Much of what we have learned about Bush administration torture policies has been uncovered as a result of successful Freedom Of Information Act lawsuits pursued by the American Civil Liberties Union. Beginning in 2004 the ACLU has been seeking the release of photographs and other documents related to the abuse of prisoners in U.S. custody oversees. A U.S. District Court ordered the release of the photographs in a June 2005 ruling that was later affirmed last September by the Second Circuit Court of Appeals. Despite initially saying they would not challenge the appellate court order, the Obama administration took a sharp turn to the right and in May asked the Supreme Court to hear an appeal of the Second Circuit decision.
It appears as though the administration may be looking for a Solomon-type solution to the battle over the torture photos at the cost of transparency. The compromise appears to be as follows: in exchange for dropping the Supreme Court petition challenging the release of the disputed photographs (which show U.S. Soldiers abusing prisoners in Afghanistan and Iraq), lawmakers will pass legislation authorizing the government to continue to keep the photographs hidden.
On Thursday the House approved, as part of a Department of Homeland Security appropriations measure, an amendment to FOIA that would grant Defense Secretary Robert Gates the authority to withhold any photographs taken between September 11, 2001 and January 22, 2009 for three years if he determines their release would endanger troops and government employees deployed outside of the country. The legislation now heads to the Senate which may vote on it as early as Thursday. President Obama has indicated that he would swiftly sign the bill into law once it passes. To massage the legislative process along, Solicitor General Elena Kagan asked the Court to delay its decision of whether to take up the Obama administration’s appeal since Congress was apparently close to a solution on its own.
The move by Congress, with considerable prodding from the Obama administration, is a troubling development for those hoping that a change in leadership would bring about some transparency to the executive branch. Furthermore, it appears as though Congress is only too happy to enable this continued drive for secrecy. By amending FOIA in this way Congress is not only stepping into–and effectively deciding–a current issue in FOIA litigation, it is expressing a considerable lack of confidence in the judiciary’s ability to interpret FOIA and keep secret only those matters that are truly classified.
According to Jameel Jaffer, Director of the ACLU National Security Project, Congress’ actions represent a significant step away from the kind of transparency demanded by FOIA. “We are deeply disappointed that the House voted to give the Defense Department the authority to hide evidence of its own misconduct, and we hope the Senate will not follow suit. If this bill does become law, the Secretary of Defense should not invoke it. Instead, Secretary Gates should be guided by the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners and the likelihood that the suppression of these photos will ultimately be far more damaging to national security than their disclosure would be. The last administration’s decision to endorse torture undermined the United States’ moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms.”
It is moves like these that make hope hard to come by, but there are some small glimmers to grasp. For starters, the position advocated by the Obama administration was an abysmal parroting of Bush administration argument that the executive has the right to keep the photographs hidden simply because they pose some, unspecified and undetermined danger to some unidentified and unspecified person. Had the Supreme Court accepted this position, then FOIA requests would have been gutted permanently as anything the executive deemed “dangerous” could lawfully be withheld from inquiring Americans.
Furthermore, Secretary Gates may not use this broad grant of authority he is likely to get and decide, as the two lower courts who have head this case already, that unclassified documents cannot be concealed solely on the basis that disclosing evidence of government malfeasance would incite anger at the United States and endanger national security. That said, this second point is far less likely to happen. Instead, it looks like the Obama administration will get its way and avoid a Supreme Court embarrassment at the same time. The question though is at what price?
photo courtesy of takomabibolet via Flicrk