President Obama's eleventh-hour flip-flop on the prisoner abuse photos - now you see them, now you don't - is wrong for a number of factual reasons. For instance, in his new embrace of the Bush administration's secrecy stance, he says there's no need to release the photos because the bad apples have already been punished; in reality, however, the Senate Armed Services Committee has stated, in a bipartisan report, that the truly culpable parties are "senior officials in the United States government"...in other words, top Bush people who have yet to be held accountable.
But rather than recap all of Obama's specious rationales for keeping the photos under wraps, I'm going to focus solely on his contention that the release would "put our troops in greater danger." There has been much debate during the past 36 hours about the validity of that claim, but one key point has been largely overlooked:
Two federal courts have already considered the risk-to-troops argument, and have ruled nevertheless that the photos should be released.
More specifically, a federal appeals court ruled last September that, under the provisions of the Freedom of Information Act, it is essentially illegal to suppress the photos simply because there is a "nebulous" concern about heightened troop risk. This court basically ruled that the troop-risk argument cannot be used as a pretext for squelching the public's right to know.
In other words, the troop argument raised by Obama at the eleventh hour (at the behest of his military commanders, and at variance with his own promises of transparency) has already been twice examined and rejected by the federal judiciary..
The ACLU has been in court for six years arguing for the release of the photos, which were garnered as evidence by Army investigators. The first victory came in federal district court, where the judge ruled that release of the photos - and the importance of the free flow of information - outweighed all other considerations. The judge wrote, "Publication of the photographs is central to the purposes of the Freedom of Information Act because they initiate debate...about the improper and unlawful conduct of soldiers." The judge acknowledged the general 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," but ruled that such a risk is outweighed by the benefits of "transparency and accountability."
The Bush lawyers appealed that ruling in 2006, but it was upheld last September by a three-judge panel in federal appeals court. I've read the 52-page decision so that you don't have to (unless you want to). Here are some highlights:
The Bush lawyers, invoking the general risk to the troops, cited a Freedom of Information Act exemption that prohibits the release of any material that "could reasonably be expected to endanger the life or physical safety of any individual." The Bush team interpretation was that the photos should stay under wraps, lest they potentially "incite violence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan."
But the three appeals judges - two of whom are Republican appointees - took a strict-constructionist look at the FOIA language and basically ruled that the Bush lawyers were trying to drive a Hummer through a "narrowly construed" pinhole. The judges wrote that the risk-to-troops argument is too broad, that it is "remote and speculative." Moreover, "Congress has always envisioned (the exemption) as a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence."
They also wrote: "It is plainly insufficient to claim that releasing (the photos) 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." The Bush team's risk-to-troops claim was "far-reaching and nebulous," and violated the FOIA's "central purpose of furthering governmental accountability, and the specific importance the law accords to information revealing official misconduct...and we accordingly note that the public interest in disclosure of these photographs is strong."
One of the judges is a George H. W. Bush appointee; another, a Bill Clinton appointee; another, a George W. Bush appointee. Their verdict was unanimous.
Obama, the former constitutional law professor, is surely aware of this substantive judicial record. But here's the real reason why the troops argument is little more than a fig leaf:
If indeed the soldiers are at greater general risk, it's not because of the photos. It's because of the conduct that the photos depict.