By Josh Gerstein (Politico.com)
In a dramatic and high-profile reversal for his young administration, President Barack Obama is seeking to block the release of 44 photographs depicting abuse of detainees in U.S. military custody in Iraq and Afghanistan.
The Justice Department had already agreed to release the photos by May 28 in response to a lawsuit, but Obama is shifting course.
“Last week, the President met with his legal team and told them that he did not feel comfortable with the release of the DOD photos because he believes their release would endanger our troops, and because he believes that the national security implications of such a release have not been fully presented to the court,” said a White House official who asked not to be named.
“At the end of that meeting, the President directed his counsel to object to the immediate release of the photos on those grounds,” the official said.
Obama’s reversal is sure to set off an outcry on the left, which has pushed the Obama administration to come clean about interrogation policies and other actions carried out by the Bush administration. Obama endorsed such openness during the campaign – and even released memos detailing interrogation practices critics call torture.
But those “torture memos” gave Republicans fodder for attacks on Obama for weakening U.S. national security – and touched off a series of questions about what House Speaker Nancy Pelosi knew about waterboarding and other practices, and when. Obama’s move seems designed at least in part to avoid giving Republican critics new fodder for attacks – even if that means angering those on the left.
“If it’s true that they’re reversing position, we find that wholly unacceptable,” ACLU attorney Jameel Jaffer told POLITICO. “It’s inconsistent with the commitment they’ve made to the court and its inconsistent with the promise of transparency that they’ve repeated many times both before the election and since.”
Jaffer said the ACLU had not been officially informed of the government’s change in stance, which he earlier called an effort to “renege” on the administration’s prior promise.
Already last week, Obama was coming under pressure to squelch the photos from senators Lindsey Graham (R-S.C.) and Joe Lieberman (I-Conn.), who wrote to Obama urging him to drop plans to release the photos.
The American Civil Liberties Union has been seeking the photos for years in a pending Freedom of Information Act lawsuit over records of alleged abuse of prisoners. A federal appeals court ruled last year that the Bush Administration could not use the danger of retaliation against U.S. soldiers to withhold the images. Last month, Obama administration officials said a decision was made not to appeal that ruling to the Supreme Court.
Yet in his reversal Obama cited concerns about retaliation against U.S. troops as one of the main reasons.
“The President would be the last to excuse the actions depicted in these photos. . . But 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 US forces, and making our job more difficult in places like Iraq and Afghanistan,” the White House official said.
One hurdle that could complicate the president’s effort to reverse course is that the Justice Department sent U.S. District Court Judge Alvin Hellerstein a letter on April 23 saying that “the Government has now decided” not to seek review of the 2nd Circuit appeals court decision by the Supreme Court. “The parties have reached an agreement that the Department of Defense will produce all responsive images by May 28, 2009,” the letter said.
Comments that the White House made about the photos just last month could also undermine any legal attempts the administration will now pursue.
Asked at an April 23 briefing why the administration was not seeking Supreme Court review, White House Press Secretary Robert Gibbs said, “I know that the Department of Justice determined specifically based on the ruling that they were not likely to be successful.”
Gibbs was also unambiguous, at that time, that the government had agreed to disclose the pictures. “The administration, the Pentagon, and the court entered into an agreement to release those photos,” he said.