It’s inexcusable, Obama’s flip-flop on the DOD abuse photos.

Not (just) because I think he’s wrong on the law and he’ll probably not get Cert with SCOTUS, making this a big pose.

Rather, it’s inexcusable because Obama issued new guidelines on FOIA that he now abandons:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

Granted, a bunch of Generals and Colonels would undoubtedly be embarrassed by the disclosure of abuse that happened on their watch (above all–as Nell suggests–Stanley McChrystal, newly tapped to take over in Afghanistan). Granted, some of those Generals and Colonels (the aforementioned McChrystal) would probably lose their next promotion if these pictures became public. Granted, pundits speculate, abstractly, that the release of another round of torture pictures will inflame the already volatile Iraq and Afghanistan.

But those are all invald excuses, according to President Obama’s own FOIA guidelines. If you’re going to set a rule, follow it yourself.

Now, as I said, I think Obama will lose this fight and I think he may well know and be planning on losing it. But I have a suggestion, in the meantime, that would prove Obama was concerned about the troops and not just playing politics with his own FOIA rules. The military dismisses concerns that this is just a big attempt to protect the powerful who commanded units that engaged in systematic abuse. The military says they’ve been working really hard to punish people for this abuse.

But Pentagon officials reject ACLU allegations that the photos show a systemic pattern of abuse by the military.

Pentagon spokesman Bryan Whitman said the Defense Department has "always been serious about investigating credible allegations of abuse."

"The policy of the Department of Defense is to treat all prisoners humanely, and those who have violated that policy have been investigated and disciplined," he added.

More than 400 people, Whitman said, have been disciplined based on investigations involving alleged detainee abuse. The discipline ranged from prison sentences to demotions and letters of reprimand.

Fine. We can’t have the pictures (until SCOTUS denies Cert)? Let’s have a detailed accounting of what the military has done to hold the abusers accountable. How were those 400 people punished? You can spare the names–but where are they now? And more importantly, who were their commanding officers?

You want to protect our troops–that I support–while sustaining these new FOIA laws? Make sure no one is hiding and protecting their own self-interest by hiding behind the troops. A list of punishments–if appropriately serious–and commanding officers will not expose any of our service men and women. More importantly, if the military has prosecuted abuse like it says, it’ll prove to those in Iraq and Afghanistan we’re serious about stamping out abuse. And if we haven’t (call me crazy, but I’ve got a hunch)? Then it’ll provide a way to move forward and prevent a bunch of cowards from hiding behind the troops for their own failure of leadership.



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.