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.

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.

He reportedly brought his idea for a Truth and Reconciliation Commission to the White House Tuesday, talking with President Obama’s new White House Counsel Greg Craig about the proposal. “I went over some of the parameters of it and they were well aware at the White House of what I’m talking about,” Leahy told The Huffington Post. “And we just agreed to talk further.”

Major legal advocacy groups today chimed in with their support for a truth commission, too, including The Brennan Center for Justice at NYU Law School and Human Rights First, both stacked with prominent Democratic lawyers who supported Obama for the presidency.

So is it likely to happen?

Maybe.  As I reported earlier, prosecutions are looking less and less likely, especially as the statute of limitations on many of the Bush administration’s most egregious crimes, including the torture, humiliation and abuse of prisoners, rapidly runs out.

But a bipartisan, independent, investigatory commission, along the lines of the 9/11 or Church commission — or even South Africa’s Truth and Reconciliation Commission — can be a pretty watered-down alternative; they don’t usually lead to criminal prosecutions, even if they’re warranted. On MSNBC’s “Countdown with Keith Olbermann” Tuesday night, George Washington Law professor Jonathan Turley called the idea “shameful,” saying it would ultimately protect war criminals from accountability.

That may be true.  But as Scott Horton pointed out when proposing a similar idea in Harper’s back in November, it would offer one real advantage for President Obama: major political cover.

That’s not because of any newfound respect for the rule of law, or the international reputation of the United States, though — it’s because they believe it’s not necessary.

They’re counting on what Harvard Law Professor Jack Goldsmith has called the “golden shield” that Bush officials created with the torture memos written by Office of Legal Counsel deputy John Yoo and colleagues, at the direction of Vice President Dick Cheney.

I guess Bush administration officials aren’t reading TWI, where we explained why those memos probably won’t provide the legal cover they’re seeking. If the legal opinion a lawyer offers is just blatantly wrong — like, for example, the opinion that torture is legal, or that waterboarding isn’t torture — then it becomes unreasonable for the president, vice president and other senior government officials to rely on it.

Moreover, if the legal opinions are issued after the torture had already begun, as appears to be the case, then they really don’t provide an excuse for the actions. They also make the whole post-hoc legal justification process look mighty suspicious.

Jonathan Turley, appearing on MSNBC’s “The Rachel Maddow Show” Tuesday night, agreed. So did about a dozen lawyers and constitutional law professors I spoke to for the earlier story.

If these memos fail to give Bush administration officials the cover they’re seeking, as many predict, then the next step will be up to the new Obama administration and congressional Democrats.

Let’s see if they have the spine to show the world that the days of executive lawlessness are over.

Update: For a wide range of opinions (though mostly in agreement) on the pardon issue, see today’s Arena debate on Politico.

The lawyer and writer Scott Horton, in an excellent feature in the December issue of Harper’s, lays out the Obama administration’s options. Horton points out that there is a long litany of potential crimes the new administration could go after -– from using the Justice Dept. for political purposes to issuing no-bid military contracts to corrupt companies.

But the most obvious crime that’s prime for prosecution is officially sanctioned torture.

Advocates like Glenn Greenwald, writing in Salon, have harsh words for former Clinton Justice Dept. officials like Robert Litt, now advising Obama not to prosecute Bush officials and risk appearing vindictive and divisive. Litt and others, including influential Obama advisers like Cass Sunstein, have suggested they don’t want Obama to squander the good will he’s generated from both sides of the aisle.

As I wrote earlier, lots of others have been offering the same sort of advice. Meanwhile, some law professors, like George Washington’s Jonathan Turley, who even supported the impeachment of President Bill Clinton, have made a persuasive argument that we can’t tolerate law-breaking by public officials.

But I think Horton, who’s a master of the law and history on this subject, may have the best answer: a commission created by the president that would investigate what happened and recommend prosecution if the facts warrant it. The commission should be nonpartisan –- made up of career prosecutors, lawyers and assistants, rather than political officials and operatives like the 9-11 commission, which lost credibility when its conclusions were watered down and subsequently attacked from all sides.

Last week, human-rights advocates from UC-Berkeley and the Center for Constitutional Rights made a similar recommendation in a new report about the impact of Bush administration interrogation tactics on Guantanamo detainees.

If the new president authorized and supported it, the commission’s recommendations would be far harder to ignore than were, say, those of the 9-11 commission. If prosecution is ultimately warranted, the president would be under considerable pressure to follow through.

What’s more, it would look like an impartial administration of justice. Not like a new administration launching a retributive, divisive and partisan attack.

As I wrote last week, closing Guantanamo Bay is a good first step, but it doesn’t go far enough. The new Obama administration is going to have to take more affirmative steps to end U.S.-sponsored abusive detentions and interrogations around the world, and to send a clear message that the United States, including the president, can be trusted to follow the rule of law.

Creating a commission to investigate whether the Bush administration abused that trust would go a long way toward making that message credible.