By Karen J. Greenberg
Saturday, May 16, 2009
When President Obama announced this week that he would renege on his promise to release a set of detainee abuse photos at the end of this month, he said three factors drove his decision: that "these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals," that they would "further inflame anti-American opinion" and that they would "put our troops in greater danger." But those may not have been the real rationales. By appealing the court order authorizing the photos' release and thereby delaying publication of viscerally powerful evidence of detainee abuse, Obama may be attempting to reduce political pressure to investigate Bush administration officials who crafted arguably illegal policies on interrogation and detention. In choosing this tack, Obama makes clear how deeply potential prosecution is affecting every decision he faces about detention, interrogation and torture.
Coming on the heels of the newly released Justice Department memos on interrogation and a Senate Armed Services Committee report, these photos, allegedly numbering in the thousands, are expected to demonstrate that detainee abuse wasn't merely a case of a few bad apples but a systematic policy for which no policymakers have been held accountable. Shockingly, Obama said that guilt for these crimes has already been addressed. In his words, the Pentagon has "gone through the appropriate and regular processes" to investigate these abuses. Moreover, "the individuals who were involved have been identified, and appropriate actions have been taken" against this "small number of individuals."
There are reportedly hundreds of American troops involved in the activities shown in these pictures, not just a few. Yet the architects of abusive treatment of detainees in American custody -- at the top levels of government -- have avoided public acknowledgment of their creation of a policy that, despite secret memos crafted to provide a patina of legality, violated U.S. law, not to mention the integrity of the American people. However many Lynndie Englands have been tried or penalized for crimes of abuse, mistreatment and torture, no one at the upper levels has been punished, reprimanded or even officially accused of the wrongdoing that is at the heart of creating a torture policy.
Now, there is nothing wrong with recommending exemptions for lower-level individuals involved in torture and abuse. There may also be nothing wrong with an eventual decision not to prosecute high-ranking public officials. But there is something wrong with using a politically opportunistic reluctance to prosecute as a reason to avoid a fact-finding commission -- avoiding, in other words, a public airing of the truth.
The facts need to come out. Keeping the public in the dark about government illegality is corrosively antidemocratic. We may not need the photographs to understand what was done in the people's name, but we do need to know who did what, when and to what effect. We need to know how many prisoners died in U.S. custody because of abuse, how many were harmed and who approved that abuse at the highest levels of government.
If President Obama wants to withhold the photographs, he needs to do so not on the grounds that all culpability has been addressed but because, in exchange for withholding the pictures, he promises a full investigation of what happened, when and at whose hands.
The president must also demonstrate to the U.S. military that he will not offer its members up as fodder for a principle. He can do this by pledging to release the photographs after the United States has essentially pulled out of the war zones. While we're engaged in battle, it arguably would be irresponsible to give Iraqis and Afghans reasons to support those who are attempting to kill our troops every day. This was a concern around the release of the first abuse photos five years ago and remains a serious matter. Even for retired Maj. Gen. Antonio M. Taguba, who wrote the first military report on detainee abuse at Abu Ghraib, the prospect of retaliation makes release of the pictures wrong. In an interview with me this week, Taguba cited the April 2004 beheading of American Nicholas Berg, whose executioners claimed that they acted in response to the "satanic degradation" of prisoners in Iraq.
It is one thing to wait to release the photographs in a way that satisfies the U.S. military, which has sacrificed so much in the fight against terrorism. But it is another thing to commingle the call to protect our troops with the politically shrewd reluctance to investigate out of fear that prosecutions might follow. If Obama does nothing else as president, he needs to stand up for the integrity of factual truth and clear thinking rather than the convenience of government-led obfuscation. Not releasing the pictures to reduce public pressure for an investigation of Bush administration officials should not be confused with genuinely protecting the safety of our troops. If it is, Obama cedes the one power he was elected to exercise: the power of leadership in the name of candor, lawfulness and clarity rather than deceit, secrecy and spin.
Karen J. Greenberg, executive director of the Center on Law and Security at the New York University School of Law, is the author of "The Least Worst Place: Guantanamo's First 100 Days" and co-editor of "The Torture Papers: The Road to Abu Ghraib."