The Corner

Will Congress Save Obama on the “Prisoner Abuse” Photos?

As Jen Rubin notes at Contentions, Sens. Lindsey Graham and Joe Lieberman have thrown President Obama a life-line on the administration’s flip-flop regarding the “prisoner abuse” photos. The release of the photos was directed by the Justice Department, despite the fact that it would have endangered American troops and the American people, but the president (under growing pressure) rescinded the order. A statement put out by Senator Graham details that the senators

introduced the Detainee Photographic Records Protection Act which would establish a procedure to block release of the detainee photos.  The Senators plan to offer the legislation as an amendment to the Supplemental Appropriations bill that is being deliberated on the Senate floor this week.

Last week, after consulting with General Petraeus, General Odierno, and others, President Obama decided to fight the release of photographs that depict the treatment of detainees in U.S. custody.  Those photographs are the subject of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.

This legislation would authorize the Secretary of Defense, after consultation with the Chairman of the Joint Chiefs, to certify to the President that the disclosure of photographs like the ones at issue in the ACLU lawsuit would endanger the lives of our citizens or members of the Armed Forces or civilian employees of the United States government deployed abroad.

The certification would last five years and could be renewed by the Secretary of Defense if the threat to American personnel continues.  Also, the language in the bill is clear that it would apply to the current ACLU lawsuit.

Writing about the photos last week, I described the two straightforward ways, under the Freedom of Information Act, to ensure that the photos remained classified and sealed:

[C]ontrary 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.” … 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….

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…. Congress would not even need to amend FOIA…. 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.

President Obama obviously doesn’t want to issue an executive order. If he did, he could easily have done it by now — and there’s not a thing the courts could have done about it. But such an executive order would enrage the antiwar Left that is Obama’s base. To be sure, the base is not going to be much happier with him if he signs congressional legislation that has the same effect, but the legislation will give him cover (especially if, as I suspect, the outcry over the photos cows Congress into approving the Graham/Lieberman by something close to a veto-proof margin).  So kudos to Sens. Graham and Lieberman. While the administration is dithering over how to persuade the courts to accept arguments that have already been rejected in order to spare the president more wrath from the Left, they are trying to make sure the right thing gets done. Now the Democrats in Congress (who answer to the same base Obama does) are in the hot seat: What will Senator Reid and Speaker Pelosi do with Graham/Lieberman?

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