President Obama is advocating the passage of the war supplemental bill [H.R 2346] with an amendment from our friend Joe Lieberman and Lindsey Graham, which would give the Defense Secretary unreviewable authority to suppress photographs of detainee abuse, even when the Supreme Court upholds a Freedom of Information Act order to release the photographs. This is an extremely dangerous proposition. Even if you think Obama and his people will make good calls about suppressing damaging photos, a future administration, especially a Republican one, could use this law in very destructive ways.
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Glenn Greenwald provides some valuable background on the Freedom of Information Act:
FOIA was enacted by Congress in 1966 -- more than 40 years ago -- and, in 1974, Congress overrode a presidential veto (.pdf) of amendments that expanded its disclosure requirements in the wake of Nixonian secrecy abuses. Congress should defend and insist on presidential compliance with the important transparency law it passed and repeatedly strengthened -- not allow the White House and Republicans to jointly render it illusory by retroactively narrowing its provisions, all because the Obama White House wants to suppress evidence of Bush's war crimes in the face of clear FOIA requirements compelling disclosure.
Winning the protections against the abuse of government authority that the Freedom of Information Act affords was a precious legislative victory -- twice-- and undermining it with the passage of this law would be a severe blow to our system of government, in which the checks and balances are famously enshrined. It is not as if President Obama has no recourse to stop the release of the photos:
As Greenwald points out, FOIA provides for exceptions to be made in the interests of National Security:
We already have a law in place -- FOIA -- that is incredibly permissive in what it allows the government to keep secret. Obama is perfectly within his rights to appeal the two court decisions ruling that these photographs must be disclosed under FOIA.
But it does put the burden on the Executive Branch of proving that the release of the materials in question will, in fact, be harmful to national security, and the final decision is the Supreme Court's. Given the history of abuse of Executive authority in this country, these protections seem to me to be very important.
Anyway, the bill has passed the Senate, but is running into problems in the House. The Rethugs don't want to vote for the Bill because it includes $5 billion for the IMF, which Obama promised his G20 colleagues. This is giving liberal democrats, who oppose the bill because of the Graham-Lieberman amendment, leverage which they don't usually have. Barney Frank is among those opposing the Bill. The White House and the Democratic leadership (I don't know about Pelosi) are now attempting to flip 18 Reps who oppose the bill in its current form, which is what they would need for it to pass. The odds of them succeeding in that don't look great, according to Barney Frank, as reported by Jane Hamsher,. There are some additional machinations involving Frank switching his vote to supporting the bill that I don't follow, seeing as how I'm not David Waldman, but he does not believe the bill will pass with Graham-Lieberman amendment in it.
Anyway, Greenwald links to a page that lists the members of Congress being pressured to change their vote. I know everyone is girding their loins for the healthcare fight, but I think this is really important, so if you do also, please consider calling some of these Congress Critters and letting them know you support them in your opposition. There is also a nifty form that lets you report how the calls went.
UPDATE: Here is a link to the WaPo editorial criticizng Obama for supporting this amendment.
UPDATEx2: Someone pointed out in the comments that the text of the bill only grants the Sec of Defense this poiwer over photos take in the last eight years, up to 1/22/2009. So this partially invalidates some of my editorializing about the danger of future administrations using this power, although not entirely, since it would be setting a precedent which would make such moves by the executive perhaps easier to get through Congress in the future.