The provision was proposed by Sen. Joseph Lieberman (I-Ct.), as Steven Aftergood of Secrecy News explains, specifically “to thwart a successful FOIA lawsuit brought by the American Civil Liberties Union” which wants the government to turn over photos documenting abuse of detainees in U.S. military custody.  I wrote about the bill and its progress last week here. Although a federal appeals court ruled last year that the government must produce those unclassified photos under the Freedom of Information Act, the government has refused, and filed a petition to the Supreme Court for review.

The Supreme Court hasn’t yet decided whether it will hear the case, though, and given that Congress may resolve the matter by hiding the unclassified photographs with this legislation, Solicitor General Elena Kagan last week asked the court to put off deciding, since it looks like Congress is prepared to decide the matter — and conceal the photographs — on its own.

“From an open government point of view, it is dismaying that Congress would intervene to alter the outcome of an ongoing Freedom of Information Act proceeding,” writes Aftergood in his blog, which has done a terrific job of exposing the government’s efforts to hide what’s supposed to be public information. Aftergood adds that the move reveals Congress doesn’t have much confidence in its own Freedom of Information Act, the federal courts interpreting it, or the principles behind it, if it feels the need to exempt this specific set of photos from the law’s purview.

On the other hand, he notes that it could be worse: the Supreme Court could have taken the case and upheld the Obama administration’s right to exempt the photos “simply because they may pose an unspecified danger to unspecified persons.” “Such a Supreme Court ruling would have left a gaping hole in the Freedom of Information Act even larger than what the Obama Administration and Congress have now created,” writes Aftergood.

Or, of course, the Supreme Court might have just done its job, and recognized, as the two lower courts who’ve heard this case did, that unclassified documents can’t be concealed based simply on the executive’s fear that exposing government wrongdoing will incite anger at the United States and endanger national security. After all, if preventing anger at the United States were a legitimate reason to conceal unclassified information about the government, then there would be considerably less Information left for the Act to protect.

The ACLU has been trying to get its hands on those photos, as well as other records, since 2003 through the Freedom of Information Act, which is supposed to make them public. But the Bush administration objected, and the ACLU’s been litigating the issue ever since. Although President Obama at first promised to turn over the photos, he later changed his mind, and despite two court orders to turn them over, the administration has still so far refused. It’s appealed the matter to the U.S. Supreme Court, which is supposed to decide whether to hear the case on October 9.

Some members of Congress, however, are not prepared to leave it to the courts to decide. Senator Joe Lieberman (I-Conn.) has introduced an amendment to the appropriations bill that would allow the defense department to exempt the photos of abuse from the scope of the Freedom of Information law.

Here’s part of the response from Jameel Jaffer, director of the ACLU National Security Project, from a statement released on Wednesday:

Congress should not give the government the authority to hide evidence of its own misconduct, and if it does grant that authority, the Secretary of Defense should not invoke it. If this shameful provision passes, Secretary Gates should take into account the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners, and the likelihood that the suppression of these photos will ultimately be far more damaging to our national security than their disclosure would be.

The court yesterday also put off deciding whether the U.S. government has to release photos of detainee abuse, as the American Civil Liberties Union is arguing in its Freedom of Information Act case against the Defense Department.  The court could decide whether to hear that case on Oct. 9.

SCOTUSblog has listed here all ten cases the court yesterday decided to review.

If, as the latest reports indicate, Attorney General Eric Holder is serious about prosecuting the worst torture and abuse of “war on terror” prisoners that occurred during the Bush administration, then there’s some key evidence he’s going to want to take a look at:  photographs. Although Bush Justice Department prosecutors claimed they didn’t have the facts to support prosecuting anyone for the mysterious deaths and disappearances of detainees hauled out of Bagram and Abu Ghraib in body bags, the photographs – which two courts have now ordered the Obama administration to turn over – would seem likely to provide some of the missing evidence.

The photos I’m talking about are the same ones that, back in April, President Obama promised to release to the public by May. Then, after consulting with Defense Department and CIA leaders, he changed his mind. After the American Civil Liberties Union filed a Freedom of Information Act lawsuit to obtain them, the photographs were ordered released by  a federal district court in New York in 2005 and then the court of appeals in 2008; both courts agreed that the photos are critical to the public debate over torture and the U.S. government’s counterterrorism tactics, and don’t fall under any exemption to the freedom of information law. Still, the Obama administration isn’t budging.

While the case was on appeal, lawyers from the same Washington law firm that Holder was then working at, Covington & Burling, wrote a powerful brief on behalf of 22 legal experts on the laws of war arguing for the photos’ release. These sorts of images are in part responsible for the regime of international humanitarian law that we have today, they argued.

The cornerstone of modern international humanitarian law — the Geneva Conventions of 1949 — was adopted after the release of vivid images of Nazi concentration camp survivors. And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.

It’s because images can be so powerful and can motivate action that the Obama administration now wants to suppress them.

On Friday, the Justice Department filed a petition with the Supreme Court arguing that releasing the photos of detainee abuse would so inflame public opinion against the United States abroad that it would endanger the lives of U.S. soldiers stationed in Iraq and Afghanistan.

(Initially, the government refused to turn them over on the grounds that they would violate the privacy rights of the detainees. After the ACLU and the court agreed to have the photos redacted to conceal identifying information and protect personal privacy, the government came up with this second reason to object.)

On its face, the argument sounds pretty reasonable. I have to admit that when the administration first announced its change of heart, though Glenn Greenwald, Andrew Sullivan and many others were immediately outraged, I was somewhat sympathetic. After all, the Freedom of Information Act does include an exception to releasing information if it would reasonably be expected to “endanger the life or physical safety of any individual.” The photos of abuse at Abu Ghraib were certainly alarming. And who would want to endanger the lives of U.S. troops?

Meanwhile, the Justice Department had collected sworn statements from top military generals — including General Richard Myers, then the Chairman of the Joint Chiefs of Staff and the Nation’s highest ranking military officer — saying that releasing the photos would do just that. Who are we to question the top brass?

Amrit Singh, an ACLU lawyer handling the case, answered that for me yesterday. “The argument the government has put forward is unacceptable because it would afford the greatest protection from disclosure to records that depict the worst kind of government misconduct. That is fundamentally inconsistent with FOIA. And it’s fundamentally inconsistent with democracy.”

It’s a good point. Though I want to protect our troops as much as anybody, it turns out the law wasn’t drafted to protect Americans from retaliation that might result because their country did something illegal, or even just really embarrassing. If it were, then evidence of any illegal or upsetting U.S. government conduct would be exempt from disclosure. And that would defeat the entire purpose of the Freedom of Information law.

According to the Supreme Court, the purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” So you can see how that would be seriously compromised by the government’s interpretation of the law here.

It turns out that when you look at the language of FOIA, the government’s interpretation doesn’t make much sense either.

Exemption 7(f) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”

But does “any individual” mean any conceivable individual out there, or some specific individual that the government can identify?

The appeals court ruled that because Congress said the release must endanger “any individual” rather than just “endanger life or physical safety” generally to be considered exempt, Congress must have meant some identifiable individual – a particular witness to a crime or subject of a law enforcement investigation, for example. If Congress had meant to include any member of a group of people who could possibly become the target of someone’s anger, it would have used the more general phrase, the court reasoned. So the court ruled the exemption doesn’t apply, and the Obama administration has to turn over the photographs.

Now, the administration faces a dilemma. When it released the Office of Legal Counsel memos written by the now-infamous John Yoo authorizing the administration to torture prisoners abroad, it wasn’t prepared for the media firestorm that erupted — and the growing public pressure to prosecute. Reluctant to face that again, Obama and senior officials in his administration are trying hard now not to stoke the fires. (Even if they can go along with a limited prosecution along the lines of what Holder has described, they certainly don’t want to face calls for prosecuting senior Bush officials.)

But it looks like they can’t legally stop this release.

Sill, they can delay it. Supreme Court review could delay the case months or even years, depending on what the court decides to do. In the meantime, other reports will be released about the Bush era anti-terror tactics. Those include the Senate Intelligence committee’s investigation led by Sen. Dianne Feinstein (D-Calif.), the report from the ethics division of the Justice Department, the Office of Professional Responsibility, on the work of the Justice Department lawyers who crafted the memos, and, of course, the 2004 CIA inspector general report I wrote about earlier that’s supposed to be released by Aug. 24.

Which raises the question whether the government will invoke Exemption 7(f) of FOIA to try to withhold that report. After all, couldn’t the government make the exact same argument about the CIA report that it’s making about the photos? You see the slippery slope we’re on.

The CIA report apparently describes cases of murder and abuse so horrific that Holder was moved to consider initiating prosecutions. And that’s despite the fact that the Justice Department under President George W. Bush investigated those cases, but decided not to prosecute them. That report must be pretty upsetting.

So don’t be surprised if we start hearing that we shouldn’t be allowed to see that one either, because someone somewhere might get hurt.

The administration could, of course, try to distinguish the report from the photographs, arguing that, essentially, a picture is worth a thousand words. The photos may be just too powerful.

When faced with the atrocities of the Nazi concentration camps at the close of World War II, Eisenhower found that words failed him:

I have never felt able to describe my emotional reactions when I first came face to face with indisputable evidence of Nazi brutality and ruthless disregard of every shred of decency. Up to that time I had known about it only generally or through secondary sources. I am certain, however that I have never at any other time experienced an equal sense of shock . . . as soon as I returned to Patton’s headquarters that evening I sent communications to both Washington and London, urging the two governments to send instantly to Germany a random group of newspaper editors and representative groups from the national legislatures. I felt that the evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt.

-Dwight D. Eisenhower, Crusade in Europe (1977), at 408-09.

One can only conclude that the Obama administration is taking refuge in that doubt, or is not prepared to face the consequences in this country once the veil of doubt is lifted.

The official said Maliki warned that releasing the photos would lead to more violence that could delay the scheduled U.S. withdrawal from cities by June 30 and that Iraqis wouldn’t make a distinction between old and new photos. The public outrage and increase in violence could lead Iraqis to demand a referendum on the security agreement and refuse to permit U.S. forces to stay until the end of 2011.

Maliki said, “Baghdad will burn” if the photos are released, said a second U.S. military official.

The prospect of losing a popular referendum — slated to be held, if it occurs at all (it’s unclear), by July 30 — that would compel U.S. forces to withdraw from Iraq ahead of the Status of Forces Agreement’s December 2011 timeframe was also referenced in statements from Gen. Raymond Odierno, commander of U.S. troops in Iraq, and Gen. David Petraeus, commander of U.S. troops in the Middle East and South Asia, to the Second Circuit Circuit Court of Appeals last week. Petraeus told the court that releasing the photographs would mean “pressure will mount on the Prime Minister to allow for a national referendum on the Security Agreement and the Strategic Framework Agreement.” Odierno assessed, “The release of the photos may incite the Iraqi public and cause the referendum to be defeated.” He added that “senior Iraqi officials” — he didn’t mention Maliki by name — believe that releasing the images would benefit Iraqi rejectionists, who would argue against reconciliation “with a Government that has aligned itself with a country that committed this abuse.” (The full statements, in PDF format, are here.)

Sanchez, you’ll recall, received a wink-and-nod mixed message from Gen. Geoffrey Miller, then the commander of the Guantanamo Bay detention facility, to “Gitmo-ize” interrogations in Iraq. (The mixture in that message is that Guantanamo was supposed to be exempt from the Geneva Conventions while Iraq was supposed to apply them, so “Gitmo-izing” meant violating international law that on paper Sanchez was supposed to follow.) Shortly thereafter, Sanchez issued a September 2003 memorandum authorizing SERE-derived interrogation techniques like “military working dogs, stress positions, sleep deprivation, loud music, and light control.” Although a scandalized U.S. Central Command withdrew Sanchez’s memo the following month, the damage was done, according to the Senate Armed Services Committee’s recent torture report (pdf), as Abu Ghraib guards and interrogators that fall acted in line with Sanchez’s instructions. His career basically ended as a result — well, that and the disastrous war he presided over — and Sanchez has expressed bitterness that his future should have to be blighted by something as trivial as an international disgrace and possible war crime.

Maybe this is Sanchez’s attempt at accepting responsibility for his failings. He should be commended if so. On the other hand, Sanchez has never really demonstrated an aptitude for strategy, so it could be he’s blundering into his latest mistake out of an expectation that he’ll be vindicated.

At least, so says Mark Benjamin at Salon and now White House Press Secretary Robert Gibbs.

Here’s the e-mail from Gibbs:

A number of you have asked about or reported on a recent article in the Telegraph that inaccurately described photos which are the subject of an ongoing lawsuit. Both the Department of Defense and the White House have said the article was wrong, and now the individual who was purported to be the source of the article has said it’s inaccurate. Given that this false report has been repeated around the world, and given the impact these negative reports have on our troops, I felt it was important for you to see this correction.

Turns out the 44 photos that are the subject of the ACLU’s lawsuit against the government, which President Obama first said he would release and then, after conferring with the CIA and Defense Department, said he wouldn’t, are not the same photos that Taguba actually saw and described in his 2004 report.

Of course, now that we don’t have descriptions of the particular photos doesn’t really change the question of whether the White House should release them.  As I’ve argued before, I think a federal judge — not the president unilaterally — ought to decide whether the information of criminal wrongdoing they allegedly reveal outweighs the potential danger to U.S. troops.

At least one picture shows an American soldier apparently raping a female prisoner while another is said to show a male translator raping a male detainee.

Further photographs are said to depict sexual assaults on prisoners with objects including a truncheon, wire and a phosphorescent tube.

Another apparently shows a female prisoner having her clothing forcibly removed to expose her breasts.

These details apparently come from retired Maj. Gen. Antonio Taguba, who led an inquiry into the abuse at Abu Ghraib and described allegations of rape and abuse in a 2004 report, though he never mentioned these photos at that time. The Telegraph reports that Taguba has now confirmed their existence.

I’ve written before that perhaps Obama’s decision to withhold the photos wasn’t as outrageous as some have suggested, if they just depict the same abuses we already know about. But these revelations suggest that they depict something more — which weighs heavily in favor of their disclosure.

Perhaps the most important reason for Obama to release the photos, as a federal court has already ordered him to, is simply that it will re-focus public attention on the torture, humiliation and abuse of prisoners sanctioned by senior Bush administration officials. They could also renew calls for a criminal investigation not just of “a few bad apples” at Abu Ghraib but of the higher-ups who, given the recently released Office Of Legal Counsel memos that explicitly authorized torture on foreign soil, likely paved the way for the abuse.

In recent weeks, Republicans have managed to shift the focus from the criminal acts of the past administration to, ironically, terrorizing the U.S. population about the possible transfer of alleged al-Qaeda supporters imprisoned at Guantanamo Bay to maximum-security prisons in the United States.

The release of photos depicting the rape of prisoners held by U.S. forces would shift the attention back where it belongs — to the real criminal acts that occurred.

Of course, that may be exactly why Obama, who’s still intent on not “looking backward,” doesn’t want to release them.

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First off — and you know what, just read Fred Kaplan for a rebuttal to the dishonest phraseology there — we can stipulate that no one in the Bush administration wanted soldiers to, say, menace Iraqi detainees with dogs or put panties on their heads or smear them with excrement. But they’re responsible for how their redefinitions of torture were going to squeeze the torture toothpaste out of the legal tube, and once out, it smeared across the sink of the national security apparatus. (I regret the analogy already.) Let’s explore this, taking only the most generous interpretations of the Bush administration.

Froomkin, relying on “Torture Team” author Philippe Sands, points to the Senate intelligence committee’s narrative about the April to July 2002 meetings between lawyers for the CIA, the National Security Council and the Justice Department’s Office of Legal Counsel concerning the interrogation of al-Qaeda captive Abu Zubaydah. Those meetings, fueled by torture advocacy from a CIA contractor and SERE psychologist named James Mitchell from the black site where Abu Zubaydah was held, led to the Office of Legal Counsel’s Aug. 1, 2002 memos blessing harsh interrogations. Now: notice who’s not in those meetings. That’s right — Defense Department counsel Jim Haynes. Haynes can plausibly claim he wasn’t in the room when the Bush administration aired controversies over how to interrogate Abu Zubaydah, or when it parsed what was and wasn’t torture. All he would have seen was the end product: the OLC August 2002 memorandum justifying torture. And that memo, Froomkin reminds us, was said not to be controlling on the administration — merely an academic exercise, in the portrayal of Alberto Gonzales in 2004, after its release. So let’s assume that for now.

Ah, but in September 2002, CIA lawyer Jonathan Fredman — by his own admission — was brought into the Defense Department’s Guantanamo Bay detention facility to discuss what was legally permissible for the CIA in interrogations. Before that meeting, lawyers at Guantanamo, who weren’t read into the spring 2002 interrogation deliberations, had no way of knowing what authorizations the CIA enjoyed. (There was a CIA contingent at Guantanamo in the detention center’s early years. Its activities have gone unexplored.) But afterwards, according to the Senate Armed Services Committee’s 2008 bipartisan report into the origins of interrogation and detention policy for the Defense Department, Guantanamo officials requested authorization for a passel of similar interrogation techniques up through their chain of command, reaching the Office of the Secretary of Defense by the fall. After meeting with uniformed resistance to such approval — the services’ lawyers considered it a dangerous precedent that would place U.S. troops in legal jeopardy; and even more jeopardy if captured by an enemy — Haynes told a Pentagon working group on detentions and interrogations to use an updated version OLC’s August 2002 memo as the “controlling authority for all questions of domestic and international law.” (That’s according to the Senate committee’s report, pages 118-120.) John Yoo from OLC produced that memo, signed March 14, 2003.

All of a sudden, a determination of what was legal for the CIA in interrogations now guided the Pentagon in interrogations. Remember, we’re still assuming that Haynes didn’t know that was controversial. We’re looking on the sunny side here! Navy general counsel Alberto Mora told the Senate that any contributions from working group members “began to be rejected if they did not conform to the OLC guidance.” The lawyer for the chairman of the Joint Chiefs of Staff described herself as “very angry” after Haynes’ office told her to rely on that memo. On April 16, 2003, Defense Secretary Donald Rumsfeld issued a new Guantanamo guidance for interrogation incorporating the OLC-fueled legal advice. “Stress positions,” dietary manipulation, sleep deprivation and other techniques approved for the CIA were now official policy for Guantanamo.

Within months, concerns over the efficacy of interrogations in Iraq led the commander of the Guantanamo Bay detention facility, Maj. Gen. Geoffrey Miller, to visit Iraq from Aug. 31 to Sept. 10, 2003 and deliver to the commanding general there, Lt. Gen. Ricardo Sanchez, instructions to “Gitmo-ize” Abu Ghraib. At the same time, Abu Ghraib’s  interrogations chief, Capt. Carolyn Wood, who had served as the interrogation operations officer at Afghanistan’s Bagram detention facility, submitted a “wish list” of interrogation techniques to her chain of command. This is what the Senate Armed Services Committee’s report had to say about that, on page 170 of its report:

Techniques in CPT Wood’s proposed policy can be traced back to the [Special Mission Unit Task Force] in Iraq to Afghanistan and, ultimately, to techniques authorized for use at GTMO by Secretary Rumsfeld in December 2002. The GTMO techniques were, in turn, influenced by techniques used by the Joint Personnel Recovery Agency and the military service SERE schools to train U.S. personnel to resist illegal enemy interrogations.

Sanchez, on Sept. 14, 2003, issued a new interrogation policy for Abu Ghraib after Miller’s visit, incorporating Wood’s request and the “Gitmo-ization” rules. Central Command was so shocked by its call for “military working dogs, stress positions, sleep deprivation, loud music, and light control” that it ordered him to revise the policy, which he did on Oct. 12, taking away most of those techniques, but adding, “Should working dogs be present during interrogations, they will be muzzled and under the control of a handler at all times to ensure safety.” Dog teams arrived at Abu Ghraib; lax controls over the separation between prison guards and prison interrogators broke down; and what happened at Abu Ghraib between September and December 2003 — “numerous incidents of sadistic, blatant and wanton criminal abuses,” as an investigator, Maj. Gen. Antonio Taguba determined — was the result.

Notice that this is a straight line between the the CIA interrogation program at Abu Ghraib, moving like a game of telephone. At each stage, an important safeguard or restriction assumed at an earlier stage — the techniques apply only to the CIA; the techniques are to be used only on Geneva-exempted enemy combatants; the techniques are to be applied only by interrogators — breaks down. Not once do you have to assume that the Bush administration’s principals wanted abuse to happen to reach this conclusion. This is why the law exists, after all: to prevent unintended consequences by well-meaning individuals that veer off into horror. Redefining the law on torture leads to what a 2004 Pentagon investigation called the “migration” of so-called “enhanced interrogation” techniques — even if that investigation didn’t have any mandate for discovering that the origins of those techniques came from CIA programs approved at the highest levels of the Bush administration.

Now, however, I’ve spent about two hours and almost 1200 words chasing an inaccurate Dick Cheney claim down the rabbit hole. So I credit him with that victory. He makes an outlandish and misleading claim; I scramble to point out what’s wrong with it. Nothing I’ve written is particularly new or unfamiliar to the public record. But that doesn’t stop Cheney from saying what he says.

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First, as a legal matter, the issue, as set out by the Second Circuit Court of Appeals in its September 2008 decision, boils down to whether the release of the photos will endanger the life or physical safety of “any individual.” The court held that if the government can’t name any particular individual that would be put at risk, then it can’t rely on that exception to the FOIA rule.

Well, that’s one interpretation. But if, as the district court concluded, it is likely to create a real safety risk to a whole group of individuals whose names you don’t know, does that mean the court should go ahead and release them anyway?

We can reasonably argue, of course, about whether releasing more photos will actually risk the safety of any U.S. soldiers, given that the Abu Ghraib photos and the torture memos and all sorts of related gruesome information about what American interrogators did to terror suspects are already out there. But it’s not crazy to think that 200 more graphic depictions of abuse and humiliation of Muslims at the hands of their American captors could cause a bit of an uproar that could incite additional violence.

Shouldn’t the real question be, as the district court thought it was, whether the risk outweighs the value of the new information revealed by the photos?  If they’re just more graphic depictions of acts we already know occurred, does it really further the public’s “right to know” — or our “core values” as the district court put it, or does it just fuel news organizations’ thirst for sensational gore? I know that’s not what the civil libertarians are after here, but I think it’s fair to ask the court to look at the photos and decide if they really provide valuable information, or are more akin to gruesome photos at a crime scene which we wouldn’t necessarily have a right to see either.

The Second Circuit concluded that “public interest in disclosure of the photographs is strong,” simply because they depict government wrongdoing, regardless of whether they add any new information.  But it didn’t weigh that interest against the risk of harm to U.S. personnel overseas.  Obama — about whom I’ve been critical on many other things — seems to be suggesting that the safety of Americans abroad is a real concern, and that if the photos don’t reveal new information, they’re not worth releasing. I’m not sure I agree with where he comes down on the risk-benefit analysis, but I think it’s an analysis worth undertaking.