The dispute over releasing photographs depicting torture and related abuse has come back to dog the Obama administration at what could arguably be considered the worst possible time, the week before his trip to the Middle East, including a major address in Cairo next Thursday.
The political and moral capital he justifiably banked on January 22 with his executive order barring torture as a means of eliciting information in future interrogations has been reduced by the photo affair. How much it has been reduced is, of course, arguable. But that is beside the point since the blow-up that had the Pentagon and Presidential Press Secretary Robert Gibbs berating the British press could probably have been avoided altogether if the photos sought by the American Civil Liberties Union had been released a month ago.
Be that as it may, for those who want justice done in the case of torture - that being defined as penalizing the people who carried out torture but, more importantly, who ordered torture - the photo discussion is an unfortunate distraction. As Patriot Daily News Clearinghouse explained in her excellent Wednesday diary, Cheney's Crumbling Torture Defense, and Jon Soltz hinted at today, the chief target of any prosecutions is edging closer to the precipice, and the focus needs to be on him and those who assisted him.
However, because the Obama administration chose not to release the photographs to the ACLU, and because people's understanding of which photographs are at issue has become unclear as a result of erroneous reporting by the Daily Telegraph (as well as unspecific recent statements by administration officials) clearing up the matter of the photos must be done. That distraction has reached the highest levels, blown up in public, gotten the Pentagon to respond angrily, and Gibbs to non-respond with a scattergun blast. So, now, there is no choice but to clarify misunderstandings in this situation so that it doesn't gobble up any more energy and we can return to the real task at hand. That is, bringing to account those who ordered torture and justified it with the most tendentious "legal" reasoning.
Sixteen days ago, when President Barack Obama reversed the administration's previous decision to release 44 torture-related photographs to the ACLU, many critics at Daily Kos and across wwwLand argued that this was a terrible mistake.
By all accounts, the 44 photos show evidence of torture and abuse of terror suspects at secret prisons. This could make them important in any case against those who have engaged directly in torture and against those who have ordered torture. This included officials as high as former Secretary of Defense Donald Rumsfeld and former Vice President Cheney.
Not only, we critics argued, was it important to release the photographs because of the evidence they might contain, but also because they would eventually come to light anyway. Better, our argument went, to be transparent now, admit that the abuses shown had taken place at the secret prisons during the Cheney-Bush administration, decry it, and say once again that today is a new day. And for Barack Obama to repeat what he has said to deserved applause on several occasions: America will not torture on my watch.
The 44 photos had been ordered released by a federal district court judge in a 2006 ruling that favored the ACLU. The case had reached the courts because the ACLU's Freedom of Information Act request for their release had been denied by the Cheney-Bush administration. In late 2008, the Second Circuit court upheld the lower court's ruling that the photos must be released.
On April 24, Gibbs said the administration had no problem releasing the photographs. Then General David Petraeus said that hundreds of photos, as many as 2000, might just as well be released, too, because dribbling them out a few at a time was worse. But on May 13, the President backed off, saying, among other things:
"The publication of 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. In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in danger."
All hell broke lose, with progressives angrily splitting over the issue.
Within two days, the Daily Mail and Daily Telegraph were inaccurately claiming (as I pointed out today in Clarity on Torture Photos a No-Brainer) that an Australian television channel, SBS, had shown never-before-seen photos on May 15. They hadn't. The photos shown were the same as the channel had shown in February 2006.
Then came the Telegraph's latest story, in which it claimed, with the apparent backing of General Antonio Taguba, that the photos being withheld by the Obama administration included instances of rape, including the rape of a teen-aged boy.
But, as a statement released by General Taguba tonight said:
The paper quoted Taguba as saying, "These pictures show torture, abuse, rape and every indecency."
But Taguba says he wasn't talking about the 44 photographs that are the subject of an ongoing ACLU lawsuit that Obama is fighting.
"The photographs in that lawsuit, I have not seen," Taguba told Salon Friday night. The actual quote in the Telegraph was accurate, Taguba said -- but he was referring to the hundreds of images he reviewed as an investigator of the abuse at Abu Ghraib prison in Iraq -- not the photos of abuse that Obama is seeking to suppress.
Those 44 photos, as far as we know, are not from Abu Ghraib, because that is not what the ACLU sought. Rather they are from other prisons, secret prisons, where torture and abuse is alleged.
In other words, as I and others have written, the 44 photos are probably a subset of the 2000 - although this is not certain. And those 44 don't show rape. If the administration had been clear yesterday and had said the "44 photos requested by the ACLU," the angry energy drain of the past few days could have been avoided.
On the other hand, it seems more than likely that the whole collection of 2000 photos do contain depictions of rape. And since the Telegraph and General Taguba and Seymour Hersh all have said there are such photos, why did the administration not temper its remarks yesterday by acknowledging that other photos that are not included in those the court ordered to be released do show rape and other horrific abuse?
Surely, if such photos had been included in a release of 2000, there is every reason to believe that many in the Muslim world would have become inflamed again. But the administration had the perfect pre-emptive strike available in this regard. Obama could have said upon their release:
"Yes, these terrible abuses occurred. We deplore them. We are ashamed that Americans committed these acts. We want those who ordered them, condoned them and/or implemented them to be called to account for what they did, and in cases where it is warranted, punished to the full extent of the law. Let me repeat, America does not torture anymore."
But he didn't. What might have been a plus for the White House has become, again arguably, a minus on the eve of his trip to the Middle East. The administration's effort to keep people from being inflamed has exploded in its face, just as some of us said would happen because photos of torture that everybody knew were out there are now slowly being shown in public just as we suspected they would be. Have America's military personnel been made safer by this reluctance to release the photos? It is hard to see how.
But, as noted at the beginning of my comments, the real issue is not the photographs of torture, it is what to do about the torturers. Not just the ones shown in those photographs who we have been told already have been dealt with (although that is unverified), but those who gave the orders, Dick Cheney, Donald Rumsfeld, George Bush. Those who truly believe in the rule of law should press harder than ever for investigations into and prosecutions of those who ordered torture no matter how high those investigations and prosecutions take us.