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.
WHATEVER HAPPENED TO TRANSPARENCY AT DOJ?
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.
Have we already forgotten waterboarding? When not the lives but the mere physical discomfort of top al-Qaeda terrorists was at issue, President Obama determined that “transparency” required the revelation of internal Justice Department legal memoranda — even though these memoranda were classified and even though revealing them provided our enemies with vital intelligence about our interrogation techniques. There are no such security matters at issue in Justice’s decision to release the photos. There is thus no reason why Justice’s internal deliberations should be shielded from public scrutiny.
Indeed, on the matter of DOJ transparency and public accountability, none other than Dawn Johnsen, the president’s nominee to head Justice’s Office of Legal Counsel (OLC), wrote (while George W. Bush was president):
OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action. Making executive branch law available to the public also adds an important voice to the development of constitutional meaning — in the courts as well as among academics, other commentators, and the public more generally — and a particularly valuable perspective on legal issues regarding which the executive branch possesses relevant expertise. . . . In all events, OLC should . . . consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant[.]
In demanding Justice Department transparency and accountability, Johnsen is second only to . . . Eric Holder. During his confirmation hearings, when the Democrat-controlled Senate pressed the now-attorney general on his willingness to surrender documents that bore on Justice Department missteps during the Bush years, Holder aimed to please, saying:
To the extent that there are documents that will help this committee in that assessment and to the extent that there is not a reason why we should be holding on to them, I will make them available, all with the presumption that, you know, transparency is the best thing and making available documents makes the most sense. . . . To the extent that I can make documents available in this context or in others, I will do that.
Is there any more important context crying out for transparency than a Justice Department misstep that could have cost American lives?
This misstep, it is worth remembering, does not occur in a vacuum. President Obama has stocked his Justice Department with lawyers who have spent (or whose firms have spent) the last eight years volunteering their services to America’s enemies. This includes Attorney General Holder himself, whose former firm’s website continues to brag about representing 18 alien enemy combatants and about attacking the validity of the Bush-era military commissions. (Those would be the same commissions that President Obama suddenly decided aren’t so bad after all, according to the administration’s most recent Friday Night Bad News Dump.)
It can be no coincidence that, with this DOJ team in place, we’ve already seen: the premature announcement of the closure of Guantánamo Bay, when there was clearly no plan for what to do about the detainees; the outright release of Binyam Mohammed, who plotted with “Dirty Bomber” Jose Padilla to attack American cities; the purging of the terms “enemy combatant” and “war”; the release of the CIA memos over the strenuous objection of the intelligence community, and in a shamefully dishonest manner that revealed interrogation tactics but suppressed from public view the life-saving information the tactics yielded; the announcement of an investigation of Bush-administration lawyers and the leaking of information from the related ethics probe; AG Holder’s under-the-radar suggestion that he’d cooperate with Spain’s investigation of Bush administration officials; the sweetheart plea deal for Ali al-Marri (a terrorist who, like Binyam Mohammed, was planning to conduct a post-9/11 second wave of mass-murder attacks in the U.S.); the plan to release trained terrorists in the U.S. in violation of federal immigration law (to say nothing of common sense); and, now, the decision to release the prisoner-abuse photos that the president, thankfully, has rescinded. That’s quite a track record in just a hundred days. There is palpable ground for concern that DOJ decisions are not being made with the best interests of American national security in mind.
Will Attorney General Holder release the Justice Department memos that led to his inexplicable decision to publicize photos President Obama concedes would have endangered our troops? If Holder won’t voluntarily disclose them, will Congress demand that he do so? After all, though some say it’s time to look forward, not back, today’s Democrats are quick to point out that all of us — other than Nancy Pelosi — must come clean and learn from the mistakes of history if we are to avoid repeating them.
Or is this one truth that Pat Leahy would just as soon not have a commission over?
– National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).