That’s how you know administration shill Robert Gibbs is, shall we say, being inaccurate about the president’s floperoo on detainee photos. Over at NRO’s Media Blog, Greg Pollowitz was “Watching Bob Gibbs Squirm” yesterday. Greg observes:

Gibbs is taking a lot of questions on Team Obama’s reversal in the matter of releasing new photos of alleged detainee abuse. It seems Obama’s legal team is going to use a new argument not used by the Bush administration to keep the photos from the public, namely that the release of the photos will in fact put the safety of our troops at risk. Jake Tapper just asked, in essence, whether the Obama administration is basically taking up the Bush administration’s case on the subject. Gibbs, to nobody’s surprise, didn’t think this was so.

I know you’ll be stunned to hear this, but Gibbs is wrong. As the Second Circuit Court of Appeals’ decision last September in ACLU v. Dep’t of Defense relates, back in 2005, the Bush Justice Department first argued, in the district court, that the release of the photos “could reasonably be expected to endanger the physical safety of United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.” The judge rejected this argument — incorrectly in my view, for what that may be worth — despite acknowledging the “risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts.” (Opinion at pp. 4-5). Then, as the three-judge Second Circuit panel noted, this national security argument became the Bush Justice Department’s “lead argument on this appeal.” (Id., pp. 8 & ff.) It’s simply false for Gibbs to contend otherwise.

Why all the legerdemain? Because, as I said in the lead argument made in Tuesday’s column (and on which I will elaborate in a new article later today): 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. See Title 5, U.S. Code, Section 552(b)(1)(A) (FOIA disclosure mandate “does not apply to 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 and … are in fact properly classified pursuant to such Executive order”).

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’s a game the President may not be able to get away with for much longer. So far, he has been coy about exactly what his litigation strategy is, but if he is thinking of going back to the Second Circuit for reconsideration, he’s probably out of luck. For starters, I think he’s out of time at this point — the principal Second Circuit decision was issued eight months ago, and the court declined to rehear the case more than two months ago. (Since the Circuit’s last denial of rehearing was March 12, he is still within the 90-day period for appealing to the Supreme Court. See Supreme Court Rule 13.) But even if there were still time to go back to the Second Circuit, there’s the problem that goes to the Gibbs whopper from yesterday. A litigant generally can’t seek reconsideration based on an argument the Court has already considered and rejected. Contrary to what Gibbs told Jake Tapper yesterday, the “new” argument Obama purportedly came up with is actually the old argument the Bush DOJ made.

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. The Solicitor General should expect some very tough questions about why the busy justices should waste their valuable time grappling with a tough, life-and-death legal issue when Obama could simply issue an order – regardless of how the Court rules – suppressing the photos. This, of course, is the question the media should be asking. Unlike the White House press corps, the justices will take the time to understand what’s happening and they will not roll over.