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Another Take on the Torture Photos

At the risk of sounding like one of those Obama apologists that Glenn Greenwald effectively pilloried in his post yesterday, I have to say that I’m not as appalled as all my civil libertarian friends — or legal scholars like Jonathan Turley (here on MSNBC’s “The Rachel Maddow Show” last night) — that Obama has decided to reconsider releasing the 200 or so photos of detainees being abused by U.S. interrogators.

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.

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