You can feel the momentum building for transparency and accountability. Even mainstream corporate media outlets are talking about 'the photos'. While we may find their portrayals overly simplistic, and we may find it unfortunate that the headlines try to make everything about Obama (as if he personally is responsible for years of litigation about the public's right to know what the government does), the corporate media's most potent weapon is that of omission, of ignoring stories. Once CNN and the Washington Post start running headlines with titles like Justice Department prepared to fight detainee photo release and Obama Shifts on Abuse Photos, the issue of photographs is so far into the mainstream consciousness that there's no putting it back in the bag.
One interesting voice gets left out a lot, though, and that's what the courts have actually said about these matters. Fundamentally, these are legal questions, not political ones. The political level is whether or not FOIA should exist, not whether courts should follow the laws that do exist.
So, I thought it would be helpful to go on a journey meandering through some of the history of what the integral actor in this story, the courts, have actually been concluding. I have to quote the beginning of one decision to start (PDF warning).
Ours is a nation of laws...No one is above the law: not the executive, not the Congress, and not the judiciary...One of our laws is the Freedom of Information Act (FOIA). That law, no less than any other, must be duly observed.
Then, I've got two caveats.
I'm not a lawyer. This is intended as something accessible for lay citizens, the great majority of us who are ultimately responsible for the conduct of our country. Lawyers are (can be) wonderful assistants and public servants, but they are not gatekeepers. They do not possess unique conceptual insight into the Constitution and the rule of law unavailable to the rest of us.
I'm also not intimately familiar with the ACLU's proceedings on this. Beyond my nominal affiliation donating a negligible amount of money to the ACLU, what I know is just based on publicly accessible sources like the ACLU's fantastic website on this issue.
Perhaps the place to start is simply asking, what exactly are we talking about?
Information is important, but one of the challenges is that large amounts of information can be as overwhelming as it is informative. As the ACLU describes (see the link above)
The ACLU filed a request on Oct. 7, 2003, under the Freedom of Information Act demanding the release of information about detainees held overseas by the United States.
In other words, we are talking about the legal rights of Americans to obtain information as legislated by Congress and, if necessary, adjudicated by courts. This broad request can be split up into four main categories to help focus attention, as organized at the ACLU website hosting links to the documents.
- Initial documents designed to request the information directly from the relevant government agencies, namely, the Department of Defense. It's helpful to be aware that the judicial branch doesn't even need to get involved in FOIA requests. If the government agency would just hand over the information, the matter would end there. In this case, however, the DOD and CIA refused, necessitating filing a lawsuit in order to compel the government to release the requested information.
- Documents relating to CIA contempt issues.
- Documents relating to the Bradbury memos.
I'm not going to say much on these two as I want to focus on the photographs.
- Documents relating to detainee abuse photographs.
Alright then, what have the courts said about those photographs?
First, the courts have outlined a process for the ACLU and the government to work together cooperatively to find and release this information, or, if the government objects, for the government to claim specific reasons for objecting to specific releases. For example (PDF warning)
By August 23, 2004, defendants will either release non-exempt records identified in Plaintiffs' August 16 list, provide a log claiming specific exemptions...or identify a date on which they will offer a statutory basis for withholding a specific record and the reasons for the delay. In said log, defendants will also identify those documents...that they are not able to locate after a reasonable effort to do so and will describe the efforts taken to locate these documents
Second, the courts have denied the CIA's preference of ignoring FOIA. A snippet (PDF warning)
defendant CIA has failed to satisfy the statutory prerequisites for invoking the operational files exemption, and hence may not avoid the requirements imposed by FOIA
So this takes us through the first several months of this process. Remember, the ACLU filed the initial request in 2003, and the judge ordered the government to comply in 2004. Then in 2005, the courts explicitly ordered the release of some photographs (PDF warning here and here).
Third, the courts have denied the DOD's request to reconsider these decisions the court has previously made, especially related to the CIA. Some tidbits I particularly appreciate (PDF warning).
The government’s motion asserts that I overlooked its argument why the CIA should be permitted neither to admit nor deny that it has possession of the particular document that Plaintiff requested. I believe, however, that I considered all material aspects of the government’s argument, and I therefore deny its motion for reconsideration.
The Convention Against Torture is part of our law...It was ratified by its national signatories and implemented into U.S. law in order to “make more effective the struggle against torture and other cruel, inhuman, or degrading treatment or punishment throughout the world.”
Clearly any member of the U.S. government involved in interrogations would need to know and understand the Convention’s terms, including official administrative interpretations of those terms.
and
The government asks for an enlargement of time, beyond the thirty three days already given...As I previously discussed, time is of the essence in a FOIA case...In my discretion, I grant one further enlargement to the government, to November 15, 2005.
Fourth, the courts ordered release of additional photographs in 2006 (PDF warning). I think it's worth observing that these are not simply blanket releases, either all or nothing. Quite the contrary, the judge specifically evaluates each record being contested, releasing some, redacting others, and withholding entirely still others. In other words, the concerns about the release (or not) of words, pictures, movies, etc, are already taken into account by the courts themselves. The attempt to politicize that process distracts from this fundamental balancing act, the role of the courts between the plaintiff and the defendant, the citizen and the government. If politicians desire a different balancing act, then they should change the laws.
Fifth, the government basically appeals the whole thing. This buys another two years of essentially not having to comply with the initial FOIA request. But by 2008 (PDF warning), the government couldn't delay any longer. The Second Circuit court upheld the decision that the district court made.
And so that brings us to today.
DOD wasn't happy, so they requested to be heard again. This spring, that was denied. An agreement was reached under which photographs would be released by May 28, 2009. Until the government decided there wasn't an agreement.
When citizens and the government disagree on how to handle FOIA requests, courts are there to settle the dispute. This dispute has been settled. Thoroughly. Over several years.
What I ask is for the Administration to stop injecting politics into the law. I don't expect Obama to come out tomorrow forcefully advocating for the prosecution of Bush officials for war crimes. I'd be happy, actually, if the Administration would mute its rhetoric, at this stage of the game.
The courts speak for themselves, and that voice is very important. If Obama's advisers have concerns about tipping their hand about prosecutions down the road, then stop talking about releasing evidence of the acts. The courts are on top of it; they can handle it. That's the best political cover. Imagine this exchange with the Press Secretary:
Q: What does the President think about releasing photos of detainee abuse?
A: First off, as you know, no one supports the troops more than President. If you'll recall, there are wonderful pictures of our brave men and women reacting excitedly to meeting with the President. Now, the President is disappointed that the ACLU is seeking the release of information that Generals Petraeus and Odierno do not believe should be released. The President is further disappointed that the district court has continually ruled in favor of the FOIA request, and further that the Appeals court of the Second Circuit has ruled that the original rulings were ruled correctly. At this juncture, there's simply nothing the President can do. The courts have spoken, over a period of several years, and in America, the courts are independent actors who are controlled by neither the President nor the military. If you want to know why the courts ruled the way they did, talk to them. And if you want to hold the President responsible for the makeup of the federal bench, go ask Republican Senators why they're holding up votes on his nominees.
Q: But, but, can't you appeal to the Supreme Court or something?
A: Well, I suppose the President could try to make a lawsuit that has lasted for five years drag on even longer, but there's no guarantee of success, especially in a case like this where the district court and circuit court have each reached the same conclusions. And I'll tell you what, get the Republicans to agree to an up or down vote on the President's Supreme Court nominees, and I'll get more information from the Justice Department for you about what exactly would be involved with an appeal to the Supreme Court.
Update:
I want to add one final quote I found perusing the Circuit Court's 2008 decision. It's a footnote (22) at the very end. I submit that it captures rather succinctly the nexus of these issues and how the courts have weighed them.
We note in passing that the defendants did not produce any evidence that any detainees pictured wished the redacted photographs to be withheld in order to protect their privacy.
Thanks for those who have appreciated this effort. I think we get caught up in the emotional intensity of all of this sometimes and forget that there are professionals who have spent the better part of the past six years dealing with precisely these issues. Situations like this are precisely why we have established legal systems; this is where the court system really shines. It plods along, methodically but ever forward nonetheless, more insulated from the particular political winds of the moment than other parts of our government. Sometimes what it needs most is for us to trust it, to defend it, to respect it, to care about what it has to say, to believe that it will listen equally well to generals and average Joes.