocking the release of photos of U.S. military personnel abusing detainees, the Obama administration claims to have found a new legal argument. It hasn't.
What the administration has found is a way to pass the buck to the courts. President Barack Obama was criticized for last month's release of memos authorizing harsh interrogation techniques. If the photos are now made public over White House objections, the inevitable outrage might be deflected toward the courts and away from the president.
The administration has also found a way to avoid distribution of the photographs just before Obama travels to Egypt to speak directly to Muslims. Government lawyers had promised a federal judge that they would turn over the photos by May 28 — a week before the president's trip.
On Wednesday, White House press secretary Robert Gibbs said the president will try to block the court-ordered release of hundreds of photos showing U.S. troops abusing prisoners, reversing his position after military commanders warned that the images could stoke anti-American sentiment and endanger soldiers.
Those same arguments were made last month against releasing so-called torture memos, Bush-era documents outlining often-harsh methods CIA agents could use when interrogating terror suspects. Obama released the memos anyway.
National security concerns
The pictures, said to show mistreatment of detainees in Iraq and Afghanistan, are the subject of a Freedom of Information Act lawsuit brought by the American Civil Liberties Union. The government had recently agreed to release 44 photographs and said in court papers it was "processing for release a substantial number of other images," for a total expected to be in the hundreds.
Gibbs said the president wants administration lawyers to challenge the photos' release based on national security concerns. He said that argument was not used before.
"The president does not believe that the strongest case regarding the release of these photos was presented to the court," he said.
But the Bush administration already argued against the release on national security grounds — and lost. ACLU lawyer Jameel Jaffer said that argument "has been made by the government multiple times, and has been rejected unequivocally every time."
In September 2008, a three-judge federal appeals panel in New York wrote, "It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan."
The court also rejected another argument Obama wants to revive. The White House says releasing the photos "would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals."
The federal appeals court, in the same September 2008 ruling, found that claim "disregards FOIA's central purpose of furthering governmental accountability."
Pressed by top military commanders, Obama concluded that he did not feel comfortable with making the photographs public. Gibbs said the president was concerned about inflaming already tense situations in Iraq and Afghanistan and making the U.S. mission in those two wars more difficult.
White House concern is probably well-founded, given the reaction in 2004 to publication and broadcast of photos from the U.S.-run Abu Ghraib prison showing grinning U.S. soldiers posing with detainees — some of the prisoners naked and some being held on leashes. The photographs incited protests domestically and abroad, particularly in Muslim countries.
By trying to keep the most recent batch of photos secret, Obama appears to be ignoring his pledge to be more forthcoming with information that courts have ruled should be made available to the public.
Gibbs said the latest decision does not contradict Obama's promises of transparency since details about investigations into detainee abuse are available on the Pentagon's Web site.
Obama's decision to fight dissemination of the photos was welcomed by Republican lawmakers and at least one military group that were among his critics when the interrogation memos were brought to light as part of another ACLU lawsuit.
This time he's kicking the decision back into court, where his administration still may be forced to hand over the photos.