This conclusion was far from indisputable. The country, after all, is currently involved in a defensive war authorized by Congress — an imperative one might have thought took precedence over other legislative goals, such as those of the Freedom of Information Act. Given the stakes, the Bush administration sought a rehearing in the case before the full Second Circuit. By the time the court denied that application on March 12, however, the Obama administration had taken over. With Attorney General Eric Holder now at the helm, the Justice Department decided not to appeal the ruling to the Supreme Court. As a Pentagon spokesman told Stars and Stripes, “A decision was made by the Justice Department, in collaboration with us, that we should comply with the lower court’s ruling.”
Obviously, that was a bad call. An administration that made its top priority the protection of our armed forces and the American people would have taken this case as far as it could — which would very likely have pushed a final ruling well into next year. This administration’s failure to do so underscores its anti-war predisposition — as well as the deeply conflicted posture of the Holder Justice Department, many of whose top officials (including the attorney general himself) come from firms that have spent the last several years representing America’s enemies in court.
But contrary to what the administration would have Americans believe, the Second Circuit ruling is not the end of the story. FOIA also contains an exemption from disclosure for matters that are “specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy.” That exemption was not at issue in the Second Circuit case.
Thus, if President Obama wanted to keep these photos from being exploited by America’s enemies, all he would need to do is issue an executive order sealing them, based on a finding (which could be drawn from public statements he has already made) that their release would imperil the national defense — as well as frustrate ongoing American foreign-policy efforts in Pakistan, Afghanistan, Iraq, the Palestinian territories, and elsewhere in the Muslim Middle East.
Some will say that the president won’t do that because he does not want to anger the anti-war Left, a significant part of his base. In truth, the president is the anti-war Left. He won’t issue an executive order of this kind because he wants the photos revealed. It is important to understand that disclosure here is not an inevitable outcome. It is a choice. It doesn’t have to happen unless Obama wants it to happen.
The same can be said of the Democratic Congress. The Second Circuit ruling that Holder chose not to appeal did not say the Constitution mandated public dissemination of photos that will imperil Americans. It said FOIA required it. FOIA is just a statute. Congress writes the statutes and it can amend the statutes. Democrats control both houses, as well as the White House. If they wanted to bar disclosure of the photos, they could do that tomorrow. And with the overwhelming support they’d get from Republicans, they could do it with veto-proof margins. But legislative override would likely be irrelevant: Obama wouldn’t dare veto a non-disclosure bill — he wants disclosure, but only if he can snooker people into believing it wasn’t his choice.
Congress would not even need to amend FOIA. As it now stands, FOIA provides for nondisclosure of matters “specifically exempted from disclosure by statute.” All Congress has to do is enact a law categorically barring disclosure of these particular photos, or barring photos that could endanger the lives of American service personnel and civilians for the duration of this war against an enemy already known to exploit such photos for propaganda purposes. Such a rule doesn’t have to last forever — only until the end of the war. And if that seems too long, Congress could stipulate that the question of disclosure will be revisited every few years.
The leading congressional Democrats are tribunes of the anti-war Left. They have not enacted such a law because, like Obama, they want the photos disclosed — or because they are too craven to defy their base. But it is important for Americans to understand: The Democrats are making a conscious choice that will imperil our nation and its defenders.
Last week, the Republican minority proposed legislation (the Keep Terrorists out of America Act) to pressure President Obama into reversing his plan to transfer trained jihadists into the United States. They are to be commended for an effective tactic. But it’s not enough. Where is the No Disclosure of Enemy Propaganda Material Act? Unless something is done, the photos that will cause American soldiers, American civilians, and other innocent people to die will be released in two weeks. Time is running out — the danger is not.