In his column this week, the New York Times’s Adam Liptak portrays President Obama as the fierce defender of our troops, sending his Justice Department to the Supreme Court to appeal a Second Circuit ruling that classified “prisoner abuse” photos must be disclosed based on a Freedom of Information Act demand by the ACLU. To the contrary, as I’ve argued before, if you consider a few facts Adam conveniently omits from his version of events, it’s quite clear that the president wants the photos disclosed.

It was his administration that originally chose not to appeal (and his press secretary who put out the word that an appeal was “hopeless”) so that the photos would be made public. Obama, however, was not prepared for the vigorous backlash from that decision — the outcry from the military, the intelligence community, Republicans in Congress, and the public over the propaganda victory he was gratuitously giving our enemies. So Obama “reversed” his Justice Department (as if AG Eric Holder had made the original decision without consulting the White House!) and ordered an appeal to show how pro-military and pro-national-security he is. In fact, this is simply the most expedient way to get the photos disclosed with a minimum of political damage: Assuming the Supreme Court goes along with the lower courts, Obama can release the photos and act as though he had no choice — the judges made him do it.

. . . Except that, as Adam fails to point out, there are two provisions of FOIA that the administration has not invoked, and either of them would end the litigation. In fact, if the president really wanted the photos to remain sealed, all he’d need to do is issue an order sealing them. He hasn’t done that though, and one can only conclude this is because he, like his antiwar base, wants the photos disclosed.

Thus far the government has made only its weakest FOIA argument (albeit one that should have been paid more deference than the lower courts gave it). Specifically, the administration claims that disclosure of the photos is foreclosed by the exemption for “law enforcement records” that “could reasonably be expected to endanger the life or physical safety of any individual.” The courts have rejected this, reasoning that the term “any individual” should not be so broadly construed as to cover a class of millions of people, such as all the members of our armed forces who might be jeopardized by disclosure. This, the Second Circuit dubiously said, would nullify what it took to be the higher purpose of FOIA: to let Americans “know what their government is up to.”

But as I wrote back in May:

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.

Two other brief points should be made. First, Adam argues that the founding generation “thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.” That was hardly the blanket position of the Founders, particularly on matters of military consequence. George Washington himself said as the general in command of the first American forces, the “necessity of procuring good intelligence is apparent and need not be further urged. . . . [U]pon Secrecy, Success depends in Most Enterprises. . . and for want of it, they are generally defeated.”

Secondly, it was only a few weeks ago, that Obama — while vacationing on Martha’s Vineyard — had his spokesmen scrambling to try to put distance between himself and AG Holder’s decision to order a criminal investigation of the CIA interrogators. All Holder’s doing, we were told — the AG runs DOJ, and though the president really, cross-his-heart, doesn’t want the CIA to be investigated, the matter is out of Obama’s hands. Yet, here we’re supposed to see Obama In Command, firmly reversing the Justice Department and telling Holder what position to take in a Supreme Court case. Well, which is it?