Glenn,

I think your responses to my letters merely prove those same letters' point.

If one accepts your rationale -- any information that increases anti-American anger can be suppressed -- then there is no more transparency. All information that reflects poorly on the Government can be kept secret.

As I said before, that is not my rationale, and it's certainly not the rationale which the Court said that Government's argument turned on.

So the gist of your argument, if I read it correctly, is that the government lawyers did an inadequate job of stating their case? Or is it that we need a more general "harm" criteria? If Lieberman/Graham were addressing the "harm" issue within the confines of FOIA so that the courts could rule on it for future cases, I'd be more amenable to the bill. But my reading of the bill is that it does an end run around FOIA rather than, as you request, fix the law.

The gist of my argument is that this line of debate by Glenn and others has descended into hyperbole, and ignores both the narrowness of the issue addressed by the Second Circuit and the substantial arguments against that decision. Any analysis of the motives of Obama or members of his administration really need to be viewed in light of the actual legal issue that was presented and decided.

I agree with your take on Lieberman/Graham, and I should always be careful before sympathizing with those two.

I should also point out that I have no idea whether the administration can, in fact, prove that they reasonably expect physical harm to result from the photos' release. The Second Circuit's decision says that they shouldn't be allowed to try. My use of "would" was merely to describe the Government's argument, not to agree that they have proved it.

I love how the core view of Bush defenders during his presidency -- the law can't get in our way! -- is now the battle cry of some Obama defenders.

By your reasoning, then, any information that would reflect poorly on the U.S. Government and increase anger and resentment towards it -- in the Middle East certainly and probably in general -- should be suppressed, as it will endanger some unspecified group of Americans.

Glenn-- I don't think my letter was a "battle cry" (I conceived of it as the opposite-- an appeal to a less emotional discourse on this topic), and I think you misstate both my reasoning and that of the courts in this case.

Exemption 7(F) requires, in addition, that disclosure "could reasonably be expected to endanger the life or physical safety of any individual" (emphasis added).

As I assume you know, neither the District Court nor the Second Circuit ever addressed the issue of the reasonableness of the Government's expectation of physical harm because they found that the failure to identify a specific susceptible person made 7(F) inapplicable. See ACLU, et al. v. DOD, et al. at 6-7 (2d Cir. Sep. 22, 2008).

I have no idea if the administration could make the showing of "reasonably expected" required under 7(F), but they would certainly be required to try if they wanted to withhold the photos under that provision.

A full airing of the recruitment value to Al Qaeda of evidence of torture by U.S. personnel would undoubtedly serve to advance public debate on the high cost of those techniques, but, thanks to these decisions, that evidence will never be reviewed in a court.

I generally like and agree with Glenn, but I think his coverage of this has been a bit overwrought. The fact is that there are numerous (9, specifically) exemptions to FOIA, and they cover a very broad range of topics, from national security secrets (exemption 1) to maps of wells (exemption 9). One exemption is for law enforcement records, which nobody seriously disputes these pictures are.

The whole dispute, based on a reading of the 2nd Circuit decision last September, turns on the interpretation of the law enforcement exemption (7(F)), where disclosure "could reasonably be expected to endanger the life or physical safety of any individual."

The US argued that "any individual" included nonspecific persons who might be harmed due to the use of the photographs for recruitment and incitement of enemies; the ACLU argued (successfully) that exemption 7(F) required the US to identify someone specific whose life or safety would be put at risk.

Since we on the Left have argued that the torture policies of the Bush Administration (as depicted in, among other things, the Abu Ghraib photos) served as an Al Qaeda recruiting tool, we cannot reasonably dismiss the government's predicate here-- that disclosure would cause some nonspecific rise in the risk of US and allied personnel casualties in Iraq and Afghanistan.

If that point must be conceded, then the ACLU's position here essentially amounts to a very technical one: that the law offers protection only when the human being whose life would be endangered can be identified in advance.

That may be true, and the law may be an ass.

So, as much as I am loathe to say it, I think Lieberman, Graham, and the administration have a valid point here, one that is being buried by the hyperbole about the end of liberal democracy and the apotheosis of Lyndon Johnson.

... for someone who can't make friends.