High court throws out order to release torture photos

Miranda Fleschert | Freedom of Information | Feature | November 30, 2009

The U.S. Supreme Court on Monday vacated and remanded a federal appeals court ruling that ordered the the release of photos depicting abuse of detainees in U.S. custody.

The high court ordered the appeals court to reconsider the case in light of a provision of the homeland security appropriations act signed into law by President Obama last month that specifically exempts the torture photos from disclosure.

The decision is a significant setback for the American Civil Liberties Union, which waged a years-long battle over the release of specific images from Iraq and Afghanistan. Pentagon officials have already taken formal steps to prevent the photos' disclosure.

The Obama administration’s appeal to the Supreme Court, coupled with its efforts to push the recent FOIA amendment through Congress, represent the government’s two-pronged attempt to reverse the appeals court ruling and withhold the photos from the public, claiming their release would stir anti-American sentiment and endanger troops overseas.

That position marks a turnabout from President Obama’s initial plan to cooperate with the appeals court ruling when he announced a May 28, 2009 deadline to release all images related to the requests.

The ACLU urged the Supreme Court last week not to vacate the appeals court order because it provides valuable precedent regarding the interpretation of FOIA Exemption 7(F), which allows information to be withheld when disclosure would endanger someone.

“We continue to believe 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," said Jameel Jaffer, Director of the ACLU National Security Project in a release Monday.

The ACLU said it plans to continue its fight to release the photos when the U.S. Court of Appeals in New York (2nd Cir.) holds further proceedings in the case.

"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 in a release. "No democracy has ever been made stronger by suppressing evidence of its own misconduct."