Obama to block release of detainee abuse photos

[Berkut]

So what is the problem then? He has every right to go through the courts, that is what they are there for.

He should classify them all due to national security cocerns, then the ACLU and HRW and all the little people who love to point out how terrible the government is can challenge the classification, and we can spend the next decade arguing about it.

Works for me.

[Berkut]

Because the presumption that applies is exactly the opposite - everything the government does and every document the government hold is presumptively available to the public unless there is a compelling reason to withhold it. 

And in this case, there is in fact a compelling reason to do so - releasing a bunch of pictures so that they can be used to inflame more hatred of Americans is dangerous and counter-productive. They serve no positive balancing effect, since there is no dispute over what they show, so the government, IMO, has an excellent case for leaving them out of the public.

That's what it means to be a government for the people, of the people, by the people.  The people don't have to explain or justify why they want to see things their government is doing; the government has to justify why they won't tell.

Indeed, and so they have.

There is all kinds of documents that are kept classified all the time. How is this any different?

Documents may be kept classified because they contain secret technical specs, or reveal secret intelligence info, or confidential strategic information, etc.

Or because their release can and will endanger lives and damage US interests.

  This doesn't fall into that category - it's just embarassing to the government because it makes it look bad.  That's not a justification for keeping the info classified.

That isn't a justification, but their use as propaganda to recruit more suicide bombers is, among other things. There is an actual, real world out there beyond the ivory tower you know.

There are a bunch of exceptions for FOIA.  The last administration argued that in court.  They lost three times.  Now Obama is going for loss #4.

Good, I hope he manages to drag it out as long as possible. That is what the law is all about, right?

[Berkut]

They are relying on exemption 7.  All four judges that have considered the issue have found against the government.  The entire Second Circuit court of appeals rejected the en banc appeal.

Like I said, he should just classify them all, and let the ACLU spend a decade arguing against the classification. Maybe by the time they find a judge who will agree with them it will have blown over and the issue won't be as potentially damaging.

[The Minsky Moment]

So what is the problem then? He has every right to go through the courts, that is what they are there for.

He has the right to appeal.  But if he does so, he will have broken his promise to take a different approach on these issues. 

He should classify them all due to national security cocerns, then the ACLU and HRW and all the little people who love to point out how terrible the government is can challenge the classification, and we can spend the next decade arguing about it.

Works for me.

Doesn't work for me b/c it is fundamentally dishonest.  the exective is supposed to uphold and enforce the law in good faith.  It is not supposed to evade the law or render it ineffective by deliberately creating a morass of endless legal proceedings to forestall compliance until the citizen plaintiff runs out of resources or finally gets a final court order the government can't appeal before that happens.

This is the kind of dishonest and cycnical bull that the last admin pulled all the time.  If the executive feels the law needs to be changed, have the balls to go to Congress and ask for it to be changed.  You don't deliberately sabotage the law of the land you have sworn to uphold just because you either lack the courage to ask for a change, or because you know the people will never allow you to do what you want.

[The Minsky Moment]

Good, I hope he manages to drag it out as long as possible. That is what the law is all about, right?

No the government is not supposed to advance legal positions they know or believe to be frivolous.

Or because their release can and will endanger lives and damage US interests.

That is false - it is far too broad a formulation.  Anything could be argued to "damage US interests"  - the release of basic budgetary data could damage US interest by scaring off foreign treasury investors.

[Berkut]

So what is the problem then? He has every right to go through the courts, that is what they are there for.

He has the right to appeal.  But if he does so, he will have broken his promise to take a different approach on these issues. 

Then that is one of the many stupid promises he made that he is right to break, right up there with bailing on Iraq asap.

He is finding out that it isn't nearly as simple as it was in his ivory tower. There are real decisions that have to be made that have real consequences. The military is telling him that if he releases these photos, people will die as a result. I, for one, am glad he trusts them enough to listen.

He should classify them all due to national security cocerns, then the ACLU and HRW and all the little people who love to point out how terrible the government is can challenge the classification, and we can spend the next decade arguing about it.

Works for me.

Doesn't work for me b/c it is fundamentally dishonest.

What does the law have to do with honesty?

the exective is supposed to uphold and enforce the law in good faith.

It is also charged with protecting American lives and interests. This is not exactly a new issue - the clash between security and transparency has been around for a long time.

  It is not supposed to evade the law or render it ineffective by deliberately creating a morass of endless legal proceedings to forestall compliance until the citizen plaintiff runs out of resources or finally gets a final court order the government can't appeal before that happens.

But that isn't evading the law, that is in fact using the law in the way that lawyers use it all the time, even ones that work for the ACLU. It isn't like the demand that these photos be released is based on some noble love of the law.

This is the kind of dishonest and cycnical bull that the last admin pulled all the time.

Really?

I thought the bull that the last admin pulled was actually engaging in the abusive practices. Now you are arguing that not releasing pictures is the same thing? Pretty harsh.

  If the executive feels the law needs to be changed, have the balls to go to Congress and ask for it to be changed.

I don't think Obama has said that the law should be changed. And again, in the actual world, decisions are not so pristine and obvious as they are to you. He isn't saying the law should be changed, he is saying that the law does not demand what the people who want to see pictures of "abuse" say that it demands. Which is perfectly within his rights, just as it is within the rights of the MoveOn crowd to demand the pictures so they can go on and on and on and on and on and on and on about how evil bush and Cheney are.

  You don't deliberately sabotage the law of the land you have sworn to uphold just because you either lack the courage to ask for a change, or because you know the people will never allow you to do what you want.

That is quite the strawman. Who is sabotaging anything? He is the President, and it within his power to classify things. Then the ACLU can challenge that classification. That is all well within the law of the land, even if it pisses off the left who hasn't been forced to actually make real decisions outside the vacuum of their political theory.

[Berkut]

Good, I hope he manages to drag it out as long as possible. That is what the law is all about, right?

No the government is not supposed to advance legal positions they know or believe to be frivolous.

Who says they are frivolous?

Or because their release can and will endanger lives and damage US interests.

That is false - it is far too broad a formulation.  Anything could be argued to "damage US interests"  - the release of basic budgetary data could damage US interest by scaring off foreign treasury investors.

Your objection is far too broad - anything that actually is damaging to US interests can be as easily dismissed. If you don't like the law, have the balls to ask that it be changed, rather than demanding that the courts simply ignore it.

[The Brain]

FWIW I'm sure you don't look fat in the photos.

[Berkut]

FWIW I'm sure you don't look fat in the photos.

THE CAMERA ADDS TEN POUNDS!

[The Minsky Moment]

Who says they are frivolous?

Every court to address the issue.

Your objection is far too broad - anything that actually is damaging to US interests can be as easily dismissed. If you don't like the law, have the balls to ask that it be changed, rather than demanding that the courts simply ignore it.

Clever attempt to reuse my language - but it founders on a basic problem - there IS NO exemption in the law for anything that "can and will endanger lives and damage US interests" - so it is up to those who want such an exception to get the law changed to include it.

There is an exemption for "national security information concerning the national defense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order" but that is not at issue here.

There is also an exemption to protect the safety of a specific *individual* if revealing info about the individual would endanger their life.  But that also is not at issue here.

The exemption you propose does not exist.

[Sheilbh]

I'm disappointed by this, the photos should be released.

[Neil]

the rational is that if the photos are released, more people will die as a result. There is no compelling reason to release them, so why do so?

"Democracy requires accountability, and accountability requires transparency."

Maxims are the last refuge of the incompetant.

[Neil]

and does the Court have the power to tell the president that his decision on a national security issue is subject to THEIR review?

Why not?  The executive has been under attack from the other two branches for decades.

[Berkut]

Every court to address the issue.

No, they have simply said that the photos should be released, not that any attempt to continue the legal fight is by definition "frivolous".

Clever attempt to reuse my language - but it founders on a basic problem - there IS NO exemption in the law for anything that "can and will endanger lives and damage US interests" - so it is up to those who want such an exception to get the law changed to include it.

Of course there is, exemption #1.

There is an exemption for "national security information concerning the national defense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order" but that is not at issue here.

It most certainly is at issue here, since that is exactly what Obama should do, if the court decides the other issues do not pertain. He should "properly classify them" with an executive order. Problem solved, and I am sure you and the ACLU would be happy then.

Oh wait, no you wouldn't. Then they will challenge the classiffication as not being "proper", although the law is pretty blurry on that, isn't it? Sounds like the President has quite a bit of discretion there, and does the Court have the power to tell the president that his decision on a national security issue is subject to THEIR review?

An interesting question, and I think we should see how long it takes to resolve it.

There is also an exemption to protect the safety of a specific *individual* if revealing info about the individual would endanger their life.  But that also is not at issue here.

I think a good argument can be made that it is at issue here, since the exemption says nothing about "specific" individuals. Certainly the military has claimed that release ofthe photos will not just endanger lives, but directly result in loss of life.

The exemption you propose does not exist.

Of course it does - the evasion of the exmeptions YOU propose is what does not exist. The exemptions are, of course, not all that precise (how could they be), and the President is the last say on what constitutes national security. I think if he classifies the documents, the court will be hard pressed to gainsay that decision.

And what is more, if he does that, it re-sets the debate. The ACLU/Moveon can go back and start a new lawsuit to challenge the classification, and that can wend it ways through the courts. Gogolawtalkers!

[The Minsky Moment]

What does the law have to do with honesty?

Federal law requires legal arguments to be made in good faith, and not for the purposes of delay or harassment.

But the issue here is not abuse of the courts.  It is with governance.  The law may at times be indifferent to the truth.  But those who would take on the power of governing the rest of us in a free state should honestly uphold their oaths of office.

It is also charged with protecting American lives and interests.

That is neither in the Presidential oath of office nor in Article II.  The federal government is a government of limited powers - and the President's responsibility to protect American lives and interests can be carried out only by means expressly delegated to him.  It certainly can't be carried out by means contrary to the law he is obligated to enforce.

But that isn't evading the law, that is in fact using the law in the way that lawyers use it all the time, even ones that work for the ACLU. It isn't like the demand that these photos be released is based on some noble love of the law.

The government is not like a private party in this respect though.  A defense lawyer who knows his client is guilty can still defend him and do everything he can to get him off.  But a prosecutor is not supposed to prosecute a person the prosecutors knows to be innocent, even if there are very good reasons to want that person behind bars.  The government is held to a higher standard than an ambulance chaser.

I thought the bull that the last admin pulled was actually engaging in the abusive practices.

I don't think the admin actually engaged in or endorsed the activities at Abu Ghraib etc.   

I don't think Obama has said that the law should be changed. And again, in the actual world, decisions are not so pristine and obvious as they are to you. He isn't saying the law should be changed, he is saying that the law does not demand what the people who want to see pictures of "abuse" say that it demands.

Problem is that it contradicts what he said on the same subject a few months ago.  And I don't think it is reasonable to believe that he had a sudden ephiphany about the legal scope of exemptive authority under FOIA.

That is quite the strawman. Who is sabotaging anything? He is the President, and it within his power to classify things. Then the ACLU can challenge that classification. That is all well within the law of the land, even if it pisses off the left who hasn't been forced to actually make real decisions outside the vacuum of their political theory.

If the classification is done in bad faith for the purpose of delay, then it is sabotage.