The "long war" against FOIA via congressional exemptions
Not long after announcing that his administration would release more torture photos sought in a Freedom of Information Act lawsuit filed by ACLU, President Obama suddenly reversed his decision last month, and it appears that the flip-flop can be attributed to the Iraqi Prime Minister's warning that "Baghdad will burn" if they are released.
Senators Lindsey Graham and Joe Lieberman have been trying to pass an amendment which would exempt the controversial remaining photos of detainees from release under the Freedom of Information Act, with Graham saying that "This is the first shot in a long war . . . There are other lawsuits pending out there that want to compromise our national security in the name of freedom of information and transparency." (I hope my FOIA suit against the State Department, which is on hold until late July, doesn't fit into this category! I'm pretty sure it isn't one of the ones he is referring to.)
I understand Graham's argument that the pictures may provoke additional anger in Afghanistan and/or Iraq - after all, torture is inhumane, which is why it is banned under the Geneva Conventions, and why a majority of Americans were outraged when the first Abu Ghraib pictures surfaced several years ago. That said, it seems like most Iraqis would know about Abu Ghraib by now, and given what the country has gone through since 2003, it seems like a bit of a stretch to claim that the release of more photographs of detainee abuse would have such a dramatic impact, unless the photographs are particularly extreme or vile (and it should be noted that the Daily Telegraph report that the photos in question include images of rape has been debunked).
And if Congress starts exempting specific documents from the Freedom of Information Act - even in cases like this one, where two federal courts have ruled that the documents do not meet any of FOIA's statutory exemptions - it will set a dangerous precedent which would seriously undermine government transparency. Moreover, when Graham says that this is the "first shot in a long war" against FOIA and transparency in the national security context, it is clear that he envisions these congressional exemptions to FOIA being used on a regular basis, rather than being reserved for once-in-a-decade type situations. In other words, Lindsey Graham's own statements provide a strong "slippery slope" argument against his proposal.
The other major problem with Graham and Lieberman's proposal (and with the Obama administration's opposition to the release of the pictures) is the basic hypocrisy of demonizing the release of photographs depicting torture, yet simultaneously refusing to investigate the people behind the acts of torture themselves. If the mere release of more photographs depicting torture would be a "death sentence" to Americans serving overseas, as Graham claims, doesn't it follow that ordering American troops to torture detainees, and ordering them to photograph that torture for blackmail purposes (see this post) have put our troops at considerable risk? And if the neocons' decision to order our troops to torture detainees has put those troops at risk, doesn't it follow that we should have an investigation of some sort?
For more information on this issue, Glenn Greenwald has an exhaustive recap of the controversy, and makes a strong case against congressional exemptions to FOIA.
Senators Lindsey Graham and Joe Lieberman have been trying to pass an amendment which would exempt the controversial remaining photos of detainees from release under the Freedom of Information Act, with Graham saying that "This is the first shot in a long war . . . There are other lawsuits pending out there that want to compromise our national security in the name of freedom of information and transparency." (I hope my FOIA suit against the State Department, which is on hold until late July, doesn't fit into this category! I'm pretty sure it isn't one of the ones he is referring to.)
I understand Graham's argument that the pictures may provoke additional anger in Afghanistan and/or Iraq - after all, torture is inhumane, which is why it is banned under the Geneva Conventions, and why a majority of Americans were outraged when the first Abu Ghraib pictures surfaced several years ago. That said, it seems like most Iraqis would know about Abu Ghraib by now, and given what the country has gone through since 2003, it seems like a bit of a stretch to claim that the release of more photographs of detainee abuse would have such a dramatic impact, unless the photographs are particularly extreme or vile (and it should be noted that the Daily Telegraph report that the photos in question include images of rape has been debunked).
And if Congress starts exempting specific documents from the Freedom of Information Act - even in cases like this one, where two federal courts have ruled that the documents do not meet any of FOIA's statutory exemptions - it will set a dangerous precedent which would seriously undermine government transparency. Moreover, when Graham says that this is the "first shot in a long war" against FOIA and transparency in the national security context, it is clear that he envisions these congressional exemptions to FOIA being used on a regular basis, rather than being reserved for once-in-a-decade type situations. In other words, Lindsey Graham's own statements provide a strong "slippery slope" argument against his proposal.
The other major problem with Graham and Lieberman's proposal (and with the Obama administration's opposition to the release of the pictures) is the basic hypocrisy of demonizing the release of photographs depicting torture, yet simultaneously refusing to investigate the people behind the acts of torture themselves. If the mere release of more photographs depicting torture would be a "death sentence" to Americans serving overseas, as Graham claims, doesn't it follow that ordering American troops to torture detainees, and ordering them to photograph that torture for blackmail purposes (see this post) have put our troops at considerable risk? And if the neocons' decision to order our troops to torture detainees has put those troops at risk, doesn't it follow that we should have an investigation of some sort?
For more information on this issue, Glenn Greenwald has an exhaustive recap of the controversy, and makes a strong case against congressional exemptions to FOIA.
posted at 12:53:00 AM | permalink
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