Supreme Court: Keep the detainee photos secret
posted at 2:50 pm on November 30, 2009 by Ed Morrissey
Barack Obama won an important case at the Supreme Court today, and so did Congress. Don’t expect to see a lot of congratulatory press releases about it, however. The high court ruled today that the detainee photos once slated for release by Obama should remain secret, upholding Obama’s reversal on the issue and a Congressional budget decision that intended to enforce it:
The Supreme Court did all it could Monday to lock up forever some incendiary photos that show U.S. soldiers abusing foreign prisoners in Iraq and Afghanistan .
Yielding to Congress and the White House , justices took the expected but formal step of reversing a lower court’s order that the photos be released. Using its budget powers, Congress already had moved to keep the photos secret.
In a brief, unsigned decision issued Monday without elaboration, the court cited a provision in a Homeland Security funding bill that President Barack Obama signed Oct. 28 . The provision permitted the Pentagon to block the public release of the photos in question, as well as others deemed to “endanger” U.S. soldiers or civilians.
“Disclosure of those photographs would pose a clear and grave risk of inciting violence and riots against American troops and coalition forces,'” Solicitor General Elena Kagan had warned the Supreme Court .
That’s a clear victory for Obama, but probably not one he’s terribly happy to have won. In April, Obama ordered the release of the photos, which depicted abuse against detainees in Afghanistan and Iraq. At the time, he did so to show he was “committed to more transparency,” as the ACLU put it at the time.
A month later, Obama had committed himself to reversing his order. As Jake Tapper reported, it was a “complete 180” from just a month earlier, precipitated by a bipartisan round of condemnations for unnecessarily providing our enemies with a propaganda bonanza. Even then, the ACLU expected the courts to eventually force Obama into releasing the photographs, and some suspected that Obama expected it, too. Having the courts force his hand would make it easier for Obama to avoid responsibility for the damage the photographs would produce in the near- and long-terms.
Perhaps, then, the White House may be surprised by today’s decision. It means that only an executive order will produce those photographs now, although the news reports give a rather detailed description of their contents. The onus comes right back to the Oval Office and President Obama, who should have learned a lesson from George Bush and the McCain-Feingold BCRA and the court’s reluctance to overturn a rather blatantly unconstitutional law regulating political speech. Ironically, the law passed by Congress on which this decision relies may never have come to pass had it not been for Obama’s double-reverse on the photos in April and May.