The Corner

Update on Photos

A couple of days ago, I noted that it looked like Congress would ride to President Obama’s rescue on detainee-photos controversy. The Lieberman/Graham amendment (The Detainee Photographic Records Protection Act of 2009) did in fact pass last night in the Senate. If enacted, as I expect it will be, it would bar disclosure of the photos for three years, with options to renew. I expect we’ll hear more later today from the sponsors, but for now we should be grateful to Sens. Joe Lieberman and Lindsey Graham for their work in protecting our troops and our citizens.

The same cannot be said for the Justice Department. On that score, I urged last week that Congress ought to get to the bottom of why DOJ initially declined to appeal the Second Circuit decision directing disclosure of the photos — especially in view of all Attorney General Holder’s promises about a new era of “transparency” (a value also lauded by Pres. Obama in yesterday’s speech and, as I describe in last week’s article, urged by Dawn Johnsen, Obama’s nominee to head up Justice’s all important Office of Legal Counsel). Well, it turns out that in last week’s testimony before the House Judiciary Committee, the attorney general was pressed on this very point by Rep. Dan Lungren (R., Calif.) (who, as recounted here, did such a deft job exposing the flaws in Holder’s “waterboarding is torture” theory). Here’s the exchange:

REP. LUNGREN: Well, let me ask you this question[.]… The president of the United States just made a determination — I think it was today or yesterday, that he does not believe we ought to release pictures showing, presumably inappropriate activity by American personnel with respect to prisoners that we hold — we have held at Guantanamo and other places. And yet it’s my understanding that is in response to an appellate court decision that you, or at least your department, had made a determination you would not appeal. Is that correct?

ATTY GEN. HOLDER: I think that what we had made the decision to do was — before the president had had the opportunity to sit down and have, I think, the in-depth conversations that he’s obviously had with the field commanders, and on the basis of his determination that it would place our troops at risk, we have now taken a different position in court.

REP. LUNGREN: So, the original position was not to take an appeal? Is that correct?

ATTY GEN. HOLDER: I think that’s technically right –

REP. LUNGREN: Okay.

ATTY GEN. HOLDER: I’m not sure. But, we are now –

REP. LUNGREN: Well, would it be appropriate for us to ask if we could see the internal Justice Department memorandum with respect to that decision?

ATTY GEN. HOLDER: To not?

REP. LUNGREN: Would it be appropriate for this committee to ask that Congress have an opportunity to view the internal Justice Department memorandum which led to the decision not to appeal?

ATTY GEN. HOLDER: I will say, as a matter of course, that I want to work with this committee, but I have a great reluctance in saying that I would share internal Justice Department memoranda that deal with decisionmaking in particular cases.

Transparency indeed. Maybe he only meant “technical” transparency. 

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