Senate bans photo release, requires notice of FOIA changes

The ACLU’s effort to get photos documenting the treatment of detainees in Iraq and Afghanistan was halted by the Senate on Thursday night, in an amendment to the appropriations bill.

The Senate also agreed to require new laws that exempt information from disclosure under the Freedom of Information Act to specifically reference the FOIA, making them easier for requesters to spot.

The two changes were part of the supplemental appropriations bill, which the House already passed. The House and Senate will now reconcile the two versions of the bill.

The photos amendment, sponsored by Sens. Joseph Lieberman (I.-Conn.) and Lindsey Graham (R.-S.C.), creates a process for the Secretary of Defense to certify to the president that the release of photos and video taken between Sept. 11, 2001, and Jan. 22, 2009, of people captured by U.S. forces outside the United States would endanger lives. In such cases, the release could be prohibited for at least three years.

The process would allow President Obama to stop the release of the photos the American Civil Liberties Union sought with its FOIA suit. A federal district court and the U.S. Court of Appeals in Manhattan (2nd Circuit) had ordered the photos released. The Reporters Committee filed a friend-of-the-court brief in support of the ACLU efforts.

Obama, after initially supporting the release, switched course recently and opposed it; the Justice Department has been considering an appeal to the Supreme Court. The new bill eliminates the need for a trip to the Court by changing the statute that the Second Circuit said required the government to release the photos.

The other amendment passed by the Senate will require all new statutes that prohibit the release of records to clearly reference the Freedom of Information Act.

Sen. Patrick Leahy, (D.-Vt.) had long been a proponent of such legislation. Congress frequently attempts to enact legislation exempting specific records from disclosure under FOIA, but it can be hard to spot the bills or know about them after they are passed. Often they are buried in larger appropriations or budget bills.

The change in language will help make the FOIA amendment process more transparent.