The effort to amend FOIA to selectively immunize Obama's effort to keep torture photos secret sucks, but it may not actually signal the end of democracy or the demise of the Constitution. It's a pernicious ploy, but....

It is worth remembering, perhaps, that until 1966 there was no "Freedom of Information Act" in America, and that even the Freedom of Information Act, as already written, contains some pretty darn broad "exceptions" predicated upon Presidential order (albeit subject to certain judicial review). So if Congress somehow passes a law that broadens an exception to FOIA, that --- in and of itself -- is not necessarily the end of the world. But it does emphasize how important the role of the courts is going to be in trying to rein in the abuses started by the Bush Administration and now being defended by the Obama Administration (what a shock, an Executive seeking to increase the power of the Executive branch unless constrained by the other branches of government!).

The whole issue of secrifying these photos is one of political theater, of course: Obama and his advisors interpret the political and media winds as saying he will suffer adverse publicity (and his agenda will be impaired) should there be increased international attention to US torture practices, and they believe the best way to divert this attention is to appear to "support the troops" in this sound-bite fashion. But since the Bush administration already made all the available arguments and the courts already rejected them, and because all the Obama Administration can say in seeking to continue to secrete the photos is "same arguments, but this time we really mean them, honest", they are trying to come up with a "new and different" argument to make to some court somewhere.

The huge problem I have here is the way Obama is trying to do this. Glenn is right to focus, in part, on the disgraceful effort retroactively to legislate away the applicable legal rules. And this issue is for the courts to decide under our constitional system (particularly where, as here, Congress is such a bunch of pathetic wimps as to cower and throw all power to the Executive where an issue is "hard" and deciding it might expose a congressperson to "criticism"). This particular example of "follow-on" retroactivity legislation, enabled as it has been by the FISA telecom immunity debacle, may actually provide strong evidence of the perniciousness of the concept of retroactive legislation -- just as Attorney General Katzenback warned when Congress unsuccessfully tried to add such retroactive immunity in banking legislation in the sixties; just as was anticipated (and applauded) by Woolsey's op-ed supporting FISA immunity in 2007, where he looked forward to the day when government contractors could be reassured about engaging in illegal actions by saying that if a problem came up "Congress will pass immunity like in 2007".

I actually view this whole "photo thing" as a political football that Obama is trying to keep in the air for as long as possible; every day they can keep the photos out of the press is seen as better than any day with the photos public, and the political calculus tells them they are better off weathering criticism from "the civil rights fringe" than Hannity & Co. over the issue. A morally and legally unacceptable conclusion, but hard to say it's incorrect so long as the MSM continues to treat Cheney's comments as being on par with those of the President.

Noise about the disgraceful abdication of the Rule of Law being countenanced here is appropriate. And in the end, the question will be for the courts to decide. So where is Nearly Justice Sotomayor on the "executive power" questions that the Obama Administration is apparently going to allow to play out too their fullest extent in the Supreme Court?

And now we see poor, tortured Jeffrey Rosen, rocking back and forth on the floor and softly wailing: "Stop me before I blog again".

That parrot's not dead. It's resting.