President Obama is right that releasing more photos of detainee abuse would make the war effort harder and would not help increase our understanding of what had happened there. All it would do is provide more propaganda ammunition to America’s enemies. I was going to post to that effect, but before I got a chance to do so, I read an eye-opening analysis by Andy McCarthy.
The background is the question of whether the Obama administration is bringing a new argument to the court or simply taking up the Bush administration’s case. The question is important because the court already ruled against the Bush argument, and the Obama administration failed to appeal. McCarthy explains that the answer is the latter (despite Robert Gibbbs’s hapless efforts to argue otherwise), which places the administration into an awkward legal position. He then continues:
Why all the legerdemain? Because . . . Obama is using this litigation as a smokescreen. He’s now getting plaudits for reversing himself and his Justice Department (which, in contrast to the Bush Justice Department, didn’t want to fight this case at all — just wanted to release the photos). But he is still trying to get away with voting present — which is to say, he is hiding behind the judges.
It is in Obama’s power, right this minute, to end this debacle by issuing an executive order suppressing disclosure of the photos due to national security and foreign policy concerns. As I’ve noted, there’s no need to get into a Bush-era debate over the limits of executive power here. In the Freedom of Information Act, indeed, in FOIA’s very first exemption, Congress expressly vests him with that authority. . .
Besides being simple, issuing such an order would be a strong position and the screamingly obvious right thing to do. But it would also be a fully accountable thing to do, and that’s why President Obama is avoiding it. He realizes — especially after he surrendered details of our interrogation methods to the enemy — that he can’t afford to undermine the war effort again so quickly and so blatanly; but his heart is with the Left on this — that’s why he agreed to the release of the photos in the first place and why he is trying to prevent mutiny within his base. So here’s the game: Obama tells those of us who care about national security that he is taking measures to protect the troops and the American people, but he also tells the Left that he hasn’t made any final decisions about the photos and that the question is really for the courts to decide. That’s why he carefully couched yesterday’s reversal as a “delay” in the release of the photos.
We’re happy as long as the photos stay under wraps, but the wink to the Left is his signal that if, after further review, the courts continue to hold that disclosure is required under the FOIA section the government has invoked — which is not the executive order provision but a section relating to the withholding of records “compiled for law enforcement purposes”— he may just shrug his shoulders and release the photos.
It doesn’t seem that the straddle is working. Not only is President Obama being savaged by the left, but he’s going to run into real trouble in court. McCarthy summarizes:
One last thing: I think the court rulings have been bad so far, but good or bad, I can assure you that federal judges don’t like to be toyed with. Supreme Court justices may not mind if the administration treats the media like a lap-dog and the public like we’re a bunch of rubes; but, regardless of their political leanings, the justices have goo-gobs of self-esteem, and they will not take kindly to being treated like pawns in the Obamaestro’s game.
UPDATE (5/22): It appears that Congress may bail out the president on this issue.
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