Supreme Court Vacates and Remands Detainee Photo Case after Congressional Action

On November 30, the Supreme Court of the United States vacated a 2nd Circuit U.S. Court of Appeals judgment ordering the release of 44 government-held photographs depicting detainee mistreatment at the hands of U.S. troops, remanding the case back to the appeals court for reconsideration under new legislation intended to prohibit publication of the photos. The high court's decision made it unlikely the photos will be released in the foreseeable future.

On November 30, the Supreme Court of the United States vacated a 2nd Circuit U.S. Court of Appeals judgment ordering the release of 44 government-held photographs depicting detainee mistreatment at the hands of U.S. troops, remanding the case back to the appeals court for reconsideration under new legislation intended to prohibit publication of the photos. The high court's decision made it unlikely the photos will be released in the foreseeable future.

The first time the 2nd Circuit heard the case, in ACLU v. Department of Defense, 543 F.3d 59 (2d Cir. 2008), it upheld a 2005 federal district court decision ordering the release of the detainee photos under the Freedom of Information Act (FOIA), 5 U.S.C. section 552. (See "Detainee Abuse Photos Ordered Released" in the Fall 2008 Silha Bulletin.)

Although President Barack Obama initially said the photos would be made public in compliance with the 2nd Circuit's decision, he later changed his mind, stating in a May 21 speech that releasing the photos would "inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush." The Obama administration appealed the case to the Supreme Court, and filed a motion to allow the government to keep the photos secret during the appeal. The 2nd Circuit granted the government's motion over the objection of the ACLU in June 2009. (See "Obama and Courts Seek Balance between National Security and Transparency in Terrorism Cases" in the Summer 2009 Silha Bulletin.)

While the case was being appealed to the Supreme Court, Congress passed the Protected National Security Documents Act of 2009, Pub. L. No. 111-83, section 565. The act, which was attached to the Department of Homeland Security Appropriations Act of 2010, allows the administration to exempt from the FOIA any photograph "taken during the period beginning on September 11, 2001, through January 22, 2009 ... if the Secretary of Defense determines that disclosure of thatphotograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States." President Obama signed the act into law on Oct. 28, 2009.

The Senate voted 79-19 to approve the final version of the bill, and the House approved it by a 307-114 vote, although there was some vocal dissent to the FOIA-exemption amendment. "It's unfortunate given that this Administration promised that openness and transparency would be the norm. We should never do anything to circumvent FOIA and I believe that our country would gain more by coming to terms with the past than we would by covering it up," said Rep. Louise Slaughter (D-N.Y.) on the floor of the House on October 15. "I hope that the President will follow judicial rulings and consider voluntarily releasing these photos so we can put this chapter in history behind us."

In an October 15 post on the Secrecy News blog, Steve Aftergood also criticized the Congressional action. "From an open government point of view, it is dismaying that Congress would intervene to alter the outcome of an ongoing Freedom of Information Act proceeding. The move demonstrates a lack of confidence in the Act, and in the ability of the courts to correctly interpret its provisions," Aftergood wrote. "The legislation elevates a speculative danger to forces who are already in battle above demands for public accountability concerning controversial government policies, while offering no alternative avenue to meet such demands."

An October 20 letter to Secretary of Defense Robert Gates from the ACLU, written the same day Congress passed the Protected National Security Documents Act, urged him not to use his power under the law to exempt the photos from the FOIA after Obama signed the bill into law. "The prior administration's decision to endorse torture undermined the United States' moral authority and compromised its security. The failure of the country's current leadership to fully confront the abuses of the prior administration - a failure embodied by the suppression legislation at issue now - will only compound these harms," the letter stated. "For these reasons, you should not invoke your new and discretionary authority to suppress images of abuse."

Nevertheless, on November 13, Gates issued a certification under the new law prohibiting the release of the images in the ACLU's lawsuit, stating that "public disclosure of these photographs would endanger citizens of the United States."

The Department of Defense filed a supplemental brief with the Supreme Court on the same day Gates issued his certification, asking the high court to remand the case to the 2nd Circuit so the appellate panel could examine whether the photos should be released under the new federal law. The ACLU filed a responsive brief on November 17, arguing that the Supreme Court should leave "undisturbed the unanimous and well-reasoned decision of the appeals court."

The Supreme Court's ruling did not end the suit, which was initiated by the ACLU in 2004, but legal experts say that the group will have a difficult time winning in the 2nd Circuit under the newly enacted law. "It is hard to imagine that the ACLU will now be able to prevail back in the lower courts, in light of the Supreme Court's ruling. The Protected National Security Documents Act of 2009 was adopted specifically to change the result in this case," wrote Michael Dorf, a Cornell University Law School professor, in a December 2 column on the legal Web site Findlaw. "Technically, [the Court's] ruling leaves open the possibility that the photos will eventually be ordered to be released. However, careful parsing of the Court's order and the documents to which it refers shows that there is little chance that the photos will ever see the light of day."

Despite the setback, the ACLU said in a November 30 press release that it would continue the fight to get the photos released. "We continue to believe that the photos should be released, and we intend to press that case in the lower court," said Steven R. Shapiro, Legal Director of the ACLU. "No democracy has ever been made stronger by suppressing evidence of its own misconduct."

Jameel Jaffer, Director of the ACLU National Security Project, said in the November 30 release that the photos could "show connections between government policy and the abuse that took place in the detention centers" and "would both discourage abuse in the future and underscore the need for a comprehensive investigation of past abuses." Jaffer also said there was "strong public interest" in the photos and that "permitting the government to suppress information about government misconduct on the grounds that someone, somewhere in the world, might react badly - or even violently - sets a very dangerous precedent."

- Jacob Parsley
Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on January 4, 2010 4:58 PM.

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