On Honoring the First Amendment
President Obama is in something of a pickle. Federal courts have ordered that 21 photos of American soldiers abusing prisoners in Iraq and Afghanistan must be released to the public. The Obama Administration has asked the Supreme Court to step in to prevent the release of these photos, but Congress has an even surer way of keeping them away from the public’s scornful gaze. Congress is considering a new law that would give the Secretary of Defense the sole and exclusive right to determine whether these photographs will ever be released to the American people. And it gets worse: Mr. Obama supports this insane and unconstitutional measure.
Let’s address, with measured haste, the obvious: Obama has taken a hypocritical position on the release of these photographs. He campaigned under the much lauded and little understood banner of “change,” a vague yet noble set of aspirations that is clearly at odds with the stance he has taken on releasing these records of human abuse. “But has our President changed his mind for a good reason?,” you earnestly ask. Well, Obama has apparently accepted the Pentagon’s view that releasing these photos would put American troops in unnecessary danger and serve as an effective recruiting tool for Muslim extremists.
So there it is, the Obama Administration’s view in a nutshell: We can’t talk have a long, hard look at these photos because that would mean “unnecessary danger” for our beloved troops.
Really? Is anyone fooled by this cynical subterfuge, this attempt to whitewash unconstitutional acts of torture by appealing to an otherwise legitimate and healthy concern for the welfare of the American military? Even if it were true – and I do not for a minute believe it is – that releasing these photos would cause new and distinct harms to befall our troops abroad, allowing the public to view, consider, and comment on these photos would still be necessary to protect and sustain the culture of free speech that our Constitution mandates. (And just what would these new and distinct harms be? Are we really willing to accept the notion that terrorists will devise new methods of taking American lives if and when these ghastly photos are made public?)
The United States is a constitutional democracy, a country that operates under the rule of law set out in the Constitution in general and in the First Amendment in particular. Mr. Obama is well acquainted with the principle of free speech, and as a former professor of constitutional law he no doubt appreciates that the First Amendment ensures that Americans may speak their minds about virtually anything. Since the debate about the treatment of suspected terrorists in U.S. custody is far from over, and given that these photos are of critical importance to understanding just how far off the rails some American soldiers went in the wake of September 11th, it is highly unusual that Mr. Obama would support a law that explicitly sanctions this desperate and irresponsible species of censorship. And that is why Jameel Jaffer, National Security Project Director for the ACLU, does not go far enough when he condemns the proposed statute:
“Congress should not give the government the authority to hide evidence of its own misconduct, and if it does grant that authority, the Secretary of Defense should not invoke it.”
Neither Congress nor the Secretary of Defense is empowered to make or enforce a law that is itself contrary to the Constitution. And so, any law purporting to grant the Secretary of Defense the authority to violate the First Amendment would be no law at all.
Let us be clear about what the Obama Administration is doing. It is manipulating a legitimate fear – the fear that more American lives will be snuffed out by terrorists – to pass a censorship statute breaching the spirit and letter of our Constitution. To be sure, no one wants to provide extremists with further reason to hate America or its central values. But make no mistake, there is little that America could now do to lower itself in the eyes of its enemies in the extremist Muslim world, little that would further embolden these folks to seek the blood and lives of our young servicemen. They are already committed to inflicting mass carnage, at whatever cost and by whatever means. Their resolute commitment is pre-rational, immune to reason and reflection, and so it is nonsensical to think that it could be somehow exacerbated at this point in history by additional evidence of American misconduct. In their eyes, the United States went too far long, long ago.
And so, while certain to embarrass the United States, the release of photos capturing detainee abuse is necessary so that we may, as a community of free and equal citizens, reflect on how we sunk this low in the first place. Releasing these photos would have the further benefit of showing the world that we practice, in an evenhanded and fair way, the politics of criticism and rebuke that we so eagerly deploy against other members of the world community when they commit grave misdeeds. This is something that Mr. Obama, a man with a powerful mind and an army of astute advisers, already knows. It’s high time he stopped pretending otherwise.
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