Senators Lindsey Graham (R-SC) and Joseph Lieberman (I-CT) have jointly sponsored a bill entitled "The Detainee Photographic Records Protection Act of 2009". This bill is aimed at suppressing any photograph between September 11, 2001 and January 22, 2009 that relates to the treatment and/or capture of detainees by U.S. Armed Forces should the Secretary of Defense certify that they would endanger U.S. troops or American citizens. The decision by the Secretary of Defense would last for three years, is renewable for an indefinite period of time, and trumps any decision under the Freedom of Information Act (FOIA).
Glenn Greenwald reacts:
Just imagine if any other country did this. Imagine if a foreign government were accused of systematically torturing and otherwise brutally abusing detainees in its custody for years, and there was ample photographic evidence proving the extent and brutality of the abuse. Further imagine that the country's judiciary -- applying decades-old transparency laws -- ruled that the government was legally required to make that evidence public. But in response, that country's President demanded that those transparency laws be retroactively changed for no reason other than to explicitly empower him to keep the photographic evidence suppressed, and a compliant Congress then immediately passed a new law empowering the President to suppress that evidence. What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people? Read the language of the bill; it doesn't even hide the fact that its only objective is to empower the President to conceal evidence of war crimes.
The debate over whether there is value in disclosing these specific photographs is entirely misplaced. That isn't how open government works. The burden isn't on citizens to prove that there is value in disclosure. Everything that government does is supposed to be transparent to the public unless there is a compelling reason for secrecy -- and the whole point of FOIA always has been that mere embarrassment, the mere fact that information reflects poorly on our government, isn't a legitimate ground for concealment. That's a critical principle for open government. This new law explicitly guts that principle. It institutionalizes the pernicious notion that secrecy is justified where disclosure would reflect badly on the Government and thus "endanger" American citizens and/or our troops.
Barack Obama ran a campaign that was highly critical of the secrecy of the last eight years under the Bush Administration and promised greater transparency. This bill, which Obama supports, seeks to implement a greater level of secrecy and executive power that goes a level beyond even that of President Bush. The Senate has unanimously passed this bill but it appears that it may have trouble getting through the House.
But passage of Graham-Lieberman now appears much less certain because of what appears to be the refusal of some key liberal House Democrats -- including Barney Frank -- to support it. The votes of liberal House Democrats actually matter (for once) because most House Republicans are refusing to support the overall supplemental bill due to their objections to a provision for $5 billion in funding to increase the IMF's lending capacity. To pass the supplemental spending bill, House leaders need the votes of numerous House Democrats who are currently refusing to vote for anything that contains the photo suppression amendment. If Congressional Democrats succeed in blocking enactment of this amendment, that would be a critical assertion for the first time of Congressional checks on Obama's desired powers and would, independently, prevent a truly odious new secrecy power from being enacted.
If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA's exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure -- as Obama is asking it to do. But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn't want to comply with court rulings and with current transparency laws.
FOIA was enacted by Congress in 1966 -- more than 40 years ago -- and, in 1974, Congress overrode a presidential veto of amendments that expanded its disclosure requirements in the wake of Nixonian secrecy abuses. Congress should defend and insist on presidential compliance with the important transparency law it passed and repeatedly strengthened -- not allow the White House and Republicans to jointly render it illusory by retroactively narrowing its provisions, all because the Obama White House wants to suppress evidence of Bush's war crimes in the face of clear FOIA requirements compelling disclosure.