Margulies on “Moving the Goalposts”

Administration critics “moved the goal posts” in responding to the Obama administration’s successful efforts to prevent disclosure of photos of detainee abuse.  The ACLU, whose chief FOIA litigator, Jameel Jaffer, is profiled in Jack’s new book, Power and Constraint, had sought disclosure of the photos as further evidence of the mistreatment of detainees revealed in the Abu Ghraib scandal.  The ACLU’s legal argument was that the executive branch had relied on a sweeping interpretation of a FOIA exemption where Congress had intended a far narrower reading. On the legal issue, the ACLU had a point.  The administration’s legal argument was shaky: it relied on FOIA’s “law enforcement” exception, which exempted materials that “could reasonably be expected to endanger the life or physical safety of any individual.”  Read in context, the exception applied only to witnesses, informants, and the families of law enforcement personnel, who did not appear at risk if the photos were released.  The Second Circuit agreed with the ACLU.  See ACLU v. Dep’t of Defense, 543 F.3d 59, 77-83 (2d Cir. 2008), vacated on other grounds, 2009 U.S. Lexis 8714 (U.S., Nov. 30, 2009). Despite its then shaky legal position, the administration had a legitimate concern with the safety of United States personnel stationed abroad.  Violence triggered by publication of Danish cartoons of the Prophet Mohammed and rumors of Koran desecration at Guantanamo suggested that the risk of harm to U.S. personnel was real.  The more recent violence triggered by U.S. forces’ burning of Korans in Afghanistan validates the administration’s concern. Rather than stick with a losing legal argument and risk harm to U.S. personnel if the photos were disclosed, the Obama administration asked Congress for help.  Congress agreed that the administration’s concern was legitimate, and enacted the “Protected National Security Documents Act of 2009,” which allowed the Secretary of Defense to decline to disclose photos regarding detention upon a certification that release of the photos would endanger U.S. citizens, personnel, or employees.  The statute contained safeguards providing that a certification would expire would expire after three years unless renewed, and that the Secretary had to provide notice to Congress of both certifications and renewals.  In other words, the new statute was a fine example of cooperation between the executive branch and Congress – something that critics of the Bush administration had complained was frequently lacking during that administration’s tenure. Critics of the Obama administration promptly moved the goal posts.  Instead of commending the administration for seeking Congress’s help, the ACLU and others seemed perturbed that the administration had not doubled down on its losing legal argument.  Perhaps the ACLU was really distressed because its winning legal argument had turned into a loser, as the Supreme Court vacated the Second Circuit’s ruling in light of the new law.  But the ACLU’s moving of the goal posts went beyond the typical lament of a losing litigant. In criticizing the Obama administration for shielding the photos, the ACLU and others gave the administration little or no credit for the significant disclosure it had already made.  For example, the administration had disclosed a memo drafted by John Yoo in 2002 for the Justice Department’s Office of Legal Counsel (OLC) that detailed specific “enhanced interrogation techniques,” including waterboarding.  Some experienced observers assert that the Obama administration disclosed too much.  One would hope that champions of transparency like the ACLU would applaud the administration’s candor, which I believe was necessary to turn the page from earlier interrogation abuses.  However, here, too, administration critics moved the goal posts, submerging any praise for the administration in perseveration about government secrecy. Of course, government secrecy is a perennial issue, and the ACLU (to which I belong) is valuable as a counterweight.  But moving the goal posts does little to persuade the government to address this issue meaningfully.  Instead, it only reaffirms that attempts at transparency are a lose-lose proposition, triggering criticism from conservatives, while gaining precious little praise from progressives.  That sends the wrong signals to government officials who must make difficult calls daily about the trade-offs between candor and security.