The American Propsect's Adam Serwer notes that, yesterday, Sen. Joe Lieberman successfully inserted into the Homeland Security appropriations bill an amendment -- supported by the Obama White House -- to provide an exemption from the Freedom of Information Act's mandates by authorizing the Defense Secretary to suppress long-concealed photographs of detainee abuse. Two courts had ruled -- unanimously -- that the American people have the right to see these photographs under FOIA, a 40-year-old law championed by the Democrats in the LBJ era and long considered a crowning jewel in their legislative achievements. But this Lieberman amendment, which is now likely to pass, undermines all of that and -- as EBay founder Pierre Omidyar put it today -- its central purpose is to "legalize suppression" of evidence of American war crimes.
What made those detainee photographs so important from the start is that they depict brutal abuse well outside of the Abu Ghraib facility and thus reveal to Americans -- and the world -- that America's torture was not, as they've been constantly told, limited to rogue sadists at Abu Ghraib and the waterboarding of three bad guys. Instead, our torture regime was systematic, pervasive, brutal, fatal, and -- becuase it was the by-product of conscious policies set at the highest levels of government -- common across America's "War on Terror" detention regime. These photographs would have documented those vital facts; combated the false denials from torture apologists; fueled the momentum for accountability; and revealed, in graphic and unavoidable terms, what was truly done by America's government. But a Democratic-led Congress, at the urging of a Democratic President, are now taking extraordinary steps -- including an act of Congress which has no purpose other than to suppress evidence of America's war crimes -- to ensure that this evidence never sees the light of day.
If a historian were to write about the events of the first nine months of 2009 when it came to transparency issues as they relate to the war crimes of the Bush years, the following is would be written. Just remember this was all done with an overwhelming Democratic majority in both houses of Congress and a Democratic President elected on a promise to usher in "an unprecedented level of openness in Government" and "a new era of openness in our country." There's no blaming Republicans for any of this:
In February, the Obama DOJ went to court to block victims of rendition and torture from having a day in court, adopting in full the Bush argument that whatever was done to the victims is a "state secret" and national security would be harmed if the case proceeded. The following week, the Obama DOJ invoked the same "secrecy" argument to insist that victims of illegal warrantless eavesdropping must be barred from a day in court, and when the Obama administration lost that argument, they engaged in a serious of extraordinary manuevers to avoid complying with the court's order that the case proceed, to the point where the GOP-appointed federal judge threatened the Government with sanctions for noncompliance. Two weeks later, "the Obama administration, siding with former President George W. Bush, [tried] to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails."
In April, the Obama DOJ, in order to demand dismissal of a lawsuit brought against Bush officials for illegal spying on Americans, not only invoked the Bush/Cheney "state secrets" theory, but also invented a brand new "sovereign immunity" claim to insist Bush officials are immune from consequences for illegal domestic spying. The same month -- in the case brought by torture victims -- an appeals court ruled against the Obama DOJ on its "secrecy" claims, yet the administration vowed to keep appealing to prevent any judicial review of the interrogation program. In responses to these abuses, a handful of Democratic legislators re-introduced Bush-era legislation to restrict the President from asserting "state secrets" claims to dismiss lawsuits, but it stalled in Congress all year. At the end of April and then again in August, the administration did respond to a FOIA lawsuit seeking the release of torture documents by releasing some of those documents, emphasizing that they had no choice in light of clear legal requirements.
In May, after the British High Court ruled that a torture victim had the right to obtain evidence in the possession of British intelligence agencies documeting the CIA's abuse of him, the Obama administration threatened that it would cut off intelligence-sharing with Britain if the court revealed those facts, causing the court to conceal them. Also in May, Obama announced he had changed his mind and would fight-- rather than comply with -- two separate, unanimous court orders compelling the disclosure of Bush-era torture photos, and weeks later, vowed he would do anything (including issue an Executive Order or support a new FISA exemption) to prevent disclosure of those photos even if he lost again, this time in the Supreme Court. In June, the administration "objected to the release of certain Bush-era documents that detail the videotaped interrogations of CIA detainees at secret prisons, arguing to a federal judge that doing so would endanger national security." In August, Obama Attorney General Eric Holder announced that while some rogue torturers may be subject to prosecution, any Bush officials who relied on Bush DOJ torture memos will "be protected from legal jeopardy." And all year long, the Obama DOJ fought (unsuccessfully) to keep encaged at Guantanamo a man whom Bush officials had tortured while knowing he was innocent.
That's the record which a historian, wedded as faithfully as possible to a narration of indisputable facts, would be compelled to write. And those are just disclosure and transparency issues. None of that has nothing to do with ongoing assertion of detention powers, habeas corpus denials, renditions, the Democrats' active efforts just this week to prevent abuses of the Patriot Act and FISA, etc. (for those with Twitter, just read Marcy Wheeler's infuriating account from the last two hours of how key Democrats in the Senate -- led by Dianne Feinstein and Pat Leahy -- just gutted virtually every effort to rein in Patriot Act and FISA abuses that were sponsored by Feingold, Durbin and even Arlen Specter: ZAZI!!!). And now this war on transparency is all culminating with a White House-backed effort -- spearheaded by key ally Joe Lieberman -- to sweep aside two federal court rulings and to write a new exemption for FOIA that has no purpose but to prevent the world from seeing new and critical evidence of systematic American war crimes. If the stated goal of Democrats had been to use their newfound control of Government to protect and suppress Bush-era war crimes, how could they have done any better?
Copyright ©2009 Salon Media Group, Inc.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
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