On January 21, 2009, President Barack Obama released this memorandum:
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Freedom of Information Act
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears....
Meanwhile, with President Obama's, Sens. Lindsey Graham and Joe Lieberman attached this particularly pernicious amendment to the Iraq/Afghanistan supplemental. Titled the "Detainee Photographic Records Protection Act of 2009," the bill's purpose is to allow the President and the Pentagon to conceal evidence of torture in the form of the photographs, and goes even further:
to block the Supreme Court from ruling (as two federal courts have already held) that the Freedom of Information Act compels disclosure of those photographs....
The legislative branch actively blocking judicial review of the executive branch is rather extreme, and flies absolutely in the face of the transparency promised by the new administration on January 21, not to mention the specific executive order on FOIA. As Glenn says
If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA's exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure -- as Obama is asking it to do. But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn't want to comply with court rulings and with current transparency laws.
The amendment passed easily in the Senate, embarrassingly enough, on a voice vote. But now there's a rub. David wrote at Congress Matters yesterday, the supplemental in the House is in flux already because of potential Republican defections over funding for the IMF that's included. In order to get passage, leadership needs 18 liberal member--who regularly vote no on war supplementals in opposition to the war--to flip their votes. The IMF funding might have been enough to pull those 18 votes, but now the inclusion of Graham/Lieberman could make that vote flipping impossible.
Jane talked with Barney Frank about this last night, and has this:
"You can have the war and the IMF, or the war and the pictures," he said....
"I told them [the administration] that they have no chance of passing this if the pictures are in it," said Frank. "There are many Democrats who are very upset about that."
"So are the photos still in there?" I asked.
"I don't know," he said.
"Well, you say that the bill won't pass until the pictures are out -- are they in the conference report?"
"This isn't a quiz!" he snapped. "There is no conference report. I believe it will come out. I let them know that if it doesn't come out, it won't pass. If they insist on the photos, they won't get the IMF."
FDL has a very handy tool to use to contact the key members of the Out of Iraq and Progressive caucuses. You can use it to contact these members and encourage them to continue to oppose this bill, particularly as long as it contains the FOIA-eroding, torture-protecting Graham/Lieberman amendment.
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