Obama’s No Lose Photo Decision

posted at 9:55 am on May 14, 2009 by Legal Insurrection

Give praise where praise is due. Barack Obama acted wisely in deciding to continue appealing the court-ordered release of detainee abuse photos.

These photos, by the way, have nothing to do with the controversial interrogation program which was the subject of the four legal memoranda recently released, or even the treatment of enemy combatants held at Gitmo. Rather, the photos at issue concern alleged abuse of prisoners by American soldiers in Iraq and Afghanistan. Given that we are fighting in both places still, release of photos holds a special danger.

Like the abuse at Abu Ghraib, abuse of detainees at issue in the photos was not for the purpose of interrogation under guidelines approved by the Department of Justice. Prisoner abuse unfortunately takes place in almost every country in the world, sometimes by guards but frequently by other prisoners.

Much of the fury on the Left, however, confuses prisoner abuse with the DOJ-approved interrogation program, and thereby reaches the wrong conclusion on releasing the photos:

It would be nice, though, if someone took the time to point out once again that the very fears about Arab reaction to these photos, and the consequences for our soldiers in the field — not to mention the radicalizing effect it has, effectively creating future terrorists — are exactly the main reason why torture doesn’t, can’t, and never will keep us safe. And why Cheney and Co. utterly failed to actually keep Americans safe, not just during their tenure, but for the foreseeable future.

The interrogation program and policies can be explored (and exposed if need be) without the release of inflammatory photos unrelated to the program. The only purpose to be served by releasing the photos is to embarrass and endanger U.S. soldiers in Iraq and Afghanistan with no corresponding benefit.

Additionally, we already know what happened on a fairly wide scale at Abu Ghraib; releasing more photos will not deter future conduct since similar future conduct already is deterred, contrary to the justifications being offered:

The real disincentive caused from the release of the photos is that it will hopefully caution U.S. officials from ever engaging in torture again. As the ACLU’s Amrit Singh explained, the photographs are “critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

Obama’s decision, while professional and correct, also was a no lose proposition politically. If as some are arguing, the legal basis to withhold the photos is weak and any further appeal has a low likelihood of success, then Obama will be vindicated regardless of outcome. If the outcome is an unexpected legal or legislative victory, then Obama will have protected our troops from unnecessary danger; if the ultimate legal outcome is the release of the photos, then it will have been over Obama’s objection and he will share no blame for the consequences.

Obama also need not fear the left-wing blogs or interest-groups on this issue. Those who have inextricably cast their lot with Obama are so invested in his success, that they dare not do anything more than gripe and moan in cyberspace. Not one of them has the political fortitude to oppose Obama in Congress or at the polls.

Sometimes doing the right thing for the country also is the right thing politically. Obama seems to have understood that point in this case.

Cross-posted with updates at Legal Insurrection Blog.

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