This from Andy McCarthy on the current state of the argument over releasing more photos from Abu Ghraib. The Obama administration is claiming to have come up with a new argument against the release, when in fact (as they surely know full well) they’re advancing the same argument made by the Bush administration:
As the Second Circuit Court of Appeals’ decision last September in ACLU v. Dep’t of Defense relates, back in 2005, the Bush Justice Department first argued, in the district court, that the release of the photos “could reasonably be expected to endanger the physical safety of United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.” The judge rejected this argument—incorrectly in my view, for what that may be worth—despite acknowledging the “risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts.” (Opinion at pp. 4-5). Then, as the three-judge Second Circuit panel noted, this national security argument became the Bush Justice Department’s “lead argument on this appeal.” (Id., pp. 8 & ff.) It’s simply false for Gibbs to contend otherwise.
Why all the legerdemain? Because, as I said in the lead argument made in Tuesday’s column (and on which I will elaborate in a new article later today): Obama is using this litigation as a smokescreen. He’s now getting plaudits for reversing himself and his Justice Department (which, in contrast to the Bush Justice Department, didn’t want to fight this case at all—just wanted to release the photos). But he is still trying to get away with voting present—which is to say, he is hiding behind the judges.
McCarthy explains,
It is in Obama’s power, right this minute, to end this debacle by issuing an executive order suppressing disclosure of the photos due to national security and foreign policy concerns. As I’ve noted, there’s no need to get into a Bush-era debate over the limits of executive power here. In the Freedom of Information Act, indeed, in FOIA’s very first exemption, Congress expressly vests him with that authority. See Title 5, U.S. Code, Section 552(b)(1)(A) (FOIA disclosure mandate “does not apply to matters that are …specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order”).
Besides being simple, issuing such an order would be a strong position and the screamingly obvious right thing to do. But it would also be a fully accountable thing to do, and that’s why President Obama is avoiding it. He realizes—especially after he surrendered details of our interrogation methods to the enemy—that he can’t afford to undermine the war effort again so quickly and so blatantly; but his heart is with the Left on this—that’s why he agreed to the release of the photos in the first place and why he is trying to prevent mutiny within his base. So here’s the game: Obama tells those of us who care about national security that he is taking measures to protect the troops and the American people, but he also tells the Left that he hasn’t made any final decisions about the photos and that the question is really for the courts to decide. That’s why he carefully couched yesterday’s reversal as a “delay” in the release of the photos.
Alternatively, of course, if the president really believes that releasing the photos is the “screamingly obvious right thing to do,” he could just go ahead and order it done; but that would also be a fully accountable thing to do, and so would not answer his core objective. McCarthy goes on to note that the administration has not elected to invoke the executive-order provision in its FOIA defense, but rather “a section relating to the withholding of records ‘compiled for law enforcement purposes,'” presumably leading with a weaker argument to increase the odds that the court will order the release of the photos. That way President Obama can get what he wants without actually having to do it himself and thus take responsibility for it.
Of course, all this involves trying to manipulate the court, and as McCarthy notes, that may not go over well:
I can assure you that federal judges don’t like to be toyed with. Supreme Court justices may not mind if the administration treats the media like a lap-dog and the public like we’re a bunch of rubes; but, regardless of their political leanings, the justices have goo-gobs of self-esteem, and they will not take kindly to being treated like pawns in the Obamaestro’s game. The Solicitor General should expect some very tough questions about why the busy justices should waste their valuable time grappling with a tough, life-and-death legal issue when Obama could simply issue an order—regardless of how the Court rules—suppressing the photos. This, of course, is the question the media should be asking. Unlike the White House press corps, the justices will take the time to understand what’s happening and they will not roll over.