Congress, White House exempt abuse photos from FOIA

From the Fall 2009 issue of The News Media & The Law, page 14.

The U.S. government will not be required to release photos that depict the abuse of prisoners held outside the country now that legislation was passed on Oct. 28 that supersedes two federal court decisions on the matter.

The amendment to the Homeland Security Appropriations Act of 2010 allows the Secretary of Defense to withhold photos related to treatment of detainees, including those that have been the issue in a long court battle between the government and the American Civil Liberties Union, despite a 2005 court order to release the images, which was affirmed by an appellate court in 2008.

“We are disappointed that the president has signed a law giving the Defense Department the authority to hide evidence of its own misconduct, and we hope the defense secretary will not take advantage of that authority by suppressing photos related to the abuse of prisoners,” said Jameel Jaffer, director of the ACLU’s project on national security.

Six years ago in October 2003, Jaffer and his ACLU colleagues first requested the now infamous images, but the government said they were exempt under the Freedom of Information Act. The ACLU sued and won release of most of the images in the U.S. District Court in Manhattan in 2005.

The court rejected arguments that privacy rights of the soldiers and detainees in the images would be violated — agreeing that redactions in the form of black bars over the subjects’ faces would alleviate those concerns — and declined to adopt the argument that any threat to life or safety is enough of a rationale to deny disclosure. In the meantime, many photos were leaked to the media, including CBS and The New Yorker, which published some of the images in the spring of 2004. The actions depicted in the photos led to courts martial, demotions, dishonorable discharges and prison sentences for some of the soldiers involved.

The U.S. Court of Appeals in Manhattan (2nd Cir.) affirmed the lower court’s ruling, primarily focused on the potential harm from releasing the images, and found it “far too speculative” to justify withholding the images. Without identifying “at least one individual with reasonable specificity” who might be endangered, the Second Circuit said exempting records from release under this provision of FOIA — Exemption 7(F) — was simply not justified.

The Obama administration appeared poised to cooperate when it announced that the photos at issue in the lawsuit, as well as additional photos depicting abuse in Iraq and Afghanistan, would be released on May 28, 2009. But shortly before the scheduled release, the White House changed course and asked the Supreme Court to reverse the prior rulings based on conversations with high-ranking military officials who continued to argue that retaliatory action would occur upon release.

Around the same time, U.S. Sens. Lindsey Graham, R-S.C., and Joseph Lieberman, I-Conn., began a push in Congress to stop release of the photos through legislation. Bills twice passed the Senate but faced opposition by House democrats, including Rep. Louise Slaughter, D-N.Y., who has been vocal about her disapproval.

“It’s unfortunate given that this Administration promised that openness and transparency would be the norm,” she said on the House floor. “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. 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.”

The legislation eventually passed both houses and was signed Oct. 28. The Supreme Court is expected to decline hearing the case since the new law would make the arguments moot, said Anne Weismann, counsel for Citizens for Responsibility and Ethics in Washington, a government accountability group.

“We in the FOIA community are very unhappy about the president’s decision to not release the photos and go back on his earlier commitment to do so. And that they were looking to Congress for a ‘bailout’ — as it were — on this is improper,” she said.

However, Weismann added, the legislative fix at least avoided a Supreme Court ruling that might have broadened the scope of a FOIA exemption and kept future records from the public.

“It’s a safer course than if the Supreme Court reversed the decision because it could have resulted in wholesale revisions to how we interpret FOIA,” she said.

The ACLU has asked Defense Secretary Robert Gates to “not invoke your new and discretionary authority to suppress images of abuse,” and instead to release the images regardless of the new law.

The Reporters Committee has been involved with the case since its outset, filing briefs at the district appellate courts and also at the U.S. Supreme Court, urging it not to hear an appeal.