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Obama Administration Asks SCOTUS to Block Detainee Photos
The Obama Administration is asking the Supreme Court to block the public release of detainee abuse photos that were the subject of a high-profile reversal by President Barack Obama earlier this year.
On Friday afternoon, the Justice Department filed a petition with the Supreme Court asking it to overturn an appeals court decision requiring the Pentagon to disclose the photos, which depict alleged abuse of prisoners in U.S. military custody in Iraq and Afghanistan.
"The President of the United States and the Nation's highest-ranking military officers responsible for ongoing combat operations in Iraq and Afghanistan have determined that disclosure by the government of the photographs at issue in this case would pose a significant risk to the lives and physical safety of American military and civilian personnel by inciting violence targeting those personnel," Solicitor General Elena Kagan wrote.
The photos are being sought by the American Civil Liberties Union as part of a long running Freedom of Information Act lawsuit pertaining to alleged abuse of detainees held abroad by U.S. forces.
Kagan said a federal appeals court misread the law when it concluded that an exemption for records whose disclosure could endanger "any individual" meant the government had to identify the specific person who could be harmed or at least a small group of people.
"The government need not disclose records causing danger to human life and safety merely because the particular victims cannot be identified in advance with a reasonable degree of specificity," Kagan wrote. "There is no reason to believe that Congress, in enacting [that exemption] placed such a low value on human life and safety as the court of appeals' decision would indicate in order to promote FOIA's interest in public disclosure of agency records."
The government's filing says some of the photos show "soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees." One image shows a handcuffed and hooded prisoner and a soldier who is acting "as if" he is violating a detainee with a broom handle.
The brief invokes declarations Generals David Petraeus and Ray Odierno filed in May detailing alleged risks to U.S. troops if the photos come out.
In September 2008, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit upheld a district court decision requiring the photos to be released. The appeals court ruling applied directly to about two dozen photos, but the parties agreed that whatever result the court reached with respect to those pictures would be applied to what officials have described as hundreds of other photos of detainee abuse.
That appeals court decision remained on hold until March of this year, when the full bench of the 2nd Circuit declined to re-hear the case. Soon thereafter, the White House said officials there and at the Justice Department had decided not to challenge the court rulings any further.
However, in May, Obama unexpectedly announced that he wanted to keep the pictures secret.
"It's... my belief that the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals. In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger," the president said.
Critics immediately accused Obama of abandoning his pledge to run the most transparent administration in history. They also noted that the president's remarks seemed to underscore the Bush Administration's claim that abuse of prisoners was the fault of rogue operators rather than an expected consequence of signals top-level officials sent to get tough with detainees.
Obama's reversal came after senior U.S. military officials weighed in and directly implored him to find a way to keep the photos under wraps.
In May, the Senate passed, without recorded objection, an amendment offered by Sens. Joseph Lieberman (I-Conn.) and Lindsey Graham (R-S.C.) that would allow the Secretary of Defense to block release of the photos for three years and to extend the secrecy for additional three year periods thereafter.
However, in June, liberal members of the House objected and managed to get the measure stripped from a supplemental wartime appropriations bill. The Senate agreed to drop the provision only after Obama spoke to senators by phone and assured them that he would do whatever he could to prevent the photos from being disclosed.
Obama left open the possibility that he might use an executive order to classify the photos in a last-ditch effort to prevent their release if the photo-secrecy legislation was not passed.
House members who want to keep the photos secret, led by Reps. Heath Shuler (D-N.C.) and Mike Conaway (R-Texas), have filed several bills similar to the Lieberman-Graham legislation.
One challenge the Justice Department faces in arguing the Supreme Court case is that the White House said explicitly earlier this year that the government's legal case was extremely weak.
"The legal team here and at other agencies were very convinced [the case] was not winnable," White House Press Secretary Robert Gibbs told reporters on April 20.
When Obama reversed course in May, Gibbs said Obama had looked at the legal issues in the case personally and concluded that there were compelling new arguments that Justice Department attorneys had never raised.
The appeals court which considered the case last year said the government's arguments about the scope of the FOIA exemption for endangering an individual swept too broadly.
"It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan," Judge John Gleeson wrote. He, and judges Peter Hall and Joseph McLaughlin, complained that the government was trying to use the exemption to set up "an alternative classification mechanism" separate from the one used to protect national security information.
"The appeals court soundly rejected all of the government's arguments for withholding the photos, and it's unfortunate that the government has chosen to contest that decision," Amrit Singh, an ACLU attorney, said in a statement e-mailed to reporters. "These photos would provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. As disturbing as the photos may be, it is critical that the American people know the full truth about the abuse that occurred in their name."
45 Comments so far
Show AllDoes Obama think the American people to be fools? The people of Iraq are already very well aware of what the Americans have done and are doing in the occupation of their homeland. I doubt that any person in Iraq does not know of someone killed, abused, homeless or a refugee by the American occupation.
Obama is acting to protect his own ass and what is left of his reputation. The day of the American soldier as hero has slipped away and only facing and bring to justice those who brake the law will start to repair the military's tarnished reputation.
"Does Obama think the American people to be fools?"
He lied to them, and they joyously elected him. So yes.
Moreover, he's right.
"Obama is acting to protect his own ass and what is left of his reputation. "
I completely disagree. Obama is angering his Progressive/Liberal base. He's clearly enacting the same agenda as Bush. Remember how popular he was when people assumed he was the opposite of Bush? If he wanted to "protect his own ass and what is left of his reputation" he would throw his supporters a few bones, instead of being Bush's doppelganger.
What I find disturbing is that he is more motivated to adhere to wildly unpopular Bush-era policies like spying or extraordinary rendition, instead of seeking to "protect his own ass and what is left of his reputation". He cares more about protecting facism than he does his own reputation. That's scary.
"Does Obama think the American people to be fools?"
They're NOT??? If the American people WEREN'T fools, we'd be out of Iraq, out of Afghanistan, have single-payer, Kucinich would be President, there would have been no "White Collar Welfare", we wouldn't have suffered eight years of a destructive administration, the tax system would be made FAIR, no more printing of "PHONY MONEY" that exists ONLY on paper or cyberspace, and on and on....
Oh, yeah. Humans are fat, dumb, and lazy ...and LIKE IT!!!
Critics immediately accused Obama of abandoning his pledge to run the most transparent administration in history.
---------------------
The only thing "transparent" about the Obama administration is its role in helping cover-up Bush-era torture.
Hold on to your underwear, folks! This could well be the first chance to see what we have hath wrought in terms of a new Supreme Court member, as Justice Sotomayor could well cast a decisive vote on what has been a 5-4 court on issues of executive privilege and court restraint thereon. Since nobody (so far as I know) bothered to ask her views on the broad and extremely important issue of executive privilege, don't be too surprised to find that she votes in a way you didn't think she would because you thought she was a "liberal." Fool me once (Obama)---maybe you CAN fool me again.
Jerry D Rose August 8th, 2009 11:47 am.............Care to wager how she votes?
easydoesit: Well, I don't predict football games, women, elections---or votes on Supreme Court decisions...but every tea leaf I've read suggests she's a "pragmatist" judge who won't insist on constitutional niceties, especially when it comes to issues of presidential prerogatives. So I'm not betting, but certainly worried and also pissed off because this question is being raised only after the barn door opens and the toy horsie of "loose construction" is let out for maybe a fatal 5th time. As I said, I've been TRYING to insist on a good lock on that door for 3 months, but nobody has shown any serious sign of listening. Even the ACLU seems to be have constitutionally neutered or maybe just dazzled by her ethnicity.
Jerry D Rose August 8th, 2009 3:49 pm.....I can see, "no bet" here. We agree. BUT, let's also remember the Constitution has more to do with protecting THEIR wealth and property and little to do with our rights. If we per chance were able to garner any of our rights from it, surely, the Patriot Act and the MCA pretty much put closure on that, eh?
I believe that the only people who saw Sotomayor as a liberal were right wingers.
It isn't that people are dazzled by her ethnicity. More like people just have low expectations.
rfloh, "low expectations," aye and an inexplicably high level of trust in the judgment of a President.
Sotomayor will reveal she is more Alito than Souter.
Anyone who assumes that her Latino heritage means she's a liberal is misinformed about Latinos. Many Latino's are Christian Conservatives, and my gut tells me Sotomayor is a Conservative.
Do we really know what her opinions are on torture & abortion? No.
No matter. Even if the court rules to release the photos, Obama will just ignore the ruling and string the court along, just like Bush and Cheney used to do. Obama is truly Bush's third term.
Hell's Bells!!! The torturers still run free because they were just "following orders," and those that ordered the torture run free because "they did not do the actual torturing."
That is the sort of logic that only would work in Dodgson's "Alice in Wonderland," "Through the Looking Glass," or in the modern Obamanation and its precursor.
The only reason the photos are being blocked is so We the People will not see in detail the atrocities that were, and and no doubt are, being perpetrated in our name.
Were we to rise up en masse, in disgust, and demand as a Nation, that justice be done, that the torturers and their enablers be put before a public tribunal, as the Nazis were at Nuremberg after WW-II, then the true masters of the Obamanation might be forced to resort to even more draconian means to cover their collective asses.
If it came to a decision between justice and martial law, I think I know which way it would go, but at least the American Sheeple would be awakened.
The idea that the photographs depict only such horrors as pointed guns and broom sticks is sheer propaganda to appease the growing outrage at the horrendous torture that the US forces conduct under the policy of the Bush/Cheney criminal cabal which Obama is continuing with the majority support of the criminal congressmen and women who are complicit with these war crimes and crimes against humanity. RELEASE THE PHOTOS so that the US and the world can be made aware of some of the atrocities committed in the name of the US citizenry. It is only with transparency and confession that the US can begin the essential process of healing and seeking forgiveness as well as providing reparations for all these crimes committed in her name! Otherwise a great and very painful retribution is heading straight for the US homeland!!! " AS YOU SOW, SO SHALL YE REAP " JESUS CHRIST AND EVERY OTHER ENLIGHTENED BEING.
Bush II to Obama. Nothing's changed.
Then why is the right so worked up?
Because the right, unlike the left, understands the importance of unceasing and unyielding pressure -- the more extreme, the better. How do you think they've succeeded in keeping events and circumstances moving in their desired "compromise" direction for years?
They'd better be careful, though. If the U.S. moves much further to the right it's going to fall off their flat earth.
Could be, but a good Alternet article yesterday by Francis Schaeffer (alternet.org) who knows the Right from deep inside, indicates otherwise.
Schaeffer makes a strong argument the turning point has come and the far Right's realization of this has been enough to break their brains, that they are now willing to destroy the country they feel is betraying them. That does seem to be what is going on.
I guess we could defuse them by agreeing Hawaii is not the U.S., throwing out the election results and making Palin president in fact and letting doddering old McCain play Reagan.
By your view, what difference would it make?
Anyone who lived in Spain under Franco or Greece under Papadopoulos and the Colonels can assure you things can yet (and may) go much further right.
As the Cold War was ending one of the questions asked was how to let down the Soviet Union gently so it didn't destroy the world.
Today the question may be how to let down the Fascist right gently.
I, for one, am glad to let things unfold slowly and for small, almost inperceptible movment away from the Fascist precipice.
"the turning point has come"
I'm sceptical. The "turning point", as I see it, is little more than a superficial change in the facade and likely to be brief at that. It appears more like a unidirectional ratcheting process with some short pauses in the pumping. But we live in hope as I suppose we must.
"what difference would it make?"
In my view, they'd still keep pushing and ratcheting to advance their right wing agenda even further and wouldn't hesitate to condemn McCain, Palin or anyone else whom they perceived as failing to keep pace with their demands. Undoubtedly, "undesirable" occupancy of the congress and presidency is viewed by them as an intolerable set-back and "call to arms." The right is programmed to see even the slightest pause or hesitation in their advance as a disaster, especially if the left views it as some kind of victory, however dubious it may be.
"things can yet (and may) go much further right"
Of course, although if Franco's Spain is now become a reference point for comparisons, I'm not sure about the "much" part. Anyhow, the final sentence in my first response to your comment was just my feeble attempt at gallows humor.
Do you have the web site?
"a significant risk to the lives and physical safety of American military and civilian personnel"
U.S. actions created that risk. The photos are just the evidence of those actions. If increased risk to the lives and physical safety of its citizens were the real concern, the U.S. wouldn't be creating new "terrorists" faster than it can kill them.
Of course the photos are also very bad and embarrassing exposure of the hypocrisy whereby the U.S. maintains its disguise as a beneficent and praiseworthy leader of the "free world." That international unmasking, already far advanced, is the real concern. Without it, the U.S. imperial satraps around the world might arguably be threatened by even greater unrest and rebelliousness among their local subjects than they face already.
Note that the emperor's direct subjects in the homeland are not a significant part of the problem. For all practical purposes, they can be and have been ignored. The vast majority have already proven themselves tolerant of any and all atrocities, whether foreign or domestic, and, in any case, are much too cowed to be rebellious under any circumstances whatever.
The only way that America can redeem ourselves is if we come clean and are honest with ourselves and the rest of the world. To bad that we continue to have a President who chooses to not do the right thing and feel truth is more important than cover up.
President Obama is choosing to continue on the same destructive path. The world already knows what we have done and the evil that this government had done around the world in our name.
The coverup of atrocities only proves the terrorists in Washington DC are winning the War of Terror.
There's no such thing as the War on Terror.
We used to sometimes get (free) legal opinions from real lawyers here at CD. Seems like the lawyers have mostly departed, but maybe there's still someone who can answer this:
If you were a D.A. say, overseeing a politically sensitive investigation, would it be a good idea to go public with the evidence before the investigation is complete?
Eventually those photos are going to be released or leaked, but not many of us at CD are going to be surprised by what they show.
I'm not sure what good will come of making the photos public right now -- unless you want to turn media attention away from national health-care and thrill and titulate the fringe right who will get off on seeing dark, non-Christians brutalized.
Understandably, ordinary Americans (i.e., human citizens as opposed to the corporate ones that truly matter) always tend to think of everything first and foremost as being about their own domestic situation and their immediate concerns of the moment.
Luckily or unluckily, your government and the interests that it actually represents have a much longer and broader view of potential impacts on their total geopolitical environment. Domestic and legalistic considerations are a very small part of it and arise mainly in a facilitative context in relation to the primary global objectives of current concern to transnational entities.
Under the circumstances, if the constitution itself and its "supreme law" is of small consequence, as clearly it is, individual legal opinions and interpretations hardly matter at all. The convenient ones may sometimes help to smooth the waters a little bit; the inconvenient ones are just ignored.
The only way to stop torture and abuse is to release the photos and confront it.
Whoever goes to prison, so be it. There is no other way.
Many pro torture Americans might actually change their minds when they see children being raped. If it offends their delicate sensibilities, good.
It's the only way to stop the beatings and abuse "lite" going on today. If they are a recruiting tool that's too damn bad. It never should have happened.
It's drip, drip, drip. instead of facing up to it. Bizarre. We're blowing up women and children at parties and weddings on a weekly nasis, and not a thought about recruitment. That would seem a pretty good recruiting tool ever, but it's not stopping Obama's love of drones.
IT'S ALL BAD.
Their thinking on this is very troublesome in so many ways.
Golly Gee asks,
"If you were a D.A. say, overseeing a politically sensitive investigation, would it be a good idea to go public with the evidence before the investigation is complete?"
You mean the AG, not the DA. And Eric Holder is currently NOT investigating any claims of US sponsored torture. He "has yet to decide if he is going to proceed with any type of investigation." And if he does, "As the attorney general has made clear, it would be unfair to prosecute any official who acted in good faith based on legal guidance from the Justice Department." So Cheney's off the hook if John Yoo said he had the legal right to torture - according to Obama's AG.
So your excuse is BS.
Obama has merely adopted the same long-standing position as Bush in blocking the release of the photos.
You state "I'm not sure what good will come of making the photos public right now"
I assume you say this because the legal opinion of Judge John Gleeson isn't sufficient for you?
From the article:
"The appeals court which considered the case LAST YEAR said the government's arguments about the scope of the FOIA exemption for endangering an individual swept too broadly."
""It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan," Judge John Gleeson wrote. He, and judges Peter Hall and Joseph McLaughlin, complained that the government was trying to use the exemption to set up "an alternative classification mechanism" separate from the one used to protect national security information.
"The appeals court soundly rejected all of the government's arguments for withholding the photos, and it's unfortunate that the government has chosen to contest that decision," Amrit Singh, an ACLU attorney, said in a statement e-mailed to reporters. "These photos would provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. As disturbing as the photos may be, it is critical that the American people know the full truth about the abuse that occurred in their name.""
I to do not care about torture photos as long as all the gutless, vile, punks that participated in the torture of another human being are executed for war crimes. That is what our forefathers would have done and that is what we must do. I do not care if those that tortured were raised by people with the morals of a bush cheney or rumsfield all humans instinctively know that torture is a wrong.
Those sub-humans that ordered the torture for war-profiteering motives should be publicly executed. If not since each foul vile republican cabal is worse than the last, if those maddog reactionaries ever get elected again, we will all be subjected to torture, rape and murder at their pleasure. That is what the republican ruling class has always wanted.
FREEDOM LOVING ... August 8th, 2009 4:46 pm.....Sorry, but our "forefathers" would have hung the lowly soldier, but the pricks giving the orders would never have been held to count....maybe a slap on the wrist...little has changed.....
golly gee there is NO ONGOING criminal investigation going
on here we know what happened here and it is indeed criminal
what we have is a coward president who upon becoming
president should have IMMEDIATELY started to fire and prosecute
the monsters involved in these terrible acts! folks please
donate to the aclu. we need them like we need air! i am a
proud card carrying member. here's how it feels. paul newman
was once interviewed about his career. they asked what was his
crowning achievement the oscars? no. the this? no the that?
nope. what then? the day i found out i was on nixons enemy
list! carrying a aclu card feels like that because you know
that you are making a difference in making america a better
place. and we need the aclu more then ever in its toughest fight
ever in america's darkest hour ever!send them a couple of bucks
and you can as well.
I am a Viet Nam Vet 68-69.
One way that we stopped the war was because of the news coverage ie
photos, films of our carnage.
We can't tell you what it's like to kill and maim people ,
we can only show you.
Somebody has to show the photos!!!
Is there anybody out there??
Please, call Fox News and beg them to let you tell them and us and show photos...aw, forget it, my favorite teevee show is on. I can't be bothered with this war stuff...
Makes you wonder what the corporations and Bush's boys have on Obama. And what the Obama administration has to hide of it's own dirty deeds...
Walk in peace.
Gee, here we go again! Told ya so, idiots who voted for this guy.
Fortunately, I'm Canadian, and don't have this pathetic caricature of a politician leading my country.
Unfortunately, we have Prime Minister Stephen Harper, Bush's 'Mini-me'.
Walk in peace.
Just a thought: Maybe Obama is reversing his pre-presidential stances because he is finding out exactly what's going on in the world and in the world against the US. Maybe, just maybe, he has more information now... maybe he has a reason to act as he does... maybe he's doing the smart thing and not the promised thing... and yes, maybe it's making him look like a turncoat. Maybe he doesn't like it?? Maybe he'd like to keep his promises but maybe in order to protect us from more attacks like 9-11 he's taking a road he would rather not trod?
My comments are hypothetical, but maybe they are true. I'll give him the benefit of the doubt because he's a heck of a lot more intelligent and thoughtful than Bush ever was.... but maybe his role as commander in chief allows him information he was not granted as a lowly elected official in state government.
If Obama were going to protect us from more 9-11's, he'd have to round up a huge pack of PNAC boys, CIA officials and probably more than a few congressmen and senators.
Hell, the rest of the world isn't trying to destroy us, they're just sitting back grinning and watching us self-destruct!
There will be no justice in the Obamanation, any more than when we were being Bushwhacked.
So, if Bush does something, he is stupid, authoritarian? But if Obama does the same, it is because he is intelligent, thoughtful, has more information?
"Maybe he'd like to keep his promises but maybe in order to protect us from more attacks like 9-11 he's taking a road he would rather not trod?"
And maybe in order to prevent more attacks like 9-11, Bush also took the road he had to.
Why does Obama get the benefit of the doubt, but Bush didn't? Because you support Obama?
"So, if Bush does something, he is stupid" - yup. He's dumber than most of the good ole' boys I grew up around in N. Texas. There are a lot of men like him (hunter gatherer types) that I respect and find intelligent and thoughtful... watching Bush govern Texas and then our country was comical and conversely sad at best. He did have his shining moment in the rubble of the WTC, but that was short lived.
I didn't vote for Obama.
cmf: oh, "maybe maybe and maybe." Too bad I didn't have your post for a reference for a piece I posted back in May, "American Politics Has a Bad Case of Subjunctivism." Your comment has all the symptoms of that ailment which involves excusing every thing that Obama has done or hasn't done by hoping that just maybe if he only could he would be doing the exact opposite of what he has been doing: sung to the tune of "When You Wish Upon a Star."
http://sunstateactivist.org/ssablog/?p=240
Maybe just maybe "if" I had voted for Obama or expressed any sort of support for him in the run up to the election you could have used me in your article... however I was more likely to vote for McCain until Palin came along. Nevertheless, maybe just maybe there are reasons why Obama isn't the bulldozer of change he promised to be - and maybe there are valid reasons.
I don't have subjunctivitis because I never had Obama Hope.
Well I apologize for "mis-diagnosing" you as a case of subjunctivitis. I based it solely on the "hopeful" post that you entered above, not with the fuller information about yourself that you have now furnished. I'll try to be more careful.
thanks :)
The Nazi's didn't want anyone(German Homeland included) to see the horror they created either. The German people didn't want to admit that it was going on.
How does it feel to live in Nazi Germany?
0's dictionary:
TRANSPARENCY. n. - "Invisibility."