Obama to the Supreme Court: Suppress the photos

Last week, the Obama administration submitted a brief to the Supreme Court arguing that the thousands of photos depicting the widespread and flagrant detainee abuses in Iraq and Afghanistan, should be suppressed, lest increased dangers come to troops still serving overseas based on increased anti-American sentiment. From the brief:

The President and the United States military fully
recognize that certain photographs at issue depict reprehensible
conduct by American personnel and warranted
disciplinary action. There are neither justifications
nor excuses for such conduct by members of the military.
But the fact remains that public disclosure of the
photographs could reasonably be expected to endanger
the lives and physical safety of individuals engaged in
the Nation’s military operations in Iraq and Afghanistan.

There are other excerpts from this report that describe what some of the pictures show, but I'm not going to transcribe them here. Suffice to say that if you've only seen the Abu Ghraib pictures, you ain't seen nothin'.

Just to review - the President already lost this battle, in appellate court. He's been ordered to release the photos, under the Freedom of Information Act. An appeal to the Supremes is likely to drag this out for months, and maybe that's all Obama's trying to do, is delay things a bit. But regardless, the argument he's making is more than a little obscene, for a couple of reasons.

First, as a matter of law it's a perversion of what FoIA intended to carve out as an exception to the disclosure standard. It allows the government to refuse release of information that is likely to bring harm to an individual - the intent was along the lines of protecting a witness in an organized crime case. Not a vague, posited increase in the threat level to a whole class of people. Accepting this as a new standard would completely eliminate the incentive to release any information that was embarrassing to U.S. interests, all under the banner of 'protecting the troops'.

Second, it's completely unfair if the government is the only party permitted to claim this kind of exemption to FoIA, for itself. Think about it this way - what if the government said, we shouldn't release information about crimes committed by Islamic extremists, because that would increase anti-Muslim sentiment and put Muslim citizens at risk. It's not unreasonable that talking about bad things that Muslims do increases a very real threat to innocent citizens whose only crime is sharing a faith with criminals - and yet that standard for exemption still seems ridiculous. Or how about, we shouldn't release information about crimes committed by African-Americans, because that would increase the ill-effects of white racism? Someone want to explain the difference? Why is it that we would allow the government to claim this exemption for itself, but not for anyone else? Again, the exemptions in FoIA were never intended for this.

Third, and this is really the most important - it's really quite horrible to blame a proposed disclosure of these abuses for increased anti-American sentiment, as opposed to blaming the abuses themselves. The military has a responsibility to address this, and they haven't. Now they want it all to go away, and I can grant the fact that they have a job to do. But we place burdens on those who protect us all the time, and we do that for a reason. Miranda, jury trials, the Bill of Rights - one can make an argument in the abstract that all of these make us less safe. But we've already had those arguments, and the result is codified in law. There are consequences for breaking those laws, otherwise we aren't any better than those we fight. If those consequences are negotiable then so is the whole foundation of the American experiment

I have to offer at this point an unsubstantiated anecdote, which I certify as the God's honest truth, but which I can't back up with a single shred of documentation. If you're inclined to ignore it, no offense taken. A few months ago I was on a plane sitting next to a 19-year-old kid from Nebraska, who just got certified as an army MP, and was getting set to be assigned to a special unit that follows the President everywhere he goes. Based on his specialty, I couldn't resist - I asked him about the torture memos, fully prepared for him to put me in my place, and tell me about the realities of war. He looked at me square in the face and said that if he met me on the battlefield, he wouldn't hesitate for a second before laying me out with a double-tap straight to the chest. But if I was an unarmed prisoner under his guard, then I was entitled under the laws of war to be treated with dignity, free from physical or psychological abuse. Then he told me that from where he sat, recruits weren't being trained in this latter discipline - they weren't being instructed in what the standards were, or even how to recognize an illegal order when they heard one. And to his way of thinking, memos or no memos, that's how things get out of control.

While I'm (mildly) sympathetic to the fact that Obama's health care plans are hanging by a very thin thread, the longer he doesn't deal with this the worse it's going to get. He needs to start by airing the facts.