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.


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Justice Sonia Sotomayer did not participate in the ruling.

huh? I thought they all always participated, but I’m not real up on the workings of the high court, so pardon my ignorance.

bridgetown on November 30, 2009 at 2:55 PM

Hey, ACLU? Suck on it.

amerpundit on November 30, 2009 at 2:56 PM

We SHOULD show pictures of detainee ‘abuse’ … and then show pictures of what these animals do to THEIR detainees. A fat lip contrasted by a headless body … but to the Left, it’s all about moral relativism.

Tony737 on November 30, 2009 at 2:57 PM

At least the SCOTUS agrees with the president on one side of his positions on this issue.

“H..hhey Greg (Craig), what is this we’re signing here..?”

ted c on November 30, 2009 at 2:58 PM

I bet O’Reilly flogs the ACLU with this tonight. Hope so!

EMD on November 30, 2009 at 2:59 PM

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.

Does this mean that if some photos are “leaked” that anyone who publishes them is criminally liable?

Tommy_G on November 30, 2009 at 3:02 PM

Could the Court say that it is illegal to publish CIA operative photos? I think it’s time for those stupid picture from Abu Garab (sic?) to disappear completely.

Cindy Munford on November 30, 2009 at 3:03 PM

Justice Sonia Sotomayer did not participate in the ruling.

huh? I thought they all always participated, but I’m not real up on the workings of the high court, so pardon my ignorance.

bridgetown on November 30, 2009 at 2:55 PM

Justices can recuse themselves.

myrenovations on November 30, 2009 at 3:05 PM

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.

dear leader is probably saying ‘darn it, i can’t vote present on this one’

cmsinaz on November 30, 2009 at 3:06 PM

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.

Yep, a clear victory alright. Along with the clear loss he self-inflicted when he had to take the opposite position.

So, in this instance +1 for the victory, -1 for the loss by ordering the release (against the will of the American people). He’s essentially still at ZERO.

If the “0″ fits, wear it “0″bama

ted c on November 30, 2009 at 3:06 PM

If the “0″ fits, wear it “0″bama

ted c on November 30, 2009 at 3:06 PM

+1

cmsinaz on November 30, 2009 at 3:07 PM

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.

What has this got to do with McCain/Feingold? They are not even remotely the same.

The truth is McCain/Feingold was about money in politics. I realize that to some people, money=free speech, but I think money has been a corrupting influence myself.

This incident, on the other hand, is about Obama grandstanding and saying he would be more than happy to trash the US military and then changing his mind when it became clear it might come back on him.

I wish they would just destroy these pictures.

Terrye on November 30, 2009 at 3:15 PM

Oh my….how….shall we say…..

….transparent.

The Calibur on November 30, 2009 at 3:15 PM

Yeah, who would want to see photo’s like this?

FontanaConservative on November 30, 2009 at 3:16 PM

I bet O’Reilly flogs the ACLU with this tonight. Hope so!

EMD on November 30, 2009 at 2:59 PM

If so, he better do so in the first half hour-his audience will vanish when 2 of the top 4 NFL teams kick off at 8:30.

Del Dolemonte on November 30, 2009 at 3:18 PM

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

. (emphasis added)

But the photos can be leaked ,right ?

macncheez on November 30, 2009 at 3:19 PM

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.

New definition of leadership: Wait for the SCOTUS to make a decision on some moral/ethical issue before the president decides which way to go on that same issue.

Post-hoc analysis by the POTUS: I was right.

Left unsaid: Except when I was wrong

Take home message: I W0n

ted c on November 30, 2009 at 3:20 PM

FontanaConservative on November 30, 2009 at 3:16 PM

Damn it! Put a warning on that next time. I just finished lunch.

PappaMac on November 30, 2009 at 3:21 PM

That sounds like one huge door slamming in the face of on Mr. Fenstermaker.

fourdeucer on November 30, 2009 at 3:22 PM

Obama=Hitler!!! /

theTarCzar on November 30, 2009 at 3:27 PM

…the court’s reluctance to overturn a rather blatantly unconstitutional law…

I hope they won’t be so reluctant when someone challenges the constitutionality of ObamaCare.

Kafir on November 30, 2009 at 3:28 PM

Sotomayor was a judge on the Second Circuit, which decided the case before it was taken to the SCT.

Attila (Pillage Idiot) on November 30, 2009 at 3:29 PM

Yeah, who would want to see photo’s like this?

FontanaConservative on November 30, 2009 at 3:16 PM

Khaleid Sheik O’Donnell?

Love it +1

alohapundit on November 30, 2009 at 3:33 PM

Khaleid Skank Sheik O’Donnell?

Love it +1

alohapundit on November 30, 2009 at 3:33 PM

thomasaur on November 30, 2009 at 3:39 PM

But the photos can be leaked ,right ?

macncheez on November 30, 2009 at 3:19 PM

Pinch and Bill Keller are working on that as we speak.

Del Dolemonte on November 30, 2009 at 3:42 PM

Well if it passes of the ACLU, then they must be doing something right.

Timber Wolf on November 30, 2009 at 3:49 PM

We SHOULD show pictures of detainee ‘abuse’ … and then show pictures of what these animals do to THEIR detainees. A fat lip contrasted by a headless body … but to the Left, it’s all about moral relativism.

Tony737 on November 30, 2009 at 2:57 PM

Your ignorance could be relieved by a quick visit to the link provided in the post.

The Justice Department’s brief noted that one picture shows “several soldiers posing near standing detainees who are handcuffed to bars with sandbags covering their heads while a soldier holds a broom as if sticking (its) end … into the rectum of a restrained detainee.”

Another photo shows a soldier who appears to be striking an Iraqi detainee with the butt of a rifle. There are at least 21 color photos in question, depicting U.S. soldiers in Iraq and Afghanistan .

It doesn’t matter whether this is better, worse or the same as what Al-Qaeda does. We hold our people to a higher standard, as we should. We are better than they are. Part of being better than they are is holding to account the people who fail to live up to our expectations for ourselves.

orange on November 30, 2009 at 4:03 PM

Don’t worry..they’ll be leaked, and Maobama stays clean again.

Itchee Dryback on November 30, 2009 at 4:03 PM

The onus comes right back to the Oval Office and President Obama

Damn! Barry hates that when it happens. How can he vote PRESENT! when people keep expecting him to do that presidential thing and make a decision?

GarandFan on November 30, 2009 at 5:21 PM

Orange, YOUR ignorance could be relieved by having both of these things done to you and seeing which one is worse.

Tony737 on November 30, 2009 at 5:21 PM

Sotomayor was a judge on the Second Circuit, which decided the case before it was taken to the SCT.

Attila (Pillage Idiot) on November 30, 2009 at 3:29 PM

Was that another of her bad decisions? Is this another one that has been turned around? Just asking…..

maggieo on November 30, 2009 at 5:22 PM

Yeah, so when they are released into the US Public Sector, no one will recognize the them and kill the killer terrorists…. until they kill us and please insanity….

CynicalOptimist on November 30, 2009 at 5:44 PM

Yeah, who would want to see photo’s like this?

FontanaConservative on November 30, 2009 at 3:16 PM

Why are you showing a shot of PlayCamel’s Miss July?

Bubba Redneck on December 1, 2009 at 2:12 AM

We SHOULD show pictures of detainee ‘abuse’ … and then show pictures of what these animals do to THEIR detainees. A fat lip contrasted by a headless body … but to the Left, it’s all about moral relativism.

Tony737 on November 30, 2009 at 2:57 PM

Your ignorance could be relieved by a quick visit to the link provided in the post.

The Justice Department’s brief noted that one picture shows “several soldiers posing near standing detainees who are handcuffed to bars with sandbags covering their heads while a soldier holds a broom as if sticking (its) end … into the rectum of a restrained detainee.”

Another photo shows a soldier who appears to be striking an Iraqi detainee with the butt of a rifle. There are at least 21 color photos in question, depicting U.S. soldiers in Iraq and Afghanistan .

It doesn’t matter whether this is better, worse or the same as what Al-Qaeda does. We hold our people to a higher standard, as we should. We are better than they are. Part of being better than they are is holding to account the people who fail to live up to our expectations for ourselves.

orange on November 30, 2009 at 4:03 PM

And since no detainee actually had a broomstick shoved up their ass, and no detainee was actually hit with a rifle butt, that makes these posed photos damaging, how??????

The fact that these photos were not documentation of actual torture, but merely photos ridiculing detainees, for the guards amusement, but not intended for public display or publication, that makes it torture in what way. That makes our men, who broke the regulations on detainee treatment, immoral or illegal, how? I doubt even the detainees saw themselves humiliated in this fashion.

Your ignorance could be relieved by a visit to this site. This website is definitely not safe for kids, work, or anyone with a queasy stomach. In the future, you should remember that our men were given punishment for these acts by the military justice system. No such punishment was undertaken by the Taliban or the Iraqi insurgents for our Men taken in combat and tortured, mutilated, and beheaded, or our citizens who received the same treatment simply for being American or Christian.

I spit on your opinions and your moral superiority, Jack. You’re the reason disgusting things like this happen to good people. Because you equate photos of troops humiliating and laughing at guys who were trying to kill them a few days earlier, with the no kidding torture, dismemberment, mutilation, beheading, and murder of innocents perpetrated by scum of the Earth.

I fart in your general direction, whiner.

Subsunk

Subsunk on December 1, 2009 at 8:56 AM