If You're Angry About the Torture Photos, You're Being Played By ObamaS

Barack Obama decided yesterday not to release some photos of U.S. service members abusing Iraqi and Afghan detainees, and everybody says its a brave fuck-you to the left. But it's really another shrewd Obama rope-a-dope.

Obama should have wholeheartedly endorsed the release of the photos in question. But it is a practical certainty that they will be released anyway, no matter what he does. So he gets to look like a judicious, troop-protecting president, and left-wingers still get to have the photographs to hate America with. Everybody wins.

First off, Obama did not actually decide not to release the photos, despite the way his reversal has been characterized. The decision isn't his to make. The Pentagon is currently compelled by a court order [pdf] to turn 22 photos over to the ACLU, which sued the government under the Freedom of Information Act for their release in 2003. The Pentagon lost in district court and lost again on appeal; earlier this year Pentagon lawyers decided not to appeal to the Supreme Court and struck a deal with the ACLU. The government has no say at this point in whether or not those photos get released—either the FOIA compels their release or it doesn't, and it's up to a court to decide that question. All Obama did yesterday was authorize the Pentagon to ask the Supreme Court to take the case. The Court might take the case or it might not. And if it does, it will almost certainly uphold the decisions of the district and appeals courts and order the photos to be released.

The government's argument on appeal was that the photos could be properly withheld under a FOIA provision that exempts records "compiled for law enforcement purposes" if their release could "could reasonably be expected to endanger the life or physical safety of any individual." The photos were gathered by the Army's Criminal Investigation Division to prosecute abuse, so they were clearly compiled for law enforcement purposes. And the Pentagon's argument, which Obama endorsed yesterday, is that the release of the images would "further inflame anti-American opinion and to put our troops in greater danger," which means that at least someone's life or safety would thereby be endangered. And the law, the government claimed, doesn't require them to actually identify such an individual.

Three Second Circuit Court of Appeals judges—one of which was nominated by George W. Bush and another of which was nominated by his father—have already considered and rejected that argument: "The phrase 'any individual'...may be flexible, but is not vacuous. [W]e cannot read the phrase to include individuals identified solely as members of a group so large that risks which are clearly speculative for any particular individuals become reasonably foreseeable for the group." In other words, if you are going to say that someone could be threatened by a document's release under FOIA, you have to say who, and how. The exemption was designed to prevent mob informants from getting killed, not to protect entire armies from people who already hate them and are already trying to kill them. After losing to the three-judge panel, the Pentagon asked the full Second Circuit Court of Appeals to hear the case, and the court—which is evenly divided between Republican and Democratic appointees—said no.

It's almost unthinkable that the Supreme Court, if it takes the Pentagon's appeal, will side with the government. Doing so would open a massive hole in the FOIA that Congress clearly didn't intend, and constitute a mammoth act of "legislating from the bench." It would mean that any federal law enforcement agency could keep a lid on any documents that could conceivably make someone, somewhere angry enough to hurt someone else. Any evidence of military or police misconduct would be off the table—what if someone gets mad about it and attacks a cop or a soldier? Want to FOIA FBI documents about investigations into AIG—well, what if they make people mad at AIG executives?

The government's legal argument is laughable—it was, the appeals court judges noted in their opinion, tossed in as an afterthought in the government's district court brief—and Obama surely knows it. And since the Pentagon already agreed to release the photos before Obama's reversal, it's not in a terribly strong position to argue that the threat from anger in the Arab world is very substantial—if these photos will actually put soldiers' lives in real danger, then why did you agree to release them before all your legal options were exhausted? By trying to take that argument to the Supreme Court, all Obama is doing is delaying the photos' release and earning points as a moderate and loyal Commander in Chief. He knows that the photos will come out before his next election, and any lingering anger from his supporters will have long since dissipated.

Bad policy, smart move.