Senate Votes to Block Detainee Photos

The Senate overwhelmingly passed a measure on Wednesday evening to block the release of photos depicting US soldiers abusing detainees in Iraq and Afghanistan.

The legislation will now be sent to the House, but it's unclear whether Democratic lawmakers will support it. The photo ban was previously included as an amendment in a $106 billion Iraq/Afghanistan supplemental spending bill, which the Senate also passed on Thursday. Recently, House Speaker Nancy Pelosi said she and other Democratic members of Congress did not support the measure when it was inserted as an amendment into the spending bill. The amendment was sponsored by Sens. Joe Lieberman (I-Connecticut) and Lindsey Graham (R-South Carolina). Graham and Lieberman have waged a public campaign to force President Barack Obama to block the release of the photos by appealing to the Supreme Court if the Second Circuit Court of Appeals, which rejected previous efforts by the Bush administration to keep the photos classified, upholds its previous rulings. They vowed to filibuster the supplemental spending bill if their measure was not passed.

Graham said Wednesday he removed his hold on the spending bill for Iraq and Afghanistan and other legislation after he received assurances from Rahm Emanuel, Obama's chief of staff, that if the House refuses to back the legislation banning the release of the photos President Obama will issue an executive order prohibiting the Department of Defense from turning over the images to the American Civil Liberties Union. The civil rights group sued to gain access to photos and videos related to the treatment of detainees in US custody.

"I wanted to be assured by the administration that if the Congress fails to do its part to protect these photos from being released, the President would sign an Executive order which would change their classification to be classified national security documents that would be outcome determinative of the lawsuit," Graham said Wednesday before his measure was sent to the floor for a vote. "Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day, but they agree with me that the best way to do it is for Congress to act."

In a joint statement on Thursday, Graham and Lieberman said, "Passing this bill is essential to protecting our fighting men and women."

"Each one of these photos would be tantamount to a death sentence to those serving our nation in the most dangerous and difficult spots like Iran, Afghanistan and elsewhere."

Graham and Lieberman's bill prohibits the release of the abuse photos for three years. Either the secretary of defense or Obama has authorization to extend the ban for an additional three years. Graham said he has not seen the photos at issue in "years," but he intends to view them again next week.

Gabor Rona, international legal director of Human Rights First, said, "Sen. Lieberman and Graham's claims might carry more weight had the US government been consistently honest about the mistreatment it authorized. But as long as the American people are kept in the dark about what crimes were committed in their name, they cannot intelligently exercise their democratic right and obligation to call for corrective measures."

ACLU executive director Anthony Romero said, "The Obama administration's adoption of the stonewalling tactics and opaque policies of the Bush administration flies in the face of the President's stated desire to restore the rule of law, to revive our moral standing in the world and to lead a transparent government....

"It is true that these photos would be disturbing; the day we are no longer disturbed by such repugnant acts would be a sad one. In America, every fact and document gets known - whether now or years from now. And when these photos do see the light of day, the outrage will focus not only on the commission of torture by the Bush administration but on the Obama administration's complicity in covering them up."

By opposing the release of photographic and other evidence of prisoner abuse, Obama is furthering a long-running cover-up that has protected senior Bush administration officials who set the harsh interrogation policies that led to torture and other misconduct.

In effect, Obama's reversals on his earlier pledges of openness regarding alleged US war crimes means that he is shutting the door on new internal investigations that might go beyond the truncated inquiries allowed by President George W. Bush and his top aides.

Retired Lt. Gen. Ricardo Sanchez, who was commander of US forces in Iraq at the time of the Abu Ghraib scandal, confirmed in a recently published paperback version of his book, "Wiser in Battle," that the prisoner-abuse investigations were constrained for political reasons.

"A meaningful and unlimited investigation, which the Bush administration adamantly opposed, would result in an unmitigated disaster," Sanchez wrote. "It would open up Pandora's box and let out a world of evil."

Sanchez added, "It's now clear the Bush administration did not tell the truth about the use of torture at Guantanamo Bay, or in Afghanistan and Iraq.... In the aftermath of Abu Ghraib, administration officials worked diligently to deflect responsibility away from them and down to military leadership on the ground. ...

"It is also apparent that the White House and the Department of Defense consistently attempted to minimize any further exposure of their actions and, specifically, to prevent a serious investigation into their executive-decision making process."

Sanchez wrote that "to prevent this [disgrace] from ever happening again" and "to restore America's moral authority," the Obama administration and Congress "must conduct more comprehensive investigations across all involved agencies, learn from the findings, and implement permanent changes."

But it's becoming increasingly clear that after deciding in April to disclose four Justice Department memos rationalizing torture, Obama was stung by the backlash from former Vice President Dick Cheney and other Bush administration defenders. Since then, the president has opposed release of the abuse photos and other documents related to the interrogations. Obama claims that further disclosures would only inflame the Muslim world and endanger American troops in Iraq and Afghanistan, but he also has adopted Bush's long-discredited claim that the mistreatment of detainees was the work of a few miscreant MPs.

"The individuals who were involved [in prisoner abuses] have been identified, and appropriate actions have been taken," Obama said in a statement last month. "It's therefore my belief that the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals."

Also pushing Obama to keep the photos secret were two military holdovers from the Bush administration - Gen. Ray Odierno, Bush's last commander of US forces in Iraq, who remains there under Obama, and Defense Secretary Robert Gates. Pentagon spokesman Geoff Morrell said it was Odierno who convinced Gates to make a fight over the photo release.

Change of Course

Obama's decision to fight to conceal the photos marks an about-face on the open-government policies that he proclaimed during his first days in office.

On January 21, he signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act (FOIA) requests and promised to make the federal government more transparent.

"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," Obama's order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."

Last September, in upholding a lower court ruling ordering the release of the photos, the US Court of Appeals for the Second Circuit noted that past US administrations had championed the release of photos that showed prisoners of war being abused and tortured.

Notably, after World War II, the US government publicized photos of prisoners in Japanese and German prisons and concentration camps, which the court noted "showed emaciated prisoners, subjugated detainees, and even corpses. But the United States championed the use of the photos as a means of holding the perpetrators accountable."

The Bush administration's legal arguments for withholding the photographs were rife with examples of hypocrisy, including an argument that release of the photos - even with the personal characteristics of detainees obscured - would violate their privacy rights under the Geneva Conventions.

The irony was that the Bush administration - with the help of legal opinions drafted by Justice Department lawyers - had maintained that detainees from the war in Afghanistan and the larger "war on terror" were not entitled to prisoner of war protections under the Geneva Conventions.

The ACLU argued that the Bush administration's legal strategy was "surprising because there would be no photos of abuse to request had the government cared this much about the Geneva Conventions before the abuses occurred and the photos were taken."

In disputing the administration's selective application of these international standards, the ACLU noted that "the Geneva Conventions were designed to prevent the abuse of prisoners, not to derail efforts to hold the government accountable for those abuses."

Federal courts agreed with the ACLU's arguments. The Second Circuit Court of Appeals deemed the Bush administration's position legally flawed and added that releasing "the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners."

The appeals court also shot down the Bush administration's attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as "an all-purpose damper on global controversy."

Now, after Bush administration defenders pummeled Obama as soft on national security, he has agreed to lift up their tattered legal banner and carry it forward.

Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

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