Obama's Support for the New Graham-Lieberman Secrecy Law

It was one thing when President Obama reversed himself
last month by announcing that he would appeal the Second Circuit's
ruling that the Freedom of Information Act (FOIA) compelled disclosure
of various photographs of detainee abuse sought by the ACLU. Agree or
disagree with Obama's decision, at least the basic legal framework of
transparency was being respected, since Obama's actions amounted to
nothing more than a request that the Supreme Court review whether the
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It was one thing when President Obama reversed himself
last month by announcing that he would appeal the Second Circuit's
ruling that the Freedom of Information Act (FOIA) compelled disclosure
of various photographs of detainee abuse sought by the ACLU. Agree or
disagree with Obama's decision, at least the basic legal framework of
transparency was being respected, since Obama's actions amounted to
nothing more than a request that the Supreme Court review whether the
mandates of FOIA actually required disclosure in this case. But now --
obviously anticipating that the Government is likely to lose in court again (.pdf) -- Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts,
and vest himself with brand new secrecy powers under the law which,
just as a factual matter, not even George Bush sought for himself.

The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman -- called The Detainee Photographic Records Protection Act of 2009
-- that literally has no purpose other than to allow the government to
suppress any "photograph taken between September 11, 2001 and January
22, 2009 relating to the treatment of individuals engaged, captured, or
detained after September 11, 2001, by the Armed Forces of the United
States in operations outside of the United States." As long as the
Defense Secretary certifies -- with no review possible -- that
disclosure would "endanger" American citizens or our troops, then the
photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.

Just
imagine if any other country did this. Imagine if a foreign government
were accused of systematically torturing and otherwise brutally abusing
detainees in its custody for years, and there was ample photographic
evidence proving the extent and brutality of the abuse. Further
imagine that the country's judiciary -- applying decades-old
transparency laws -- ruled that the government was legally required to
make that evidence public. But in response, that country's President
demanded that those transparency laws be retroactively changed for no
reason other than to explicitly empower him to keep the photographic
evidence suppressed, and a compliant Congress then immediately passed a
new law empowering the President to suppress that evidence. What
kind of a country passes a law that has no purpose other than to
empower its leader to suppress evidence of the torture it inflicted on
people?
Read the language of the bill; it doesn't even hide the fact that its only objective is to empower the President to conceal evidence of war crimes.

That
this exact scenario is now happening in the U.S. is all the more
remarkable given that the President who is demanding these new
suppression powers is the same one who repeatedly vowed "to make his administration the most open and transparent in history." After noting the tentative steps Obama has taken to increase transparency, the generally pro-Obama Washington Post Editorial Page today observed:
"what makes the administration's support for the photographic records
act so regrettable" is that "Mr. Obama runs the risk of taking two
steps back in his quest for more open government."

What makes all
of this even worse is that it is part of a broader trend whereby
the Government simply retroactively changes the law whenever it decides
it does not want to abide by it. For decades, we had laws in place
authorizing citizens to sue their telecommunication carriers if the
telecoms allowed government spying on their communications in violation
of the law, but when it was revealed that the telecoms did exactly
this, the Congress simply changed the law retroactively so that it no longer applied.
For decades, we had laws imposing civil and criminal liability on
government officials who engaged in or authorized torture, but when it
was revealed that our government did that, the Congress just retroactively changed the law to protect the torturers.
And now that courts have ruled that our decades-old transparency law
compels disclosure of this torture evidence, the Congress is just going
to retroactively change the law -- again -- this time to empower the
President to suppress that evidence anyway.

Other than creating
an illusion of transparency and accountability, what's the point of
having laws that purport to restrict what the Government can do if
political officials just retroactively waive those laws whenever they
want? What's the point of having a FOIA law if the Government will
simply pass a new law exempting itself from FOIA's mandates any time it
loses in court and wants to conceal evidence anyway? And what
conceivable rationale is there for limiting the President's new secrecy
powers to post-9/11 photographs? Given that anything which reflects
poorly on our Government can be said to endanger our troops and
American citizens, why stop here? Why not just have a general power of
suppression whereby the President can keep any evidence secret as long
as his Defense Secretary decrees that its disclosure will "endanger"
the troops?

The debate over whether there is value in disclosing
these specific photographs is entirely misplaced. That isn't how open
government works. The burden isn't on citizens to prove that there is
value in disclosure. Everything that government does is supposed to be
transparent to the public unless there is a compelling reason for
secrecy -- and the whole point of FOIA always has been that mere
embarrassment, the mere fact that information reflects poorly on our
government, isn't a legitimate ground for concealment. That's a
critical principle for open government. This new law explicitly guts
that principle. It institutionalizes the pernicious notion that
secrecy is justified where disclosure would reflect badly on the
Government and thus "endanger" American citizens and/or our troops.

Combine all of this with the increasingly disturbing spectacle taking place in a California federal court in the Al-Haramain case -- where the Obama DOJ is on the verge of being sanctioned by a federal judge for defying the court's order
to make available documents relating to Bush's illegal eavesdropping
activities -- and the infatuation with excessive presidential secrecy,
the linchpin of government abuse, appears alive and well in the new
administration. Is there really anyone who wants to argue that
defiance of a federal court's order and enacting a new law authorizing
suppression of torture evidence -- the disclosure of which is compelled
both by courts and FOIA -- are remotely consistent with anything Obama
said he would do, or remotely consistent with what a healthy democratic
government would do?