Sen. Lieberman (I-CT) has submitted an amendment to the Supplemental Appropriations Act of 2009 (S. 2346) which would withhold any “photograph relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States” if the Secretary of Defense certifies that the release of the photos could endanger citizens or the armed forces.   This incredibly broad statement could cover photos of all detainees captured in any future actions taken by the U.S. military.  If passed, these government records which belong to the people would no longer be available under FOIA.

This approach protects the those who created and executed torture policies much more than it protects the public or armed forces.  While uncomfortable and distasteful, we must as a nation face up to what actions we have taken.  Only through honesty and accountability will we recover our international reputation.  Attempting to sweep evidence of abuse under the carpet will not make anyone forget what we did, but such a cover-up effort could leave the door open for similar future actions.

My concerns are as such:

• Sen. Lieberman is trying to violate the separation of powers by going against rulings in multiple federal court decisions.  The Congress should recall that the Second Circuit Court of Appeals ruled last year in ACLU v. DOD that “it is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan.”  Lieberman, in fact, expands the subjects of harm even wider to include all U.S. citizens.
• Lieberman’s amendment fails to define “endanger.”  Would photos of servicemen humiliating and torturing detainees at Abu Ghraib be classified because they legally “endangered” the servicemen?
• The classified certification submitted to the President expires after 5 years but can be renewed indefinitely.  Again, these photos would not be subject to FOIA requests.
• There is no requirement that the Defense Secretary explain how these photos may endanger personnel or provide evidence of forseeable harm in the classified certification.  This is in direct contradiction of President Obama’s statements on open government and the recently released FOIA memos that establish the principles of open government.  This is also contrary to President Obama's May 21 speech in which he stated, "I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why."

We should not sacrifice our right to know to protect against speculative and undefined threats.  By passing this, the Congress would be violating one of the sacred founding ideals of our nation, a commitment to accountability.  In the words of Ben Franklin, “those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety.”