The scenario is akin to “I voted for it before I voted against it.”
I can hear Rahm Emanuel now. “Why take the heat? Make the ACLU and the court take the heat.”
Having it both ways may sometimes, in politics, be the only way to have it your way.
When President Barack Obama said he’d release the “detainee abuse” photos, he was, reportedly, swamped with objections, especially from current and former military leaders.
“What’s motivated my own change of heart on this and perhaps influenced the president is that our commanders … have expressed very serious reservations about this … and that the release of these photographs will cost American lives,” said Secretary of Defense Robert Gates.
So President Obama did what is practical and necessary in politics: he flip flopped, saying his administration would fight in court to keep those photos out of the public domain.
By agreeing with his military leaders, Obama angers, at least temporarily, groups like the American Civil Liberties Union (ACLU) which has worked tirelessly for Obama’s issues and to release the photos.
But the Obama administration is likely to lose their case to keep the photos under wraps in court anyway.
The argument against release of the photos hinges upon this:
Release of the photos may cause harm or risk to U.S. troops in the field.
Obama himself said, “they [the photos] do represent conduct that didn’t conform with the Army manual.”
Which means America’s enemies already have what they wanted: the president himself is on the record saying the U.S. military and CIA commits war crimes.
American enemies will not be swayed either way on this issue: they hate Americans and are vowed to kill them, the court will likely say.
What else do America’s enemies need to become even more angry with The Great Satan?
Add to that, President Obama has said, “The publication of these photos would not add any additional benefits to our understanding of what was carried out in the past by a small number of individuals.”
The president also said, the photos are “not particularly sensational.”
Lukewarm defense of the argument that national security will be harmed if the documents are released.
The Bush administration already argued against the release on national security grounds — and lost. ACLU lawyer Jameel Jaffer said that argument “has been made by the government multiple times, and has been rejected unequivocally every time.”
“Essentially, by withholding these photographs from public view, the Obama administration is making itself complicit in the Bush administration’s torture policies,” said the ACLU’s Amrit Singh.
Is that what the president who has consistently said he is “not Bush” wants? Hardly.
“The release of these photos is absolutely essential for ensuring that justice [is] done, for ensuring that the public [can] hold its government accountable, and for ensuring that torture is not conducted in the future in the name of the American people,” Singh said.
Singh said his organization is prepared to “do whatever it takes” to have the photos released.
Add to that the fact that Obama already made a decision to release Bush-era CIA documents showing the United States used techniques like waterboarding, considered torture by the current administration.
Obama is likely to lose “his case” in court. The court will likely order the release of the photos.
Especially if the court is empathetic.
The ACLU and the court will say keeping the photos secret after the documents were released makes no sense.
A leading scholar on civil litigation rules, Stephen Yeazell of UCLA, said the law is clear that parties to lawsuits, including the government, can’t suddenly raise new arguments not presented to the district court judge who issued the initial ruling.
“It’s a pretty well-established principle that you cannot on appeal raise new arguments that you failed to raise in the court below. You have waived those arguments,” Yeazell said. “If they now want to take a different position and cite a different FOIA exemption it’s too late for that…I just offhand don’t think they have a whole lot of paddles in their canoe at this point.”
Yeazell also said the Justice Department is not entitled to reargue decided court cases just because there was a change of administration. “It doesn’t get a new bite at the apple in any of its cases…. The presumption is the sovereign has a kind of continuous life,” the professor said. “There’s no clause that says because you get a new attorney general you get to go back and start over again.”
Read more: http://www.politico.com/news/stories
Above: Rahm Emanuel on inauguration day. “Never let a good crisis go to waste.”