-Uh, Mr. President…Transparency and change?
WASHINGTON – President Barack Obama will try to block the court-ordered release of hundreds of photos showing U.S. troops allegedly abusing prisoners, reversing his position after military commanders warned the graphic images could stoke anti-American sentiment and endanger soldiers.
The pictures are said to show mistreatment of detainees at locations in Iraq and Afghanistan.
(Press Secretary Robert) Gibbs emphasized that the president continues to believe that the actions depicted in the photos should not be excused and supports the investigations, prison sentences, discharges and other punitive measures that have resulted from them.
He said the new decision does not contradict Obama’s promises of transparency, since details about investigations into the abuse are available on the Pentagon’s Web site. “The notion that somehow you don’t know about these investigations because you haven’t seen the photos doesn’t make any sense,” he said.
However, the ACLU quickly lambasted Obama’s move. “The decision to not release the photographs makes a mockery of President Obama’s promise of transparency and accountability,” said ACLU attorney Amrit Singh, who had argued and won the case before the 2nd U.S. Circuit Court of Appeals in New York. “It is essential that these photographs be released so that the public can examine for itself the full scale and scope of prisoner abuse that was conducted in its name.”
Needless to say, it was not a good day to be an Obama supporter. Cenk Yugur was on “The Young Turks” calling it a terrible mistake. Jonathan Turley was on Maddow last night calling Obama’s reasoning “Orwellian” and accusing Obama of pulling the biggest bait and switch in history.
I spent several minutes yesterday trying to figure out if it was phyically possible to eat Ice Cream while in a fetal position.
But this morning, NcrissieB over at Daily Kos, posted a diary that makes a compelling case that Obama’s doing this on purpose to prevent this sort of thing happening again.
Negotiated settlements moot most disputes.
In terms of President Obama’s decisions in Al Haramain back in January, and the ACLU case yesterday, the Mootness Doctrine is important because negotiated settlements will almost always render a case moot. The legal dispute is already resolved in fact – by the settlement – thus a court opinion has no practical significance. Were President Obama to drop the Bush-era defenses, the federal courts could not rule on those defenses.
And that’s important if we want to curb a “unitary executive.”
For example, while progressives applauded President Obama’s executive orders ending Bush-era interrogation tactics, many also correctly warned that these were merely executive orders. Future presidents could reverse those orders, just as President Obama had reversed many Bush-era orders. Those progressives argued – wisely – that we don’t want Bush-era tactics to be subject to executive discretion. Indeed, President Bush’s claims of wide-ranging executive discretion were and remain one of our principal criticisms.
The same objection would apply were President Obama to waive Bush-era legal defenses on appeal. Were he to comply with the court order and release the photos requested by the ACLU, those photos would come out. But the Bush-era claim that such photos could be withheld on national security grounds would not be resolved. By waiving that claim, President Obama would render the issue moot, and we could (and should!) hear the same warnings we heard after the January executive orders: “This can’t be a matter for executive discretion.”
The gist, if I’m reading this correctly is that Obama’s pushing these court cases on purpose because he knows he’ll lose them thus setting precedences that would prevent future Presidents from pulling this kind of crap.
Now, if this is true…well played, Mr President.
However, given that aside from one small claims case many years ago and the odd episode of “Ally McBeal“, I have practically nil knowledge of the law, so I can’t tell if this is correct or just so much denial. Which is why when this thing gets reposted on my Facebook page, I’m going to tag my buddy Brian Padgett who is getting ready to take his Bar exam if he hasn’t already and see if he can use his newly acquired law talking magicks to suss this out.
The big problem with this strategy is that while Obama plays the Long Con, his base is starting wonder when he’s going to pull out his whacking stick and start making like Joe Don Baker. Hell, even the aforementioned Professor Turley is giving him grief on this and he should have the legal expertise to see what Obama is up too. (Unless, of course, he’s in on it and just going along to fool the rubes in the audience.)
To be honest, there may be such a thing as being too subtle.
More as this develops.