Peace and Justice Post

by Dan Froomkin | The Washington Post, May 14, 2009

In trying to explain his startling decision to oppose the public release of more photos depicting detainee abuse, President Obama and his aides yesterday put forth six excuses for his about-face, one more flawed than the next.

First, there was the nothing-to-see-here excuse. In his remarks yesterday afternoon, Obama said the “photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib.”

But as the Washington Post reports: “[O]ne congressional staff member, speaking on the condition of anonymity because of the sensitivity of the photos, said the pictures are more graphic than those that have been made public from Abu Ghraib. ‘When they are released, there will be a major outcry for an investigation by a commission or some other vehicle,’ the staff member said.”

The New York Times reports: “Many of the photos may recall those taken at the Abu Ghraib prison in Iraq, which showed prisoners naked or in degrading positions, sometimes with Americans posing smugly nearby, and caused an uproar in the Arab world and elsewhere when they came to light in 2004.”

And if they really aren’t that sensational, then what’s the big deal?

Then there was the the-bad-apples-have-been-dealt-with excuse. This one, to me, is the most troubling.

Obama said the incidents pictured in the photographs “were investigated — and, I might add, investigated long before I took office — and, where appropriate, sanctions have been applied….[T]his is not a situation in which the Pentagon has concealed or sought to justify inappropriate action. Rather, it has gone through the appropriate and regular processes. And the individuals who were involved have been identified, and appropriate actions have been taken.”

But this suggests that Obama has bought into the false Bush-administration narrative that the abuses of detainees were isolated acts, rather than part of an endemic system of abuse implicitly sanctioned at the highest levels of government. The Bushian view has been widely discredited — and for Obama to endorse it suggests a fundamental misunderstanding of the past.

The notion that responsibility for the sorts of actions depicted in those photos lies at the highest — not lowest — levels of government is not exactly a radical view. No less an authority than the Senate Armed Services Committee concluded in a bipartisan report: “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own….The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

But as The Washington Post notes: “[N]o commanding officers or Defense Department officials were jailed or fired in connection with the abuse, which the Bush administration dismissed as the misbehavior of low-ranking soldiers.” And the “appropriate actions,” as Obama put it, have certainly not yet been taken. The architects of the system in which the abuse took place have yet to be held to account.

Then there was the no-good-would-come-of-this excuse.

Obama said it was his “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.”

But the photos would add a lot. It was, after all, the photographs from the Abu Ghraib prison in Iraq that forced the nation to acknowledge what had happened there. There is something visceral and undeniable about photographic evidence which makes it almost uniquely capable of cutting through the disinformation and denial that surrounds the issue of detainee abuse.

These photos are said to show that the kind of treatment chronicled in Abu Ghraib was in fact not limited to that one prison or one country. They would, as I wrote yesterday, serve as a powerful refutation to former vice president Cheney’s so far mostly successful attempt to cast the public debate about government-sanctioned torture as a narrow one limited to the CIA’s secret prisons.

Then there was the “protect-the-troops” excuse.

Said Obama: “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.”

But the concern about the consequences of the release, while laudable on one level, is no excuse for a cover-up.

Glenn Greewald blogs for Salon: “Think about what Obama’s rationale would justify. Obama’s claim…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…, 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?…

“How can anyone who supports what Obama is doing here complain about the CIA’s destruction of their torture videos? The torture videos, like the torture photos, would, if released, generate anti-American sentiment and make us look bad. By Obama’s reasoning, didn’t the CIA do exactly the right thing by destroying them?”

Then there was the chilling-effect excuse.

Said Obama: “Moreover, I fear the publication of these photos may only have a chilling effect on future investigations of detainee abuse.”

But how so? Under questioning, press secretary Robert Gibbs failed miserably to explain that particular rationale at yesterday’s press briefing.

“[I]f in each of these instances somebody looking into detainee abuse takes evidentiary photos in a case that’s eventually concluded, this could provide a tremendous disincentive to take those photos and investigate that abuse,” Gibbs said.

Q. “Wait, try that once again. I don’t follow you. Where’s the disincentive?”

Gibbs: “The disincentive is in the notion that every time one of these photos is taken, that it’s going to be released. Nothing is added by the release of the photo, right? The existence of the investigation is not increased because of the release of the photo; it’s just to provide, in some ways, a sensationalistic portion of that investigation.

“These are all investigations that were undertaken by the Pentagon and have been concluded. I think if every time somebody took a picture of detainee abuse, if every time that — if any time any of those pictures were mandatorily going to be necessarily released, despite the fact that they were being investigated, I think that would provide a disincentive to take those pictures and investigate.”

Get that? Yeah, me neither.

And finally, there was the new-argument excuse.

Gibbs said “the President isn’t going back to remake the argument that has been made. The President is going — has asked his legal team to go back and make a new argument based on national security.”

But as the Los Angeles Times reports, the argument that releasing the photographs could create a backlash “was raised and rejected by a federal district court judge and the U.S. 2nd Circuit Court of Appeals, which called the warnings of a backlash ‘clearly speculative’ and insufficient to warrant blocking disclosure under the Freedom of Information Act.

“‘There’s no legal basis for withholding the photographs,’ said Jameel Jaffer, director of the ACLU’s National Security Project, ‘so this must be a political decision.'”

Margaret Talev and Jonathan S. Landay write for McClatchy Newspapers: “The request for what’s effectively a legal do-over is an unlikely step for a president who is trained as a constitutional lawyer, advocated greater government transparency and ran for election as a critic of his predecessor’s secretive approach toward the handling of terrorism detainees.

“Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, said he thought that Obama faced an uphill legal battle. ‘They should not be able to go back time and again and concoct new rationales’ for withholding what have been deemed public records, he said.

“The timing of the president’s decision suggests that a key factor behind his switch of position could have been a desire to prevent the release of the photos before a speech that he’s to give June 4 in Egypt aimed at convincing the world’s Muslims that the United States isn’t at war with them. The pictures’ release shortly before the speech could have negated its goal and proved highly embarrassing. Even if courts ultimately reject Obama’s new position, the time needed for their consideration could delay the photos’ release until long after the speech.”

Peter Wallsten and Janet Hook write in the Los Angeles Times: “President Obama’s decision Wednesday to try to block the court-ordered release of photographs depicting alleged abuse of detainees by U.S. soldiers sets him on a confrontational course with his liberal base. But it is a showdown he is willing to risk — and may even view as politically necessary…

“Obama now can tell critics on the right that he did his best to protect the nation’s troops, even if the courts eventually force the disclosure.

“Obama has been facing intense criticism from former Vice President Dick Cheney and other conservatives, who have argued that the new administration’s efforts to roll back Bush-era interrogation policies have made the country less safe.

“The praise for Obama that came Wednesday from Republicans such as House Minority Leader John A. Boehner of Ohio and Sen. Lindsey Graham of South Carolina can only help undercut those arguments.”

But, Wallsten and Hook write: “Obama’s dilemma is that he risks undermining one of the core principles he claimed for his presidency: transparency.”

The Washington political-media establishment seems to approve of Obama’s decision.

Rick Klein writes in ABC News’s The Note: “In the broader context, it’s cast as a sign of political maturation, maybe even classic Obama pragmatism. This is what it’s like to be commander-in-chief — one of those tough choices where there’s no easy answer, and no shame in reversing yourself.”

Ben Smith and Josh Gerstein write in Politico that Obama’s reversal “marks the next phase in the education of the new president on the complicated, combustible issue of torture.”

Washington Post opinion columnist David Ignatius blogs: “Is this a ‘Sister Soulja’ moment on national security, like Bill Clinton’s famous criticism of a controversial rap singer during the 1992 presidential campaign — which upset some liberal supporters but polished his credentials as a centrist?”

But anti-torture bloggers reject the comparison.

Andrew Sullivan blogs: “The MSM cannot see the question of torture and violation of the Geneva Conventions as a matter of right and wrong, of law and lawlessness. They see it as a matter of right and left. And so an attempt to hold Bush administration officials accountable for the war crimes they proudly admit to committing is ‘left-wing.’ And those of us who actually want to uphold the rule of law … are now the equivalent of rappers urging the murder of white people.”

In a separate post, Sullivan writes: “Slowly but surely, Obama is owning the cover-up of his predcessors’ war crimes. But covering up war crimes, refusing to proscute them, promoting those associated with them, and suppressing evidence of them are themselves violations of Geneva and the UN Convention. So Cheney begins to successfully coopt his successor.”

© 2009 The Washington Post