Gates bars abuse photos’ release
on Nov 13, 2009 at 11:10 pm
Defense Secretary Robert M. Gates ruled on Friday that 44 photos that reportedly show abuse of detainees by the U.S. military in Iraq and Afghanistan cannot be released publicly. The Obama Administration notified the Supreme Court on Friday evening of this action by the Pentagon leader, and urged the Court to set aside a lower court ruling directing release of those photos. The new brief was filed in Defense Department v. American Civil Liberties Union (09-160).
UPDATE: The Court may not act on the new filing until after the AC LU responds. A statement by the ACLU reacting to the Pentagon decision is here.
The Pentagon had appealed the case to the Supreme Court, to get a ruling on whether the photos at issue are exempt from mandatory disclosure under the federal Freedom of Information Act.   The government was relying on Exemption 7(F) of the Act, which protects law enforcement records that, if released, could be expected “to endanger the life or physical safety of any individual.” The Second Circuit Court, however, ruled that this exemption only applies if a government agency identities at least oen specific individual who would be endangered, and it concluded that the Pentagon had not done so.
While the Pentagon petition was pending at the Court, however, Congress passed an amendment to FOIA, explicitly to overrule the Second Circuit ruling so far as it applied to the 44 military photos, some of which have been made public and some of which have been used in criminal prosecutions within the military. The new law, signed by President Obama on Oct. 28, is written so that it reaches photos taken between the 9/11 attacks in 2001 and last Jan. 22 relating to treatment of individuals captured abroad by the military after 9/11.
The law gives the Pentagon chief the authority to issue a certificate that disclosure would endanger U.S. military service members or U.S. civilian employees serving outside the U.S.  Using that authority on Friday, Gates issued the certificate. (The document is included as Appendix B to the filing linked above.) Submitting it to the Court, Solicitor General Elena Kagan urged the Justices to vacate the Second Circuit ruling, and then take into account the new law and Gates’ action.
