Photo Follies
Why did the Eric Holder Justice Department decide to publicize the prisoner-abuse photos in the first place?


Andrew C. McCarthy

President Barack Obama is to be commended for doing the right thing in “delaying” the release of alleged prisoner-abuse photos that had been directed by his Justice Department just two weeks ago. Disclosure would have put American troops and American civilians in danger.

After all, the Obama worldview holds that such photos inspire terrorists, spur terrorist recruitment, and cause the murder of innocents. Now that he’s chief executive rather than just a candidate, Obama can no longer just carp; it’s his solemn duty to prevent these things from happening. Thus, we should never have gotten to the brink of disclosing the photos. Still, it is embarrassing to have to reverse course in so high-profile a matter, and the president is feeling real heat from his erstwhile acolytes at the ACLU. So, though no one should expect a medal for doing the screamingly obvious right thing, President Obama deserves praise for this one. But not much.

And two issues should be addressed immediately. The first: Why is the president continuing to pretend that this is a judicial call, concerning which he is just a bystander?

Apparently, the “delay” is to be accomplished by having the Justice Department do what it patently should have done two months ago: appeal the Second Circuit’s disclosure ruling to the U.S. Supreme Court. That’s all well and good, but to prevent the photos from being used by our enemies, Obama doesn’t need to rely on that iffy route. He has it within his power, and has had it within his power at all times since January 20, to issue an executive order determining that the release of the photos would harm U.S. national security and contravene U.S. foreign-policy objectives.

As I’ve previously discussed, the Freedom of Information Act (FOIA) expressly permits him to do that. Of course, doing so would require the president to be a grown-up — to say, “I’m the president, I’m the commander-in-chief responsible for the security of these young men and women in harm’s way, and I’m the guy elected to protect American lives. Regardless of whether the courts think these photos are law-enforcement materials exempt from FOIA disclosure, I have determined — by the power vested in me by FOIA — that these photos must be suppressed in the interest of American national security.”

In fact, as reported by Politico’s Josh Gerstein, the president has made these very findings:

“The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by small number of individuals,” the president told reporters Wednesday as he left the White House on a two-day trip to the Southwest.

“In fact,” he said, “the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger.” And, he added, distribution of the photos could also have a “chilling effect on future investigations of detainee abuse.”

The “small number of individuals” bit is rich. During the campaign, Obama and his mouthpieces (like Eric Holder) stoked the smear that President Bush had installed a government-wide, systematic torture regime. In any event, our evolving president’s assertions provide more than enough basis for the issuance of an executive order suppressing the photos. President Obama doesn’t need approval from the courts, so why is he passing the buck to them? If he now believes, as he says, that “the most direct consequence of releasing [the photos] . . . would be to further inflame anti-American opinion and to put our troops in greater danger,” he can end this right now. 

Why doesn’t he? Could it be that he wants to be able to vote “present”? Is it that, no matter how this comes out, he wants to be able to tell both the antiwar Left and Americans concerned about national security that he tried to look out for them but, alas, it was the court’s call? I suspect that’s the case, and, if I’m right, that’s foolish on Obama’s part. Presidents don’t get to hide that way. This is his call. He should make it.

The second issue involves the Justice Department. In this case, DOJ undeniably made a legal determination that put American lives at risk. Attorney General Holder decided not to appeal the Second Circuit’s disclosure ruling to the Supreme Court even though President Obama — who, according to Holder, is “a brilliant constitutional lawyer” — has now decided the Second Circuit made a big mistake in ordering the release of these photos in light of the threat their publication posed for our troops. Clearly, if the Second Circuit made a big mistake, the Justice Department made an even bigger mistake in opting not to appeal and agreeing with the ACLU that the photos should be publicized.

How did DOJ arrive at such a blatantly erroneous decision? Isn’t it vital for Congress and the public to understand the genesis of a debacle so contrary to our values, to the president’s view of the law, and to our military’s position on force security? Under the standards applied by congressional Democrats for the past five years, it is obviously time for a public airing of all internal Justice Department memoranda bearing on Attorney General Holder’s decision not to appeal a court ruling that the president rightly believes jeopardized our country.