Obama to block release of detainee abuse photos

[Berkut]

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.

So why does Gates and the military care?

You and grumbler keep talking about embarassment, as if it is *certain* that they are a bunch of lying assholes who will say anything to avoid a few pictures being released - even though it isn't embarassing to them at all.

Is it not possible that they truly and honestly believe that releasing these pictures will in fact have a profoundly negative effect on out ability to accomplish or missions in places like Iraq and Afghanistan, or will actually result in people being killed?

Or is that just impossible to accept - that these men could be operating in good faith? After all, they are the military, right?

[The Minsky Moment]

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.

Of course I see the real world consequences - I see them every day I look though the south windows and notice the missing Towers.  But it is always possible to get more security by sacrificing more freedom.  The question is where to draw the line.  In some countries the line is drawn by the Supreme Leader and his coterie.  In this country it is drawn by the elected branches of government though a process of law.  Either the executive respect that process or it does not.  If it does not, it is not worthy of our respect.

What you still don't seem to get is that the issue of whether national security justifies withholding the material is NOT at issue here.  That issue was already decided by the existing laws we have in place.  The way to deal with that if you disagree with that outcome is change the law and give the president more discretion.  Not egg him on to evade it.

[The Minsky Moment]

Or is that just impossible to accept - that these men could be operating in good faith? After all, they are the military, right?

I am perfectly willing to grant that these men may be acting in good faith AND politically (to bury an embarassment as best as they can) at the same time.

Funny that you are not willing to extend the same courtesy to your fellow citizen-members of the ACLU.

[Caliga]

ACLU

[Berkut]

Of course it is at issue here - the issue of classification has not been tested in the courts at all.

I find it odd that you are arguing that even the attempt to test it is somehow a contravention of the law, when it clearly is not. It may not work, but that doesn't make it illegal to try. You lvoe the "process of law" except when someone uses it in a fashion that doesn't meet your narrow partisan political desires - then it is "not worthy of our respect" because they "don't respect the process". Of course, what you mean by that is that they don't respect YOUR conclusion, and actually wish to explore the process. "The process" includes things like seeing whether a presidential classification can hold up to legal review. There is not reason to simply assume that it cannot, and therefore even trying is some grave crime.

It is always possible to get more freedom by sacrificing some security. The question is where to draw the line. In some countries, we do this by the process of *three* branches of government, rather than just slavishly following the dictate of one. The Executive attempting to exercise their prerogative is not by definition in contravention of the law. If Obama refuses to release the photos after being ordered to do so and the legal options are exhausted, THEN you can start bleating about how the US is just like North Korea.

[Ed Anger]

ACLU

[grumbler]

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.

I agree.  Thus, the photos cannot be classified.  Only information can be classified.  The law and the E.O. are crystal-clear on that.

Now that we have classification out of the way, all that remains is the claim of FOIA exemption on the basis of "Berkut and Obama say so."  That's a pretty rough row to hoe.

[Berkut]

Or is that just impossible to accept - that these men could be operating in good faith? After all, they are the military, right?

I am perfectly willing to grant that these men may be acting in good faith AND politically (to bury an embarassment as best as they can) at the same time.

That makes no sense - if they say they want to keep them classified for a particular reason, while the real reason is both not the reason given and trite and illegal, then they are NOT operating in good faith, by definition.

It is rather deceitful of you to say that you accept they are operating in good faith out of one side of your mouth while you spend the entire argument insisting that they are just trying to cover their ass. Rather not in good faith of you, in fact.

Funny that you are not willing to extend the same courtesy to your fellow citizen-members of the ACLU.

I have yet to see anyone, ACLU or yourself, make any kind of coherent argument for why these pictures need to be in the public domain beyond "Because we want them to be!". I HAVE seen a very coherent and credible argument from the military that has nothing to do with your constantly repeated "They just don't want to be embarrassed!" strawman that makes no sense.

I have also seen plenty of bleating hacks going on and on about throwing Cheney in jail, "getting" the people responsible for the last 8 years, balhblahblah and their emo rage at their Chosen One not following through on his campaign promise to do the same. So no, I am not willing to extend that courtesy to them, since the evidence rather clearly shows that they are not operating in anything like good faith or with respectable motives.

If the reverse is true, and you have some actual evidence that Obama and Gates are lying, and this is really all about how embarrassed they would be if they were released (which makes no sense at all since the information is already out there), feel free to share it with us. Until then, I am operating under the reasonable presumption that they are not lying out of their ass about their motives.

[Berkut]

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.

I agree.  Thus, the photos cannot be classified.  Only information can be classified.  The law and the E.O. are crystal-clear on that.

Not at all crystal clear. In fact, documents are classified all the time, and pictures are certainly documents.

Now that we have classification out of the way, all that remains is the claim of FOIA exemption on the basis of "Berkut and Obama say so."  That's a pretty rough row to hoe.

No, the row of the professional military members and the President say that it is a national security issue, even if the ultra liberal lawyer and school teacher don't agree is not such a rough row to hoe, actually. In the balance of things, I am going to defer to the judgment of the generals and President over the lawyer and the teacher.

[Berkut]

What you still don't seem to get is that the issue of whether national security justifies withholding the material is NOT at issue here.

Funny, the President doesn't seem to think that is the case, and the courts have not ruled on that at all. So why do you keep insisting that to even test this is a problem?

  That issue was already decided by the existing laws we have in place. 

Incorrect, as has been shown already.

The way to deal with that if you disagree with that outcome is change the law and give the president more discretion.

Why? The argument is that he already has the necessary discretion, he just hasn't exercised it yet.

Not egg him on to evade it.

Not doing that, nor is anyone.

[The Minsky Moment]

What you still don't seem to get is that the issue of whether national security justifies withholding the material is NOT at issue here.

Funny, the President doesn't seem to think that is the case, and the courts have not ruled on that at all. So why do you keep insisting that to even test this is a problem?

The only reason the courts haven't ruled on it is that the last administration thought that the legal arugment was so weak and frivolous they didn't bother making it.

Going out a farther limb than the Bush admin was willing to go on a national security legal exemption is not a good sign.

[grumbler]

Of course it is at issue here - the issue of classification has not been tested in the courts at all.

I find it odd that you are arguing that even the attempt to test it is somehow a contravention of the law, when it clearly is not. It may not work, but that doesn't make it illegal to try. You lvoe the "process of law" except when someone uses it in a fashion that doesn't meet your narrow partisan political desires - then it is "not worthy of our respect" because they "don't respect the process". Of course, what you mean by that is that they don't respect YOUR conclusion, and actually wish to explore the process. "The process" includes things like seeing whether a presidential classification can hold up to legal review. There is not reason to simply assume that it cannot, and therefore even trying is some grave crime.

It is always possible to get more freedom by sacrificing some security. The question is where to draw the line. In some countries, we do this by the process of *three* branches of government, rather than just slavishly following the dictate of one. The Executive attempting to exercise their prerogative is not by definition in contravention of the law. If Obama refuses to release the photos after being ordered to do so and the legal options are exhausted, THEN you can start bleating about how the US is just like North Korea.

Classification is impossible if, as we all agree, there is no information that has not already been disclosed.  Such classification is expressly prohibited by EO unless the released info can be recovered.

Information may be reclassified after declassification and release to the public under proper authority only in accordance with the following conditions:

      (1) the reclassification action is taken under the personal authority of the agency head or deputy agency head, who determines in writing that the reclassification of the information is necessary in the interest of the national security;

      (2) the information may be reasonably recovered; and

      (3) the reclassification action is reported promptly to the Director of the Information Security Oversight Office.

[The Minsky Moment]

I find it odd that you are arguing that even the attempt to test it is somehow a contravention of the law, when it clearly is not.

Now you're in strawman mode - read my first comment on this.

Of course Obama can test the law though appeal, but it isn't proper to do that if you think the legal position is no good and you are only doing it for the purposes of delay.  That is what Obama's own memo on this issue says last month.  And Obama already considered the legal question at issue here and came to the opposite conclusion.

I have yet to see anyone, ACLU or yourself, make any kind of coherent argument for why these pictures need to be in the public domain beyond "Because we want them to be!"

They need to be in the public domain because they are public documents.  The people don't have to justify to the government why they want to examine the government's business.

[Berkut]

What you still don't seem to get is that the issue of whether national security justifies withholding the material is NOT at issue here.

Funny, the President doesn't seem to think that is the case, and the courts have not ruled on that at all. So why do you keep insisting that to even test this is a problem?

The only reason the courts haven't ruled on it is that the last administration thought that the legal argument was so weak and frivolous they didn't bother making it.

So? Isn't that a perfectly normal legal procedure - making a particular argument does not preclude making other ones of the first doesn't pan out.

They thought that argument A was better than argument B, so they went with argument A. That says nothing about B, except that someone thought they would have better luck with the other one.

Going out a farther limb than the Bush admin was willing to go on a national security legal exemption is not a good sign.

Right, because we all know that this is really all about Bush, again. And if Bush didn't make an argument, then I guess that taints it for all time. Funny, you never expressed much respect for the Bush administration legal competency before now.

You are clearly arguing from a strictly results standpoint, and taking on the "side" of the ACLU. I am not willing to do so, and am perfectly happy seeing the process itself work itself out, rather than deciding ahead of time what the answer must be based on my political ideology.

If in fact you are correct, even from your conclusion first argument, and Obama does not have the power to classify those documents, then the courts will figure that out, and you can look at pictures of naked terrorists stacked in pyramids or whatever to your hearts content after the process happens.

What I don't understand is why the supposed legal process champion is so insistent that the process be short circuited, and we jump straight to the conclusion. Its almost like you only really care about the process if it leads to the "right answer.

[Berkut]

They need to be in the public domain because they are public documents.  The people don't have to justify to the government why they want to examine the government's business.

I expressly noted that in this response, which you conveniently cut out.

They do not have to justify it to the government, they do have to justify it to *me* if they want *me* to have any respect for their motives - which is what YOU asked.