President Obama defended his decision to fight the release of photos showing detainee abuse Wednesday afternoon, saying it would only put American troops in harms way and create a backlash against Americans.
"The most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger," the president said before departing on his trip to Arizona. "Moreover, I fear the publication of these photos may only have a chilling effect on future investigations of detainee abuse."
The move is a complete 180. In a letter from the Justice Department to a federal judge on April 23, the Obama administration announced that the Pentagon would turn over 44 photographs showing detainee abuse of prisoners in Afghanistan and Iraq during the Bush administration.
But in a letter sent this afternoon to the District Court Judge in the case, Alvin Hellerstein of the US District Court in the Southern District of New York, acting US Attorney Lev Dassin, writes that while his previous April 23 letter informed the court that the Obama administration had decided not to seek certiorari of the Second Circuit Court’s ruling to force the release of the photographs, his office had "been informed today that, upon further reflection at the highest levels of Government, the Government has decided to pursue further options regarding that decision, including but not limited to the option of seeking certiorari."
The deadline for that decision is June 9.
The photographs are part of a 2003 Freedom of Information Act request by the ACLU for all information relating to the treatment of detainees — the same battle that led to President Obama’s decision to release memos from the Bush Justice Department’s Office of Legal Counsel providing legal justifications for brutal interrogation methods, many of which the International Committee of the Red Cross calls torture.
The president today attempted to undermine the need to release the photos, saying that the pictures and individuals responsible for prisoner abuse were investigated well before he took office.
"I want to emphasize that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib," Mr. Obama said. "It’s therefore my belief that 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."
Secretary of Defense Robert Gates said earlier today he was convinced against the administration’s earlier decision to release the photos by commanders on the ground, who said the move would likely cause anti-American sentiment. Gates cited ousted Gen. David McKiernan, top allied commander in Afghanistan, and Gen. Ray Odierno, top allied commander in Iraq, but Central Command’s Gen. David Petraeus is also said to have weighed in.
Odierno, sources said, was the most passionate against releasing the pictures.
"Perhaps what’s motivated my own change of heart on this and perhaps influenced the president, is that our commanders, both Gen. McKiernan and Gen. Odierno, have expressed very serious reservations about this and their very very great worry that release of the photographs will cost American lives. That was all it took for me," Gates said at a House Armed Services Committee hearing.
Last Friday, President Obama met with White House counsel Greg Craig and other members of the White House counsel team in the Oval Office and told them that he had second thoughts about the decision to hand over photographs of detainee abuse to the ACLU.
They discussed possible counterarguments that they believed the Bush legal team hadn’t tried — namely, the argument that releasing the photographs constitute a national security risk.
AWhite House official said that the president "believes that the national security implications of such a release have not been fully presented to the court."
At the end of that meeting, the president directed Craig to object to the immediate release of the photos on those grounds. In an Oval Office meeting with Odierno Tuesday, the president told him of his decision to argue against the release of the photographs.
"The reversal is another indication of a continuance of the Bush administration policies under the Obama administration," ACLU attorney Amrit Singh told ABC News. "President Obama’s promise of accountability is meaningless, this is inconsistent with his promise of transparency, it violates the government’s commitment to the court. People need to examine these abusive photographs, but also the government officials need to be held accountable."
It’s unclear what step the White House will now take, whether the administration will challenge the release in appellate court with new arguments or whether it will take the case to the Supreme Court.
The bottom line, a source close to the President tells ABC News, is that he thinks these photographs — released at a very critical time in both Iraq and Afghanistan — would hand the terrorists an opportunity to inflame sentiment against the U.S.
"That’s something that weighed very heavily on him," the source said.
The idea that the photos should not be released because they would be a risk for US troops is hardly a new argument.
The Bush administration had argued that an exemption from the Freedom of Information Act was needed with these photographs because of the FOIA exemption for law enforcement records that could reasonably be expected to endanger “any individual." The release of the disputed photographs, the Bush administration argued, will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.
But the Second Circuit Court found that the exemption was not intended "as an all-purpose damper on global controversy."
The Obama argument, however, would be made not under law enforcement grounds, but on national security grounds — a different legal avenue. Whether the courts will respond differently given the fact that it’s a new administration making the argument is also a consideration.
"Through his actions from the first days of his administration, the president has made it clear that the United States will hold itself and all the men and women who serve our country to the highest standards of conduct," a White House official says. "The president would be the last to excuse the actions depicted in these photos… But the president strongly believes that the release of these photos, particularly at this time, would only serve the purpose of inflaming the theaters of war, jeopardizing U.S. forces, and making our job more difficult in places like Iraq and Afghanistan."
Yesterday White House press secretary Robert Gibbs was asked about a letter from Sens. Joe Lieberman, D-Ind., and Lindsey Graham, R-SC, asking him to reverse the decision, saying the "release of these old photographs of past behavior that has now been clearly prohibited can serve no public good, but will empower al-Qaeda propaganda operations, hurt our country’s image, and endanger our men and women in uniform."
Gibbs said "obviously, the president has, has great concern about any impact that pictures of detainee — potential detainee abuse in the past could have on the present-day service members that are protecting our freedom either in Iraq, Afghanistan, or throughout the world. That’s something the president is very cognizant of. And we are working to — we are working currently to figure out what the process is moving forward."
– — Jake Tapper with Huma Khan, Luis Martinez, Ariane deVogue, and Vija Udenans