Yet again, the Government seeks to retroactively waive a law because it doesn't want to comply with it.
It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit’s ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU. Agree or disagree with Obama’s decision, at least the basic legal framework of transparency was being respected, since Obama’s actions amounted to nothing more than a request that the Supreme Court review whether the mandates of FOIA actually required disclosure in this case. But now — obviously anticipating that the Government is likely to lose in court again (.pdf) — Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself.
The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman — called The Detainee Photographic Records Protection Act of 2009 — that literally has no purpose other than to allow the government to suppress any “photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.” As long as the Defense Secretary certifies — with no review possible — that disclosure would “endanger” American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.
Just imagine if any other country did this. Imagine if a foreign government were accused of systematically torturing and otherwise brutally abusing detainees in its custody for years, and there was ample photographic evidence proving the extent and brutality of the abuse. Further imagine that the country’s judiciary — applying decades-old transparency laws — ruled that the government was legally required to make that evidence public. But in response, that country’s President demanded that those transparency laws be retroactively changed for no reason other than to explicitly empower him to keep the photographic evidence suppressed, and a compliant Congress then immediately passed a new law empowering the President to suppress that evidence. What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people? Read the language of the bill; it doesn’t even hide the fact that its only objective is to empower the President to conceal evidence of war crimes.
That this exact scenario is now happening in the U.S. is all the more remarkable given that the President who is demanding these new suppression powers is the same one who repeatedly vowed “to make his administration the most open and transparent in history.” After noting the tentative steps Obama has taken to increase transparency, the generally pro-Obama Washington Post Editorial Page today observed: “what makes the administration’s support for the photographic records act so regrettable” is that “Mr. Obama runs the risk of taking two steps back in his quest for more open government.”
What makes all of this even worse is that it is part of a broader trend whereby the Government simply retroactively changes the law whenever it decides it does not want to abide by it. For decades, we had laws in place authorizing citizens to sue their telecommunication carriers if the telecoms allowed government spying on their communications in violation of the law, but when it was revealed that the telecoms did exactly this, the Congress simply changed the law retroactively so that it no longer applied. For decades, we had laws imposing civil and criminal liability on government officials who engaged in or authorized torture, but when it was revealed that our government did that, the Congress just retroactively changed the law to protect the torturers. And now that courts have ruled that our decades-old transparency law compels disclosure of this torture evidence, the Congress is just going to retroactively change the law — again — this time to empower the President to suppress that evidence anyway.
Other than creating an illusion of transparency and accountability, what’s the point of having laws that purport to restrict what the Government can do if political officials just retroactively waive those laws whenever they want? What’s the point of having a FOIA law if the Government will simply pass a new law exempting itself from FOIA’s mandates any time it loses in court and wants to conceal evidence anyway? And what conceivable rationale is there for limiting the President’s new secrecy powers to post-9/11 photographs? Given that anything which reflects poorly on our Government can be said to endanger our troops and American citizens, why stop here? Why not just have a general power of suppression whereby the President can keep any evidence secret as long as his Defense Secretary decrees that its disclosure will ”endanger” the troops?
The debate over whether there is value in disclosing these specific photographs is entirely misplaced. That isn’t how open government works. The burden isn’t on citizens to prove that there is value in disclosure. Everything that government does is supposed to be transparent to the public unless there is a compelling reason for secrecy — and the whole point of FOIA always has been that mere embarrassment, the mere fact that information reflects poorly on our government, isn’t a legitimate ground for concealment. That’s a critical principle for open government. This new law explicitly guts that principle. It institutionalizes the pernicious notion that secrecy is justified where disclosure would reflect badly on the Government and thus “endanger” American citizens and/or our troops.
Combine all of this with the increasingly disturbing spectacle taking place in a California federal court in the Al-Haramain case — where the Obama DOJ is on the verge of being sanctioned by a federal judge for defying the court’s order to make available documents relating to Bush’s illegal eavesdropping activities — and the infatuation with excessive presidential secrecy, the linchpin of government abuse, appears alive and well in the new administration. Is there really anyone who wants to argue that defiance of a federal court’s order and enacting a new law authorizing suppression of torture evidence — the disclosure of which is compelled both by courts and FOIA — are remotely consistent with anything Obama said he would do, or remotely consistent with what a healthy democratic government would do?
More Related Stories
- There's no substitute for government disaster relief
- Holder signed off on search warrant for reporter
- Mississippi could begin prosecuting women for miscarriages
- Mike Judge: "Bowling for Columbine" made me pro-gun
- Closing Gitmo is not enough
- Murkowski: Palin too disengaged to run for Senate
- In IRS scandal, new GOP tactic is ignorance
- Code Pink activist berates Obama at national security speech
- Cuomo: "Shame on us" if New York City elects Weiner
- Coburn calls questions about tornado aid "typical Washington B.S."
- Conspiracy theorists clash over London attack
- Voting is not a right
- Destroying the planet for record profits
- Ahead of Obama's speech, U.S. acknowledges four American drone killings
- Pic of the day: Barack Obama at prom
- Anti-Islam backlash in London after machete attack
- Must-see morning clip: Bill O'Reilly visits "The Daily Show"
- Obama’s drone speech will probably be maddening
- Boehner: "Inconceivable" Obama didn't know about IRS targeting
- Obama to announce new effort to close Guantanamo Bay
- House supporters of KXL received $56m from fossil fuel industry
Featured Slide Shows
The week in 10 picsclose X
- 1 of 11
Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
Credit: AP/LM Otero
Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
Credit: AP/Matt Rourke
A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
Credit: AP/Jenny Aicher
Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
Credit: AP/Molly Riley
Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
Credit: AP/J. Scott Applewhite
Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
Credit: AP/Carolyn Kaster
O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
Credit: AP/Las Vegas Review-Journal/Jeff Scheid
Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
Credit: AP/NASA/Chris Hadfield
When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
Credit: AP/Jacquelyn Martin
A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
Credit: AP/The Duluth News-Tribune/Clint Austin
Recent Slide Shows
- 1 of 11