Thursday, May 14, 2009


By William Fisher

President Barack Obama’s decision yesterday to object to the planned release of photos showing abuse of prisoners in U.S. custody in Iraq and Afghanistan has drawn quiet praise from the military and some in Congress – and outspoken scorn from human rights advocates, a number of legal scholars and religious leaders, and many on the left of his Democratic Party.

The release, originally scheduled for May 28, was ordered by a federal appeals court in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The Obama Justice Department initially indicated it had run out of legal options and would comply with the court order.

But yesterday, the president made a 180-degree U-turn and ordered his lawyers to go back to court to appeal the decision. It is likely the case will eventually make its way to the Supreme Court.

The White House said the President “strongly believes that the release of these photos, particularly at this time, would only serve the purpose of inflaming the theaters of war, jeopardizing U.S. forces, and making our job more difficult in places like Iraq and Afghanistan.”

Photographs released in 2006 of detainees being abused and humiliated at the Abu Ghraib military prison in Iraq sparked widespread outrage and led to convictions for several prison guards and the ouster of the prison’s commander. The Pentagon shut down the prison in the wake of the scandal but it reopened under Iraqi control earlier this year.

It is being widely reported in the U.S. press that two factors played significant roles in the president’s turnabout. One factor was objections from top military leaders, concerned that release of the images would inflame the Muslim world at the moment when the U.S. is planning to draw down its troops from Iraq and initiate a new counter-insurgency strategy in Afghanistan. The second factor is Obama’s scheduled June 4 speech in Egypt; some in the Administration were reportedly worried that the photos would blunt the president’s message of reconciliation with the Muslim community by providing fresh fodder for the anti-American press in the Middle East.

Those said to be making this case to the White House include Robert Gates, the secretary of defense; Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff; Gen. David Petraeus, the CENTCOM commander; Gen. Ray Odierno, the U.S. commander in Iraq; and Gen. David McKiernan, the outgoing U.S. commander in Afghanstan.

Some influential members of Congress have also been urging Obama not to release the photos. They include Senator Lindsay Graham, a conservative Republican from South Carolina and a long-time military lawyer in the Air Force Reserve; and Senator Joe Lieberman, an Independent from Connecticut. Graham is a member of the Senate Armed Services Committee. Lieberman is chairman of the Senate Homeland Security Committee.

The two Senators wrote to Obama on March 7, “Releasing these old photographs of detainee treatment now will provide new fodder to al-Qaeda’s propaganda and recruitment operations, undercut the progress you have made in our international relations, and endanger America’s military and diplomatic personnel throughout the world.”

Support for the Obama decision has also came from some veterans’ groups. David Rehbein, the national commander of the American Legion, wrote in the Wall Street Journal that nothing good can come from the release of the photographs.

“Other than self-flagellation by certain Americans, riots and future terrorist acts, what else do people expect will come from the release of these photographs?” he asked.

But this reasoning has failed to impress human rights groups and some religious leaders, many on the Left of the Democratic Party, and some spokesmen for the Right.

Anthony D. Romero, Executive Director of the ACLU, which originally brought the FOIA lawsuit, 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.”

Other human rights groups were similarly outraged. Stacy Sullivan, counterterrorism adviser at Human Rights Watch, said, "We understand President Obama's concern about protecting U.S. military personnel serving in Iraq and Afghanistan, but the real danger comes not from the knowledge that abuse happened but the sense that those responsible for planning and authorizing it haven't been held accountable.”

Human Rights First argues that releasing the photos is vital. The group says it has set up a nonpartisan inquiry to “evaluate the full cost of abuses, look at how we got there, and come up with safeguards so we don’t repeat the same mistakes.”

Amnesty International USA’s executive director, Larry Cox, said,
“Today’s decision to hold the torture photos only points more firmly to the urgent need for an investigation to expose, prosecute and finally close the book on torture. The American people have been lied to, and government officials who authorized and justified abusive policies have been given a pass.”

Criticism of Obama’s decision also came from some Conservatives. Bruce Fein, Chairman of the American Freedom Agenda and a senior Justice Department official during the administration of President Ronald Reagan, told us, “The more things change, the more they stay the same. To maintain that the more grisly the abuses or torture revealed by the photos, the greater the urgency of secrecy to prevent infuriating foreigners is a page from George Orwell's 1984.”

Some religious leaders are also critical of Obama’s decision. Rev. Richard Killmer, Executive Director of the National Religious Campaign Against Torture, told us, “President Obama promised to make his administration ‘the most open and transparent in history.’ It is unfortunate that he appears to have chosen to backpedal on that promise on the issue of U.S.-sponsored torture. Not only should he allow the release of these photos, but he should also move to establish a Commission of Inquiry to investigate and report on our use of torture since 9/11.”

Legal scholars are also expressing opposition to Obama’s decision. Typical is Prof. Francis Boyle of the University of Illinois law school. He told us, “This tragic, misguided, and unprincipled reversal seems to be consistent with the fact that instead of getting a real ‘change’ on policies under the Obama administration, the American people are experiencing continuity across the board with those of the discredited and criminal Bush administration when it comes to international law, human rights, and U.S. constitutional law related thereto.”

A similar view comes from Marjorie Cohn, President of the National Lawyers Guild. She told us, “President Obama's about-face on releasing the photos belies his commitment to transparency. Those who authorized the mistreatment depicted in the photos have not been punished. By refusing to make the photos public, the administration is withholding evidence that could be used to bring the real culprits to justice."

And Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, told The Washington Post he thought Obama faced an uphill legal battle. "They should not be able to go back time and again and concoct new rationales" for withholding what have been deemed public records, he said.

Criticism of the Obama decision has also become viral among liberals in the blogosphere, For example, Cenk Uygur, writing in the left-leaning Huffington Post, said, “This is an unbelievable moment. Dick Cheney's PR offensive over the last month actually worked. Barack Obama just crumbled and will follow Cheney's command to not release the new set of detainee abuse pictures.”