In some legal news today, the Supreme Court in a per curium opinion tossed out a second U.S. Circuit Court of Appeals ruling that had ordered the disclosure of detainee-abuse photographs in a lawsuit brought by the ACLU. The Court told the lower court to consider a federal law under which Secretary of Defense Gates in mid-November exercised his authority to prevent the photos’ release. If you recall, with advice from Eric Holder’s Justice Department, Obama at first didn’t oppose the release of the photos. When critical public opinion and outrage in the military surfaced over the potential to incite violence against our troops, the administration reversed course.
This is noteworthy on a few grounds. First, it demonstrates just how faulty and biased is the “legal” advice coming from the DOJ. Holder’s lefty lawyers first advised that, in effect, the president had no choice but to turn over the photos. Maybe that was the answer the White House wanted, but it was wrong and in fact an easy solution was arrived at. (An executive order would have been an even easier solution.)
Second, decisions are reversible if they prove foolhardy. Just as the photos need not be released, Guantanamo may remain in operation, and the president can put the kabosh on KSM’s civilian trial. The president really is in charge and if he can be persuaded that earlier advice was bad, there is usually a means of correcting any error. And finally, this episode should remind the administration that there is little to be gained and much to be lost by currying favor with the netroot crowd. Unless the administration wants to imperil national security and risk the wrath of the military and the majority of voters, it really won’t be able to keep the ACLU and its ilk happy. So it should stop trying.
UPDATE: Sens. Joe Lieberman and Lindsay Graham who co-sponsored the provision allowing Gates to block the photos issued a statement praising the ruling.