Since the President's flip flop on the release of the photos his administration had previously agreed to release, pursuant to an order of a Federal court, there has been tremendous debate about what the President said and why as well as what the merits of his arguments for doing so are.  There's really no getting around the fact that this is a flip flop on the President's part.  Nothing has changed from last month when he approved release of the photos.  Not one thing.  Motivation, however, is up for debate and there has been plenty of speculation on that.  There has also been copious debate on the merits of his reasoning for reversing his decision and instead attempting to appeal the case despite already having lost on appeal with the very same arguments in the 2nd circuit.

Be that as it may, there has been much sincere, heated back and forth about whether or not the President's sudden claims for wanting to conceal these photos from public view are "right" or "wrong", "legitimate" or "politically motivated" and the focus has been on that as opposed to what the law requires.  We are, after all, debating how to respond or deal with a court decision here and not a simple political preference.  Once the President changed his position, however, the focus of much of the debate immediately drifted to whether one supports the President or not in many respects and that, I think most would agree, is not where the focus should be.  The release of the photos is intimately bound up in the much larger question that looms over the nation about whether there will be a return to the rule of law, or not, with respect to the now very well known war crimes committed during the Bush years.  The issues of transparency and open government are criticial elements in that larger issue and the President himself said those two issue along with the rule of law would be the "hallmark" of his Presidency. 

There is a titanic struggle taking place right now between those in officialdom who do not want to deal with the crimes of the Bush years, for a variety of self serving reasons, who advocate "moving forward" and vowing to ourselves that we won't repeat those "mistakes" in the future, versus those who believe that the criminal conduct, that we all know took place, is far worse than anything that happened during the Watergate era or since and that the criminal activity conceived and implemented by President Bush and his closest and most powerful advisors was so heinous and barbaric that to fail to investigate those crimes would be a clear violation of our domestic laws and of a number of our treaty obligations.  The latter group believes that if we fail to pursue these crimes according to the law that the very idea of the rule of law in the USA may be irrevocably damaged.  I certainly am among those in the latter group.  The photo release issue is merely a tactical skirmish in this larger battle for the future of the United States.

Despite being "only" a tactical skirmish, the debate over release of the photos is an important one, but it is first and foremost, like the larger context in which it takes place, a debate about the law and what it requires.  In this case we are talking about the Freedom of Information Act and the release, by the government, of public information requested in a lawsuit initiated, and won decisively, by the ACLU. 

The fact that each and every one of the arguments offered by the President for reversing his stand on the photo release and pursuing an appeal has already been rejected twice by the courts gets little attention from those who now, like the President, are focused on the safety of the troops and the supposed negative reaction release of the photos might spark.  Much of the defense of the President's about face is offered as though the reasons had not been previously given to the court and that somehow the question is unsettled or unclear and so needs to be aired.  Well, obviously, in terms of individual, personal opinions the question may not ever be a settled one.  But just as obviously, in terms of the legal status of the arguments involved, all of them offered by the President---every single one---has been settled.  In fact, the legal questions have been so clearly settled that the administration's opinion up until a couple of days ago was that, legally speaking, it was "hopeless" to appeal the decision.  "Hopeless."  That's a pretty unequivocal term and indicates how weak the government arguments have been for suppressing the photos in question.

As mentioned above, the Bush administration previously made all the arguments President Obama now offers and the arguments were unequivocally rejected.  Anyone can read the entire opinion but it is kind of long at 50 pages.  It's online at: http://www.aclu.org/torturefoia/legaldocuments/aOrder092905.pdf .  The opinion, written by District Judge Alvin K. Hellerstein on this matter in 2005 is not ambiguous with respect to the law in the judgment he handed down.  It is the clarity and lack of gray areas in Judge Hellerstein's decision that caused it to be fully sustained on appeal by the Bush government.  It is also why the Obama government until a few days ago concluded appealing the decision was "hopeless."  I would invite everyone to read it and consider the reasoning the judge lays out so cogently.  You don't need to be a lawyer to get through it.  It is very well written and in plain English. 

For those who aren't likely to try and tackle such a lengthy tome, here are some, IMHO, key excerpts from the judges decision relating to the issue at hand, which, let's not forget, is the release (or not) of the photos.  I have eliminated the more complicated legal notations simply to make the text more readable.  I don't think any meaning is lost by doing so.  You can easily find all the detailed notation and citations by going to the pdf I linked to above.  Please forgive any typos as unintentional.

So please, I invite everyone to actually read what the judge said and thus to understand what the appeal the President is going to pursue seeks to overturn. 

I think that many who would otherwise be inclined to side with the Presidents objections to the release might rethink their position when they consider the court's opinion and the issues as a matter of law as opposed to a test of support for the President, for support of the President is simply a political posture.  The questions raised in the lawsuit are not political they are questions of principle generally and legal principle specifically, questions of transparency, open government and the rule of law.  The question this and several other issues before the public raise, is do you support, as a matter of principle, the rule of law, transparency in government and open government? 

I would suppose that few, if any, of those defending the Obama reasoning felt the same way they do now about the issue when the President supported releasing the photos last month (or even three days ago for that matter) and have only discovered their grave concern for troop safety if these photos are released since the President reversed himself on the issue and they now find themselves following his lead.  To those folks I'd say try to roll it back a week when we were all on the same page and see if you don't find Judge Hellerstein, transparency, open government and the rule of law more persuasive than the arguments this and the immediate and loathed past President offer for suppressing the photos.

From Page 40 of the decision:

With the exception of the small number of Darby photographs that I ordered to be withheld, where the risk of exposure is too great and the informational value is minimal, the balancing analysis weighs in favor of disclosure in the present case.  There is a substantial public interest in these pictures, evidence by the active public debate engendered by the versions previously leaked to the press, or otherwise obtained by the media.  See discussion in section (c) of this Opinion, infra.  Moreover, the government concedes that wrongful conduct has occurred.   Defs.' Br., at 70-72.  Plaintiffs assert that they seek release of the Darby photographs to inform the public, and to spark debate about the causes and forces that led to the breakdown of command discipline at Abu Ghraib prison and, possibly, by extension, to other prisons in Iraq, Afghanistan, Guantanamo, and perhaps elsewhere.  These are the very purposes that FOIA is intended to advance.  The photographs are sought to "shed light on an agency's performance of its statutory duties" and to "contribut [e] significantly to public understanding of the operations or activities of the government."  As I remarked at oral argument:

Photographs present a different level of detail and a different medium, and are the best evidence that the public could have as to what occurred at a particular time, better than testimony, which can be self-serving, better than summaries, which can be misleading, and better even than a full description no matter how complete that description might be.

From page 43-44 of the decision:

Plaintiffs and amici curiae, The Reporters Committee for Freedom of the Press and other prominent news organizations, object to my consideration of the government's eleventh-hour argument in reliance on Exemption 7(F).  See proposed Br. Amici Curiae, filed Aug. 3, 2005.  Amici argue that the exemption now pressed by the government could have been presented much earlier, certainly by the date of oral argument in May, and that its invocation at this late date delays the ultimate resolution of the issues.  Amici contend that the government's supplemental argument is not made in "good faith" and should not be considered by the court.

The issue of the physical safety of our troops in Iraq and Afghanistan, and of the citizens of those countries, has been of paramount concern throughout this case, and it is sensible to address the issue squarely under the framework advanced by the government.  The parties agreed to an expedited briefing schedule in order to minimize delays.

The government contends that publication of the Darby photographs pursuant to court order is likely to incite violence against our troops and Iraqi and Afghan personnel and civilians, and that redactions will not avert the danger.  The government argues that the terrorists will use the re-publication of the photographs as a pretext for further acts of terrorism.  See, Second Amended Decl. of Richard B. Myers, Chairman, Joint Chiefs of Staff, dated Aug. 25, 2005.  (stating that the "insurgents will use any means necessary to incite violence and, specifically, will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and recruiting tool to aid their cause," and that "redaction of the photographs and videos will not alleviate or lessen this risk,")  Plaintiffs, on the other hand, provide the declaration of a scholar on the Middle East who states that, in his opinion, "there is nothing peculiar about Muslim culture in Iraq or elsewhere that would make people react to these pictures in a way different from other people's reactions elsewhere in the world."  Decl. of Khaled Fahmy, Prof., New York Univ., dated Aug. 4, 2005.  In addition, Professor Fahmy suggests that there is a large group of Iraqis, and of Muslims generally, who respond favorably when we show the openness of our society and the accountability of our government officials, and that we would suppress those values and that favorable response by preventing publication of the Darby photographs.

Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command.  Indeed, the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed.

From Page 45 of the decision:

The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics. They have driven exploding trucks into groups of children at play and men seeking work; they have attacked doctors, lawyers, teachers, judges and legislators as easily as soldiers.  Their pretexts for carrying out violence are patent hypocrisies, clearly recognized as such except by those who would blur the clarity of their own vision.  With great respect to the concerns expressed by General Myers, my task is not to defer to our worst fears, but to interpret and apply the law, in this case, the Freedom of Information Act, which advances values important to our society, transparency and accountability in government.

From Page 47-50 of the decision:

With regard to Living Rivers, the inundation maps were compiled by the Bureau of Reclamation to "maintain law and order and protect persons and property within Reclamation project and on Reclamation lands" by protecting and alerting threatened communities, again a nexus to law enforcement in that context.  However, there is no such nexus with respect to the Darby photographs.  The Darby photographs are being withheld, not to protect anyone involved in the courts marital investigations and prosecutions, but for another purpose.  The person who took the photographs, or handed them over to commanding officers, do not ask for protection.  Law enforcement officials charged with investigating the circumstances that surrounded the taking of the Darby photographs do not ask for protection, and there is no allegation that release of the photographs will endanger their lives.   And since the identifying characteristics of the detainees are to be redacted, they too are not endangered.  The sole justification for suppressing the photographs is the DOD's concern about speech---generally, how some might exploit the Darby photographs, in propaganda and in terrorist activities, by arguing, though false extension, that the pictures represent the attitudes of all American soldiers, or indeed of all Americans, toward the Iraqi people.

It is not necessary for me to rule if Larouche and Living Rivers are, or are not, appropriate extensions of Exemption 7 (F).  I reject, however, the government's argument that reasoning must stop once a threat to life or safety is discerned.  Balancing and evaluation are essential aspects of the judicial function, no less in considering the exemptions of FOIA than in other areas of the law.  It is clear to me that the core values that Exemption 7 (F) was designed to protect are not implicated by the release of the Darby photographs, but that the core values of FOIA are very much implicated.

The interest at stake arises from pictures of flagrantly improper conduct by American soldiers---forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity.  As I stated at the time of the original argument, and as I reiterated previously in this decision, the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate.  Publication of the photographs is central to the purpose of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, "rogue" soldiers, as they have been characterized, but also about other important questions as well---for example, the command structure that failed to exercise discipline over the troops, and the person in that command structure whose failures in exercising supervision may make them culpable along with the soldier who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to reach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and place of detention; and other related questions.

Suppression of information is the surest way to cause its significance to grow and persist.  Clarity and openness are the best antidotes, either to dispel criticism if not merited, or if merited, to correct such errors as may be found.  The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat.  Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials.  These are the values FOIA was intended to advance, and they are the very heart of the values for which we fight in Afghanistan and Iraq.  There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts.  But the education and debate that such publicity will foster will strengthen our purpose and, by enabling such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.

In its most recent discussion of FOIA, the Supreme Court commented that "FOIA is often explained as a means for citizens to know what 'their Government is up to.'  The sentiment is far from a convenient formalism.  It defines a structural necessity in a real democracy."  As President Bush said, we fight to spread freedom so the freedoms of Americans will be made more secure.  It is in compliance with these principles, enunciated by both the President and the highest court in the land, that I order the government to produce the Darby photographs that I have determined are responsible and appropriately redacted.