WASHINGTON — In an about-face, President Barack Obama is seeking to withhold photos of past abuse of prisoners in U.S. custody in Iraq and Afghanistan, arguing that their release could endanger soldiers abroad and threaten national security — an assertion that his lawyers failed to make in court only weeks ago.
Obama's shift, announced Wednesday, drew swift condemnation from the American Civil Liberties Union, whose 2004 Freedom of Information Act lawsuit against the Bush administration's Department of Defense led a federal court in New York to order the photos released. A federal appeals court upheld the decision in September, and refused to rehear the case on March 11.
The Obama administration had agreed earlier to release at least 44 photos by May 28. The administration now has until June 9 either to reargue the case before the 2nd U.S. Circuit Court of Appeals in New York or petition the U.S. Supreme Court.
Obama made a brief statement on his decision late Wednesday afternoon. He said he'd concluded that the photos wouldn't add useful knowledge about detainee abuse but would "further inflame anti-American opinion and . . . put our troops in greater danger."
He emphasized that the Pentagon has investigated the incidents and applied sanctions where appropriate. He also stressed that he's made it clear that abuse of detainees is prohibited and "will not be tolerated."
White House Press Secretary Robert Gibbs said that "as commander in chief" Obama was obliged to ask his legal team to make a new argument for withholding the pictures for the sake of national security.
"The argument that the president has asked his legal team to make is not an argument that the previous legal team made in that case," Gibbs said.
The shift comes amid a fierce debate over U.S. detainee policy.
Obama has called for closing the detainee prison at Guantanamo Bay, Cuba, and is under pressure to endorse a full-blown public accounting of Bush-era interrogation techniques widely denounced as torture.
Former Vice President Dick Cheney, meanwhile, has been leading a defense of the Bush administration's practices and accusing Obama of undermining the nation's security by shutting Guantanamo and releasing Bush-era legal memos on interrogation techniques.
The issue comes at a crucial juncture for U.S. policy toward the Muslim world, with the Obama administration pulling U.S. troops out of Iraq in order to boost U.S. forces who are fighting the Taliban in Afghanistan, confronting the growing al Qaida-backed Islamic insurgency in nuclear-armed Pakistan, struggling to revive moribund Israeli-Palestinian peace negotiations and working to forge an international front against Iran's nuclear program.
The request for what's effectively a legal do-over is an unlikely step for a president who is trained as a constitutional lawyer, advocated greater government transparency and ran for election as a critic of his predecessor’s secretive approach toward the handling of terrorism detainees.
Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, said he thought that Obama faced an uphill legal battle. "They should not be able to go back time and again and concoct new rationales" for withholding what have been deemed public records, he said.
The timing of the president's decision suggests that a key factor behind his switch of position could have been a desire to prevent the release of the photos before a speech that he's to give June 4 in Egypt aimed at convincing the world's Muslims that the United States isn't at war with them. The pictures' release shortly before the speech could have negated its goal and proved highly embarrassing. Even if courts ultimately reject Obama's new position, the time needed for their consideration could delay the photos' release until long after the speech.
ACLU Executive Director Anthony D. Romero accused the Obama administration of adopting "the stonewalling tactics and opaque policies of the Bush administration." He said that "when these photos do see the light of day, the outrage will focus not only on the commission of torture by the Bush administration but on the Obama administration's complicity in covering them up."
Military Families United, an advocacy organization, released a statement praising Obama's decision: "The president today chose to put the safety of our troops before the demands of an activist agenda. These photographs serve no purpose other than to embolden the enemy with propaganda to use in their recruitment of future jihadists, hinder our mission in Iraq and Afghanistan and risk the lives of our troops."
Several lawmakers, mostly Republicans, who've objected to more public airing of details of harsh detainee interrogations, applauded the president. They said that no good would come from releasing the photos and worried that they'd further inflame anti-U.S. anger among Muslims.
Democrats in Congress were curiously silent. Neither House Speaker Nancy Pelosi of California nor Senate Judiciary Committee Chairman Patrick Leahy of Vermont, two of the most outspoken advocates of further investigation into allegations of detainee abuses, issued initial reactions.
The administration's shift also renewed speculation about the nature and severity of the abuse and cultural insensitivity revealed in the photos.
Sen. Lindsey Graham, R-S.C., a military lawyer and reservist who's served in Iraq and Afghanistan and supports Obama's new stance, said he'd seen some unreleased photos and that they involved nudity, but he declined to elaborate.
A U.S. official who's knowledgeable about the photographs told McClatchy that at least two of them depicted nudity; one involved a man suggestively holding a broomstick; one showed a detainee with bruises but offered no context for the condition; and another involved hooded detainees with weapons pointed at their heads.
"It’s inappropriate, not so much abusive," the official said in describing the picture of the hooded detainees. He spoke on the condition of anonymity because he wasn't authorized to speak to the news media.
In his statement, Obama, too, said the photos were "not particularly sensational."
U.S. officials said the photographs were included as evidence in cases brought against American service personnel that had been closed.
Jameel Jaffer, the director of the ACLU's National Security Project, said the release of the photos was important because they'd "provide further evidence that abuse (of detainees) was systematic" and extended beyond Abu Ghraib. Photos of U.S. troops abusing Iraqi prisoners at Abu Ghraib caused an outcry in 2006.
Gibbs denied that Obama was acting under pressure to change his position from military officials. However, lawmakers knew of concerns from Defense Secretary Robert Gates; Gen. Ray Odierno, the head of U.S. forces in Iraq; outgoing Afghanistan commander Gen. David McKiernan; and Gen. David Petraeus, the chief of U.S. Central Command.
"The timing could not be worse in terms of stirring things up," said a senior U.S. military official, who also asked not to be identified because he wasn't authorized to speak to the media. "You're in a very exposed position when you're building up, and even more so when you're withdrawing forces, and the last thing you want to do is poke the hornet's nest, which is what this (releasing the pictures) would do."
The senior military official said he hadn't seen the pictures. However, he added, "even if they're just more of the same,” like the already released Abu Ghraib photos, "that's not what we need."
The controversy could come into play in confirmation hearings for Lt. Gen. Stanley McChrystal, whom Obama tapped to replace McKiernan in Afghanistan. McChrystal led the Joint Special Operations Command in 2003 and 2004, when military interrogators were using extreme methods on suspected al Qaida detainees.
(William Douglas, David Lightman, James Rosen, Marisa Taylor and Steven Thomma contributed to this report.)
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