Obama to block release of detainee abuse photos

[Berkut]

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

"My belief is the publication of these photos would not add any additional benefits to our understanding of what was carried out in the past by a small number of individuals," Obama said in a brief appearance. "The most direct consequence would be to further inflame anti-American opinion and put our troops in greater danger."

Obama added that he's made it clear to military officials, however, that the abuse of detainees is "prohibited and will not be tolerated."

Obama told his legal advisers last week that he did not feel comfortable with the release of the photos because he believes they would endanger U.S. troops, and that the national security implications of such a release have not been fully presented in federal court

Nothing to be gained by their release (other than stroking the angst of the Moveon crowd and handing the people whipping up terrorism recruiting videos some material) and lots to be lost.

[The Brain]

:worthless:

[Berkut]

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.

Of course, which is why lawyers never ever do anything of the sort, and why nobody ever hires lawyers to do such things.

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.

Indeed, which is why on this I am very impressed that Obama has not let his politics get in the way of his job.

It is also charged with protecting American lives and interests.

That is neither in the Presidential oath of office nor in Article II.

Right. I guess he isn't actually responsible for protecting American lives or interests then. An interesting position to take.

  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. 

Indeed. Good thing one of those means expressly delegated is his ability to define national security interests, and direct his legal team to protect American interests and lives.

It certainly can't be carried out by means contrary to the law he is obligated to enforce.

Of course not! thank goodness he isn't breaking any laws then, other than the "Get Teh Booshilers at all costs law!" But that one isn't in Article II either.

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.

And thank goodness Obama is holding himself to a higher standard than party hitman.

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.

But he has more information now, and better advice from people outside his party. And I am very pleased he is willing to listen to it, rather than slavishly hold to his political promises made in an effort to get elected.

Governing is certainly a lot harder than campaigning, although some people don't seem to understand when one stops and the other starts.

  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.

he explained his reversal rather satisfactorily I thought.

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. 

If it is done with the purpose of not releasing documents that the President believe represent a security threat to the US, then it is certainly not done in bad faith.

[The Minsky Moment]

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.

He can't do that because there are procedures  that must be followed that if properly followed would not permit the classification., and the information must be "national security information concerning the national defense or foreign policy."  Even the Bush people didn't think this could pass the laugh test - that is why (to their credit) never made the Exemption 1 argument.

I understand your response is that the President can just say - damn the law, damn the procedures - i will just classify it and make them sue me.  The problem is that doing that violates his oath of office.  You may not think that is a big deal - that is your right.  I do.

If that is meaningless to you, consider the consequences of endorsing such a mode of operation.  Imagine Obama signs an executive order seizing all of Rush Limbaugh's property, money and equipment.  Rush files a FOIA request to get documents from the government concerning the basis of the seizure.  Obama says no - it's a national security issue and the docs are all classified.  This is of course complete baloney but meanwhile Rush has to wind his way through the courts for years, with no money or means to hire a lawyer.  In the Republic of Berkutland this is all fair game.  But i would hope not in America.

I think a good argument can be made that it is at issue here, since the exemption says nothing about "specific" individuals.

It not only does but the courts have so held.

[The Minsky Moment]

If it is done with the purpose of not releasing documents that the President believe represent a security threat to the US, then it is certainly not done in bad faith.

So if the president says he believes the purpose is to protect against a security threat, it must be in good faith?   

[DontSayBanana]

So the rationale is - the photos are so bad they show evidence of a crime, and therefore revealing them will force the executive branch to fulfill its responsiblity to enforce the law, a responsibility that it can evade if the photos are kept under wraps.

sorry, that just makes it worse.

Actually, I read the opposite. Look under 5 U.S.C § 552(b)(7); in addition to national security, information isn't covered under FOIA if it could taint a criminal investigation.

[The Minsky Moment]

So the rationale is - the photos are so bad they show evidence of a crime, and therefore revealing them will force the executive branch to fulfill its responsiblity to enforce the law, a responsibility that it can evade if the photos are kept under wraps.

sorry, that just makes it worse.

Actually, I read the opposite. Look under 5 U.S.C § 552(b)(7); in addition to national security, information isn't covered under FOIA if it could taint a criminal investigation.

How can something "taint" a criminal investigation that isn't taking place or going to take place?

[Sheilbh]

Nothing to be gained by their release (other than stroking the angst of the Moveon crowd and handing the people whipping up terrorism recruiting videos some material) and lots to be lost.

I disagree.  I think there's plenty to be gained and very little to be lost.  I think the way the terrorist recruitment thing works is that there's news that the US tortures, or send people to be tortured, there are detainee photos in the media (Abu Ghraib) and rather unpleasant reports by former detainees.  That stuff permeates everywhere and creates anti-American feeling which then makes people more receptive to extremist arguments.

Releasing the photos and the documents (including the ones that demonstrates that torture works) I don't think would stoke anti-Americanism.  It would probably further disgust everyone about the last administration but I think it would demonstrate that the US means it when they say that this stuff isn't tolerable.  I think the automatic assumption that when the US President says 'we don't torture' that the US, in fact, didn't 'torture' is gone.

I actually think releasing the photos and saying they're wrong and, in my view, prosecuting the people who enacted this policy would build up America's popularity to a huge degree.

[DontSayBanana]

How can something "taint" a criminal investigation that isn't taking place or going to take place?

Obama has stated he's not going after the individual base personnel, but he also doesn't want to preclude going after the personnel in the Bush administration who OK'ed it. There may yet be a criminal investigation, just not of each individual incidence.

[Sheilbh]

Obama has stated he's not going after the individual base personnel, but he also doesn't want to preclude going after the personnel in the Bush administration who OK'ed it. There may yet be a criminal investigation, just not of each individual incidence.

I realise this is impossible given how political the whole thing is but I wish Obama didn't have to state anything on this and prosecutions could be decided on the basis of whether it looked like a law was broken or not.

[The Minsky Moment]

How can something "taint" a criminal investigation that isn't taking place or going to take place?

Obama has stated he's not going after the individual base personnel, but he also doesn't want to preclude going after the personnel in the Bush administration who OK'ed it. There may yet be a criminal investigation, just not of each individual incidence.

I was responding to Faelin's point that release of the photos would cause the admin to bring prosecutions it wouldn't otherwise bring - i.e. absent release of the photos, the prosecutions wouldn't be brought.  By definition, you can't taint a criminal investigation that isn't occurring.

As to the broader point of whether a 7(A) exemption could apply here, the government has never advanced such a position and is not doing so now.  For the very good reason that it doesn't apply - whatever investigations may be occuring, release of these photos is not going to interfere with it.

[The Minsky Moment]

I realise this is impossible given how political the whole thing is but I wish Obama didn't have to state anything on this and prosecutions could be decided on the basis of whether it looked like a law was broken or not.

No worries, berkut assures me that Obama's decisionmaking on this is entirely non-political.

I want McCain back - at least you knew where you stood with the crazy old bastard.

[DontSayBanana]

I realise this is impossible given how political the whole thing is but I wish Obama didn't have to state anything on this and prosecutions could be decided on the basis of whether it looked like a law was broken or not.

To an extent, yes, but humans are masters of doublespeak. "Whether it looked like a law was broken" is not the same as "certainty that a law was broken." Tons of evidence for more everyday trials is kept under wraps for precisely this reason.  As despicable as the photos might be, there's more to proving an actus reus than a photograph (though they carry understandably heavy weight). Publication of photos would fuel a fresh round of having a case tried by the media, when there's a huge legal, as well as political gray area as to whether or not there even was an actus reus.

[DontSayBanana]

I was responding to Faelin's point that release of the photos would cause the admin to bring prosecutions it wouldn't otherwise bring - i.e. absent release of the photos, the prosecutions wouldn't be brought.  By definition, you can't taint a criminal investigation that isn't occurring.

As to the broader point of whether a 7(A) exemption could apply here, the government has never advanced such a position and is not doing so now.  For the very good reason that it doesn't apply - whatever investigations may be occuring, release of these photos is not going to interfere with it.

I was talking more about a possible 7(B) exemption. The biggest controversy is whether or not "torture" happened, by definition. This has gotten hugely political and polarized, and these photos would motivate for all the wrong reasons; emotionally, rather than logically.

[The Minsky Moment]

I was talking more about a possible 7(B) exemption. The biggest controversy is whether or not "torture" happened, by definition. This has gotten hugely political and polarized, and these photos would motivate for all the wrong reasons; emotionally, rather than logically.

That wasn't argued either.  In light of the fact that there is no ongoing trial that would be affected, and the fact that the Abu Ghraib pictures were already widely released and viewed, I don't think there is much an argument there either.