New York Times (December 5^th, 2009)

Editorial …………….

Photos and Freedom

In a sad but unsurprising denouement this week, the Supreme Court tossed out a federal appellate court ruling that would have required the government to release photographs of soldiers abusing prisoners in Iraq and Afghanistan during the Bush administration.

The vacated ruling by the United States Court of Appeals for the Second Circuit, in New York, was based on sound precedent and principles of government openness and accountability. With help from Congress, President Obama managed to void those principles and poke a large retroactive hole in the Freedom of Information Act.

Mr. Obama had originally supported the release of the photographs. Then, in May, he flip-flopped and decided to resist court orders to make them public. He then threw his weight behind a bill giving Defense Secretary Robert Gates the authority to withhold pictures relating to “the treatment of individuals engaged, captured, or detained after Sept. 11, 2001,” by American troops.

The law was passed in October. Mr. Gates exercised the power in November. And the justices cited the law in sending the case back to the appellate court, which must now rethink its ruling.

As a practical matter, this phase of the legal fight is all but over. But it is worth toting up the considerable cost to democracy wrought by Mr. Obama’s insistence on suppressing evidence of wrongdoing.

The photos are of direct relevance to the ongoing national debate about accountability for the Bush-era abuses. No doubt their release would help drive home the cruelty of stress positions, mock executions, hooding, and other “enhanced interrogation” techniques used against detainees and make it harder for officials to assert that the improper conduct was aberrational rather than the predictable result of policies set at high levels.

We share concerns about inflaming hostility to American soldiers. But disclosure is the best way to demonstrate that this nation has truly broken from the Bush administration’s shameful policies. Letting officials decide not to release evidence of those policies is a dangerous step. Under the new law’s perverse logic, the more outrageous the government’s conduct, the greater the protection from disclosure.

Allowing the executive branch to hide an important category of information without any real review also ignores the core purpose of the Freedom of Information Act. For a president who rose to the White House on promises of transparency and reasonable limits on executive power, this is not a legal victory to be proud of.