The Fight Over Executive Power

House leaders and the President are extremely worried that they will not get their supplemental war funding bill passed through Congress, and are whipping support among Democratic holdouts. There are a lot of moving parts and a lot of strange bedfellows.

First, a non-trivial part of the Progressive Caucus opposes any additional funding for Afghanistan, particularly given the vague, open-ended strategy put forward by the Administration. The current dynamic, where the US makes pretenses toward a counter-insurgency strategy and then steps up bombing campaigns to terrorize and inflame the local populations is anathema to a segment of the caucus.

Then, included in the bill are a tranche of money ($5 billion) for the IMF to use to lend to the developing world, an agreement that the President made at the latest G-20 summit. Almost all Republicans (and a few Democrats) oppose it and will oppose the entire supplemental as a result - because they support the troops.

Lastly and most important, attached to this bill is a truly heinous amendment written by Joe Lieberman and Lindsey Graham - but that's redundant - which would essentially rewrite the Freedom of Information Act and protect past abuses by keeping them secret.

It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit's ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU. Agree or disagree with Obama's decision, at least the basic legal framework of transparency was being respected, since Obama's actions amounted to nothing more than a request that the Supreme Court review whether the mandates of FOIA actually required disclosure in this case. But now -- obviously anticipating that the Government is likely to lose in court again (.pdf) -- Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself.

The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman -- called The Detainee Photographic Records Protection Act of 2009 -- that literally has no purpose other than to allow the government to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." As long as the Defense Secretary certifies -- with no review possible -- that disclosure would "endanger" American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.

Plenty of House Democrats are angered by the inclusion of this highly pernicious amendment. While reports allege that Nouri al-Maliki was the driving force behind preventing the release of the photos, and that he claimed "Baghdad will burn" if they're released - quite at odds with the assertion by the President that the photos show "nothing sensational." But this is clearly a precedent too far, providing the President the sole discretion to suppress information above and beyond federal statutes. Barney Frank and another slice of House progressives will not support this amendment. And if they hold firm against the President, they can succeed.

Rep. Barney Frank, D-Mass. -- who initially opposed the package and is now trying to help Democratic leaders raise support for it -- said he recently told Treasury Secretary Timothy Geithner that liberal Democrats would not likely support the package if it includes the Lieberman amendment.

"I made it clear to the administration that I believe that we can get liberals like myself who are against the war [to] vote for it because the IMF is so important, but not if the [Freedom of Information Act] exception is in it," Frank said.

Rep. Louise Slaughter, D-N.Y., previously supported the supplemental but said she would not vote for the bill if it includes the amendment.

"There is no reason in the world for us to vote to suspend" FOIA, Slaughter said.

Nick Bauman has more, and views this fight as a first step for Congress to end the imperial presidency and the march toward official secrecy.

The photo suppression bill is an abomination that is reminiscent of the worst Bush-era excesses. It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even in you oppose releasing some of the photos, I don't see why you would want to give the White House the power to unilaterally decide what's best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill. Thank God for Barney Frank.

Jane Hamsher has an action item. To be clear, there's an easy way out of this - the President can ask the conference committee to strip the photo-suppression amendment, at which point passage would be fairly secure on a party-line vote.