Defeat of Graham-Lieberman and the Ongoing War on Transparency

Yesterday, there was a potentially temporary though still quite
significant victory for those who believe in open government and
transparency: as Jane Hamsher first reported, House leaders and the White House were forced to remove the Graham-Lieberman photo suppression amendment
from the war supplemental spending bill, because widespread opposition
to that amendment among progressive House Democrats was jeopardizing
passage of the spending bill. Readers here and those of various blogs who bombarded House members
with opposition calls on Friday obviously played an important role in
forcing the withdrawal of this pernicious amendment. Successes of this
sort are rare enough that -- even if fleeting -- they warrant some
celebration.

Whether there is value in disclosing these specific
torture photographs is a secondary issue here, at most [though in light
of the ongoing debate in this country over torture
and accountability, as well as the irreplaceable value of photographic
evidence in documenting government abuses (see Abu Ghraib), the value
of these sorts of photographs seems self-evident]. A much more critical issue
here is whether the President should have the power to conceal evidence
about the Government's actions on the ground that what the Government
did was so bad, so wrong, so inflammatory, so lawless, that to allow
disclosure and transparency would reflect poorly on our country,
thereby increase anti-American sentiment, and thus jeopardize The
Troops. Once you accept that rationale -- the more extreme the Government's abuses are, the more compelling is the need for suppression
-- then open government, one of the central planks of the Obama
campaign and the linchpin of a healthy democracy, becomes an illusion.

* * * * *

But
there's an even more vital issue at stake here. One of the central
objections to the Bush presidency was its claim that we could only Stay
Safe from the Terrorists if we fundamentally altered -- diluted and
abandoned -- our long-standing political values and legal frameworks.
That argument was repeatedly ridiculed by Obama as a "false choice." That
we can adhere to our long-standing legal institutions and
simultaneously remain Safe was a principal prong of his campaign.

Yet
the Graham-Lieberman amendment -- which Obama supports -- is nothing
but a pure manifestation of the Bush mentality, as its core premise is
that we can't remain Safe unless we abandon our decades-old legal
framework governing transparency. The Freedom of Information Act
(FOIA) is more than 40 years old. It vests the Government with
extremely broad secrecy powers, especially in the national security
realm. Still, two federal courts -- one district court and a unanimous 3-judge Court of Appeals panel
-- have ruled that FOIA compels disclosure of these photographs because
none of the FOIA exceptions apply. Most critically -- as the courts
noted -- the fact that information will reflect poorly on the Government is not a legitimate ground for suppressing it. That is the crux of FOIA, and it is that critical principle which Graham-Lieberman is designed to gut.

Advocates
for suppression know full well that the law is against them -- they
know that they already lost twice and will almost certainly lose again
in the Supreme Court -- because FOIA's clear mandates unquestionably
require disclosure of these photos. That's exactly why they want to
pass a new law -- it's why they want to change the decades-old
standards governing transparency here -- because they know they should
and will continue to lose in court as the law stands. Here's what Joe
Lieberman and Lindsey Graham said yesterday in their unbelievably petulant, foot-stomping joint statement upon realizing that the House was about to delete their amendment:

Let it clearly be understood that without this legislation the photos in question are likely to be released.

In
other words, if FOIA's standards are allowed to govern transparency
questions -- as has been happening for the last 40 years -- then the
photos must be released, because there is no legitimate ground for
suppressing them. So in the name of Fighting the Terrorists, we're
going to vest greater secrecy powers in the President and abandon our
long-standing legal framework to enable concealment of this
information. Isn't that exactly the mindset which progressives -- and Obama -- bitterly objected to when advocated by Bush/Cheney? I believe it is.

Just
look at the obvious, dangerous precedent being set by those who are
advocating for suppression of war crimes evidence. As I wrote when Obama first announced that he had reversed himself and decided to appeal the Second Circuit's order requiring disclosure of these photos:

Think
about what Obama's rationale would justify. Obama's claim -- that
release of the photographs "would be to further inflame anti-American
opinion and to put our troops in greater danger" -- means we should conceal or even outright lie about all the bad things we do that might reflect poorly on us.
For instance, if an Obama bombing raid slaughters civilians in
Afghanistan (as has happened several times already), then, by this
reasoning, we ought to lie about what happened and conceal the evidence
depicting what was done -- as the Bush administration did -- because
release of such evidence would "would be to further inflame
anti-American opinion and to put our troops in greater danger." Indeed,
evidence of our killing civilians in Afghanistan inflames
anti-American sentiment far more than these photographs would. Isn't it
better to hide the evidence showing the bad things we do?

Already, this pro-suppression rationale is -- as predicted -- extending to other areas. The Washington Post reports today
that the Obama administration is now urging a federal court to keep
concealed all evidence relating to the CIA's (almost certainly
illegal) destruction of interrogation videotapes -- including documents
showing who ordered the tapes destroyed, what the tapes revealed, the
reasons why those decisions were made, etc. The administration's
rationale for that concealment is exactly the same as
for concealment of the torture photos: namely, the administration is
"arguing to a federal judge that [disclosure] would endanger national
security and benefit al-Qaeda's recruitment efforts."
In other words, anything that reflects badly on the U.S. Government
must remain hidden from view, otherwise it will help Al-Qaeda by
increasing anti-American sentiment. Down that road lies full-scale
secrecy for all but the most harmless (and meaningless) information
about what our Government does.

* * * * *

These arguments
for suppressing torture photos and other evidence of government abuses
are grounded in the worst aspects of the Bush/Cheney mindset. Anyone
who doubts that should really read the joint Graham/Lieberman statement
from yesterday. It has all the familiar, odious, authoritarian
rhetorical tactics of the last eight years: The Commander-in-Chief has
decreed that these photos must be suppressed for us to be Safe, and
that presidential decree should end the debate. Anyone who refuses to
comply is causing Americans generally and especially Our Troops to be
slaughtered ("release would be tantamount to a death sentence to some
who are serving our nation" -- "Transparency, and in this case needless
transparency, should not be paid for with the lives of American
citizens"). You don't need to know what's in these photos; we've seen
them and you can trust us that they must remain secret.

Leave
aside the typical, disgusting hypocrisy of the Graham/Lieberman duo, as
they feel free to disregard "The Commander-in-Chief's" judgment about
what is necessary to Keep us Safe whenever they choose, as they did
when they accused Obama of "helping our enemies" by releasing the OLC memos.
The arguments being made here by Graham and Lieberman to justify the
new secrecy powers they want to vest in Obama are the same tired,
exploitative platitudes -- give us what we want or you will have the blood of American citizens and The Troops on your hands
-- that has been used to justify everything from torture and
warrantless spying to the war in Iraq and extreme and ever-increasing
government secrecy. Only this time, these tactics are being hauled out
on behalf of new powers which the Obama White House, rather than
the Bush White House, is demanding.

Open government and transparency are critically important values for their own sake.
That was something Obama himself, during the campaign, repeatedly
claimed to believe. We have a very permissive secrecy law in place --
FOIA -- that enabled us to Stay Safe for decades. There is no reason
to gut it. As the Supreme Court put it in 2004:

FOIA
is often explained as a means for citizens to "know what the government
is up to." This phrase should not be dismissed as a convenient
formalism. It defines a structural necessity in a real democracy.

The Supreme Court pointed out in 1978
that Congress enacted FOIA because it recognized that an informed
citizenry is "needed to check against corruption and to hold the
governors accountable to the governed." Seeing the evidence of
exactly what the Government did, who did it and what was done about it
-- and not allowing the Government to keep its actions secret except in
the narrowest of circumstances -- is critically important in its own
right. That is the foundation of open government.

If there are
justifiable reasons under FOIA to keep these photos secret, then Obama
will win in court. If there aren't justifiable reasons, then he'll
lose -- again -- and the photos should be disclosed. That's how FOIA
is supposed to work. Adopting the arguments being made to justify
cover-up of Bush-era war crimes is to wage war on the concept of
transparency itself. And changing FOIA any time the President decides
that government embarrassment must be avoided is to affirm the core
Bush/Cheney rationale: we cannot Stay Safe unless we gut our
long-standing legal frameworks. That's what Graham/Lieberman -- and
the pernicious rationale underlying it -- is designed to do, and, if
accepted, it will inevitably spread to justify suppression in many
other areas. Indeed, it is already doing so.