Obama Moves to Change Law to Avoid Supreme Court Ruling on Withheld Detainee Photos

225px-official_portrait_of_barack_obamatorture -abu ghraibPresident BarackN Obama, the world’s newest Nobel peace laureate, is again expanding on the policies of former President George Bush and fighting to conceal evidence of U.S. torture and abuse. As did the Bush Administration, the Obama Administration is seeking to change the law after courts rejected its absurd argument that the President can withhold photos of detainee abuse simply because they are embarrassing to the United States. Democrats in Congress are assisting in the effort to try to stop the Supreme Court from considering the issue by preempting the litigation.

This is the problem of nominating someone for the Nobel prize less than two weeks after entering office, here. Obama has thus far worked as a barrier rather than a catalyst for international law and values in the areas of torture and abuse. His position in the case of ACLU v. Department of Defense is reprehensible and exceeds the arguments made by Bush. He is claiming that he can deny the media and the public such pictures simply because he views them as controversial and likely to cause anger from Muslims. It is an exception that would swallow the rule.

As some of stated at the time, this argument is legally meritless and that is precisely what the courts have concluded. Now, however, Obama has taken another lesson from Bush. Unable to win on the merits, he has called on Congress to simply change the rules before the Supreme Court can vote. Democrats have joined the effort and are now close to passing legislation to remove the courts from the controversy. This is what Obama supportedW on the telecom litigation, where courts had rejected arguments of executive authority and Congress stepped in to extinguish dozens of public interest lawsuits.

225px-elena_kagan_1The position of President Obama in the case is disgraceful. Solicitor General Elena Kagan has admitted that the pictures show such things as “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees.” In another, “a soldier holds a broom as if ‘sticking its end into the rectum of a restrained detainee.'” Kagan has taken the extraordinary step of asking the Court to delay considering the case to allow Congress to kill the litigation through legislation. As a result, no court would be allowed to rule on the release of the 87 photographs and authority would be transferred to the Defense Department.

Had Bush done such a thing (giving the Pentagon control) Democrats would have been in the streets. However, Democratic leaders are supporting the effort, the media is largely silent, and the Democratic base is passive. The move contradicts Obama’s pledge of transparency in government. It contradicts his pledge to make a full account of abuses. It makes of mockery of his award of the Nobel for encouraging international “dialogue”. It appears that that dialogue must still occur on the terms set by the United States and specifically avoids evidence that would embarrass the United States or show clearly how it has violated international law.

For the story, click here.

31 thoughts on “Obama Moves to Change Law to Avoid Supreme Court Ruling on Withheld Detainee Photos”

  1. JT Quote

    He is claiming that he can deny the media and the public such pictures simply because he views them as controversial and likely to cause anger from Muslims. It is an exception that would swallow the rule.


    By filing MTD’s he is claiming that he can deny the media and the public from seeing his original birth data and all of his records. Why do you act so surprised.

  2. Professor Turley (and all who have already posted here):

    I do agree with you this is disgraceful and reprehensible, particularly because this is not the CHANGE we were promised.

    JT wrote: “He is claiming that he can deny the media and the public such pictures simply because he views this as controversial and likely to cause anger from Muslims.”

    Just to play devil’s advocate the AP article states: “The president said he was persuaded that disclosure could further incite violence in Afganistan and Iraq and endanger U.S. troops there.”

    Looks like Obama has decided that the OUTRAGE from those who would (and have been) accusing the administration of not being willing to do enough to keep America and our troops safe is greater than the outrage from civil libertarians.
    Unfortunately, he is right(we want left); but certainly not correct.

    IMHO: Please end the wars now! Please Bring Our Troops Home!

    Also from the AP link: “International outrage resulted when photographs from the Iraqi prison showing physical abuse and sexual humiliation of inmates that took place under the Bush Administration were revealed…..The government dropped its appeal related to those photos after they were made public and posted on the internet.”

    IMHO: Please would someone with ideals, principles, and sufficient cajones please leak/post these photos!

    Professor Turley you wrote “The media is largely silent.”

    IMHO: JT, we need your voice if Keith or Rachel have not yet called you today, maybe you could call them; you might be heard.

    P.S. As to the five Norwegians who awarded Obama the Nobel prize; (while i am still hoping he will earn it) I predict the phrase: “He won the Nobel prize but….” will become as trite as “We put a man on the moon but….”

    P.P.S. Where have you been Buddha, I hope you are laughing?

  3. It’s been a real eye opener to watch the media handle these issues. They swallowed this latest move without so much as a peep (even Olberman and Maddow).

  4. naschkatze.

    I’m not surprised by the legislators either. The elites have made their contempt for the rule of law clear, as you said, under Bush. They are simply continuing and even ramping up this contempt with Obama. What I find disturbing is the lack of protest by the Democratic base. Under Bush, on this blog, you would see swift, strong and well-argued objections to Bush’s policies. Now that these same policies have been taken up by Obama, there is very little criticism. Too many people appear to acquiesce to Bush’s policies now that they have become Obama’s policies. This means there is either a lack of underlying moral conviction or there is some real confusion brought about by successful propaganda used by the administration.

    Many people cannot emotionally/intellectually accept that Obama is a person who wants power, so they wonder how Obama could go along with the continued consolidation of executive power. started under Bush. Others believe Obama is the victim of poor advice. Simon Johnson addressed this point on Bill Moyers. He said: “Louis the Fourteenth of France, a very powerful monarch, was famous for having many bad things, you know, happen under his rule. And people would always say, ‘If only Louis the Fourteenth knew. I’m sure he doesn’t know. If we could just tell him, he’d sort it out.’ You know. I’m skeptical.” Stalin signed the work camp order of the man who wrote to him about how badly things were going. This man believed with all his heart, that Stalin really didn’t know what was going on. He felt if he could only tell him, Stalin would stop the bad things from happening. I believe there is this same dynamic at work when people see Obama doing bad things. They don’t believe he’s capable of doing bad things so excuse after excuse is made on his behalf.

    To me there is no reason to choose to elevate one attempt to destroy the Constitution over another. Every citizen only has so much time, so certainly we must choose what we focus on, but they all work together. Flouting the law in the financial industry will bring us down just as surly as flouting the law in civil liberties will. What really needs to happen firs is this–we have to snap out of it as citizens.

    We can’t afford the illusion that our govt. is run by a benevolent president or congress. The evidence is in–we are ruled over by a corrupt, dangerous and ignorant elite. We must come to terms with this. We need to use every peaceful means at our disposal to stop the elite from completely dismantling the rule of law and ruining our country. We must take the first step, ridding ourselves of illusions, before we will every proceed on this path.

  5. Prof. Turley,

    I would like to ask permission to repost this article of yours in full on the blogs docudharma.com and dailykos.com

  6. Jill, sorry to say, I am not surprised by the lack of push back by Democratic legislators though I find it very scary as you do. They did not push back against Bush either, including Obama as senator. This is one corporatist (fascist) political party with two right wings, as Gore Vidal has said. To me the issues surrounding 9/11 and the invasion of Iraq (torture and other war crimes, loss of civil liberties under the thinnest veneer of national security) are the critical ones facing this country, not health care nor jobs or anything else. We are not the United States of America until the Constitution is restored, and any “good” Obama does other than restoring civil rights and justice is but bread and circuses politics to distract us from this defining crisis.

    I wish Professor Turley or some other legal mind here could point a way for us citizens to work these issues. Right now I feel that all I can do is to support groups like the ACLU, Amnesty International, and CREW who can, for the time being, fight the government in the courts.

  7. The lack of Democratic push back against Obama is really scary to me. The president, the lackies in his administration and many in the congress are completely untethered from the law. This should anger people. It is a fundamental breech of our Constitution. Don’t people understand that to acquiesce in this will cause our society to crumble from the inside? How do you have a functional society when the elite are completely unaccountable to the law, when the law become the rule of their whim? How did this become acceptable?

    The people Obama has surrounded himself with should be in jail, not advising or making policies in war, finance, health care, civil liberties, torture–none of it. These photos are evidence of war crimes, in part authorized by the DOD. Since when does the agency or person accused of war crimes rule that they may withhold evidence of their crimes? This “law” will be unconstitutional. Yet so few people will even remark on it. The crime victims and the American people have the right to see the evidence. These people were harmed in an unspeakable manner. Yet it is more important to most Democrats to maintain the fantasy that Obama is a great guy who can do no wrong. No matter what he does, it’s O.K. because he’s so wonderful. Is this who we have become? People willing to trade away justice for fantasy?

  8. Mr. Obama needs to seek different advisors who understand the critical value of looking at contrary information/evidence and giving it equal weight during deliberations in the decision-making process.

    The FOIA is the most important Act/Law to me since my retirement. Without it, I would have had no basis for my claims against the arbitrary and capricious nature of many governmental actions. The principal reasons I voted for Mr. Obama were his pledges to foster a new era of open, transparent, accountable government and to end the senseless war in Iraqi.

    Even as a Republican, most here know that I despise Bush/Cheney; however, if Mr. Obama continues his current policies—following Bush’s lead—then he is worse than those politicians are because of his outright broken pledges to millions of people worldwide. Most people can forgive others for making mistakes, although many cannot forgive a knowing breach of trust that results in the continued deaths of innocent people and the furthered disintegration of our once great Nation.

  9. Hopefully they understand the concept of Marbury v. Madison in which “the [first time the] Supreme Court declared something “unconstitutional,” and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the “checks and balances” of the American form of government.

    Maybe they can reread the same case that a lot of us did in law school. pari delicto save none.

  10. The irony is that this is actually *easier* to do under a Democratic administration. Democrats don’t really seem to consider principles like this seriously when in power, and thus they try and cover for the administration. Republicans do tend to be more vocal about their principles, but their belief *supports* this type of thing, hence nothing from their side.

    More and more I do not wish for another term for Obama, despite supporting his election. Our standard should not be “better than Bush,” which I’m afraid is the main justification.

    Just look at the diaries on DailyKos. If this was Bush there would be 3 recommended diaries castigating him for trashing of the constitution. Now? Nothing.

  11. “I begin by taking. I shall find scholars later to demonstrate my perfect right.”

    — Euripides

    We are seeing now how difficult it is to re-cork the genie’s bottle as there are always “scholars” to press the stay back from the bottle’s lip.

  12. At the very least Obama should get some concessions from the Republicans for protecting Bush.

  13. We need “truth and reconciliation” hearings.

    About Frank Church (from Wikipedia):

    Church is widely quoted in regards to the National Security Agency:

    “I don’t want to see this country ever go across the bridge… I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”

  14. Professor,
    Would the transfer of authority to Congress be Constitutional? I do believe that there was some sort of “deal” between Bush and Obama on the torture issue, but for the life of me, I can’t figure out how Obama benefits or what Bush gave him to agree.

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