Obama to block release of detainee abuse photos

[Syt]

If the pictures show female detainees the government has a moral obligation to release them!

[Syt]

If the detainees are males then not releasing the pictures is another sign of OBAMADOLF's homophobia and hate of the gay people. 

[grumbler]

That actually is not true - the pictures have not been classified, so no judges have in fact ruled on said potential classification, at least so far as I know.

The judges have been unanimous that these pictures do not classify as exceptions to FOIA.  Obama cannot take unclassified information and suddenly classify it, BTW.  He must have a reason to do so, and there must be no substantial argument that the information is not deserving of classification.

Plus, according to EO 12958, Sec. 1.5. (Classification Categories)

Information may not be considered for classification unless it concerns:

      (a) military plans, weapons systems, or operations;

      (b) foreign government information;

      (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;

      (d) foreign relations or foreign activities of the United States, including confidential sources;

      (e) scientific, technological, or economic matters relating to the national security;

      (f) United States Government programs for safeguarding nuclear materials or facilities; or

      (g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

this material does not fall within any of the guidelines of material that can be classified.

[Martinus]

Maybe it qualifies as "un-intelligence activities"?

[Berkut]

That actually is not true - the pictures have not been classified, so no judges have in fact ruled on said potential classification, at least so far as I know.

The judges have been unanimous that these pictures do not classify as exceptions to FOIA.

Yeah, which is why the next step would be to take it to the next higher level of judges.

Or to change the terms under which the case has been brought, by classifying the material.

  Obama cannot take unclassified information and suddenly classify it, BTW.  He must have a reason to do so, and there must be no substantial argument that the information is not deserving of classification.

True enough. And he has a reason to do so, of course - because he was told by the competent authority that releasing the information is counter to US interests and will get people killed.

Plus, according to EO 12958, Sec. 1.5. (Classification Categories)

Information may not be considered for classification unless it concerns:

      (a) military plans, weapons systems, or operations;

      (b) foreign government information;

      (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;

      (d) foreign relations or foreign activities of the United States, including confidential sources;

      (e) scientific, technological, or economic matters relating to the national security;

      (f) United States Government programs for safeguarding nuclear materials or facilities; or

      (g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

this material does not fall within any of the guidelines of material that can be classified.

Hmmm, I think he can make an argument that this falls under section (d).

The President has rather wide discretionary powers when it comes to something as purely Executive as classification of material - it would be interesting if the courts would desire to get into the business of second guessing Executive power exercised under an Executive Order.

In any case, the ACLU can then bring another suit (and they will) challenging the classification. I wonder if Gates thinks this is worth doing anyway because at best the challenge fails, and at worst it takes another 4 years to go through the courts, or because there is some other trick up their sleeve. Or if he wasn't even considering the means by which the president could resist releasing the pictures, just asked Obama to do so, and let him worry about how.

The thing I do not get is that one of the reasons Obama gave for agreeing to release the pictures was that they were of the opinion that the legal battle was lost anyway - if that is the case, then why the reversal, no matter how convincing Gates might have been about the danger involved?

I don't buy the political argument that Obama caved to political pressure - politically, this is hurting him a lot more than it is helping him.

[Berkut]

Not sure how accurate this is, but it is interesting if true:

A senior Pentagon official told FOX News       that the government will shift its defense to arguing the negative national security implications that the release of the       photos will have.
This legal approach was not employed from the start, the official said, because it was working poorly in the original case that challenged the release of the Abu Ghraib photos. That case was dropped because the photos were all leaked.

[Caliga]

*barely skims the thread*

So does Europe hate Obama yet? 

[The Minsky Moment]

No, that would not be fair game because I do not (in that case) think he would in fact be operating in good faith, and in fact I think one could make a impeachment case against him.

You have yet to explain WHY you think he is doing this if it is NOT in fact because he thinks it is a national security issue.

What makes the action in bad faith is just "thinking it is a national security issue" isn't enough.  The law was specifically designed to combat the abuse of Presidents hiding material that they subjectively thought involved "national security" issues - and to force the use of a defined objective standard.  It doesn't matter how justified Obama thinks he is - he is still evading the law.

What makes this particular case so troubling is the line of reasoning used to justify withholding the material.  It isn't that (as the FOIA exemptions contemplate) the material might reveal the identity of a covert operative (or witness), that it might reveal confidential intelligence methods or data, or the location of some sensitve material or vulnerable person.  The basis for the concern here is simply that the pictures will make the US (and the US military specifically) *look bad*.  The chain of reasoning that sees this as a national security issue goes:

1) The pictures (accurately!) show the US doing bad things and hence show the US in a bad light.
2) Showing the US in a bad light is bad for the US and encourages and emboldens its enemies.

This inference may hold but withholding public information on the basis of that kind of reasoning is a one of the key abuses FOIA was designed to stop.  The judgment was made that the government shouldn't be able to keep evidence concerning its bad conduct (or the bad conduct of its agents) secret from its own people just because it would be embarassing.  To take the opposite view would mean that anything that might be embarassing to the government can be kept secret from the public indefinitely.  That is how countries like Russia or China or Iran do things.  But it is not consistent with how real democracies operate.

But this has nothing to do with the law, it is just politics. The entire thing is just politics.

If you took the politics out of it, there wouldn't be anything left. 

If you can't see the very serious issues at principle here, that's unfortunate.  It just goes to show I suppose that while most people will give lip serive to concepts like limtied government and the rule of law, when they prove inconvenient they are the first things to get thrown out the window.

That said, I do agree there is significant politics here.  As in Obama keeping the generals happy and playing to the center by looking tough on national security.  Based on your response, he has succeeded.

[grumbler]

Yeah, which is why the next step would be to take it to the next higher level of judges.

That is always the next step, if one desires to continue to spend someone else's money to avoid the uncomfortable truth that one's position is legally untenable.  It is not always a wise step to take, however.

True enough. And he has a reason to do so, of course - because he was told by the competent authority that releasing the information is counter to US interests and will get people killed.

Actually, I do not believe that you can support this assertion.  Insofar as we have been told, these photos do not contain any information at all that has not already been released.

Hmmm, I think he can make an argument that this falls under section (d).

What information in the photos pertains to "foreign relations or foreign activities of the United States, including confidential sources"?

The President has rather wide discretionary powers when it comes to something as purely Executive as classification of material - it would be interesting if the courts would desire to get into the business of second guessing Executive power exercised under an Executive Order.

Wide, but not infinitely wide.  It would be interesting to see if the Obama Administration is going to evade laws it finds inconvenient to follow, like its predecessor.  As JR points out, such hubris may indeed be an unavoidable feature of the office as currently structured; if Obama succumbs, that will say a lot.

In any case, the ACLU can then bring another suit (and they will) challenging the classification. I wonder if Gates thinks this is worth doing anyway because at best the challenge fails, and at worst it takes another 4 years to go through the courts, or because there is some other trick up their sleeve. Or if he wasn't even considering the means by which the president could resist releasing the pictures, just asked Obama to do so, and let him worry about how.

I rather think that Gates was asked for an opinion on whether he thought the photos should be released, and he said "no."  He wouldn't have offered that opinion as a lawyers, of course, but as a bureaucrat.

The thing I do not get is that one of the reasons Obama gave for agreeing to release the pictures was that they were of the opinion that the legal battle was lost anyway - if that is the case, then why the reversal, no matter how convincing Gates might have been about the danger involved?

I don't buy the political argument that Obama caved to political pressure - politically, this is hurting him a lot more than it is helping him.

There are bureaucratic imperatives that are independent of partisan politics.  I rather suspect that what we are seeing here is the effect of being surrounded by people whose bureaucratic mindset focus on short-term consequences and readily rationalize the denial of even legally obligatory disclosures. 

[The Minsky Moment]

The thing I do not get is that one of the reasons Obama gave for agreeing to release the pictures was that they were of the opinion that the legal battle was lost anyway - if that is the case, then why the reversal, no matter how convincing Gates might have been about the danger involved?

I don't think it is coincidental that this is happening at roughly the same time there was a major change to the army command structure.  The Pentagon is very keen to keep these photos out of public distribution and no doubt they put pressure on the WH.  Obama wants to keep up a good relationship with the top command.  He needs them and Gates to secure his right flank politically on national security issues, especially after all the hysteria about how is acted too flexibly in his recent dealings abroad.

[garbon]

Maxims are the last refuge of the incompetant.

I found that on great obama quotes 2.0 or something like that.

[The Minsky Moment]

The President has rather wide discretionary powers when it comes to something as purely Executive as classification of material - it would be interesting if the courts would desire to get into the business of second guessing Executive power exercised under an Executive Order.

The courts have done so many times in the past and the discretionary authority is not as wide as one might assume.

The original FOIA contained the national security exemption that is now Section 552(b)(1)(A), but the statute was later amended to and the language in (B) -- that the information  must be "in fact properly classified pursuant to such Executive order."  In other words, regardless of the Presidents classificaiton authority under his executive order, the FOIA law independently empowers the courts to make judgments about whether the classification decision was made properly.  And there have been dozens of cases where federal courts have rejected Exemption 1 designations and ordered disclosure.

[The Minsky Moment]

Obama FOIA Memorandum dated April 17, 2009 (!) : http://www.usdoj.gov/oip/foiapost/2009foiapost8.htm

While recognizing that the "disclosure obligation under the FOIA is not absolute," and that the FOIA contains exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests, the Guidelines stress that the President has directed agencies not to withhold information merely to prevent embarrassment, or because "errors and failures might be revealed, or because of speculative or abstract fears."

The President and Attorney General have established sweeping new changes in the way transparency is to be viewed and administered across the Government. These principles require agencies to employ a comprehensive approach to transparency. This approach can be summarized in ten key elements that agencies must take into account in order to ensure that the fundamental commitment to open Government is realized.

1. The presumption of disclosure applies to all decisions involving the FOIA; agencies should keep that presumption foremost in their mind.

What can I say, it was a nice four weeks while it lasted.

[Berkut]

If you can't see the very serious issues at principle here, that's unfortunate. 

Funny, I was just thinking the saem thing about you - how hard it is to see the real world consequences from your Ivory Tower of Law.

It just goes to show I suppose that while most people will give lip serive to concepts like limtied government and the rule of law, when they prove inconvenient they are the first things to get thrown out the window.

Oh please. That is like arguing that if you don't support people being allowed to yell fire in crowded theaters whenever they like, you are only paying lip service to freedom of speech.

All freedoms include the need to balance freedom with reason.

That said, I do agree there is significant politics here.  As in Obama keeping the generals happy and playing to the center by looking tough on national security.  Based on your response, he has succeeded.

Oh yeah, keeping those generals happy, why, that is just politics. Those assholes don't know anything, do they? Certainly not as much as your average lawyer about national security. Obama should just ignore what they think about silly things like protecting the lives of soldiers.

[Berkut]

This inference may hold but withholding public information on the basis of that kind of reasoning is a one of the key abuses FOIA was designed to stop. 

There is no information being withheld at all, since the actions that the pictures depict are already a matter of public record. The only thing being withheld is the emotional propaganda that the Moveon crowd craves so much.