But, on matters of American empire or “state secrets,” the administration is as bad as Bush if not worse.
Robert Gibbs’ press briefing on the reversal shows just how poor a case the administration has for keeping these photos from being released:
QUESTION: Can you go over the sequence of events that led to this thought process? Because, on April 24th, when the Pentagon was explaining its decision to release the photos, it said that -- the spokesman said that there was a feeling that the case had pretty much run its course.
GIBBS: Uh-huh.
QUESTION: And now you’re saying that the president feels that there’s a strong argument to be made...
GIBBS: Because the argument that the president has asked his legal team to make is not an argument that the previous legal team made in that case. They argued a couple of different things, including, a law enforcement exception. And the judge ruled that, to seek a law enforcement exception, you have to -- you have to disclose the name of the person that would be -- that harm would be derived for in seeking that exception. This is a different argument that the president thinks is compelling.
QUESTION: Well, when did he decide that it was important to make that argument? Did one of the lawyers come to him and say...
GIBBS: No. He came to the lawyers.
QUESTION: And when did all that...
GIBBS: That was a meeting that was held last week in the Oval Office.
QUESTION: Robert, if that was such a compelling case, why was that not weighed in April then? Because it seems like -- was there a failure here at the White House in the first go-round in April to fully weigh the national security implications?
GIBBS: The argument that the president seeks to make is one that hasn’t been made before. The -- I’m not going to get into blame for this or that. Understanding that there was significant legal momentum in these cases prior to the president entering into office, we are now at a point where it is likely that some stay will be asked to prevent the release of these photos. And I believe the date -- I think we have until June 8th to appeal -- to seek review of those decisions by the Second Circuit.
QUESTION: But on April 24th, you also said, quote, “The Department of Justice decided, based on the ruling, the court ruling, is that it was, quote, hopeless to appeal.”
GIBBS: Right. QUESTION: Now you’re saying it’s not hopeless. GIBBS: Well, based on the argument that -- yes, I said that it was hopeless based on the argument that was made during the course of the original FOIA lawsuit, the appeal, the three-judge ruling, and the decision to decline the full circuit to make that -- to make those determinations. The president isn’t -- what I’m saying to you, Ed, is the president isn’t going back to remake the argument that has been made. The president is going -- has asked his legal team to go back and make a new argument based on national security.
QUESTION: This new argument -- if you’re saying, basically, that this could put troops in further harm’s way in Iraq and Afghanistan, Former Vice President Cheney, General Hayden, others have made the same argument about releasing the so-called torture memos. Do you have any regrets about putting those memos out? They’ve made the same argument about them?
GIBBS: No. Well, I’ll use the example I’ve used on this before, Ed. You didn’t begin to report on enhanced interrogation techniques at the release of the OLC memos, did you?
QUESTION: No.
GIBBS: OK. The -- I’m saying...
QUESTION: (Inaudible)
GIBBS: Hold on. I’m also sensing that the graphic that CNN uses to denote what happens when somebody gets waterboarded wasn’t likely developed based on reading memos that were released three weeks ago. The existence of enhanced interrogation techniques were noted by the former administration in speeches that they gave. You read about the enhanced interrogation techniques in autobiographies written by members of that former administration. The notion...
QUESTION: The graphics would not also be based on any prisoner photos you might release because we already know that people were abused in prisons. So why not put them out there?
GIBBS: I’m not sure that you’d do a graphic of a photo.
QUESTION: No. A graphic of someone being abused. We’ve all seen Abu Ghraib photos, and you were saying about the photos back in April, lack, it’s already exhausted and, essentially, these photos are going to come out anyway.
GIBBS: Based on the previous legal argument, yes. The previous legal argument denoted that the case had been lost. There’s a new legal argument that’s being made. My sense is, Ed, why do you do a graphic on CNN?
QUESTION: We’re trying to show people -- explain to people...
GIBBS: OK. The president believes that the existence of the photos themselves does not actually add to the understanding that detainee abuse happened, was investigated, that actions were taken by those that did, indeed, or might have undertaken potential abuse of detainees. And those cases were all dating back to finishing in 2004.
GIBBS: The president doesn’t believe the release of a photo surrounding that investigation does the anything to illuminate the existence of that investigation, only to provide some portion of sensationality.
QUESTION: Robert, is that really his role to decide whether or not it illuminates? That’s not the president of the United States’ role to decide, well, this is information will illuminate for the people, and this information isn’t.
GIBBS: No, the -- the -- the role of the president in this situation is as commander-in-chief. And if he determines that, through the release of these photos, that they pose a threat to those that serve to protect our freedom in Iraq and Afghanistan through the illumination of whatever, he can make a determination to ask his legal team to go back to court and make a legal argument that he doesn’t believe was made and provides the most salient case and most important points for not releasing these photos.
Those determinations are, indeed, made by this president and -- and -- and are being made.
QUESTION: The Bush administration has obviously made the argument that releasing these specific photographs will endanger troops, and they did so in the way that you described, with -- with seeking the FOIA exemption for law enforcement personnel.
GIBBS: Right.
(interruption)
QUESTION: The specific avenue that your -- that your legal team’s going to go, you’re not sure if it’s going to be going back to the district court or...
GIBBS: I don’t know the -- I’ll check with -- put that -- we’ll check with -- with those guys specifically. I think, in some ways, they’re looking at whether it is to go to a lower court or to go to the Supreme Court.
QUESTION: And then just to follow up on the new argument, so are there specific -- is there specific case law arguments that the president knows that exist that were not used? Because it’s -- I find it hard to believe that the Bush administration didn’t turn under every rock to try to find an argument to do this.
GIBBS: Well, the president doesn’t believe that was the case. And the president, after reviewing the case, believes that -- that we have a compelling argument. [emphasis added]
Already reluctant to have the Justice Department enforce the rule of law and hold investigations and prosecutions for torture and crimes against humanity, how do arguments that the president can decide what illuminates a situation and what doesn’t, that the president didn’t misjudge the national security implications of the photos, and that the press doesn’t need these photos to report on treatment of detainees help the administration at all?
Of course, the press needs these photos be released so they can cover the issue of torture and war crimes, which were part of Bush Administration policy. What else is going to motivate them to cover the issue? Ethics and morals?
This reversal is just one event in a series of events that have occurred in relation to state secrets, accountability, and transparency since Obama was inaugurated.
Obama’s vow “to open government more than ever” was sharply contradicted by his Justice Department which chose to “defend Bush administration decisions to keep secret many documents about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists.”
In March, the Obama administration continued a tradition of the Bush Administration and, citing state-secrets privileges, they, like the Bush Administration, continued to stall a suit brought by the al-Haramain Islamic Foundation, which claimed that the government illegally wiretapped and violated the charity’s right to due process and freedom of speech because the government thought the charity was funding terrorism.
The Justice Department defended torture memo author John Yoo and Attorney General Eric Holder defended the decision claiming that it was in “the best interest of the United State.”
To mark Obama’s 100 days in office, Sen. Russ Feingold released a “report card” on “actions to restore the rule of law.” Obama’s actions on state secrets earned him the worst grades.
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