Since 2003, the ACLU has been seeking torture documents through a FOIA lawsuit. In 2005, the Southern District Court of New York ordered the government to release a set of photos depicting detainee abuse, a decision that was affirmed by the Second Circuit Court of Appeals in September of 2008. After the Obama administration took office, they agreed to release the photos -- before reversing course in May, citing the potential effect on American soldiers abroad because of the photos' potential to inflame anti-American sentiment. The Supreme Court is currently deciding whether it will hear the administration's appeal.
The administration, perhaps sensing that they're not really on solid legal ground when it comes to arguing that the government should be able to hide evidence of its own wrongdoing under the rubric of national security, is getting a little cover from Congress. Yesterday, the conference summary of the current homeland security appropriations bill indicates that an amendment from Sen. Joe Lieberman that would exempt the photos from the FOIA Act has been adopted, which means that the government could legally withhold the pictures if the bill is passed. The same Sen. Lieberman, deeply concerned about the constitutionality of executive branch "czars," has inserted language into a bill allowing the government to conceal evidence of its own abuses.
Naturally, the ACLU is pretty upset. They released a statement from Jameel Jaffer, director of their National Security Project:
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 last administration’s decision to endorse torture undermined the United States’ moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms.
Transparency is for czars and health-care bills. A number of liberals have questioned whether Lieberman deserves to keep his gavel after the "czar" stunt, but it's clear he's still earning points with the White House, even if he isn't winning any from civil libertarians.
-- A. Serwer
(Flickr/Michael T. Ruhl)
